C (Female Genital Mutilation and Forced Marriage: Fact Finding)

The court must apply the same balance-of-probabilities standard to evidence from vulnerable witnesses as to all other evidence. Vulnerability may affect how evidence is assessed, but does not lower the standard of proof or justify reduced forensic scrutiny.

Fact-finding requires an assessment of the totality of the evidence, including inherent probabilities, context and properly drawn inferences. Serious allegations require cogent evidence, but there is no heightened standard of proof. A failure to prove an allegation is not, without more, a finding that it was false.

In forced-marriage cases, the court must distinguish a marriage entered without free and full consent from a consensual arranged marriage. FGM remains serious abuse irrespective of its type or cultural context.

The proceedings concerned two children, J and K, and arose from allegations by their mother that she had suffered FGM, forced marriage, sexual abuse and domestic violence. Protective orders had been made in respect of the children, and the proceedings were transferred and heard together as a combined fact-finding and welfare hearing.

The mother’s allegations were denied by the family members concerned. The court considered the evidence of vulnerable witnesses, expert medical evidence, the circumstances of the alleged FGM and marriage, and risks to J and K. Final welfare decisions were deferred. The central issues were whether the pleaded allegations were proved and what findings concerning FGM risk should be made in relation to J.

1. Fact-finding approach. The court applied the single civil standard of proof, namely the balance of probabilities. The burden remained on the party making each allegation. Failure by a respondent to establish an alternative explanation did not prove the applicant’s case. Inherent probabilities were relevant to evaluating evidence, but did not create a higher standard for serious allegations.
2. Vulnerable witnesses. Part 3A and PD3AA of the Family Procedure Rules 2010 concern participation and the procedural framework for giving evidence. They do not alter the substance of the evidence or the standard of proof. Vulnerability required allowances for fluency, communication, memory and presentation, and caution against intuitive or unconscious bias, but also required rigorous analysis.
3. Evidence and findings. Evidence had to be assessed cumulatively rather than in separate compartments, with an overview of the totality of the evidence. Findings had to rest on evidence and properly drawn inferences, not speculation. The court rejected most of the mother’s allegations, including alleged FGM in Kenya in 2013, forced marriage, marital rape, habitual domestic violence, sexual abuse by F, and coercive control. It found one admitted assault by the father in December 2016, but not the alleged red marks or wider pleaded violence.
4. Forced marriage and FGM. The marriage was found to be a consensual arranged marriage, not a forced marriage. The court accepted that the mother had experienced Type 1 FGM, but was not satisfied that it occurred in Kenya in 2013 or had been arranged by her parents. FGM was treated as serious abuse irrespective of its classification or cultural setting.
5. Risk findings concerning J. The court found that the maternal grandparents had left their older daughters with the maternal great-grandmother knowing that it was highly likely she would arrange FGM. It also found continuing links with Kenya and Somalia, near-universal local prevalence, absence of an identified protective individual, and potent macro and micro risk factors concerning J. Further welfare decisions were reserved.

First-instance fact-finding decision. Final welfare decisions concerning J and K were deferred for a future hearing.