A v J & Ors

In determining child arrangements, the court must assess all the evidence cumulatively and make findings on the balance of probabilities, without relying on speculation or suspicion. A child’s welfare is paramount, and the court must consider the welfare checklist, the presumption of parental involvement, and the proportionality of any interference with family life under Article 8 of the ECHR.

Where a parent presents a demonstrated risk of emotional or physical harm, including through domestic abuse, denigration of the other parent or exposure to violence, restrictions on contact may be necessary and proportionate. The court should assess the children’s wishes and feelings in light of their age, understanding and experiences, and should consider further risk assessment before permitting unsupervised contact where appropriate.

The applicant mother sought orders concerning the residence and contact arrangements for two children who had been brought from Y Country to England by their father. She contended that the father had falsely led her to believe that she would join the children, and that he had acted unilaterally in separating them from her.

The father maintained that the children had come to England with the mother’s agreement and sought their return to his care. The court also considered allegations of domestic abuse, the children’s exposure to an assault on the father’s second wife, the children’s welfare, and the appropriate arrangements for contact.

1. Findings of fact. The burden of proof rested on the party making an allegation, and the standard was the balance of probabilities. Findings had to be based on evidence rather than speculation or suspicion. Evidence had to be assessed cumulatively and in context, rather than in separate compartments. A lie about one matter did not establish that a person had lied about others, and a lie was not direct proof of guilt.
2. The father had acted unilaterally in bringing the children to England and had deliberately and falsely led the mother to believe that she would join them. His conduct constituted transnational marriage abandonment and was cruel and abusive to the mother, as well as emotionally abusive to the children.
3. Welfare assessment. The children’s welfare was the court’s paramount consideration. Their wishes and feelings were genuine and understandable in light of their experiences and were entitled to respect and weight. Returning them to the father would cause great distress and would not meet their emotional needs.
4. The father’s conduct in separating the children from their mother, his assault on his second wife in their presence, his lack of remorse and his denigration of the mother created a risk of emotional and physical harm. The risk justified the children living with the mother and restrictions on face-to-face contact with the father.
5. The restrictions were draconian but necessary and proportionate. Monitored video contact and supervised face-to-face contact were ordered in accordance with the Guardian’s recommendations. Before unsupervised contact took place, a further risk assessment by a professional not actively working with the father was recommended. A Family Assistance Order under section 16 was also to be made.