JEG v IS

In civil fact-finding proceedings concerning alleged child abuse, the burden and standard of proof remain the balance of probabilities, regardless of the seriousness of the allegations. The court must assess the totality of the evidence, including the allegations’ background, genesis and the parties’ conduct. Seriousness has no logical connection with probability. Judicial inferences may be drawn from facts established on the balance of probabilities. In private law children proceedings, disputed facts should ordinarily be determined at an early stage, followed promptly by a welfare hearing, so that future orders rest on a settled factual foundation.

The proceedings concerned a child who had been removed to Russia by her mother after contact disputes with her father. The mother alleged that the father had sexually abused the child and that his former partner had physically abused her. The father alleged that the mother had fabricated the allegations to disrupt contact and had caused the child emotional harm.

The court conducted a fact-finding hearing based on documentary evidence, evidence from the parties and earlier investigations in England and Russia. The central issues were whether any abuse had occurred and whether the mother had deliberately obstructed the child’s relationship with her father.

1. Standard of proof. The allegations were civil allegations and the burden rested on the party making them. The applicable standard was the balance of probabilities, neither more nor less, as stated in Re B (Care proceedings: Standard of Proof) [2008] UKHL 35. The seriousness of the allegations did not increase the standard of proof or create any logical connection between seriousness and probability.
2. The court had to consider the totality of the evidence. Relevant matters included the background to the allegations, their genesis, the conduct of the parties, the contemporaneous investigations, and the absence or presence of independent supporting evidence. Judicial inferences could be drawn from facts themselves established on the balance of probabilities, with reference to A local authority v A (No.1) [2010] EWHC 28 (Fam).
3. None of the allegations of sexual abuse was proved. The mother’s attempts to influence interviews, delays in reporting, lack of convincing detail, obstruction of contact, and the absence of independent disclosures materially undermined her case. The court found it more likely than not that she did not believe the child was at risk and had planned to sever the relationship between the child and her father.
4. No findings were made against the father’s former partner because she had not been given an opportunity to respond or defend herself, contrary to her rights under the ECHR. The court found only that the father had been insufficiently sensitive to the child’s unhappiness concerning the former partner.
5. The court emphasised that private law proceedings require timely determination of disputed facts. An early fact-finding hearing followed by a welfare hearing is generally the just and proportionate course. The matter was listed for a welfare hearing, with continued assistance from Cafcass Legal and the child’s Guardian.

Not an appeal. The judgment was given at first instance following a fact-finding hearing.