K v K

In a fact-finding hearing involving conflicting allegations of domestic abuse and child-care failures, the party making an allegation bears the burden of proving it on the balance of probabilities. The seriousness of the alleged conduct is relevant to the cogency of evidence required to establish that it probably occurred. A witness who has lied previously must not automatically be disbelieved, but the earlier lies remain relevant to the assessment of credibility. Fact-finding requires a careful evaluation of the whole evidential picture, including independent material and the surrounding circumstances.

The court conducted a fact-finding hearing concerning two young children following the separation of their parents. Each parent alleged serious misconduct by the other and by members of the other’s family, including violence, emotional abuse, neglect, threats and attempts to undermine the opposing case. The findings were intended to inform a later hearing concerning the children’s future care. The central issues were where the truth lay in largely conflicting evidence, how the parties’ credibility should be assessed, and which allegations were proved on the balance of probabilities.

1. Burden and standard of proof. The party making an allegation had to prove it. The applicable standard was the balance of probabilities. Following Re H and R, the more serious the conduct alleged, the more cogent the evidence required to tip that balance. This did not impose a different standard of proof.
2. Assessment of credibility. The court had to assess each allegation and each witness’s evidence independently. A person who had lied on one or more previous occasions was not thereby to be treated as lying about everything else. Nevertheless, previous lies were a relevant feature of the overall credibility assessment.
3. Evaluation of conflicting evidence. Where the parties’ accounts were diametrically opposed and independent material was scarce, the court had to sift the evidence allegation by allegation while keeping the strengths and weaknesses of the entire evidential picture in mind. The absence of corroboration could make serious findings difficult, but did not prevent findings where the evidence as a whole established the allegation on the balance of probabilities.
4. Findings. The court found that the applicant had been badly treated in the respondent’s household and had been prevented from caring for the children, but rejected or failed to establish many allegations of serious abuse made by both sides. It also found that members of the applicant’s family had engaged in aggression after the separation and that both wider families had aggravated the dispute.
5. The findings were to be listed for use at the later disposal hearing before Munby J. No further transcript was required beyond the written judgment.