“The mother accepts bruising is caused by force damaging blood vessels/capillaries but does not accept that the appearance of bruising means that force was applied to that particular area. While T was in hospital she was seen to have bruising under her eye. The mother was informed by one of the paediatricians that the skin on T’s face was thin and the bruise had ‘travelled’.” • Partially Accepted by F in the Response to the Amended Threshold: “The second respondent accepts that this is the typical formulation of bruising however does not accept that T’s bruises were caused by force particularly as it was suggested whilst in hospital that a bruise on T’s face had travelled.”
“It is accepted that this is what is reported by the experts in this case however it is not accepted by the second respondent that that is how T sustained her bruising.”
“I do many elective caesarean sections lists every week” and “I cannot remember any thing regarding this case.”
“Reason for contact – initial primary visit in community following from hospital. Face to face contact. Mother and T were in the bedroom and invited myself and a colleague (support worker) upstairs. No postnatal concerns were expressed about or from Mother. She did discuss feeling overwhelmed in hospital but was happier now at home and that she had good family support. T was settled in the crib next to the bed, was undressed by my colleague no marks or bruises to skin noted. Her behaviour was normal; she was feeding well and there were no parental concerns. Both parents interacted appropriately and asked appropriate questions regarding T’s welfare. The visit was unremarkable.”
“Seen for day 5 assessment of mum and baby at a surgery. Mother was accompanied by her partner. This was a face-to-face appointment. I checked mum as per routine postnatal check and no worries or concerns were noted as per my documentation. I took the day 5 heel prick test as per guidelines and did a full check of baby stripped off to weigh baby. No marks or bruising was noted as per my documentation. No worries or concerns were expressed by mum.”
“25. On day 18 post birth I don’t recall visiting anyone or anyone visiting the home. 26. On day 19 post birth I don’t recall visiting anyone or anyone visiting the home. 27. On day 20 post birth I don’t recall visiting anyone or anyone visiting the home. 28. On day 21 post birth I went to get my nails done. T remained in the care of the Second Respondent. I believe my trip to get my nails done was approximately 80 minutes from start to finish. I don’t recall anything else of note happening that day. 29. On day 22 post birth I don’t recall visiting anyone or anyone visiting the home. 30. On day 23 post birth my neighbour P visited however she did not have unsupervised care of T at any time. 31. On day 24 post birth I don’t recall visiting anyone or anyone visiting the home. 32. On day 25 post birth I don’t recall visiting anyone or anyone visiting the home. 33. On day 26 post birth I don’t recall visiting anyone or anyone visiting the home. 34. On day 27 post birth I don’t recall visiting anyone or anyone visiting the home. 35. On day 28 post birth Second Respondent and I took T with my mum, a sibling, my two young relatives to a Zoo. No one had care of T save for the Second Respondent and me. 36. On day 29 post birth I noticed that she was fussy with her bottle there was a little sore on her top inner lip which looked like a blood blister. This was a Sunday, so I resolved to take T to the GP on Monday morning. 37. On day 30 post birth I took T to the GP and spoke to the GP about her top lip and her bruising. The doctor discussed thrush and prescribed antibiotics for her. The doctor did not seem concerned about the bruising to T’s cheek and I was advised to give it a few weeks and bring her back if the issue persisted. On returning home I noted our next-door neighbours were having some work done and this caused some damage to our bedroom wall. I left T with my neighbour, P briefly while I went to speak to our other neighbour. The workmen were smoking cannabis on the roof and were hostile and unhelpful. I called the police, and they attended approximately 2 hours later. By then the workmen were no longer smoking cannabis and the police stated that there was no smell and nothing they could do. My neighbour P had T for approximately 5 minutes. When the Second Respondent came home P advised me to have a bath and advised that the Second Respondent take T for a walk which he did. I believe this was for about 40 minutes. T was fast asleep when they returned. 38. On day 31 I rang the GP as there appeared to be a new bruise which looked like a line on top of the existing bruise. Though I had been advised to wait a few weeks the day before I was not happy with this bruise and called the GP again. I was advised that there were no appointments left. I explained I was concerned about the bruising and asked if they knew of anywhere else I could take T. I was asked to send pictures in which I did. I exhibit these photos marked “M2”
“Mother called me once about T crying and I thought it might be colic.”
