A (Children), Re (Rev 2)

Fact-finding in family proceedings must remain proportionate and focused on matters relevant to the children’s welfare. Each allegation must be proved on the balance of probabilities by the party asserting it. Where accounts are diametrically opposed, the court may test them against reliable corroborative evidence, the overall circumstances and a rational assessment of whether the competing accounts fit the established facts. Incidental or corroborative material must not be given more weight than it can properly bear. A finding that a parent occasionally smacked children did not, on the facts, establish abusive physical chastisement or significant harm. The court may nevertheless find serious emotional abuse where a parent controls and manipulates family relationships so as to exclude the other parent from the children’s lives.

These wardship proceedings concerned four children and their mother’s application to re-establish contact after she had not seen them since February 2016. The proceedings began in May 2016. An earlier fact-finding hearing before Keehan J in July 2018 resulted in findings which were set aside on appeal on 1 February 2019, and the matter was reheard.

The principal disputes concerned alleged physical abuse by the mother, the mother’s treatment within the paternal family, whether she had voluntarily abandoned the children in Pakistan, and whether the father had retained her passport so that she could not return to England. The central issue was which account of the family’s history was more likely to be true.

1. Applicable approach. The court applied the balance of probabilities and placed the burden of proving each allegation on the party making it. Given the opposing accounts, the fact-finding exercise had to be proportionate and directed towards issues relevant to the children’s welfare.
2. The court assessed the evidence by examining reliable, relatively discrete matters and then standing back to apply a reality check to the competing overall accounts. Corroborative or incidental material had to be treated cautiously and not given more weight than it could properly bear. The court considered the whole evidential picture, including whether particular accounts fitted the established chronology and surrounding circumstances.
3. The mother’s account was essentially accepted. The father had retained her passport from May 2012 onwards and thereby prevented her from returning to England before her indefinite leave to remain expired. She had been forced out of the family home in Pakistan and thereafter kept away from the children. The children’s belief that she had abandoned them was therefore rejected.
4. The allegations that the mother had regularly subjected the children to abusive beatings were not proved. The court found that she had sometimes smacked them, but that the conduct was neither excessive nor frequent, did not amount to child abuse and had not caused significant harm. The video clip was not proved to depict the mother and A.
5. The findings against the father were nevertheless of a high order of seriousness. His control and manipulation of the mother’s and children’s lives had excluded the mother from contact with the children for a substantial part of their childhood and had contributed to their profoundly negative view of her. The findings were to form the factual basis for considering measures to reintroduce the mother into the children’s lives.

• High Court (Family Division): an earlier fact-finding decision by Keehan J was set aside on appeal on 1 February 2019, and the matter was remitted for rehearing. The present court conducted the rehearing and made fresh findings of fact.