V (Article 21 of the 1980 Hague Convention - fact finding), Re

A fact-finding hearing in children proceedings must be justified by its relevance to the children’s future welfare. It is not free-standing litigation or an opportunity to resolve every grievance arising from a relationship.

The applicant bears the burden of proving allegations on the balance of probabilities. The court must decide whether alleged events occurred, rather than whether they might have occurred, and must base findings on the totality of the evidence without speculation or suspicion. Lies may corroborate an allegation only where they are deliberate, material and motivated by a realisation of guilt and fear of the truth. Unproved allegations must be treated as having not occurred.

Domestic abuse allegations may properly be considered in clusters, while remaining attentive to individual incidents and coercive or controlling patterns.

The father applied under Article 21 of the 1980 Hague Convention for effective rights of access to his two children, who had been brought from Lithuania to England by the mother. The application was treated as an application for a child arrangements order under section 8 of the Children Act 1989.

The mother made allegations of stalking, coercive and controlling behaviour, emotional, psychological, financial, physical and sexual abuse involving herself and the children. Some allegations had not been determined in Lithuania. The court directed a fact-finding hearing before welfare decisions could be made.

The central issue was which allegations were proved and which facts should form the basis for decisions about the children’s future arrangements and the parents’ co-parenting relationship.

1. Purpose and standard. The judge held that the fact-finding exercise had to produce something important for the welfare decision. It was confined to allegations relevant to future arrangements for the children, applying the guidance in Re HDH and Re K and K. The mother bore the burden of proof. The standard was the balance of probabilities, applied with common sense. If an event was not proved, the court had to proceed on the basis that it did not happen.
2. Assessment of evidence. Findings had to rest on the evidence and proper inferences, viewed across the whole evidential landscape. The judge considered credibility, reliability, consistency, contemporaneous material, hearsay, memory and witness demeanour. Lies were not direct proof of guilt. They could amount to corroboration only where the requirements identified in R v Lucas and Re H-C were satisfied, with the good-practice approach in Re A, B and C also considered.
3. Domestic abuse allegations. The allegations were grouped into clusters. This was a useful method, consistent with Re B-B, but the judge remained alert to individual incidents and to coercive or controlling patterns. The definitions in the Domestic Abuse Act 2021 and PD12J were applied.
4. Findings. The judge found emotional and psychological abuse of the mother, financial abuse, physical abuse and coercive control during the parties’ separation, emotional and psychological abuse during incidents in June 2015 and August 2020, and related emotional harm to the children. The judge also found that the father pulled or twisted Stephen’s ear, hit him on the back or bottom, and made him shower and clean his underwear after soiling himself. The father had lied about a German conviction.
5. The remaining allegations, including stalking, the physical abuse allegations concerning the mother, rape, and various further allegations concerning the children, were not proved. The case was to proceed on the basis that those allegations did not occur, applying Re B. Welfare and future child-arrangements decisions were reserved for a directions hearing, with the judgment to be provided to CAFCASS.

This was a first-instance fact-finding judgment. The judgment records earlier Lithuanian proceedings, the mother’s successful appeal there, and the dismissal of the father’s summary return application in England under [2022] EWHC 739 (Fam). No appeal from this judgment is stated.