ES v DC

In a fact-finding hearing concerning alleged domestic abuse, the court must apply the civil standard of proof. The seriousness of an allegation does not alter that standard, although inherent probabilities may assist in evaluating the evidence.

The party seeking a finding bears the burden of proof. Where the evidence remains equivocal, the court cannot make a finding merely because the alleged event might have occurred. Findings must be based on evidence rather than suspicion or speculation, assessed in the context of the evidence as a whole.

The court must scrutinise hearsay, credibility, reliability, demeanour, lies and language difficulties with care. It must also consider patterns of coercive or controlling behaviour, vulnerability and the danger of relying on myths or stereotypes about victims.

The applicant father sought contact with his two children under article 21 of the Hague Convention 1980. The proceedings followed an earlier Hague Convention judgment, ES v DS [2022] EWHC 3397 (Fam), in which the children were found to have been wrongfully retained in England but were not ordered to return to Turkey because settlement and intolerability defences were established.

The present hearing was a fact-finding hearing concerning cross-allegations of domestic abuse. The father alleged violence by the mother. The mother alleged coercive and controlling behaviour, violence against herself and violence or unreasonable physical chastisement against her older children. The central issues were which allegations were proved on the balance of probabilities and what findings should inform the later welfare decision on contact.

1. Outcome. The court made findings on the parties’ cross-allegations. The father was found to have been the principal perpetrator of coercive and controlling behaviour and violence. Some allegations against the mother were also proved, particularly during a psychotic episode. A section 7 report was directed, with the welfare stage to be determined by another High Court judge.
2. Burden and standard. The party seeking a disputed finding bears the burden of proof. The standard is the balance of probabilities. The seriousness of an allegation does not raise the standard, although inherent probabilities remain relevant. If the evidence is equivocal, no finding can be made merely because the event might have occurred.
3. Evaluation of evidence. Findings must be evidence-based. The court must avoid suspicion and speculation, assess each item in the context of the whole evidential picture, and examine hearsay with particular care. The parents’ evidence required a clear assessment of credibility and reliability. Demeanour should not ordinarily be treated as determinative, although an uncontrolled loss of temper in court could be relevant if properly evaluated.
4. Lies, vulnerability and language. A lie is not, by itself, proof that the opposing allegations are true. The court must consider whether there is an innocent explanation before relying on lies in the overall assessment. Language difficulties and the use of an interpreter required caution about misunderstanding and lost nuance.
5. Domestic abuse. The court applied PD12J of the Family Procedure Rules 2010 and the guidance in Re H-N [2021] EWCA 448 (Civ). Abuse may consist of a pattern of coercive or controlling behaviour. Proof of an intention to cause harm is unnecessary. The court must consider the effects of abuse on victims and children and avoid myths or stereotypes about how a genuine victim behaves.
6. Findings. The father’s account of the knife incident was rejected. He had entered the property by a balcony, assaulted the mother while she was breastfeeding, struck her with the blunt end of a knife, cut her hair and refused hospital treatment. He was also found to have slapped or struck the mother on other occasions, kicked her while pregnant, assaulted C and locked C in a car before assaulting him when he escaped.
7. The mother’s allegations that she assaulted the father were proved in part, including a slap or punch in a park, a kick to his leg and pulling his hair, causing accidental contact with a computer. The allegation that she stabbed him in the calf and the allegation concerning the knife incident were not proved.

The judgment is a first-instance fact-finding decision. It records an earlier Hague Convention judgment in the same litigation, ES v DS [2022] EWHC 3397 (Fam), but that judgment is excluded from the cited-authority analysis because it concerned the same dispute.