MA v FA and Ors (Findings of Fact: Rape, Stranding, and Abuse)

In private-law fact-finding proceedings, serious allegations remain subject to the balance of probabilities. The court must decide whether each alleged fact is proved, taking account of inherent probabilities without applying a heightened standard. Findings must be based on evidence rather than suspicion or speculation, and evidence must be assessed holistically.

Stranding or transnational marriage abandonment is a broad concept. It concerns conduct exploiting a spouse’s vulnerability to prevent or obstruct return to the United Kingdom, and may amount to controlling or coercive behaviour even if the attempt is unsuccessful. In family proceedings, rape is used in its ordinary sense of penile penetration without consent; the criminal definition and standard do not apply.

The applicant mother, who was living in Pakistan, brought private-law proceedings concerning her separation from her daughter in England. She alleged that the first respondent, assisted by the second and third respondents, had subjected her to domestic abuse and rape, covertly recorded her, arranged the theft of her travel documents, caused cancellation of her spousal visa, and prevented contact with her child.

The first respondent alleged that the mother had physically and emotionally abused the child and behaved aggressively towards him. The court heard oral evidence, considered medical and documentary evidence, and viewed covert recordings made in the parties’ home. The central issues were whether the alleged abuse, rape, covert recording, robbery, stranding and obstruction of contact were proved on the balance of probabilities.

1. Applicable fact-finding principles. The burden lay on the party seeking findings. The standard was the balance of probabilities, regardless of the seriousness of the allegations. A fact was either proved or not proved. The court had to consider all the evidence together, weigh inherent probabilities, and avoid findings based on suspicion or speculation.
2. Evidence from witnesses who had lied had to be assessed with care. A lie about one matter did not establish that the witness had lied about everything. Unsatisfactory or absent explanations by a respondent were not, without more, proof of the allegations. The court also had to guard against assessing credibility solely from demeanour.
3. Stranding. The concept was broad and non-formulaic. It included conduct exploiting one spouse’s vulnerability or immigration position to prevent or obstruct return to the United Kingdom. The first respondent, aided by the other respondents, arranged the robbery in which the mother’s passport and BRP were taken, delayed replacement documentation, notified the Home Office that the marriage had broken down, thereby causing cancellation of her spousal visa, and later obstructed contact with the child. Those matters formed a coordinated course of conduct amounting to stranding or abandonment.
4. Rape and domestic abuse. In family proceedings the court did not apply the criminal definition of rape or the criminal standard of proof. The court used rape to mean penile penetration without consent. On the evidence, the first respondent repeatedly had sexual intercourse with the mother without her consent, using physical force when necessary, and had caused burns to coerce her into sex. This constituted sexual coercion and control.
5. The covert bedroom camera recorded the mother and first respondent during sexual intimacy without her knowledge. The recordings also established that the mother physically abused the child on specified occasions. The court rejected her claims that the footage was fabricated or that drugging explained her conduct, but did not treat that dishonesty as contaminating all her evidence.
6. The allegations of stranding, domestic abuse, rape, voyeurism, arranging the robbery and failure to support the mother-child relationship were proved, subject to the findings recorded in the judgment. The allegation that the first respondent bought a one-way ticket, and allegations of circulation of images and tying the mother up, were not proved. The mother’s allegations of emotional abuse by the first respondent and the first respondent’s allegations of emotional abuse by the mother were also not established.

First-instance fact-finding judgment. No appellate history was stated in the judgment.