SS v MSS

In a fact-finding hearing concerning future child contact, disputed facts are determined on the ordinary civil standard of the balance of probabilities. The court must assess the evidence as a whole, including the parties’ conduct and credibility. Findings that one parent deliberately stranded the other parent and child abroad, controlled access to money and communication, and acted cruelly may be relevant to the later welfare and contact determination. A fact-finding judgment does not itself determine the final arrangements for contact where that issue is reserved for a future hearing.

The applicant father and respondent mother were formerly married and had a young son. Following the parties’ separation, the father returned to England from Pakistan with the passports and identity documents of the mother and child, leaving them unable to return to the United Kingdom for several months. The mother commenced proceedings concerning the return of the documents, and the father later obtained an English divorce.

The hearing was confined to fact-finding in the context of the father’s application for contact. The central issues were the circumstances in which the mother and child remained in Pakistan, the father’s conduct during and after the marriage, and the credibility of the parties’ competing accounts. The ultimate impact of the findings on contact was reserved for a future hearing.

1. Standard of proof. Where facts were disputed, the court applied the ordinary civil standard of proof, namely the balance of probabilities.
2. Credibility and evidence. The judge assessed the oral evidence of the mother, father and the mother’s father, together with the parties’ conduct and the surrounding documentary material. The mother’s evidence was accepted on the material disputed matters. The father’s evidence and conduct, including his admitted lies to the Foreign and Commonwealth Office and the police about the passports, were relevant to that assessment.
3. Findings of fact. The father had treated the mother with emotional unkindness and had subjected her to sustained pressure in relation to religious observance and domestic expectations. He deliberately returned to England with the passports and identity documents of the mother and child, thereby creating a situation in which they could not return to the United Kingdom. His conduct amounted, in the context of the case, to cruelly stranding the mother and child in Pakistan.
4. The father’s email presenting the mother with a choice between remaining in Pakistan while changing her behaviour or proceeding through divorce was threatening and cruel, and the choices offered were unreasonable.
5. Scope of decision. The findings were made in preparation for a later determination of the father’s application for contact. The court did not decide the eventual contact arrangements. That decision was to be made at a future hearing, informed by further enquiries from the CAFCASS officer.