A & B (No 1 -Fact finding judgment)

In a fact-finding hearing, allegations must be proved by the party bearing the burden of proof on the balance of probabilities. Findings must be based on evidence, including properly drawn inferences, rather than suspicion or speculation. The court must assess disputed evidence in its factual and relational context, while distinguishing established conduct from allegations that remain unproved. In surrogacy proceedings, prompt application for a parental order is important because, without such an order, the commissioning parents may not be the child’s legal parents or have parental responsibility, regardless of the legal position in the country of birth.

The case concerned a fact-finding hearing arising from a parental order application by A and B concerning twin girls born following a surrogacy arrangement in India. A alleged that B had subjected her and the children to threats, violence, coercive conduct, intimidation and inappropriate discipline. B denied the allegations and attributed much of A’s account to her mental ill health and the parties’ unhappy relationship.

The court heard oral evidence from both parties and considered their written evidence, medical records and other documents. The parental order application raised issues under Human Fertilisation and Embryology Act 2008, but the hearing was directed principally to the disputed allegations of domestic abuse.

1. Applicable standard. The burden rested on A. She had to establish each allegation on the balance of probabilities, applying the principles identified in Re B [2008] UKHL 35. Findings had to be based on evidence and properly drawn inferences, not suspicion or speculation, as stated in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817.
2. Findings. The allegations of repeated threats to kill, threats permanently to remove the children, physical assault, coercion into medication, social isolation, inadequate domestic provision and the alleged incident involving C’s injury were not proved. The court found that, during arguments, B was likely on occasions to have picked up a child and stormed from the room. It was more likely than not that he had used terms such as mental or mad in arguments. The court also found that B’s presence diffused one disciplinary incident involving D, and that B was angry and intended A to hear his comments when collecting his belongings in January 2015.
3. The findings were assessed against the parties’ difficult and deteriorating relationship, A’s psychological vulnerability and inconsistencies or late emergence in parts of her account. The court did not treat every instance of inappropriate or concerning behaviour as proof of the more serious allegation pleaded.
4. The court noted that the parental order application appeared capable of satisfying several statutory criteria, but that questions concerning timing, the children’s home, domicile, consent, payments and lifelong welfare interests remained for the later hearing. Directions were given for an agreed schedule of findings, interim contact and further evidence.

First-instance fact-finding judgment. No appellate history is stated in the judgment.