F v M & Anor

In fact-finding proceedings involving alleged domestic abuse, the person making an allegation bears the burden of proving it on the balance of probabilities. The court must reach a binary finding and assess the evidence across the whole canvas, not in isolated compartments. Inherent probabilities are a matter of common sense within that evaluative exercise. A lie is probative only where it was deliberate, concerned a material issue and cannot be explained by another circumstance. Paragraph 3 of Practice Direction 12J requires coercive and controlling behaviour to be understood by reference to conduct used to harm, punish or frighten, or designed to make a person subordinate or dependent. Not every assertive, selfish or unpleasant act is domestic abuse; intention and harmful impact matter.

This was a first-instance fact-finding hearing in wardship proceedings concerning C, a seven-year-old child. F sought orders for C’s location and return to India after M brought C to England and claimed asylum.

The court determined cross-allegations of physical, emotional, coercive and controlling abuse, the parents’ care of C, and the evidential significance of disputed recordings, documents and witness accounts. It did not determine whether C should be returned to India or whether the removal was justified. The central issue was which allegations were proved on the balance of probabilities for the future disposal of the return application.

The court completed the fact-finding exercise but reserved the substantive return application. It admitted the recordings and the ChildLine letter. The recordings had clear context, appeared complete, were likely authentic and did not demonstrate harm to C caused by surveillance; their weight was assessed after hearing the evidence.

1. Fact-finding principles. The court applied the burden and binary approach stated in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 and Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35. It assessed the evidence across the whole canvas, applying the guidance in Re T [2004] 2 FLR 838 and Re A (A Child: Findings of Fact) [2022] EWCA Civ 1652. Inherent probabilities were considered as a matter of common sense.
2. Lies and domestic abuse. The court applied the Lucas direction, as reflected in R v Lucas [1981] QB 720 and Re A, B and C (Children) [2021] EWCA Civ 451. Under paragraph 3 of Practice Direction 12J, coercive and controlling behaviour was assessed by reference to its purpose, intention and harmful impact. Not all unpleasant or assertive behaviour constituted domestic abuse.
3. Findings. M proved a pattern of physical, emotional, coercive and controlling abuse by F, including serious assault in June 2021, later assaults, restriction of access to C, monitoring, threats, malicious complaints and inducing C to insult her. Allegations concerning a mediation assault, a broken nose, attempted suicide, PTSD causation, bribery and sexual abuse were not proved. F’s principal allegations that M had fabricated abuse, used violence, alienated C or neglected him were rejected or left without findings. The removal was found to have been premeditated and the travel documents destroyed for the asylum claim, but the legal consequences of the removal were not determined.
4. Directions. An allegation not proved was treated as not having occurred for the purposes of the fact-finding decision, without a finding that M had fabricated it. The parties were invited to agree a schedule of findings and directions, with disposal reserved to the judge.

First instance; no appellate history is stated. The judgment records earlier interlocutory and case-management orders in the wardship proceedings.