R v P

In a family fact-finding hearing, the party making allegations bears the burden of proving them on the balance of probabilities. That burden remains with the applicant throughout. The court may consider the absence of evidence supporting the respondent’s account, including the absence of documents, provided it does not reverse the burden of proof.

Findings must be confined to the defined factual questions directed for determination. Wider welfare issues, including allegations of domestic abuse, should be left to the court dealing with welfare decisions unless they fall within the scope of the fact-finding hearing.

The mother sought findings concerning the circumstances in which the parties’ two children travelled to Iraq in 2018, remained there until 2022, became separated from their mother, and had their travel documents retained. The father denied the allegations and said that the trip was intended to be temporary, that the mother left voluntarily, and that the passports were accessible to her.

The proceedings had begun in England in March 2022. Following orders for the children’s return, they came back to England in September 2022. A fact-finding hearing was directed to determine four discrete questions before welfare decisions were made.

1. The court determined the four factual questions identified for the hearing. The mother bore the burden of proof, and the applicable standard was the balance of probabilities.

2. The burden was not reversed by the absence of evidence from the father. Nevertheless, the court was entitled to take account of the absence of evidence that return tickets had been booked, together with the expiry of one child’s passport and the father’s failure to renew it or return the children to England.

3. The court found that the mother travelled to Iraq believing the trip was a holiday, while the father more likely than not did not intend the children to return at the end of it. The children remained in Iraq because the father kept them there.

4. The mother was separated from the children between July and November or December 2018 because the father and his family kept her from them. She later left in February 2021, but the children remained separated from her until they moved to the maternal grandparents in June 2022 and were then retrieved through the English proceedings. The court rejected the father’s case that the mother had deliberately abandoned the children.

5. The travel documents were more likely than not in the father’s care and control, at least during the parties’ time in Iraq and probably until shortly before judgment. The findings were to be reflected in an order and the matter progressed to the Central Family Court for welfare decisions. Wider domestic-abuse allegations were left for consideration, if necessary, in the welfare proceedings.