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Re C (Female Genital Mutilation And Forced Marriage: Fact Finding) [2019] EWHC 3449 (Fam): Should The Standard Of Proof Be Different For Vulnerable Witnesses?

Re C (Female Genital Mutilation and Forced Marriage: Fact Finding) [2019] EWHC 3449 (Fam): Should the standard of proof be different for vulnerable witnesses?

Clara Parry

Clara Parry

Clara read Law at Cambridge University and is now studying for the New York Bar Exam. She is particularly interested in family law and human rights.

Content Note: rape, sexual assault, FGM, domestic abuse, forced marriage

In Re C (Female Genital Mutilation and Forced Marriage: Fact Finding), Knowles J assessed the credibility and coherence of the evidence provided by a vulnerable witness with a learning disability against the inconsistent evidence of the other parties. The burden of proof was on this witness to prove the allegations they had brought forward in the proceedings beyond a reasonable doubt, despite having significant cognitive, emotional, and social difficulties.

Knowles J’s decision lacks the consideration of the witness’ vulnerabilities and their impact on her recollection of the facts. Merely acknowledging that someone suffers trauma is not enough. We need to consider the impact on their capacity to give evidence and whether a different standard of proof should be applied.

This was a fact-finding hearing held in the context of wider welfare proceedings. Due to the nature of this hearing, I will be focusing on the discussions regarding evidence credibility and refrain from commenting on the findings in themselves. I do, however, recommend reading this judgment in its entirety if you wish to further understand the complexity of this case.

Link to judgment: [2019] EWHC 3449 (Fam)

Facts

C (‘the mother’) made various allegations to the police which raised safeguarding issues for her sister J (11 years old), who was living with C and J’s parents, and C’s child K (31 months old) who is living with the paternal family. C alleged that she was subjected to FGM whilst on holiday in Kenya in 2013. She had already been subjected to FGM as a child in war-torn Somalia, and had also been allegedly forced to marry K’s father. C applied for various orders with the intent to protect herself and K from FGM and forced marriage, as well as to impede K’s removal from the jurisdiction to subject her to FGM. She was granted these during the initial hearings.

C made allegations of FGM, forced marriage, and rape against members of the maternal and paternal family. Her younger brother F acted as an intervenor in the hearing as she contended that he had sexually assaulted her in her childhood and assaulted K when the mother and the daughter were living with the maternal family. Allegations were also made about the maternal and paternal families’ control of C and her liberty to interact with professionals and provide care for K.

Issues/Legal Background

A fact-finding hearing is required when a party makes allegations in family law proceedings which are denied by the other party. This hearing is for the judge to decide whether the allegations are true or not. In this instance, the fact-finding was called upon within the context of welfare proceedings brought forth by the local authorities regarding J and K.

The Family Procedure Rules 2010 “Vulnerable Persons: Participation in Proceedings and Giving Evidence” provides guidelines on dealing with vulnerable adult witnesses. Accordingly, the measures set out were followed with the witness being provided an intermediary and special measures being put in place to enable the comfort and “maximise the ability of those deemed vulnerable to give their best evidence to the court and participate as fully as possible in proceedings.” [para 15]

In R v Lucas [1981] QB 720 and H-C (Children) [2016] EWCA Civ 136, it was noted that a witness lying about something does not discredit the entirety of their evidence nor does it serve as a proof of guilt.

In her judgment, Knowles J addresses the substantial law regarding the allegations and the standard of proof. As discussed in the introduction, this note focuses only on the judgment regarding C’s credibility.

Judgment in Re C (Female Genital Mutilation and Forced Marriage: Fact Finding)

Assessing the Evidence of Vulnerable Witnesses

Despite her sympathy for the witness (the mother), Knowles J questions the capacity for allowances to be made for the mother who was unable to provide a “coherent account of events or an account which had some of the hallmarks of credibility” [para 15]. She observes that the standard of proof was the same for everyone, namely the ‘balance of probabilities’. Similarly, she highlighted that a witness’ qualification as vulnerable did not impede their capacity to lie or misunderstand events.

