WX v YZ

In private-law children proceedings, each disputed allegation must be proved by the party making it, on the balance of probabilities. Fact-finding requires assessment of the evidence in its full context, including inconsistencies, delay, adult influence and the child’s circumstances. A parent’s unjustified retention of a child abroad after the child has recovered from illness may be seriously criticised, particularly where it deprives the other parent of ordinary contact. Equally, allegations of abuse require reliable and consistent evidence; anxious questioning and repeated adult interpretation may undermine the reliability of alleged disclosures. Professional intervention following a change of care should remain proportionate to the identified risks and the child’s best interests. Persistent parental suspicion and excessive control may cause continuing emotional harm to the child.

This was a first-instance fact-finding hearing in private-law proceedings concerning a four-year-old child, B. The mother sought residence and permission to relocate with B from England to Poland. The father sought residence so that B would remain in England.

B had been taken to Poland by the mother for Christmas 2011 and remained there after recovering from a serious illness. Polish Hague Convention proceedings ultimately resulted in B being returned to the father’s care in England in April 2013. The father alleged that the mother had misused medication and alcohol, obstructed contact, neglected B in Poland, retained him unlawfully, and failed to protect him from sexual abuse by the maternal grandfather. The mother alleged that the father had fabricated or exaggerated abuse allegations and had acted improperly after B’s return. The central issues were whether the disputed allegations were proved and whether the parties’ conduct had harmed B.

1. Burden and standard. The burden of establishing each disputed matter rested on the person making the allegation. The standard was the balance of probabilities.
2. The mother was not proved to have been addicted to Modafen or alcohol, to have supplied B with substances, or to have cared negligently for him in Poland. The evidence instead showed adequate care and did not establish that the treatment preceding B’s illness caused or contributed to his condition.
3. The mother was not justified in retaining B in Poland after his convalescence. She should have returned him to England, his country of habitual residence. She had also strung the father along for a period by allowing him to believe that a return was contemplated when she had decided to remain in Poland. The father, however, had unreasonably failed to visit B in Poland despite opportunities to do so.
4. The allegations that the maternal grandfather sexually or otherwise abused B, that the mother was involved in the abuse, or that she failed to protect B were not proved. The alleged disclosures were inconsistent and arose in a highly emotional setting involving a distressed child and concerned adults. The more likely explanation was that innocent or child-like statements had been misconstrued and progressively given sinister interpretations. The father and his family were not found deliberately to have fabricated the allegations.
5. The mother did not attempt to abduct B on 3 April 2013. The father’s numerous professional appointments for B shortly after the transfer of care were disproportionate to the inherent risks and likely bewildering for him. The father also acted unreasonably in withholding contact from the mother between 16 April and 1 May 2013.
6. The mother had sufficiently complied with the Polish hospital’s aftercare recommendations. Her conduct during supervised contact, including discussion of bowel movements, was not shown to involve the insertion of a suppository or forcing B to take pills.
7. Both parents had, in different ways, placed their own interests above B’s. Their combined conduct was likely to have caused emotional harm. The father’s continuing suspicion and controlling approach risked further damage to the parental relationship and to B.

Not stated in the judgment. This was a first-instance fact-finding hearing in the High Court (Family Division).