NN v ZZ & Ors

In a family fact-finding hearing, the court must resolve allegations that are relevant to the children’s welfare, even where the welfare decision will be made later. The applicable standard is the balance of probabilities.

Statements from witnesses who cannot speak or read English should ordinarily be prepared in the witness’s own language, translated by a certified translator, and accompanied by a clear explanation of how the statement was taken. The original statement and translation should be filed and provided to a witness giving live evidence. These safeguards promote procedural fairness and enable the court properly to assess the evidence.

The proceedings concerned two young children and cross-applications for residence orders by their mother and father. The mother alleged that the father and his family had controlled and mistreated her in England, taken her to Pakistan in September 2012, and prevented her from returning or maintaining contact with the children.

The court conducted a five-day fact-finding hearing, heard evidence from 11 witnesses, and considered whether the mother’s allegations were proved. The father argued that detailed findings were unnecessary for the future welfare decision. The court rejected that submission and determined the principal factual disputes, including the mother’s treatment, the circumstances of her departure, the retention of her passport, and the subsequent separation from the children.

1. Fact-finding. The court rejected the submission that it could defer or avoid determining the mother’s allegations. The allegations were relevant to the children’s welfare and had to be assessed before the later welfare decision. The burden of proving disputed facts lay on the party asserting them, and the standard of proof was the balance of probabilities.
2. Substantive findings. The paternal family had exercised substantial control over the mother and had failed to respect her independence or maintain her contact with her own family. The court rejected allegations of physical confinement and tying, but found that the father had assaulted the mother on two occasions in January 2012 and that the paternal uncle had assaulted her in August 2012. The mother had agreed to go to Pakistan, but did not intend to remain there. The father retained her passport, arranged his immediate return to England, and then took steps that prevented her return and contact with the children. The court rejected the father’s case that her communications with official bodies were a contrived attempt to improve her immigration status.
3. Preparation of foreign-language evidence. Statements by non-English-speaking witnesses should be prepared in the witness’s own language before translation into English. Under Family Procedure Rules 2010, Practice Direction 22A, paragraph 8.2, the foreign-language statement and its translation must be filed, and the translator must certify the translation’s accuracy.
4. The statement should explain how it was obtained, including whether it was taken face-to-face, by telephone, by video link, or from a document in the witness’s own language. Solicitors should remain fully involved and should investigate the provenance of an English statement signed by a witness unable to read or speak English.
5. Where possible, the witness should be interviewed through an interpreter and should read and sign a draft in the native language. A solicitor fluent in that language may interpret, but that role must be disclosed. Original statements, certified translations, and appropriate jurats or affidavits should be provided where required. The same safeguards apply to evidence given by video link and to statements prepared abroad.
6. The court observed that failure to follow these steps caused avoidable delay and made assessment of the evidence more difficult. The fact-finding conclusions were to inform the children’s later welfare assessment.