TB v DB

In family fact-finding proceedings, the court applies the simple balance of probabilities test. Allegations must be assessed on the totality of the evidence. Evidence of a child’s alleged disclosure may be given little or no weight where it has been materially contaminated by persistent, leading or inappropriate questioning. The court must also assess the reliability of the witnesses and the investigative process through which the evidence was obtained.

The proceedings concerned the residence and contact arrangements for a five-year-old child following the separation of his parents. The mother alleged domestic violence, rape, and sexual abuse of the child by the father’s brother. The father denied the allegations and sought findings on their truth. The court conducted a fact-finding hearing before determining the child’s welfare arrangements. The central legal issue for the fact-finding hearing was the standard of proof.

1. The court applied the simple balance of probabilities test, following [2008] 2 FLR 141. The allegations therefore had to be established as more likely than not before findings could be made.
2. The court assessed the evidence cumulatively. It considered the parties’ credibility, inconsistencies between statements and contemporaneous records, the circumstances in which allegations were made, and the conduct of the investigations.
3. The recordings and alleged disclosures by the child were found to be wholly unreliable. The child had been subjected to persistent and leading questioning by the mother and her friend. The court regarded the friend’s conduct as aggressive and the resulting evidence as highly contaminated.
4. The preliminary interview conducted by the police and social services was also criticised. The child was questioned for about 30 minutes without making a disclosure, and the mother was then permitted to prompt him to repeat what he had told her. That was inconsistent with good practice in child abuse investigations and materially increased the risk of contamination.
5. The court found the mother to be an unreliable historian who had exaggerated or invented allegations and had acted to disrupt the father’s contact. It found the father credible and reliable, and accepted the father’s and the uncle’s evidence that the uncle had not bathed the child, been alone with him, or sexually abused him.
6. The allegations of past violence and rape against the father and the uncle, the allegations of sexual abuse, and the specified allegations against the father were not made out. The court made those findings at the conclusion of the fact-finding hearing.