A (A child: Wardship: Fact Finding: Domestic Violence)

In domestic-abuse fact-finding proceedings, the court must determine disputed facts on the ordinary balance of probabilities. The seriousness of an allegation or its consequences does not alter that standard. Where domestic violence is found, the court must assess its effect on the child and resident parent, the risk of future harm, the motivations and likely behaviour of the parent seeking contact, that parent’s understanding of the harm caused, and the capacity to change. Contact should be ordered only where the child’s and resident parent’s physical and emotional safety can, as far as possible, be secured before, during and after contact.

The father commenced wardship proceedings concerning his seven-year-old son and sought the child’s return to his care, together with protective orders preventing the mother from taking the child abroad. The mother alleged sustained domestic violence, including assaults in March 2013 and October 2014, abusive messages, and abusive conduct towards the child. The father denied the allegations and alleged that the mother had fabricated them. The central issues were whether the alleged violence and abuse had occurred, the reliability of the evidence, and the implications for the child’s future relationship with each parent.

1. Fact-finding approach. The father bore no burden of proving anything. The applicable standard was the simple balance of probabilities. Neither the seriousness of the allegations nor the seriousness of the possible consequences altered that standard. A court will generally determine where the truth lies without relying on the burden of proof.
2. Credibility. A person’s lies do not, without more, establish culpability. Their significance must be assessed in context. The father’s admitted and demonstrated lies, defensive evidence and repeated denials materially undermined his credibility. The mother was assessed as a truthful and restrained witness, and the child’s account was treated as essentially reliable.
3. Domestic violence and contact. Applying paragraphs 26 and 27 of Practice Direction 12J, the court had to consider the harm already suffered, the risk of future harm, the conduct and motivation of both parents, likely behaviour during contact, the father’s capacity to appreciate the effect of violence, and his attitude towards past conduct and capacity to change. The child’s and mother’s physical and emotional safety had to be capable of being secured before, during and after contact.
4. Findings. The mother had been assaulted in March 2013 and October 2014. The father had also engaged in sustained, degrading and intimidating abusive messaging. The child had witnessed serious violence and had suffered emotional harm. The evidence did not establish punitively harsh treatment amounting to physical abuse of the child, although the father had slapped or hit him in a different cultural context, causing sadness and transient pain.
5. The prospects of rebuilding the father’s relationship with the child depended substantially upon the father acknowledging his failings and changing his interaction with the mother. The judgment records no final operative contact order.