“Mother booked in her first on going pregnancy. She had routine antenatal care and was investigated for APS. She had an elective caesarean section at 38+1 week for maternal request and persistent headache. The caesarean section was documented to be straightforward, although there is a discrepancy in the operative delivery notes and the post-natal notes. The post-natal account documents that forceps were applied to T’s head to aid delivery. In my opinion the documented bruising would be consistent with the application of forceps. I am unable to formulate a mechanism of injury that would account for the injuries sustained by T and documented 31 days after birth. Therefore, in my opinion and I believe this would be supported by reasonable body of obstetric opinion, the injuries sustained by T were not caused during the birth process.”
“Above is a description of the caesarean section. This documents an uneventful entry and that T was delivered cephalic in good condition. There is no entry to suggest that the delivery required the use of obstetric forceps, although it is not uncommon that they are utilised at an elective caesarean section for a floating head and this will be discussed below.”
“The APGAR scores are recorded to be 9 at 1 minute. There is an entry to suggest that at the time of the caesarean section one blade of the forceps was applied to aid delivery of T’s head. Apgar scores: These are a method of determining the condition of the baby at birth. The score is based on the systematic assessment of five criteria: heart rate, respiration, reflex irritability, muscle tone and skin colour. Each of these signs is rated as 0, 1 or 2 at 1 minute of age. However, the Apgar scoring system was devised as an objective indicator of the condition of the neonate at birth and is not a marker of asphyxia/hypoxia. As such, although they are still used widely, they have been superseded by the umbilical cord gas analysis when indicated as this is more robust and objective assessment of neonatal health at birth. This confirms that T was born in good condition.”
“Please comment upon any matters of significance contained within the medical records of the child and birth records. In my opinion and I believe that this would be supported by a reasonable body of obstetricians, there is nothing with the maternity records that would explain or predispose T to the injuries that she sustained 31 days after delivery. Please comment on the mother’s assertion that this was a traumatic birth, in your consideration is there anything within the records which reveals this was an unusually traumatic birth. The perception of trauma refers to how individuals experience, interpret and respond to potentially traumatic events. Perception plays a critical role in determining whether an event becomes psychologically traumatic for a person. In my opinion and I believe that this would be supported by a reasonable body of obstetric opinion, the delivery as described does not appear challenging to facilitate and did not require complex traction manoeuvres to T’s lower limbs. Although the delivery records do not document that obstetric forceps were applied to aid delivery of T’s head. There is a note that confirms that potentially one blade was applied to T’s head and this would be consistent with the marks that were evident after the delivery (mother’s pictures). This technique is used during a caesarean section where assistance is needed to safely deliver the fetal head without causing trauma to the baby or the uterus. A single blade – usually the left blade of a standard obstetric forceps (Wrigley’s forceps) is gently introduced between the fetal head and the wall of the uterus. The blade is positioned to cradle and guide the fetal head upward through the birth canal or incision. The non-dominant hand is then used to elevate or flex the fetal head abdominally through the uterine incision. The forceps blade acts as a lever, reducing pressure on the skull and aiding controlled delivery. In my opinion this was an unusual delivery in view of the fact that a single forceps blade was utilised to deliver the fetal head. Due to the lack of documentation there is the possibility that there was a full forceps delivery of T’s head (using both blades) and in my opinion this would be more in keeping with an elective caesarean section when the mother is not in labour. However, this discrepancy in the delivery would not, in my opinion and I believe would be supported by a reasonable body of obstetricians, account for the injuries sustained by T as there is no documentation of needing to achieve delivery by forces being applied to T’s legs. Is there anything within the birthing records which points to causation of fractures in the birth which could account for injuries identified at 4 weeks post birth. In my opinion there is nothing within the obstetric medical records that would suggest that the fractures occurred at delivery.”
“Each fracture is the result of significant force applied to the bone. The amount of force required to cause these fractures is unknown, but in my opinion, it is significant, excessive and greater than that used in the normal care and handling of a child. These fractures would not have occurred from normal domestic handling, over-exuberant play or rough inexperienced parenting. At the time that the fractures occurred, T was less than 2 months of age and she would not have had the strength or level of development to self-inflict these injuries. At the time the fractures occurred, I would expect that T would have been in pain and shown signs of distress which would have lasted for some moments. Following this initial distress, the signs and symptoms related to these fractures could have been variable and I would defer to the paediatricians in all aspects of clinical presentation ... … In my opinion, the distal left femoral and proximal left tibial fractures could have occurred from a single episode of trauma applied around the left knee. Overall, from a radiological perspective, the fractures have occurred from at least 3 separate applications of force.”
