AOX v LSX

In a fact-finding exercise concerning allegations of domestic abuse and the removal of a child, the court must assess the whole evidential canvas. Witness demeanour is only a limited part of that assessment. Documentary evidence, inherent plausibility, and consistency must also be considered.

The absence of an earlier complaint does not establish that abuse occurred, although it must be evaluated in its proper context. A wrongful removal may nevertheless be justified where the evidence establishes a genuine and objectively understandable fear of renewed abduction, particularly following a previous violent abduction and in the context of war. Findings must remain allegation-specific and should not treat lies about one incident as proof that a party lied about all other matters.

The parties, Ukrainian nationals, were the parents of a young child. Following their separation, each parent at different times prevented the other from having contact with the child. The father forcibly removed the child from the care of the mother and maternal grandmother in September 2021. The child was returned to the mother after the father attempted to leave Ukraine with her in March 2022. The mother then brought the child to England during the war in Ukraine.

In English proceedings, the parties made cross-allegations of domestic abuse, coercive and controlling behaviour, violence, threats, abduction, and wrongful removal. The court conducted a three-day fact-finding hearing to determine the disputed allegations and the significance of the parties’ conduct.

1. Findings on the evidence. The court assessed the evidence as a whole. It considered the manner in which the parties gave evidence, but treated that as only a relatively small part of the credibility assessment. Documentary material, inherent plausibility, and consistency or inconsistency between different accounts were also material. The court drew no adverse inference from the maternal grandmother’s absence because she had not been called pursuant to an earlier direction and the court had ample evidence on the relevant events.
2. Domestic abuse allegations. The allegations of physical abuse and coercive or controlling behaviour by the father before the parties’ separation were rejected. The absence of reports was not evidence that abuse had occurred. The court accepted that victims may conceal abuse, but found that the evidence in this case did not establish it.
3. Violent abduction. The father’s removal of the child on 16 September 2021 was found to be premeditated and violent. He had hired a vehicle to avoid recognition, used a masked accomplice, attacked the maternal grandmother, and displayed a gun. The child suffered emotional and psychological harm from the abduction and the ensuing separation from the mother.
4. Later allegations. The allegations concerning an attempted killing on 24 February 2022 and threats or violence on 9 March 2022 were rejected. The court treated the father’s lies about the abduction as having limited evidential significance concerning other periods, because his motive to lie differed according to the allegation.
5. Removal to England. The mother’s removal of the child from Ukraine appeared to be wrongful under Ukrainian law. However, withholding the child’s location and preventing contact were justified on the facts by a genuine fear that the father would arrange another abduction, viewed against the outbreak of war and the earlier violent abduction. The court made the findings summarised at paragraph 87.

This was a first-instance fact-finding hearing in the High Court Family Division. The judgment records that earlier Ukrainian proceedings determined that the child should live with the mother; that decision was upheld on appeal, with a cassation appeal outstanding.