Al M (Factfinding)

In family fact-finding proceedings, the burden remains on the party making allegations, even where the opposing party declines to participate or offers to assume their truth. The civil standard of proof applies regardless of the seriousness of the allegations or consequences. Hearsay evidence is admissible, but its weight must be assessed by reference to its reliability and the circumstances in which it was created and adduced. A party’s absence may affect the weight of that party’s hearsay evidence, but litigation conduct cannot itself establish whether the allegations are true. Fact-finding must remain directed to past events relevant to future welfare and risk.

The judgment concerned ongoing welfare proceedings about two children. Their mother sought findings that their father had arranged the unlawful removal and detention of two adult daughters, and had conducted a campaign of intimidation against her. The father did not attend the fact-finding hearing, call witnesses or participate through legal representatives, although his written evidence remained before the court. He maintained denials but had proposed that certain allegations be assumed to be true and had later sought to withdraw his application for contact.

The court had to determine whether the allegations were proved on the balance of probabilities, how to assess substantial hearsay evidence and the father’s written evidence, and whether the findings were relevant to future welfare and risk.

1. The mother’s allegations were, save for limited exceptions, proved on the balance of probabilities. The allegation concerning a proposed forced marriage was not proved.

2. The burden of proof remained on the mother throughout. The father’s absence did not reduce that burden or the court’s duty to scrutinise the evidence carefully. The seriousness of the allegations and their consequences did not justify an enhanced standard of proof. The court applied the approach stated in Re B (Children) (Care Proceedings: Standard of Proof) [2008] 3 WLR 1.

3. Hearsay evidence was admissible under the Children (Admissibility of Hearsay Evidence) Order 1993 and the Civil Evidence Act 1995. Under section 4 of the latter Act, the court had to consider circumstances bearing on reliability, including contemporaneity, multiple hearsay, possible motives, editing or collaboration, the practicability of calling the original maker, and any attempt to prevent proper evaluation.

4. The father’s failure to attend court or face cross-examination did not make his statements inadmissible or automatically worthless. In the unusual circumstances, however, his knowledge that he would never be cross-examined was a factor affecting the weight attributable to them. Conversely, witnesses who attended, gave sworn evidence and made themselves available for cross-examination were entitled to greater weight when their evidence was opposed by hearsay.

5. The father’s earlier proposal that the allegations be assumed to be true, and his later proposal to withdraw his contact application, were not concessions that could be relied upon in determining whether the allegations were proved. His subsequent forensic conduct was also not relevant to the probability of the alleged facts, although his absence was relevant when assessing the weight of his hearsay evidence.

6. The court accepted the evidence concerning the removal of Shamsa to Dubai, Latifa’s detention following her 2002 escape attempt, Latifa’s forcible return to Dubai in 2018, and the father’s campaign of intimidation against the mother. The findings were relevant because the purpose of fact-finding was to identify past events bearing on future welfare and risk.

7. The court read closed material protected by public interest immunity but placed no reliance upon it in determining the facts. It remained closed because the court had already reached its conclusion on the relevant issue and disclosure was not necessary for a fair trial.