AA v ZZ

In proceedings concerning the alleged existence of children, the person asserting that a child exists bears the burden of proving that fact on the balance of probabilities. Findings must rest on evidence and properly drawn inferences, rather than suspicion or speculation. The court must assess all the evidence in context. Where a party is shown to have lied about one matter, the court must not assume that the party lied about another. It must identify the lie, consider the reason for it, and assess its relevance to the disputed issue. Applying those principles, the court found strong evidence of a pregnancy and some evidence that at least one child had been born, but insufficient evidence that twins had been born.

The Applicant sought a child arrangements order concerning alleged twin boys said to have been born to the Respondent in February 2021. The Respondent maintained that she had never been pregnant and that no child had been born. The dispute followed earlier Family Court proceedings, which the Applicant had withdrawn in January 2022 after accepting that he was unlikely then to prove the children’s existence. In the present proceedings the court heard extensive oral, documentary and recorded evidence, including evidence concerning medical records, hospital contacts, photographs, messages and alleged witnesses to the children. The central issue was whether the Applicant had proved, on the balance of probabilities, that the alleged children existed.

1. Burden and standard of proof. The Applicant bore the burden of proving that the alleged children existed. The standard was the balance of probabilities. Findings of fact had to be based on evidence and proper inferences, not suspicion or speculation. The court was required to consider each item in the context of the evidence as a whole.
2. Lies direction. The court applied the guidance in R v Lucas [1982] QB 720 and R v Middleton [2000] TLR 293. A finding that a person lied about one matter did not establish that the person lied about another. In accordance with Re H-C (Children) [2016] EWCA Civ 139, the court had to apply that principle carefully in the context of the whole evidence. The approach summarised in Wakefield Metropolitan District Council v R & Others [2019] EWHC 3581 (Fam) required the court first to identify a deliberate lie, then consider why it was told, while guarding against assuming that one lie demonstrated another.
3. The court found the evidence unusually contradictory. It concluded that the Respondent had been pregnant and had considered a termination, but it could not determine where the birth occurred or the child’s current whereabouts. There was insufficient evidence to establish the existence of twins, although there was some evidence that at least one child had been born.
4. The court concluded that the fact-finding exercise had to end despite unresolved questions and directed that the matter be listed for further directions.

First-instance decision. No appellate history is stated in the judgment.