Re AB (A Child: Diabetic Care)

Legal directions 1. The burden of proof is on the Local Authority. It makes the allegations and so it must prove them. I need to make reference to specific aspects of this direction in relation to this case: i) At no point does the burden of proof shift on to the mother. ii) At no point does it become logical, legal or acceptable to approach evidence on the basis that: a) there is ‘no smoke without fire’ – otherwise the mere voicing of an allegation would render a person guilty or b) repetition of an allegation or mere assertion by a witness of itself creates reliability or cogency. 2. The standard of proof is the civil standard, the balance of probabilities. If the Local Authority substantiates on evidence that it is more probable than not that a disputed event occurred as alleged, then the disputed event becomes an established fact for the purposes of these proceedings. If the event in question is not so proved, it is treated as having not occurred. That is the binary system that the court operates. Findings in the family Court should be subject to a similar forensic rigour as deployed in the criminal Courts. 3. The court must reach decisions in relation to disputed allegations on evidence, not speculation. It may draw logical inferences from evidence that it has accepted but that is entirely different to speculation. In reaching any conclusions, the court must not go further than accepted evidence and permissible inference permit. 4. There is no direct evidence that the mother did administer insulin to Child AB on 24th or 28th July 2021 as alleged by the Local Authority. For instance, there is neither evidence that any witness saw or heard the mother doing so nor is there evidence that she confessed to doing so. The Local Authority therefore relies on circumstantial evidence in support of its contentions that she did so. That is, it relies on different pieces of factual, expert and biochemical evidence, none of which on their own directly proves that the mother did act in the way alleged but which, the Local Authority says, when taken together demonstrate that she did so. Circumstantial evidence, when properly analysed, may lead to clear conclusions but it is essential that each of the constituent parts of the circumstances alleged are scrutinised and evaluated before any conclusion is reached. 5. On behalf of the mother, the case advanced by the Local Authority is denied and it is contended that the expert evidence of Professor Hindmarsh and other circumstantial evidence, when properly analysed, do not substantiate or support the essential parameters of the Local Authority’s case on the issues relating to the 24th and 28th July. I have to piece together all of the evidence in relation to each of the Local Authority’s allegations, marrying together the factual, medical and expert evidence and decide which, if any, of the pieces of evidence I think are reliable and which, if any, are not. I must then decide what conclusions I can draw, fairly and reasonably, from any pieces of evidence that I do accept, combining together those pieces of evidence and the mother’s responses to them. In performing that exercise, I have to avoid engaging in guess-work or speculation about matters which have not been proved by any evidence. Further, I have to avoid what is sometimes called the ancient fallacy of the Sorites – allowing the elision of a number of unsubstantiated or irrelevant contentions to combine together to achieve an overall status beyond their collective evidential and probative value. 6. Hearsay evidence is admissible in family proceedings of this nature — see The Children (Admissibility of Hearsay Evidence) Order 1993. Family Proceedings fall within the definition of ‘civil proceedings’ for the purposes of the Civil Evidence Act 1995 (see the Red Book 2021, p1866). By section 4 of the 1995 Act, there is a checklist of factors that the court should consider when ‘estimating the weight to be given to hearsay evidence’. Case law has emphasised that, where hearsay evidence is admitted and relied on, the formality of the enquiry must be maintained, and hearsay evidence must be scrutinised with considerable care. 7. The court has to reach a conclusion in relation to each of the separate allegations and, therefore, the evidence in support of and contrary to each allegation must be identified and then weighed up separately without compartmentalising it. The court must marry together all of the evidence relating to each allegation and reach a conclusion upon it in a way that is consistent with the court’s overview of the evidence. Where findings are made, the court also has to decide upon the extent to which a given finding might be relevant (or add weight) to or against another allegation – that is an exercise of judgment and evaluation as to whether findings on one allegation are logically informative of another. 8. In this case, in particular, it is essential to maintain an overview of the evidence, not just to ensure consistency but also to make sure that there is both macro and micro analysis. Mixing concepts, the devil of cases such as this lies in the detail, making it necessary to put all of the jigsaw pieces together, painstakingly, before forming an overall view. However, it is also necessary to see the wood, as well as the trees. In order to do that, I have placed the evidence that I have heard into a lengthy chronology so that I can build up a picture of what has occurred. 