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In practice I worked predominantly on children matters both public and private in nature. It was not infrequently that I was asked by clients why they couldn't "take a lie detector test" to prove the validity of the issue they were concerned with. For this, I am suspicious of Jeremy Kyle.
I would explain to these clients the nature of evidence, the ethos of the Family Court and the overriding responsibility of the judge to properly consider all evidence put before the court and determine the given facts as required. That, quite simply, is how it is done. We do not rely on polygraphs to tell us whether someone is being dishonest. No ... you will not be hooked up to a machine to trace change in your physiological conditioning during questioning.
I had never really thought to look into much about the concept of a lie detector test. In 2011, the American Polygraph Association (APA) gathered together over 200 reviews on the testing to produce an executive summary of the validity of polygraph techniques. The summary reports that 38 studies satisfied the requirements for inclusion in the analysis. These studies involved 32 different samples, and described the results of 45 different experiments and surveys. The combination of all validated Psychophysiological Detection of Deception (PDD) techniques produced a decision accuracy of 87%. The APA view the findings as providing additional support for the validity of polygraph testing when conducted in accordance with their standards of practice.
With that in mind, I summarised with interest the recent case from the European Court of Human Rights, BB and FB v Germany (App Nos 18734/09 and 9424/11). In this case, a 12-year-old girl and her 8-year-old brother were taken into care following allegations made (initially by the girl and reiterated by her brother) that their father had severely and repeatedly beaten them in relation to their performance at school. The parents vehemently denied all the allegations. The children were removed from the parents and, following the main hearing, there was a complete withdrawal of their parental rights. The parents lodged an appeal, which was rejected by the court; however, the children (after a contact meeting) eventually confessed the allegations were not true.
The District Court judge had heard evidence from the children separately in the absence of the other parties. The court was convinced by them and did not deem it necessary to obtain expert opinion on the children's credibility. The applicants alleged that the decisions on the withdrawal of parental authority violated their right to respect for their family life, contrary to Article 8 of the Convention. The court unanimously declared the complaint regarding the withdrawal of parental authority was admissible and there had been a violation of Article 8 of the Convention. The court had failed in its obligation to carry out full investigation when there were facts capable of casting doubt on the allegations.
Now, I am not suggesting these children, nor anyone for that matter should have been strapped to a lie detector machine, but in an age where cases must be concluded in 26 weeks; do we have time to go through the rigours of fact finding to hopefully lead us to a correct and vital welfare decisions?
Is the prospect of using a lie detector test in family proceedings actually that far-fetched? Take the role of social media for example. Until recently, we may have seen social networking sites feature in matters of evidence (according to the Telegraph, one in five divorce petitions now cite Facebook). However, it is now being used as a tool and becoming commonplace in the court room. Facebook is routinely used to serve claims in Australia and New Zealand, and has been used a handful of times in Britain. In the case of AKO Capital LLP & another v TFS Derivatives & others, the High Court ruled that service of a claim form could be made via Facebook where the claimants in the action had been experiencing difficulties locating one of the defendants.
In an age where things are rapidly changing and we are seeing procedures in place that we once may have scoffed at, I hate to admit that there could possibly be the slimmest of chances ... maybe... that Jeremy is onto something after all.
Amy Sanders is a Family Law PSL at Jordan Publishing and was formerly a children and family solicitor practising in London and more recently in Devon.