“44. Metaphseal fractures in infants are very often associated with non accidental injury – they can be relatively silent and cause pain when first acquired but then this can settle fairly quickly so that a non witnessing carer might not realise that the child has fractures. The child might just be a bit fractious, not their usual selves, have discomfort on being handled but not show overt signs of fracture. 45. The injury typically occurs when the child might be picked up and held by the lower leg and swung round – hence providing a pulling force and a torsion force or twist. Considerable force is required for this injury and it would not be likely to occur if say an adult was picking up a child which accidentally slipped from their grasp so that they grabbed for the leg to catch the child. The weight of the child alone would be insufficient to cause this type of injury which usually also involves a degree of swinging the baby and thus increasing the gravitational force. 46. Metaphyseal fractures of the ankle can possibly occur when the baby gripped around the chest and the lower part of the body shaken - the flailing about of the lower leg on the upper can be responsible. If the shaking had been of sufficient force to injure the legs other concomitant injuries occur for example cranial injury encephalopathy and cranial bleeds which fortunately were not seen in T’s case – she had a negative CT Scan, Nevertheless we do see grip marks on T’s chest. 47. T is a healthy little girl who has no underlying condition which would predispose her to fractures. She is a non-ambulant infant who has sustained multiple injury – not only extensive bruising but also four or possibly five fractures. 48. She has no propensity to fracturing or bruising, standard blood tests have been normal and her xrays showed normal bone density and no signs of any metabolic disorder. Of course this does not entirely rule out a bleeding disorder – for the bruising – but this is very unlikely and a bleeding disorder would not show up with the sort of bruising seen which is a pattern of non accidental injury. The family history is of increased propensity to clotting – not bleeding – fractures would not relate to a bleeding disorder – so for all these reasons further testing is contraindicated. 49. T has metaphyseal fractures only – these are very rare in birth injuries and are also not a feature of Osteogenesis imperfecta. T also has no other signs of OI or any bone disorder. Genetic testing is therefore not clinically indicated. 50. It is possible that all the fractures occurred during one event whereby she was grasped by the chest and her legs were swung about but it is more likely that more than one incident occurred to produce the numerous fractures. 51. We can see from the diagram above that the left knee fractures are close together and could have been produced at the same time by a twisting pulling action at the knee but the other fractures are likely to have required separate applications of force – so probably three or possibly four events (if number 5 is indeed a fracture).”
“In conclusion, on balance of probabilities, T at the tender age of just four weeks, has been subject to repeated acts of physical abuse at the hands of an adult who has caused significant widespread bruising and four or possibly five metaphyseal fractures.”
“Be cute without the fuck off bruise xxxx.”
“Can’t even walk shop to get a redbull today because T just screams and the pet throws everything everywhere.”
“Trust it all to happen when ‘Father’ goes back to work. It’s the first time I’ve sat here today and just thought ‘why did we do this’ Thank you for being so understanding, I feel awful I keep changing when. But Sunday 100%.”
“She’s an absolute angel, it’s just seems this shitty colic is really upsetting her! I love this baby stage, the little scrunch and smile, but definitely don’t love this stage. I don’t know how you managed 3!”
“… I am majorly sleep deprived”
“It makes me feel guilty because I just sometimes think life was so easy before.”
“Didn’t get sleep, feel fucking shit.”
“ideally I want to get my ovaries tied!” and “Just trying to settle T, been crying since 4. Tried everything, bottle, nappy, moses, crib, sleepyhead holding her blanket, no blanket, swaddle and absolutely nothing is working. Don’t know what’s the matter xx.”
“Tired girl, bless her ours is crying none stop for 2 days now xxxx”
“If I ever wanted to scream, today is the day” and “Literally just crying xxxx”
“Please remind me why I became a mum”
“No idea what was up with her. She’s been like it for two days. No idea. Dunno if she’s had some sort of belly ache or I don’t really know. She kept doing this like weird cough and it would like wake her up. She would go to sleep for five minutes, do this like weird little coughy thing and then start squealing, so we don’t know if, I dunno, it just seemed to be hurting her whenever she did this little cough thing. But she’s alright again now so g’god knows.”
