A (A Child), Re (Vulnerable Witness : Fact Finding)

In family fact-finding proceedings, allegations are determined on the balance of probabilities. The seriousness of the allegations and consequences does not alter that standard. Credibility must be assessed by evaluating the evidence as a whole. Retractions, inconsistencies, lies, unusual presentation and apparent lack of detail must be considered in context; no single feature is necessarily decisive. A vulnerable witness may require special measures, including intermediary assistance, video-link evidence and restrictions on questioning, where these are necessary to secure meaningful participation and protect the witness from further harm. The court must balance the alleged perpetrator’s opportunity to challenge the evidence against the witness’s welfare and ability to give evidence.

The proceedings concerned whether allegations made by X, a highly vulnerable young woman, against F, her uncle and the father of A, were true. The allegations related to prolonged sexual, emotional and psychological abuse beginning when X was a child. The fact-finding hearing was intended to inform decisions about whether A and F could resume a normal and unrestricted relationship.

X gave evidence intermittently by video link, with the assistance of a registered intermediary. Difficulties arose from her extreme distress, the physical conditions of the hearing and F’s participation as a litigant in person. F denied the allegations and challenged X’s credibility, including by relying on retractions, inconsistencies, lack of detail and possible family motives. The central issue was whether the allegations were proved on the balance of probabilities.

1. Findings. The court found that X’s allegations were fundamentally true. F had inflicted serious sexual, emotional and psychological abuse over approximately ten years and continued to exert a controlling influence over X. X was blameless. F’s denials were rejected.
2. Standard of proof. Applying Re B [2008] UKHL 35, the judge held that the factual issues were to be determined on the simple balance of probabilities. Neither the seriousness of the allegations nor the seriousness of the consequences altered that standard. The court had to decide whether the events were more likely than not to have occurred.
3. Assessment of evidence. The court assessed the evidence cumulatively. No individual feature was diagnostic of sexual abuse. Significant considerations included contemporaneous records made by trained professionals, the consistency of the documentary trail, X’s marked changes of demeanour when discussing the allegations, her extreme and apparently uncontrollable distress when giving evidence, unusual details which appeared difficult to invent, her continued adherence to the core allegations, her established character for honesty, the absence of a persuasive motive to fabricate, opportunities for F to have had contact with her, and lies told by F about telephone numbers and contact.
4. Inconsistencies and retractions did not require rejection of the whole account. The court considered that some inaccuracies could arise from the passage of time, the effects of abuse and X’s difficulty in speaking about prohibited matters. Her retractions were understood as attempts to keep authorities at bay when formal intervention threatened, rather than as credible explanations that the allegations were fabricated.
5. Vulnerable witness procedure. The court curtailed F’s cross-examination and excluded him from the courtroom after he looked towards the video screen, because that conduct substantially distressed X and impaired her ability to continue. The judge concluded that this was the necessary balance between F’s opportunity for full questioning and the responsibility to protect X from further harm and preserve her ability to participate.

First-instance fact-finding judgment. No appeal or lower-court decision is stated in this judgment.