Re A (a child)

In determining disputed facts in private family proceedings, the court applies the ordinary balance of probabilities. The seriousness of allegations or consequences does not create a heightened standard. Findings must rest on evidence and proper inferences, not suspicion or speculation, and the evidence must be assessed in the round. Where allegations are made by one parent against another, the court must consider the risks of misinterpretation, exaggeration and fabrication while assessing the parties’ motivations.

In welfare decisions following abduction, the court must focus on the child’s best interests rather than punish the abducting parent. The decisive question is the comparative harm and welfare consequences of the available arrangements.

The mother applied for orders requiring A, then nearly three years old, to live with her, to be returned to England and Wales, and not to be removed. The father had taken A from the United Kingdom to Switzerland without the mother’s consent. The mother’s application under the 1980 Hague Convention had failed in Switzerland, and the father sought transfer of the proceedings to Switzerland under the 1996 Hague Convention.

A previous application for transfer had been dismissed by Arbuthnot J. The issues before Hayden J included disputed allegations concerning both parents, the effect of A’s continuing separation from her mother and siblings, and the welfare consequences of A remaining in Switzerland or returning to the United Kingdom.

1. Application granted. A was to be returned to her mother’s care in the United Kingdom without further delay.
2. The court applied the ordinary balance of probabilities. As explained in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, neither the seriousness of allegations nor the seriousness of the consequences altered that standard. Findings had to be based on evidence and proper inferences, rather than suspicion or speculation, following Re A (Fact Finding: Disputed Findings) [2011] 1 FLR 1817.
3. The evidence had to be assessed holistically. The court therefore considered the evidence in its totality and in relation to other evidence, applying the approach identified in Re T (Abuse: Standard of Proof) [2004] EWCA Civ 558, [2004] 2 FLR 838. The court found both parents unreliable in important respects, but preferred the evidence of the children’s father, TD, where it conflicted with the mother’s account.
4. The court considered the parties’ motivations and the particular risks arising when allegations are made by one parent against another, in accordance with Re W (Children) [2010] UKSC 12. The father’s abduction was found to have been carefully planned and motivated in part by an intention to hurt the mother. His lack of insight into the effect of the abduction and continuing separation materially impaired his ability to promote A’s welfare.
5. The court was required to focus on A’s best interests rather than punish the father. The greater harm lay in A remaining with him: she would remain separated from her mother and siblings and suffer significant emotional harm affecting her identity and development. The mother’s deficiencies were serious, but were capable of being addressed through support and social-work involvement. The mother also retained an instinctive understanding of the importance of A’s relationship with her father.
6. The court declined to accept an undertaking by the mother not to cooperate with any criminal prosecution of the father. Such an undertaking would be inappropriate and unenforceable, and the High Court should not obstruct the administration of criminal justice.