The judge states,

[i]t would be unfair and discriminatory to discount a witness’s evidence because of their inherent vulnerabilities (including mental and cognitive disabilities) and it would be equally wrong in principle not to apply a rigorous analysis to a witness’s evidence merely because they suffer from mental, cognitive or emotional difficulties. [para 16]

The Witness Evidence

The Mother

Knowles J touches upon the various areas of vulnerability of the mother. She addresses the impact of multiple traumatic early life experiences in Somalia and Kenya as a catalyst for the mother’s PTSD, depression, and anxiety. The judge also presents the mother’s learning disabilities and extremely low IQ as challenges to assess her credibility, further stating that the inconsistencies on how she presented herself and on the accounts themselves “led me inevitably to the conclusion that I should treat her oral evidence with very great caution indeed.” [para 62]

Family Evidence

In assessing the evidence of the other witnesses, four of whom were parties in the case, Knowles J found it was difficult to rely on their evidence. She concluded that “many of the family witnesses were giving me a very edited version of events.” [para 63]. Similarly, she found them to be inconsistent and called into question their credibility after they refused to acknowledge evidenced facts and added ‘vital information’ during their oral evidence which had not been discussed in their statements.

The judge was very dubious about the evidence of the mother’s sisters and cousins, “form[ing] the distinct impression that [they] had a great deal more to say but chose not to do so out of loyalty to the maternal grandparents” [para 63]. The father’s evidence regarding the circumstances of the marriage was not believed to be honest, potentially with a view to not harm his image.

By contrast, the mother’s brother, F, stood out as a witness with the judge appearing to have found him more believable, partly due to admissions against his own interest.

Findings

None of the findings sought by C were made. Knowles J held that the mother had not met the standard of proof. Importantly, C’s credibility was hindered by the raising of new allegations during oral evidence, various inconsistencies (within documents and her oral evidence), and the fact that the mother did not truly engage in cross-examination by leaving the room a lot in this process. The judge believes there were various instances of “fabrication, exaggeration and embellishment by the mother” [para 151].

Analysis

Discussing your Trauma as a Witness

In “From Report to Court: Psychology, Trauma and the Law”, Smith et al state the obvious: traumatic experience affects our memories and our ability “to engage with the world in its aftermath”.

In this case, the effect of C’s childhood experiences on her mental health was clear. Knowles J repeated throughout the judgment that there could be no doubt there were links between the mother’s early childhood experiences and the PTSD, depression, and anxiety she suffered [para 57]. Yet the judge failed to acknowledge the effect this would have on her memory and thus her credibility.

Smith raises the fact that barristers and courts use “inconsistencies” in accounts of various professionals to create disbelief in the victim’s account. However, according to studies (Grey et al Behavioural and Cognitive Psychotherapy, 29(3), for instance), memories associated with trauma are broken into hotspots with the worse moments often being the most intrusive memories and will likely be recalled in a chaotic order. This means that it is common for there to be inaccuracies and inconsistencies in someone’s trauma.

The judge did not raise this at any point in the judgment. Instead, it appeared the vulnerabilities of the witness were only of significance during the process of the hearing and not the deliberation of the facts.

Should the standard of proof be different for vulnerable witnesses?

With everything said above, and the particulars of this case, it begs an important question: should there a different standard of proof for a vulnerable witness in family proceedings?

Indeed, we are faced here with a situation where one witness with mental health problems and learning difficulties had to prove on the balance of probabilities multiple traumatic experiences against four parties with no reported issues. C’s inconsistencies could be explained by her trauma, although this is not to say she could not have fabricated or exaggerated certain instances. However, her family’s inconsistencies and her ex-husband’s were, by the judge, put down to lack of honesty and wanting to protect their image or a family member. It hardly seems fair and proportionate for this standard of burden of proof to be placed on her.

Under Article 6 of the ECHR, everyone is entitled to a fair trial. However, although it guarantees the principle of innocent until proven guilty at a criminal standard, it is not established in civil law. In Tence v Slovenia, the ECtHR did nevertheless state that the burden of proof could not be overly rigid. A balance ought to be found where a vulnerable witness is not cornered by their alleged abusers. An alternative standard in such a situation would be for the abusers to prove on the balance of probabilities that this did not happen. This would be particularly powerful when there are multiple perpetrators. For instance, in cases concerning child abuse, possible perpetrators must establish that on the balance of probability there is no ‘likelihood or real possibility’ they are within the pool of perpetrators.

Conclusion

This case fails to recognise the impact on memories caused by both psychological trauma and severe learning difficulties. Knowles J’s sympathy during the hearing was not enough in this case to protect the mother from her trauma and vulnerabilities. Rather, it seems to leave them more exposed to her family.

I believe that a different standard should be set for particularly vulnerable witnesses. This may mean the redefinition and even classification of a vulnerable witness according to psychiatric standards to decide which standard they should be held and which manner.

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