Burden of proof in family proceedings
The law of evidence is mostly defined by the common law. The common law can only be changed by statute or by higher common law authority. Court rules may define the common law, but they cannot change it (see eg British South Africa Co v Companhia de Mocambique  AC 602). This article considers a few recent case law and other developments in the law of evidence in relation to family proceedings.
First the burden of proof: as is well-known, this generally falls on the party who asserts facts in issue. The burden must be established to the civil standard: that is that a fact is more likely to have happened than not. In Re A (Children)  EWCA Civ 1718 the issue before the Court of Appeal was ‘whether the judge [below] fell into error in the findings he made in relation to certain medical evidence and, thereafter, failed properly to consider the totality of all the evidence prior to determining that the outcome of the case had to be decided in percentage terms by reference only to the burden of proof’ (at ). In considering this issue, Lady Justice King explained that the judge below had relied on A County Council v M & F  EWHC 1804. In that case Mostyn J had assessed the burden of proof in mathematical terms. He had considered the views of Lord Hoffman and Lady Hale on standard of proof in Re B (Care Proceedings: Standard of Proof)  UKHL 35  1 AC 11,  2 FLR 141; and then quoted himself (at  and in an earlier case of in AA v NA and Others  2 FLR 1173) where he had said: ‘a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential “cogency”’.
In Re B (above) Lord Hoffman used a mathematical metaphor – no more – to explain operation of the burden of proof:
 If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.
It was the burden of proof and how this should be treated which had to be decided by the judge below in Re A (Children)  EWCA Civ 1718.
Court of Appeal: standard of proof in family proceedings
King LJ was not able to ‘agree’ with the judge’s approach which, she said, had been adapted from Mostyn J. The judge had assumed that ‘the use of percentages and or “aggregation” is the proper approach to the judicial function in respect of the simple application of the balance of probabilities’ (at ). This was incorrect. King LJ continued (at ) by stating that the starting point for definition of the standard of proof ‘remains the test as articulated by Lady Hale Re B (Minors) [(above)]’. This includes the following:
 My Lords, for that reason I would… announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
In Re A it had been necessary to establish how a 10 year old child had died, whether this threatened her siblings and therefore who of the pool of possible perpetrators may have been responsible for her death. King LJ cited with approval the discussion of burden of proof in Nulty Deceased v Milton Keynes Borough Council  EWCA Civ 15,  1 WLR 1183 (later than Mostyn J’s decision) which included, per Toulson LJ:
 The civil ‘balance of probability’ test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a ‘preponderance of the evidence’. In the British Commonwealth the generally favoured term is a ‘balance of probability’. They mean the same.
In Re A King LJ therefore concluded on the standard of proof and Nulty that:
 … (iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.
The judge had fallen into error said the Court of Appeal. The case must be remitted for rehearing ( and ).
Fabricated evidence on assets; but no extravagance add-back
R v K  EWFC 59 (4 September 2018: R v A in the BAILLI case reference), Baker J is, inevitably, long on factual analysis and modest on enunciation of legal principle. The central evidential issue was whether the husband and his business associates had fabricated or exaggerated the husband’s liabilities (around £20M), in an attempt to defeat the wife’s claim. On the evidence he had heard from the alleged lenders Baker J held that the loans were not proved. He treated them as not existing and distributed the couple’s assets accordingly. His judgment included such comments as:
 Drawing all these threads together, I have reached a firm conclusion that the loans alleged to been made by C Finance are a fiction. The truth is,… that [the husband] has procured the assistance of his acquaintances and offshore associates to try to create evidence to defeat the wife’s claim. I accept that sums may have been transferred from C Finance and U Properties to the husband but not under the loan agreements alleged by the husband and the other witnesses. Something else was going on. I am not going to speculate what it was. It is sufficient merely to conclude that the assertion that the husband owes substantial sums to C Finance under the alleged loan agreements is untrue.
A second factor in the case was the husband’s continuing extravagant lifestyle. There were substantial arrears of payment of periodical payments; but to award arrears and to add back an equivalent figure (per eg Norris v Norris  EWHC 2996 (Fam),  1 FLR 1142, Bennett J) might risk double-counting: if H had paid the periodical payments he would have had to curb his extravagance. Baker LJ explained this:
 (7) … The husband’s conduct in this case was wanton and deliberate dissipation of assets at a point when he should have been paying maintenance to the wife. But if I were to include the figure claimed for addback, as well as the full arrears of MPS, there would in all probability be an element of double recovery. If the husband had paid the sums due under the MPS order, he would not have been able to spend money on himself in the same wanton way. Accordingly, in this case, I do not think it appropriate to take the figure claimed for ‘addback’ into account as well as the MPS arrears when assessing the appropriate level of the lump sum.
Litigation privilege reviewed and revived after SFO v ENRC
The subject of litigation privilege (LP) in children proceedings rests, it can be argued, on shakey – albeit House of Lords – foundations. In Re L (Police Investigation: Privilege)  AC 16,  1 FLR 731 (over a strong minority objection from Lord Nicholls, supported by Lord Mustill) the House of Lords held that care proceedings were not ‘adversarial’ (see further at Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis especially at paras 16.16 to 16.30). Therefore – despite there being nothing in eg Children Act 1989 on the subject – LP did not apply in care proceedings. (Vernon v Bosley (No 2)  QB 18,  1 FLR 304, CA, probably obiter, seeks to extend this to all children proceedings.) Re L says that for whoever a lawyer acts, if the court has given permission for opinion evidence (Children and Families Act 2014 s 13; Family Procedure Rules 2010 r 25.4) then in children proceedings there is no confidentiality between the lawyer, the client and the court as to production of the report in court.
