ML v KW & Anor

In fact-finding proceedings, the party seeking a finding bears the burden of proof. A finding that an event occurred requires the court to be satisfied that it was more probable than not. The court must assess the evidence as a whole, including the parties’ credibility, corroboration, surrounding circumstances and the quality of evidence obtained through interpreters or video link. Delay in reporting personal or domestic abuse does not, by itself, justify rejecting an allegation where the surrounding circumstances provide a credible explanation. Findings should be limited to matters necessary for future welfare decisions, particularly where wider findings may prejudice future family relationships.

The proceedings concerned wardship and contact between a father and his two-year-old son. The mother opposed contact and made seven allegations concerning physical and sexual abuse in England, coercive control, and oppressive treatment during the family’s stay in Afghanistan. The father denied the allegations and alleged that the mother’s account was a plan devised by her family. The court conducted a five-day fact-finding hearing, hearing evidence from eleven witnesses, several by video link through interpreters. The central issues were which allegations were proved and what findings were necessary for future arrangements for the child.

1. The court applied the ordinary civil standard. The burden rested on the party seeking each finding, and an allegation was proved only if it was more probable than not.
2. The mother was generally a satisfactory and credible witness. The father was not. His account did not provide plausible explanations for the surrounding events, and his allegation that the mother was following a family plan was rejected.
3. The court found proved that the father had punched the mother, forced vaginal intercourse shortly after the child’s birth, twice forced anal intercourse, dropped the child’s car seat onto the mother during an argument, and assaulted the mother on 31 January 2011. The court also found that the father retained the mother’s passport and that the treatment of the mother in Afghanistan was oppressive and controlling.
4. The absence of an immediate or public complaint did not disprove the allegations. The mother’s dependence on the father, limited English and later access to support provided a credible explanation for the delay. The evidence obtained through interpreters and video link was treated with appropriate caution.
5. Other allegations were not proved, including alleged injuries in Afghanistan, the maternal grandfather’s alleged detention, and the alleged threat involving a gun. The court deliberately avoided comprehensive findings where they were unnecessary and might prejudice future contact between the families.
6. The wardship proceedings were discharged. A residence order was made in favour of the mother, with necessary protective orders. Further issues concerning the child’s arrangements were left for a later hearing.