M v F & Ors

In child-arrangements proceedings involving alleged domestic abuse and transnational marriage abandonment, the court must determine disputed facts on the balance of probabilities by evaluating all the evidence in context. Findings must rest on evidence and properly drawn inferences, not suspicion or speculation. A parent’s dishonesty on some matters does not establish that the parent is dishonest on all matters; credibility must be assessed issue by issue and against the totality of the evidence.

Where an alleged perpetrator is unrepresented and may need to cross-examine an alleged victim, the court must address the problem at the earliest opportunity. It may arrange questioning through a legal representative, by the judge or court officer, or through a guardian, selecting the course that best balances effective testing of evidence with protection from further harm.

The mother applied for wardship and related relief after travelling with the father to Pakistan and remaining there while the father returned to England with three children. She alleged that the father had stranded her, exercised controlling and coercive behaviour, and prevented contact with the children. The father disputed those allegations and relied on DNA evidence showing that a fourth child, living in Pakistan, was not his biological child.

The court conducted a fact-finding hearing. The children were parties and represented by a guardian. The father became a litigant in person shortly before the hearing, raising the question of how the mother’s evidence could fairly be tested without requiring alleged abuse by an alleged perpetrator. The central issues were the alleged domestic abuse and stranding, the appropriate arrangements for testing evidence, and the court’s jurisdiction over the child who had never lived in England.

1. Fact-finding. The court applied the civil standard of proof. The burden lay on the party making each allegation. The court considered the evidence as a whole, including properly drawn inferences and inherent probabilities, while avoiding speculation. It applied the approach in R v Lucas [1981] QB 720: lies may arise for different reasons, and dishonesty on one issue does not mean that all evidence is false.
2. Evidence and representation. The court accepted that the guardian could test the parties’ evidence where the father was unrepresented and alleged to have abused the mother. This was not a universal solution. The court must identify the problem early and choose between questioning through a legal representative, questioning by the judge or a court officer, or questioning by a guardian, having regard to fairness and protection from further abuse.
3. Findings. The father had stranded the mother in Pakistan, retained her passport, returned to England and contacted the Home Office to hinder her return. He had also misled her into believing that an immigration application would be made for the fourth child and later prevented contact with the three children in England. Those matters amounted to domestic abuse within the meaning of the revised PD12J. The allegations of wider controlling behaviour, physical abuse and verbal abuse were not established.
4. Children’s welfare and jurisdiction. The court had jurisdiction over the three children habitually resident in England. It had no jurisdiction over the fourth child, who had been born and lived in Pakistan and had never been present in England. No basis for a forum necessitatis jurisdiction was shown, so the wardship concerning that child had to be discharged.
5. The court directed that work should begin immediately to rebuild relationships between the three children, their mother and their sister. Further welfare decisions required consideration of the findings against both parents and the continuing cultural, emotional and practical consequences of the family circumstances.