“The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.” viii) The evidence of the parents and carers is of utmost importance and it is essential that the court forms a clear assessment of their credibility and reliability. The court is likely to place considerable reliability and weight on the evidence and impression it forms of them. In this regard, it is important to bear in mind the observations of Peter Jackson J in Lancashire County Council v M and F[2014] EWHC 3 (Fam) that: “To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story-creep” may occur without any necessary inference of bad faith.” ix) It is also important when considering its decision as to the findings sought that the Court take into account the presence or absence of any risk factors and any protective factors which are apparent on the evidence (see Re BR[2015] EWFC 41 ). These, however, cannot be determinative by themselves. x) It is in the public interest that those who cause injury to children be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence)[2005] 1 FLR 285 ). The court should accordingly endeavour to identify on the simple balance of probabilities the person or persons responsible for inflicting the injuries in question where it is possible to do so. xi) The Court should not, however, ‘strain’ the evidence before it in order to identify on the simple balance of probabilities the individual or individuals who inflicted the injuries. If it is clear that it is not possible on the evidence before the court for the court to conclude on the balance of probabilities who the perpetrator of the injuries is, or perpetrators of the injuries are and the court remains genuinely uncertain, then the court should reach that conclusion (Re D (Care Proceedings: Preliminary Hearing)[2009] 2 FLR 668 ). xii) Where it is not possible to identify which parent inflicted injuries found to be non-accidental, it is open to the court to conclude in respect of each parent that the local authority has demonstrated that there is a likelihood or real possibility that they inflicted the injuries and to proceed to the welfare stage on the basis that one or other or both parents caused the injuries in question (see Lancashire County Council v B[2000] UKHL 16 , O and N (Minors); Re B (Minors)[2003] UKHL 18 and Re B (Children: Uncertain Perpetrator)[2019] EWCA Civ 575 B. IDENTIFYING A PERPETRATOR Re B (Children: Uncertain Perpetrator)[2019] EWCA Civ 575 Jackson LJ: “The concept of the pool of perpetrators should, therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2). Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did it. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to ‘exclusion from the pool’. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof. To guard against that risk, I would suggest that a change of language may be helpful. The Court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain to do so … only if it cannot identify the perpetrator to the civil standard should it go on to ask in respect of those on the list: ‘Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?’ Only if there is, should A or B or C be placed into the ‘pool.’”
“I suggest … that in future cases judges should no longer address themselves on the necessity of avoiding ‘straining to identify a perpetrator.’ The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”
“Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to the child…A finding of failing to protect can lead the Court to conclude that the children’s best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries. Any Court conducting a finding of fact hearing should be alert to the danger of such a serious finding becoming ‘a bolt on’ to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, ‘nearly all parents will be imperfect in some way or another’. Many households operate under considerable stress and men go to prison for serious crimes, including crimes of violence, and are allowed to return home by their long-suffering partners upon their release. That does not mean that for that for that reason alone, that parent has failed to protect her children in allowing her errant partner home, unless, by reason of one of the facts connected with his offending, or some other relevant behaviour on his part, those children are put at risk of suffering significant harm.”
“18. On behalf of the Children's Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals. Risk factors o Physical or mental disability in children that may increase caregiver burden o Social isolation of families o Parents' lack of understanding of children's needs and child development o Parents' history of domestic abuse o History of physical or sexual abuse (as a child) o Past physical or sexual abuse of a child o Poverty and other socioeconomic disadvantage o Family disorganization, dissolution, and violence, including intimate partner violence o Lack of family cohesion o Substance abuse in family o Parental immaturity o Single or non-biological parents o Poor parent-child relationships and negative interactions o Parental thoughts and emotions supporting maltreatment behaviours o Parental stress and distress, including depression or other mental health conditions o Community violence Protective factors o Supportive family environment o Nurturing parenting skills o Stable family relationships o Household rules and monitoring of the child o Adequate parental finances o Adequate housing o Access to health care and social services o Caring adults who can serve as role models or mentors o Community support 19. In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.”
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.” 98. The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a “lie” made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices. 99. In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100. One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the “lie” is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane’s judgment in Lucas, where the relevant conditions are satisfied the lie is “capable of amounting to a corroboration”
“I should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied.”
“58. That a tribunal’s Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”
“16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. 17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). 18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. 19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. 20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. 21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.”
“Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”