Re L does not apply to non-children proceedings. In such family proceedings and in civil litigation generally, Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd  EWCA Civ 2006 considered whether LP where a corporate body obtains legal advice and its staff are involved in giving information to a legal adviser. LP was extensively reviewed (judgment was jointly by Sir Brian Leveson P, Sir Geoffrey Voss Chancellor of the High Court and McCombe LJ).
ENRC were anticipating an enforcement raid by SFO. They were carefully considering self-reporting under SFO guidelines and set in motion extensive enquiries as to the background. This involved mostly members of ENRC’s own staff. SFO finally decided to ‘accept ENRC for criminal investigation’: that is to pursue their enquiries further. SFO demanded the documents arising from their legal advice. ENRC asserted advice privilege and LP for documents which had arisen in their internal enquiry. At first instance, Andrews J held that none were covered by privilege. The Court of Appeal allowed ENRC’s appeal. All, save a couple of emails, were covered by LP. Advice privilege did not therefore arise. The ‘dominant purpose’ (of the documents and litigation) test in Waugh v British Railways Board  AC 521 applied to the ENRC lawyers’ documents.
Subject to Re L overriding of LP in children proceedings – if it does – the SFO v ENRC explanation of LP could apply, for example, to papers in a local authority or other public body office; and certainly to any advice given to social, education and health workers.
In Re H (Children)  EWFC 61 Sir James Munby (following his retirement and sitting as a High Court judge) accepted the invitation from a local authority counsel’s invitation to look at the delay in care proceedings caused by delayed production of documents by third parties (considered recently in ‘Who must disclose what & when?’, David Burrows NLJ  5 October at 9) notably the police. Sir James considered this as follows:
- 1 What can the family court do to avoid delay caused by concurrent care and criminal proceedings?
- 2 What can the family court do when delay is caused the failures of other government departments?
The problem was delays in production of documents by non-parties, such as police, to care proceedings. It was not, said Sir James, any ‘part of my proper functions… to conduct some general investigation into the actions of third parties… (whether the police, the CPS the Crown Court, or the housing authority)’ nor to look into their actions or inactions may have contributed to what seemed to be ‘wholly unacceptable delay’ (at (i)).
So what could the family courts do? First the courts cannot tell non-parties, especially public bodies, what to do (the A v Liverpool principle): that is, as cited by Sir James (at ): ‘The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority (per Lord Scarman in A v Liverpool City Council  AC 363)’. Sir James explained this further:
 … A family court cannot dictate to another court or agency how that court or agency is to exercise its powers. It follows, secondly, that, absent statutory provision to the contrary, the ambit of family court judicial decision-making is constrained by the extent of the resources made available by other public bodies. So, the family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade. How far can persuasion go? The answer is that the family court can seek to persuade but must not apply pressure: Holmes-Moorhouse v Richmond upon Thames London Borough Council  UKHL 7,  1 WLR 413 (at - per Lady Hale).
Witness summons and police evidence
Sir James says that the court has powers as to issue of a witness summons (at ) under the jurisdiction conferred by Matrimonial and Family Proceedings Act 1984 s 31G (that part of MFPA 1984 which brought in the Family Court). This section does not create a jurisdiction which was not there before. It merely re-enacts County Court Act 1981 s 55 which deals with witness summonses in the county court. The meat of provision for issue of a witness summons asserts the common law (formerly the subpoena, in this case ad duces tecum (to bring with you a document)) and is in FPR 2010 r 24.2 (derived from Civil Procedure Rules 1998 r 34.2) and PD24A para 1. All this is for a party to the case to require a non-party – such as the police – to produce documents following the steps prescribed by FPR 2010 r 21.2 (derived from CPR 1998 r 31.17).
Section 31G does not, as far as can be seen, give a judge a free-standing power to call for evidence. The disappointing approach of the police to producing evidence into court proceedings, and of which Sir James complains (understandably) – eg under 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings October 2013 – can probably only be corrected on application by application by a party to proceedings for a subpoena to produce documents under r 24.2.
Expert evidence and fees for experts
In an early statement by the new President of the Family Division, Sir Andrew McFarlane, he drew attention to how the fees payable to expert paediatric and other witnesses have been ‘eroded’ over time. Speaking to the Bond Solon Experts’ Conference in early November he went on: ‘The provision of high-quality professional expertise, where a court has held that such expertise is “necessary” so that the issues relating to a child’s future can be determined “justly”, is plainly essential.’
The legal position is that the opinion (or ‘expert’) witness is in a privileged position. He or she is there to provide the judge with an independent view of the issues or of contested facts in the case; and the expert must do so regardless of who pays his/her bill (CPR 1998 r 35.3(2); FPR 2010 r 25.3(2) and common law). The expert is thus the witness of the court; though the court has virtually no control over what the expert is paid. Mostly children cases, to which Sir Andrew was referring, are governed by legal aid. On legal aid, the instructing solicitor applies for payment; but the fees were fixed in 2013 (under Civil Legal Aid (Remunerations) Regulations 2013 (CLARR2013)).
What Sir Andrew was too polite to say was that the fees were already low in 2013. They are not index-linked and have not been raised since 2013. Though the expert is responsible to the judge, his/her fee cannot be raised by the court (ie only by the ‘Lord Chancellor’ in ‘exceptional circumstances’: CLAGRR2013 reg 2(1); that is to say by the often charmless Legal Aid Agency). Is it not small wonder that the difficulty in finding experts and of resultant delays represents another nail in the coffin of the Minister of Justice’s approach to legal aid and family courts proceedings?
15 November 2018