SMD v LMD

In a fact-finding hearing concerning alleged child sexual abuse, the person making an allegation bears the burden of proving it on the balance of probabilities. Serious allegations require cogent evidence, but they do not require a heightened standard of proof. The court must decide whether the alleged event occurred and should not impose a reverse or pseudo-burden on the opposing party to provide an alternative explanation. The judge remains the decision-maker and must assess the whole evidential picture, including chronology, contemporary documents, consistency, credibility and the circumstances in which disclosures were made. Applying those principles, the court found that the child’s repeated accounts were more likely than not prompted by an actual experience involving inappropriate digital touching by the father.

The father applied for contact with his seven-year-old daughter, A, after a prolonged dispute between the parents concerning her removal from Spain to England, contact arrangements and alleged parental alienation. The mother sought findings that the father had harassed her and others and had sexually abused A. The father denied sexual abuse and alleged that the mother and maternal grandmother had coached A to make false disclosures.

The court conducted a fact-finding hearing, considering evidence from the parents, family members, an independent social worker, police officers and a local-authority social worker. The central issues were whether A’s disclosures were reliable, whether they were the product of coaching or other influence, and whether the alleged conduct had occurred.

1. Applicable principles. The court adopted the summary of fact-finding principles in Bradford Metropolitan District Council v F, K and K [2012] EWHC 557 (Fam). The applicable standard was the balance of probabilities. The more serious or improbable the allegation, the greater the need for evidential cogency, but the standard itself remained unchanged.
2. The court was required to determine whether the alleged events occurred. It was impermissible to impose a pseudo-burden on the father to produce an alternative explanation. The mother bore the burden of proving the allegations; the father had nothing to disprove.
3. The court considered the chronology and consistency of A’s accounts, the circumstances of her disclosures, the evidence of the maternal grandmother, the ABE interview, the absence of medical evidence, the police decision not to prosecute, and the parents’ credibility. The judge treated herself as the decision-maker and did not regard the professional witnesses’ impressions as determinative.
4. The father’s case that the disclosures resulted from coaching, parental alienation or sexualised conduct in the mother’s household was rejected. The maternal grandmother was found to be truthful and not part of a coaching conspiracy. A’s repeated accounts, including the first disclosure before the later investigation, were not treated as imagination or fantasy.
5. On the balance of probabilities, A’s accounts were prompted by an actual event or experience involving the father. The court found that the event likely involved inappropriate touching of A’s genital area, involving digital rather than other penetration, causing pain, and occurring on at least one occasion, probably more than one, during the shared-care period in Spain.
6. The court also found that the father had engaged in a course of harassment against the mother, family members and certain professionals, while rejecting particular allegations concerning the Teddyphone and finding that the father’s disclosure of explicit photographs should not have occurred. The fact-finding issues were determined; decisions about future contact and any risk assessment were left for a later hearing.

First-instance fact-finding decision. The judgment records earlier proceedings in Spain and prior orders in the English Family Division, but no appeal from the present decision.