TS v AS & Ors (Art 21 Findings of Fact)

In a family fact-finding hearing, allegations of domestic abuse, sexual abuse and coercive and controlling behaviour are determined on the balance of probabilities. The seriousness of the allegations does not alter the standard of proof. The court must assess admissible evidence on the wide canvas of the evidence, while excluding suspicion and speculation, and must stand back to consider whether the allegations are more likely than not to be true.

Hearsay evidence is admissible in child-welfare proceedings, but its weight must be carefully assessed. Lies cannot, without more, constitute direct proof of guilt; they may corroborate an allegation only where the Lucas conditions are satisfied. Findings may properly include emotional harm to children exposed to domestic abuse and pressure to choose between parents.

The father applied under Art 21 of the 1980 Hague Convention after withdrawing his application for the summary return of three children under Art 12. The mother sought findings concerning domestic abuse, sexual abuse and coercive and controlling behaviour. The Children’s Guardian sought findings that the children had suffered emotional harm and had been exposed to a risk of physical harm.

The father did not attend the fact-finding hearing, despite notice and the provision of a Qualified Legal Representative. He continued proceedings in Country A and questioned the English court’s jurisdiction, although the court had previously determined that the children were habitually resident in England and Wales and that it had jurisdiction under Art 5 of the 1996 Hague Convention.

The central issues were whether the alleged conduct was proved on the balance of probabilities, whether the father’s evidence concerning the mother’s mental health was credible, and what findings should be made for the purposes of future welfare decisions.

1. Jurisdiction. The court had exclusive jurisdiction concerning the children under Art 5 of the 1996 Hague Convention. Art 21 of the 1980 Hague Convention did not confer jurisdiction to recognise and enforce foreign access orders.
2. Standard and evaluation of evidence. The allegations were to be proved on the balance of probabilities. Their seriousness did not require a heightened standard. The court was required to consider inherent probabilities, the wide canvas of admissible evidence, the credibility and reliability of the witnesses, and the totality of the evidence. Suspicion and speculation could not support findings.
3. Hearsay and lies. Evidence relating to child welfare was admissible under the Children (Admissibility of Hearsay Evidence) Order 1993, but its weight required careful evaluation. A lie was not itself direct proof of guilt. It could corroborate an allegation only if it was deliberate, material, motivated by a realisation of guilt and fear of the truth, and independently shown to be false. Any such lie had to be weighed against evidence pointing away from the allegation.
4. Findings. The mother’s evidence was unchallenged in cross-examination and was corroborated by contemporaneous records, photographs, communications, professional evidence and the children’s accounts. The father’s purported psychological evidence concerning the mother was found to be fabricated or substantially dictated by him, materially undermining his credibility. The court found physical, sexual, verbal and coercive abuse, including intercourse despite withdrawal or refusal of consent, and findings of emotional harm and risk of physical harm to the children.
5. The father’s allegations against the mother were rejected. Pending a further welfare hearing, the children were ordered to live with their mother and to have no direct or indirect contact with their father. Counsel were invited to draw the order.