BB v CC

In family fact-finding proceedings, allegations must be proved by the party making them on the balance of probabilities. Findings must arise from the evidence viewed in its full context. Inferences are permissible, but speculation, suspicion and assertion are not proof. A court assessing witnesses must guard against relying solely on demeanour and must consider the effects of time, emotion and mental health on memory. A lie about one matter does not establish dishonesty or culpability about another. The court must apply the Lucas direction by considering whether a deliberate lie was told, why it was told, and whether it bears on the allegation. A sustained pattern of threats and intimidation directed at a former partner and associated persons may amount to coercive behaviour within Practice Direction 12J.

The father applied for contact with his young daughter after the parties’ separation. The mother sought findings concerning self-harm, threatening communications, abusive correspondence and the use of aliases. The father withdrew his own allegations and denied responsibility, attributing the communications to an alleged person called Jamie Gwenstefani.

The matter was transferred to the High Court. A fact-finding hearing was held concerning events during and after the relationship. The central issues were whether the father was responsible for the threats and whether the proved conduct amounted to domestic abuse.

The court made findings on the balance of probabilities. It found proved the self-harm incident and the allegations concerning communications, threats and abusive correspondence, while making no finding on the alleged falsified email because it had not been exhibited.

1. Approach to evidence. The burden lay on the mother. The father was not required to prove a negative or establish an alternative case. The court assessed the evidence in its totality and context, applying the approach in Re T. It accepted that inferences could be drawn, but treated speculation, suspicion, surmise and assertion as insufficient. It also guarded against assessing witnesses solely by their behaviour in the witness box, consistently with Re M Children.
2. Lies. Applying the guidance in R v Lucas, R v Middleton, Re H-C (Children) and the summary in Wakefield Metropolitan District Council v R & Others, the court considered whether the father had deliberately lied, why he had lied, and whether the lie demonstrated culpability for the underlying events. The lie about Jamie Gwenstefani was treated as an attempt to distance the father from the threats, partly through shame and regret and partly through concern about prosecution.
3. Findings. The court rejected the explanation that an invented third party had sent the threats. The handwriting, the information known to the sender, the timing, the use of the father’s accounts and the continuation of threats after the alleged third party’s involvement had ended supported the conclusion that the father was responsible.
4. Domestic abuse. The conduct constituted a clear pattern of intimidation and threats. The court characterised it as coercive behaviour, directed at punishing and intimidating the mother and persons associated with her, within the definition of domestic abuse in Practice Direction 12J.