SA v BN

In private-law proceedings concerning a child whose mother asserted that she had died abroad, the court applied the balance of probabilities. The burden lay on the person asserting the child’s death to establish it. Where documentary evidence was shown to be fabricated and the surrounding evidence was unreliable, the court was entitled to find that the child remained alive. The court may make findings about the child’s whereabouts and the conduct of relatives where those findings are necessary to determine the application and protect the child. The court may also draw conclusions from the totality of the evidence, while avoiding reliance on a vulnerable witness’s demeanour as evidence of dishonesty or guilt.

The father applied for parental responsibility and contact in respect of his young daughter. The mother failed to engage with earlier proceedings and removed the child to the Democratic Republic of Congo after a section 37 report raised child-protection concerns. The mother and maternal grandfather later asserted that the child had died in a road traffic accident. They relied on photographs and documents said to include death certificates, medical records, a burial permit and police material.

The High Court was required to determine whether the child was dead or alive, whether the documents were genuine, and what protective orders should follow.

1. Burden and standard of proof. The issue whether the child was alive was determined on the balance of probabilities. As the mother asserted that the child had died, the burden of proving death lay on her.
2. Documentary evidence. The court examined the purported death, medical, burial, police and hospital documents together with the photographs and the evidence obtained from relevant institutions in the Congo. It found that the documents were fake or unreliable. The evidence did not establish that the child or the grandmother had died.
3. Findings of fact. The mother had taken the child to the Congo on 1 March 2012, following the section 37 report and the prospect of child-protection proceedings. The child had not died and was alive. The mother and grandfather knew her whereabouts. The grandfather had controlled and manipulated the mother and had organised the removal and the production of false documentation, with assistance from family in the Congo.
4. Assessment of the mother. The court treated the mother as a young woman who had been abused and traumatised. Her flat and limited presentation in evidence was not used as proof that her account was false. The court nevertheless found that she could not have planned and carried out the removal and documentary deception without the grandfather’s influence.
5. Orders. Having found that the child was alive and habitually connected with the jurisdiction, the court made a raft of orders designed to secure her return to the United Kingdom as soon as practicable.

First-instance decision. No earlier judgment appealed from is stated in the judgment.