A (A Minor : Fact Finding; Unrepresented Party)

At a family fact-finding hearing, allegations must be proved by the party making them on the balance of probabilities. Findings must rest on evidence and properly drawn inferences, viewed in the context of the evidence as a whole. The court should assess credibility without treating lies on one issue as proof that the opposite account is true.

Fact-finding must remain focused on allegations relevant to the child’s welfare and any prospective child arrangements. Evidence should be narrowed so that peripheral detail does not eclipse the issues requiring determination. The judgment also strongly criticised the practice of permitting an alleged domestic-abuse perpetrator to cross-examine the alleged victim in person, describing the process as inherently unfair and abusive.

The father and mother, both Pakistani nationals, had separated after a marriage marked by allegations of domestic abuse. Their child had entered the United Kingdom with the mother and both mother and child were later granted refugee status. Following an earlier appeal and the court’s determination of jurisdictional issues, the proceedings were remitted for a fact-finding hearing to inform future welfare decisions.

The father appeared in person and sought residence or contact. The mother alleged physical and coercive abuse, while the child also made allegations concerning physical and emotional treatment. The central issues were which allegations were proved and how the evidence should be evaluated in a private-law welfare context.

1. Fact-finding framework. The judge applied the principles summarised from Re X (Children) (No.3) [2015] EWHC 3651: the burden lay on the person making each allegation; the standard was the balance of probabilities; findings had to be based on evidence and proper inferences rather than suspicion or speculation; and the court had to assess the totality of the evidence. Lies were to be assessed in context, since a lie on one matter did not establish that the witness had lied about everything or prove the reverse of the lie. The approach in R v Lucas [1981] QB 720 was applied.
2. Relevance and case management. Following Re V (a child) (inadequate reasons for finding of fact) [2015] 2 FLR 1472, the judge endorsed the requirement to consider whether allegations were relevant to the child’s current and future welfare and any child arrangements order. The court should focus on allegations capable of affecting the ultimate welfare decision and prevent evidence from expanding into peripheral detail.
3. Findings. The judge found that the father had been domineering and violent towards the mother, including causing a fractured foot, had made threats which created a real impression that her life was in danger, and had exposed the child to parental conflict and inappropriate verbal chastisement. The evidence did not establish that every allegation was true, and some matters were left unresolved where determination was unnecessary or potentially harmful to the child’s future relationship with his father.
4. Cross-examination by an alleged perpetrator. The judge treated the direct cross-examination of the mother by the unrepresented father as profoundly unfair and abusive. The concern had previously been identified in H v L & R [2006] EWHC 3099 (Fam), Re B (a child) (private law fact finding—unrepresented father), DVK [2014] EWHC (Fam) and Q v Q; Re B (a child); Re C (a child) [2014] EWFC 31. The judge stated that such a process should not be required again.

1. Court of Appeal: In Re H (child) [2016] EWCA Civ 988, the mother’s and child’s appeals were allowed, the earlier return orders were set aside, and the proceedings were remitted to a High Court judge for fresh consideration.
2. High Court (Family Division): The present court determined the jurisdictional issues in an earlier judgment reported at [2017] EWHC 949 (Fam) and then conducted the fact-finding hearing.