RE Z (No 1 Fact Finding)

In a family fact-finding hearing, allegations must be proved by the party making them on the balance of probabilities. Findings must be based on evidence and properly drawn inferences, rather than suspicion or speculation. Evidence must be assessed in the context of the totality of the evidence, with particular care given to the credibility and reliability of the parents and other carers. A lie about one matter does not establish that a witness has lied about everything. Allegations of domestic abuse must be assessed in their factual and relational context, including patterns of coercive or controlling behaviour, without reversing the burden of proof.

The proceedings arose from a joint parental order application concerning Z, born following a surrogacy arrangement entered into by W and X. After their relationship broke down, both parties made allegations of domestic abuse and other harmful conduct. Z was joined as a party, became a ward of court, and the matter was listed for a fact-finding hearing to inform later welfare decisions.

The central issues were which allegations were proved, whether either party had engaged in coercive or controlling behaviour, and what interim accommodation arrangements should be made for X and Z pending the welfare hearing.

1. Fact-finding principles. The court adopted the summary of principles drawn largely from Re JS (A Minor) [2012] EWHC 1370 (Fam). The burden remained on the party seeking each finding. The standard was the balance of probabilities, and each allegation had to be treated as proved or not proved.
2. Findings had to be based on evidence, including proper inferences, rather than suspicion or speculation, applying Re A (A Child) (Fact-Finding hearing: Speculation) [2011] EWCA Civ 12. The evidence had to be assessed holistically and in context, rather than in separate compartments, as explained in Re Z [2004] 2 FLR 838.
3. The court placed substantial weight on the evidence and credibility of the parents, while recognising that a witness may lie for different reasons and that a lie about one matter does not require rejection of the whole account. The approach reflected Re W and another (Non-accidental injury) [2003] FCR 346 and R v Lucas [1982] QB 720.
4. Applying those principles, the court found most allegations made by W against X established, subject to specified exceptions. The serious physical-abuse allegations made by X against W were not established, principally because of delay, lack of corroboration, the contemporaneous messages, and conduct inconsistent with the alleged fear. One allegation that W threatened to revoke X’s visa and take Z away was established.
5. Having regard to the definitions in Family Procedure Rules 2010 PD12J, the court considered that there had probably been coercive and controlling behaviour by both parties. The finding was assessed against the wider relationship dynamics, including X’s isolation and dependence and both parties’ demands, threats and uncompromising conduct.
6. The court declined to order X and Z’s immediate return to W’s property. It directed the parties to seek accommodation for X and Z for at least three months, with financial assistance from W if necessary, pending the later welfare determination.

First-instance proceedings. The judgment describes earlier case-management hearings, including orders made by Poole J on 7 and 9 April 2021, the joinder of Z as a party, and directions leading to the fact-finding hearing on 29 and 30 July 2021.