DB v ZA & Ors

In fact-finding proceedings concerning alleged domestic and sexual violence, the burden of proof rests on the party making the allegation. The applicable standard is the balance of probabilities. The seriousness of an allegation, or of its consequences, does not raise that standard. Relevant inherent probabilities must be considered when deciding where the truth lies.

Where Article 2 of the European Convention is engaged, the State’s positive obligation to protect life arises where the authorities knew or ought to have known of a real and immediate risk to the life of an identified person from criminal acts by a third party. The threshold is high. Evidence must be assessed issue by issue, since lies on one subject do not necessarily determine credibility on every other subject.

The mother issued wardship proceedings under the inherent jurisdiction concerning her son, after believing that he had been taken abroad by his father. The child was returned to England following location and collection orders. The Metropolitan Police Service and the local authority subsequently participated in proceedings concerning the child’s welfare and the mother’s safety.

The court conducted a 20-day fact-finding hearing into allegations including rape, domestic violence, threats to kill, coercive conduct, mental-health difficulties and child-care concerns. The central issues were the credibility of the mother and father, the facts underlying the allegations, and the significance of the police risk assessment concerning a possible threat to the mother’s life.

1. Standard of proof. The burden of proving an allegation rested on the person making it. Applying Re B (Children) (FC) [2008] UKHL35, the judge directed himself that the standard was the simple balance of probabilities. Neither the seriousness of the allegation nor the seriousness of the consequences altered that standard. Inherent probabilities remained relevant to deciding where the truth lay.
2. Fact-finding and credibility. The judge assessed the evidence cumulatively but selectively. The mother had exaggerated some matters, including the duration and frequency of assaults, but that did not destroy the core of her account. The father was found to have lied on numerous important matters. The court nevertheless treated credibility as issue-specific, applying the approach in R v Lucas (R) [1981] QB720; 73 Cr. App R159.
3. Findings. The father had perpetrated repeated non-consensual vaginal, anal and oral sexual assaults and had sometimes committed physical assaults. The mother had suffered significant mental-health problems in Iran and in England, with social isolation, language difficulties and domestic violence contributing to the latter. Her mental-health difficulties had at times impaired her ability to care for the child, although the evidence also showed periods of attentive and appropriate care. The alleged agreement surrendering care of the child to the paternal family was not consensual and was, at least as to one signature, a forgery.
4. Risk to life. The judge applied the principle in Osman v United Kingdom [2000] 29 EHRR 245, as explained through In Re Officer L [2007] 1 WLR 2135 and In Re W’s application [2004] NIQB 67. The positive obligation under Article 2 arose where there was a real and immediate risk to the life of an identified person from criminal acts by a third party. The threshold was high, but the evidence established a real risk to the mother from members of both families if her identity or location became known.
5. The judgment records findings on the allegations and the associated risks. It does not state a separate final welfare order in the supplied text.

The judgment describes wardship and inherent-jurisdiction proceedings commenced in the High Court, followed by location and collection orders, the child’s return to England, and interim directions before the fact-finding hearing. No appellate decision is stated.