Y (A Child: Private Law: Fact Finding) v

In private law fact-finding proceedings, allegations are determined on the balance of probabilities. Neither the seriousness of the allegation nor the seriousness of its consequences alters that standard. A judge may reach conclusions without relying mechanically on the burden of proof.

A lie is not, by itself, evidence of guilt. Serious allegations of abuse cannot be established by suspicion, an asserted guilty appearance or speculative explanations unsupported by reliable evidence. The court must distinguish proved facts from unresolved possibilities when assessing the child’s welfare.

The father sought contact with his young daughter and a non-molestation injunction after the parents’ separation. The mother alleged that he had sexually abused the child, had an unhealthy sexual interest in children and had accessed incest pornography. There were also disputes concerning cannabis exposure, injuries to the child, the shaving of her head, immunisations and contact.

The hearing was a preliminary fact-finding exercise before welfare and expert or Cafcass assessment. The local authority attended because of continuing safeguarding concerns. The central issues were whether the allegations of sexual wrongdoing were proved and what findings could properly be made about the other disputed matters.

The judge determined the disputed factual issues following a three-day fact-finding hearing.

1. Standard of proof. Applying Re B [2008] UKHL 35, factual issues were to be determined on the balance of probabilities. The seriousness of the allegations and their possible consequences did not affect that standard. The parent against whom allegations were made bore no legal burden of proving anything.
2. Credibility and lies. The fact that a person lied was not, without more, evidence of guilt. The court had to consider the possible reasons for the lie and its relevance to the issue under determination.
3. Sexual abuse and pornography allegations. The mother’s account did not provide a proper evidential basis for finding that the father had sexually abused the child. The delay, the manner in which the allegation developed, the absence of a detailed account and the mother’s tendency to exaggerate and fabricate materially undermined it. The father was exonerated. The allegation that he had an interest in incest pornography was likewise rejected.
4. Other factual matters. The child’s hair testing indicated exposure to cannabis, but the means and level of ingestion remained unresolved. Further testing and expert clarification were desirable. Three injuries within a short period were largely unexplained, but the evidence did not permit a sufficient conclusion that they were inflicted. The mother’s shaving of the child’s head was irrational and was closely linked in timing to the hair-test result.
5. Contact and further welfare matters. The existing positive contact arrangements had required substantial local-authority resources and judicial supervision. There was no reason for contact to remain supervised, and nothing prevented overnight staying contact before the next hearing. The judge would address the immunisation issue further if the ordered vaccinations had not occurred.

First-instance fact-finding decision. No appeal or earlier decision determining the present dispute is stated in the judgment.