ABCDEF, Re (Fact Finding: Honour Based Violence)

In family fact-finding proceedings, allegations must be proved by the party advancing them on the balance of probabilities. A lie may support an assessment of the evidence, but it is not, by itself, proof of the underlying allegation. The court must consider whether there is a good or established reason for the lie before relying on it.

In welfare decisions, the children’s welfare is paramount and the statutory welfare checklist must be considered. The court must also respect the parties’ and children’s Convention rights, with the child’s rights prevailing where they are in tension with a parent’s rights. A non-party expert may be ordered to pay costs where the circumstances fall outside the ordinary run of litigation and the expert’s failures caused unnecessary costs.

The proceedings concerned three children and arose from the father’s application for an order to spend time with his son. The mother opposed contact and alleged domestic abuse, a forced marriage, threats and a risk of honour-based violence from the father and his family.

The matter was listed for a fact-finding hearing. During the resumed hearing, the mother abandoned her claim for findings, although she maintained that the allegations were true. The court determined the allegations and also considered an application for costs against an expert who had repeatedly failed to comply with orders to file reports.

1. The mother bore the burden of proving the allegations in the Scott schedule. The standard was the balance of probabilities, applying Re B [2008] UKHL 35.
2. The court applied the revised Lucas direction. A lie does not itself prove the primary allegation. It may be taken into account only where there is no good or other established reason for the lie. The court adopted the guidance in Re H-C [2016] EWCA Civ 136, including the warning that a lie must not be treated as direct proof of guilt. The same approach was reflected in R v Middleton [2001] Crim LR 251.
3. The court also applied the principle from Re X (Children) (No. 3) [2013] EWHC 3652 (Fam) and Re Y (Children) (No. 3) [2016] EWHC 503 (Fam) that a party is not required to prove the truth of an alternative case.
4. The allegations against the father and his family were rejected. The court found that the mother had made false and malicious allegations and that the father posed no risk of harm or honour-based violence. The court concluded that the father and Child D should have the opportunity to re-establish their relationship, with the arrangements to be determined after further submissions.
5. For welfare decisions, the court applied the paramountcy principle and welfare checklist in section 1 of the Children Act 1989. It also considered Articles 6 and 8 and held that, where the child’s Article 8 rights conflict with those of a parent, the child’s rights prevail, following Yousef v Netherlands [2003] 1 FLR 210.
6. The court ordered the expert to pay the other parties’ costs of the hearings on 2 and 10 October 2018. The order was made under sections 51(1) and 51(3) of the Senior Courts Act 1981, having regard to the applicable procedural rules and the principles in Symphony Group Plc v Hodgson [1994] QB 179, Phillips v Symes (No. 2) [2005] 1 WLR 2043, Dymocks Franchise Systems (NSW) Pty Ltd v Todd & Ors (No. 2) (New Zealand) [2004] UKPC 39 and Secretary of State v Aurum Marketing Limited [2000] EWCA Civ 224.