9. In this case I have heard the oral evidence of one expert, Professor Hindmarsh. His evidence is of the highest quality. However, the roles of the judge and of the expert are different. The responsibility for making decisions in a case rests with the judge not the expert. Further, the expert evidence must be considered as part of the evidence in the case and must be analysed in association with the rest of it. The report and addendum of Dr Pipon-Young, the psychologist, was not disputed and so I have no oral evidence from her. 10. When considering the evidence of Professor Hindmarsh and the opinions advanced by other medical witnesses on matters of medical science, it is necessary to recollect that: i) The answer to the issues in this case cannot be provided by medical science alone. The medical evidence must be combined with the factual evidence before a satisfactory conclusion can be reached. ii) Medical science and medical practice are, and always have been, developing phenomena and, therefore, their limitations must be properly defined. That which is advanced a matter of accepted medical practice or thesis may be shown, in subsequent years, to be unfounded. iii) A conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. iv) Recurrence is not in itself probative. v) If the court disagrees with an expert’s conclusions or recommendations an explanation is required. 11. The evidence of the mother in this case is of obvious importance. The court has to make a clear assessment of her credibility and of the accounts that she gives. In this case I have an abundance of evidence about her, which requires careful analysis. I also remind myself that, contrary to the belief of some, the witness box provides a very poor sole environment in which to make an assessment of a person- a point that relates to all witnesses, not just the mother. It is all too easy for lawyers and judges, who appear in court regularly, to forget how nerve-racking, disempowering and bewildering it can be for people to give evidence. The witness box has been a particularly stressful environment for this mother. 12. Despite regular breaks and other special measures, the mother was unable to complete her cross examination as a result of her obvious and understandable distress. Some of the oral questioning had to be curtailed for the same reason. None of that is the mother’s fault and I do bear in mind that, if she had not been so distressed, there would have been more that she would have wished to say. Some written questions were put to her, by agreement, after she had left court on 20th July 2022 and I take her answers as being part of her evidence. 13. It is important to bear in mind that the mother is of good character, having no criminal convictions recorded against her. A fact finding hearing focuses on the negative and it is important, also, to take fully into account the positive and to limit comment to its essentials. I heard a considerable body of evidence from many different sources about the attachment that exists between this mother and Child AB and the many other positive aspects of her parenting and personality. 14. In this case, inevitably (since there are disputed issues of fact), there are allegations that the mother has not told the truth. Where it is alleged that an accused person has lied, the court must take a disciplined approach to that allegation, recollecting the jurisprudence from R v Lucas [1981] QB 720. First, having identified the alleged lie in issue, it must ask itself whether the Local Authority has proved to the requisite civil standard that the alleged lie has been told; at that first stage of the analysis it is important to differentiate between i) a lie and ii) story creep, mistake, confusion, memory failure, distortion arising from disability or immaturity, etc. Second, it must analyse why any proven lie has been told, recollecting that people may lie for many different reasons — such as embarrassment, a sense of shame for having caused injury accidentally, a desire to hide some other wrong-doing, a wish not to ‘wash their dirty linen in public’, fear that the truth might be misinterpreted or might be otherwise damaging, resentment about the enquiry, a mistaken belief that lying might improve the witness’s position in the case, etc. Third, if the lie is proven, the relevance of the lie to the enquiry must be considered – some lies, although reprehensible, will have nothing to do with the outcome of the case beyond assisting with the analysis of the person’s general credibility. Fourth, it has to be remembered that, just because a person lies about one issue, it does not mean that he/she can be taken to have lied about everything. 15. I have reminded myself about the need for a Judge to be alert to dangers of ‘hindsight and outcome bias’. The Department of Education's Guidance on 'Improving the Quality of Serious Case Reviews’ published in June 2013 includes: 'Hindsight bias occurs when actions that should have been taken in the time leading up to an incident seem obvious because all the facts become clear after the event…Outcome bias occurs when the outcome of the incident influences the way it is analysed.’ 16. I think that there are two more important forms of bias that have to be avoided and which are particularly relevant in a case such as this. They are: i) Confirmatory bias (of which Francis Bacon spoke as long ago as 1602). That arises where, particularly in a complex case like this, someone takes a view at an early and under-informed stage and then drags the developing information into confirming that initial view, blind to the need to maintain an open mind until all the information (i.e. evidence and argument) is completed. ii) Blame bias. That arises in a case where adverse consequences arise, and the decision maker feels a need to ensure that someone is found to blame.