U (Findings of Fact), Re

In a private-law fact-finding hearing, the party making an allegation bears the burden of proving it on the balance of probabilities. The court must assess the evidence as a whole, including inherent probabilities, properly drawn inferences, and the credibility and reliability of witnesses. Serious allegations require cogent evidence, but the standard remains the civil standard. A witness who lies about one matter may nevertheless be truthful about others. Findings must rest on evidence rather than suspicion or speculation. The court should identify the facts relevant to the child’s welfare and avoid generalised labels where a detailed evaluation of behaviour, intention and impact is required.

The proceedings concerned U, who had lived with his father in England after earlier care proceedings and orders in France. Each parent sought findings of fact against the other before the court determined competing welfare and return applications. The allegations included physical aggression, harassment, false allegations, controlling or abusive behaviour, and concerns arising from the mother’s mental health. A fact-finding hearing took place before the welfare stage. The central issues were which allegations were proved on the balance of probabilities, how the parties’ evidence should be assessed, and what findings were relevant to U’s future welfare.

1. Applicable burden and standard. The burden of proof remained throughout with the party making each allegation, applying Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35. The standard was the balance of probabilities. The binary nature of that standard did not change according to the seriousness of the allegation, although more serious or inherently improbable allegations required greater evidential cogency.
2. The court was entitled to consider inherent probabilities, but that did not alter the civil standard. Findings had to be based on evidence and properly drawn inferences, not suspicion or speculation. The evidence had to be surveyed on a wide canvas, with each item assessed in the context of the totality of the evidence.
3. The court remained alert to the risk that allegations in private-law disputes might be misinterpreted, exaggerated or fabricated, without assuming that allegations were false. It was not for either parent to prove a negative. The court assessed both parties’ credibility and reliability, including the fact that a witness might lie for reasons unrelated to guilt.
4. The principles concerning lies in R v Lucas [1981] QB 720 were relevant, but a lie about one matter did not establish that the witness had lied about everything. The family court’s function differed from that of a criminal court: it had to determine, as best it could, what had happened so that the findings could inform the later welfare evaluation.
5. The court applied those principles to the competing allegations. It made findings of some physical aggression, impulsive and unreasonable conduct by the mother, and an altercation on 28 February 2023 in which both parents lost control. It rejected wider allegations that were unsupported or inconsistent with the evidence. It avoided describing the relationship by broad labels such as a toxic relationship, instead evaluating particular conduct, its context, and its impact on U.
6. The fact-finding judgment concluded the first stage of the proceedings. The welfare applications, including applications concerning contact, residence, return and protective orders, were to proceed thereafter.

Not an appellate decision. The judgment records an earlier judgment in the same proceedings concerning recognition and enforcement of French orders, but this decision concerned fact-finding.