J K K v R S K & Ors

In child fact-finding proceedings, serious allegations remain subject to the civil standard of proof. Their seriousness requires particularly cogent evidence before they are established on the balance of probabilities. The court must evaluate the evidence cautiously, both in detail and in the overall picture, including the reliability of witnesses and expert evidence. Where newly discovered evidence undermines findings previously made, the court may reopen and discharge those findings, while preserving findings that are unaffected and whose reconsideration would be disproportionate. Findings dependent substantially on witnesses whose credibility has failed may also require reversal.

The proceedings concerned the care and contact arrangements for two children following the breakdown of the parents’ marriage. The court had previously made extensive findings about the parties’ conduct. New police and pathology evidence subsequently emerged concerning an alleged wounding, and the court reopened the materially affected findings.

The rehearing also addressed a later fire at the respondent family’s home and an incident during a contact handover. The central questions were whether the wounding and fire had been staged or caused by members of the respective families, and what consequences those findings had for the earlier findings and the children’s future arrangements.

1. Reopening and scope. The new pathology evidence justified reconsideration of the findings concerning the post-separation allegations. The court declined to reopen unrelated findings where further evidence and cross-examination would be disproportionate to the issues requiring determination.
2. Standard and evaluation. Applying the approach recalled from Re H and R (Child Sexual Abuse) [1996] 1 FLR 80 HL, the court applied the balance of probabilities. Because the allegations were grave, particularly cogent evidence was required. The evidence had to be assessed with considerable caution, both in its detail and against the totality of the evidence.
3. Wounding. The expert pathology evidence established that the wound’s pattern was inconsistent with the account of a single attack by a third party. The court found that the wound had been self-inflicted or deliberately inflicted by an associate. The finding was reinforced by inconsistencies in the accounts, implausible conduct and the wider evidential picture.
4. Fire. The fire was deliberate. The court rejected the allegation that B K had started it, but found that the respondent family or an agent acting for them had set fire to their own home. The discovery and provenance of the cigarette butt, the timing, the family’s conduct and the weaknesses in the competing accounts were decisive when considered cumulatively.
5. Consequences. The finding about the wounding materially undermined the reliability of the respondent family and their associates. The earlier finding about the garden ceremony was discharged, and all findings against the applicant and her family concerning the alleged post-separation campaign were overturned because they depended on evidence that could no longer safely be trusted.