SM v PM

In a domestic-abuse fact-finding hearing, the party making an allegation bears the burden of proving it on the balance of probabilities. Findings must be based on the evidence viewed in its full context. The court may draw reasonable inferences, but speculation, suspicion and assertion are not proof.

Where coercive or controlling behaviour is alleged, the court should assess the alleged pattern as a primary issue, while determining particularly serious individual allegations where appropriate. Behaviour is not domestic abuse merely because it is directive, assertive, stubborn or selfish; intention and harmful impact remain important.

A lie about one matter does not establish guilt or dishonesty about another. The court must determine whether a deliberate lie was told, why it was told, and whether it bears on the allegation under consideration.

The proceedings concerned two children who had been habitually resident in England. The mother removed them to India without the father’s consent after alleging prolonged physical, sexual, emotional, coercive and controlling abuse. The father denied the allegations and made cross-allegations of abuse, including against the mother and the children.

The father sought the children’s return to England. The mother sought permission to relocate permanently to India. The hearing was conducted as a fact-finding exercise to establish the factual framework for decisions concerning the children’s return and the risks associated with it.

1. Burden and standard of proof. The party making an allegation bore the burden of proving it on the balance of probabilities. The court assessed the evidence in its overall context, drew reasonable inferences where justified, and rejected speculation, suspicion, surmise and assertion as proof. A witness’s demeanour was treated with caution, and hearsay was admissible subject to the weight it deserved.
2. Domestic abuse framework. The court applied and followed Practice Direction 12J and the guidance in Re H-N and others [2021] EWCA Civ 448. Coercive behaviour and controlling behaviour were assessed by reference to the statutory-style definitions and to the harmful impact and intention behind the conduct. Not every directive, assertive, stubborn or selfish act amounts to abuse.
3. Where a pattern of coercive and controlling behaviour is alleged, that pattern should ordinarily be the primary issue for determination. Specific allegations should be examined for their probative relevance to the alleged pattern. Particularly serious allegations may require determination independently of the alleged pattern.
4. Lies. Applying the guidance in R v Lucas [1982] QB 720 and the approach explained in Re H-C (Children) [2016] EWCA Civ 139 and Wakefield Metropolitan District Council v R & Others [2019] EWHC 3581 (Fam), the court first considered whether a party had deliberately lied, then why the lie had been told. A lie about one matter did not establish that the party was lying about another matter or was culpable of the alleged incident.
5. On the evidence, the mother proved that the father had subjected her to coercive and controlling behaviour, physical abuse and sexual abuse, including rape, and had physically abused child A to a lesser extent. The father failed to prove his allegations that the mother had abused him or the children, or that her allegations were fabricated to force him into the maternal family business.
6. The mother’s removal of the children on 3 August 2022 without the father’s consent amounted to abduction, but the court found that the father’s threats had caused her to flee. The judgment determined the factual allegations; the formal outcome was a finding that the mother had proved her allegations and the father had not proved his.