FD24P00235 - [2025] EWHC 952 (Fam)

The legal framework within which the court undertakes its fact finding exercise in this case is well settled and can be summarised as follows.

To prove a fact asserted by the mother, the mother must establish that fact on the balance of probabilities. Neither the seriousness of the allegations nor the seriousness of the consequences makes a difference to the standard of proof to be applied in this context. The same principles apply to the father in relation to the facts he asserts.

In determining whether a fact is proved on the balance of probabilities, the inherent probability or improbability of an event remains a matter to be considered when weighing the probabilities and deciding whether, on balance, the event occurred. As has been observed by the House of Lords, common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities (Re B (Children) [2008] UKHL 35 at [15]). In this case, this includes consideration of the inherent improbability of a parent sexually abusing their children.

Any findings of fact made by the court in this case must be based on admissible evidence, including those inferences that can properly be drawn from the evidence, and not on suspicion or speculation (see Re A (A Child, Fact Finding Hearing, Speculation) [2011] EWCA Civ 12 and Re A [2015] EWFC 11 at [8]). In R v Kilbourne [1973] AC 729 at 756 Lord Simon of Glaisdale observed that:

“Evidence is relevant if it is logically probative or disprobative of some matter which requires proof…relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.”

In determining whether the findings sought by the mother and father are proved to the requisite standard, the court is required to consider “the wide canvas” of the evidence before the court (see Re U (Serious Injury: Standard of Proof) [2005] Fam 134 at [26]) including the wider context of social, emotional, ethical and moral factors (see A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam) at [44]). The “wide canvas” considered is that made up of admissible evidence and, again, does not include suspicion or speculation.

In family proceedings of the type with which this court is concerned, evidence given in connection with the welfare of a child is admissible notwithstanding any rule relating to the law of hearsay (see the Children (Admissibility of Hearsay Evidence) Order 1993). The weight to be attached to a piece of hearsay evidence is a question for the court to decide (Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703). Within this context, a serious unsworn allegation may be accepted by the court provided it is evaluated against testimony on oath (Re H (Change of Care Plan) [1998] 1 FLR 193). It is very important to bear in mind at all times that, notwithstanding its admissibility under the 1993 Order, the court is required to treat hearsay evidence anxiously and consider carefully the extent to which it can properly be relied upon (see R v B County Council ex parte P [1991] 1 WLR 221).

The evidence of the mother and the father, and of the paternal grandmother, is of utmost importance in determining whether the facts in issue have been proved to the requisite standard. Within that context, it is essential that the court forms a clear assessment of their credibility and reliability when considering whether to make the findings sought. The court is likely to place considerable reliability and weight on the evidence and impression it forms of the mother and the father, and of the paternal grandmother (see Gestmin SGPS SA v Credit Suisse (UK) Ltd Anor [2013] EWHC 3560 (Comm) at [15] to [21] and Lancashire County Council v M and F [2014] EWHC 3 (Fam)). The court must, however, guard against an assessment solely by virtue of the behaviour and demeanour of the mother and the father, and of the paternal grandmother, in the witness box (Re M (Children) [2013] EWCA Civ 1147 at [11] and [12]).

In circumstances where the father asserts that the mother has fabricated the allegations against him, and lied to the court more widely, the legal principles to which the court must have regard in this case include those that pertain to the manner in which the court deals with lies. The following principles will apply having regard to the decision in R v Lucas [1982] QB 720:

In this case, the findings against the father sought by the mother include findings of both domestic abuse and coercive control of the mother and of the sexual abuse of the children.

With respect to the allegations of domestic abuse and coercive and controlling behaviour, the same standard and burden of proof applies. As noted by Cobb J in Re B-B (Domestic Abuse: Fact Finding) [2022] 2 FLR 725, in private law cases the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication. At all times, the court must follow the principles and guidance set out in PD12J of the FPR 2010.

With respect to the mother’s assertion that the father sexually abused Q and P, the court must determine two questions of fact. First, having regard to the evidence, did sexual abuse of Q and/or P take place? If so, having regard to the evidence, who perpetrated that sexual abuse on Q and/or P (see Re H (Minors); Re K (Minors) (Child Abuse: Evidence) [1989] 2 FLR 313 and Re H and R (Child Sexual Abuse: Standard of Proof) [1995] 1 FLR 643). In this case, there is no evidence of physical signs of sexual abuse, the evidence being confined to the account given by the mother, including allegations of drug taking at the time of the alleged acts of sexual abuse, and certain statements made by P.

In this case, whilst the alleged sexual abuse is said to have occurred in the United States, neither child made any allegation in that jurisdiction. P has made unparticularised allegations of sexual abuse with respect to the father in this jurisdiction. In the foregoing context, in Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27 at [572] to [588] this court set out the principles that apply in this jurisdiction with a view to securing a reliable account from a child making an allegation of sexual abuse and recording that account reliably. As this court noted in Re P at [573] (emphasis in the original):

“The courts have long stipulated, and continue to demand, that very great care is taken when dealing with allegations of sexual abuse made by children, both in the initial phases and at the ABE interview stage (see for example Re E [2017] 1 FLR 1675 at [45]). This conclusion has been drawn from long experience and having regard to the results of a body of research into the way a child registers, processes and recalls memories, and the way in which a child may respond to figures perceived by the child to be in authority when questioned about such memories.”

Finally, the court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own (see Re S (A Child) [2015] UKSC 20 at [20]). Judges are entitled, where the evidence justifies it, to make findings of fact that have not been sought by the parties, but they should be cautious when considering doing so.

In the foregoing circumstances, the role of the court at this finding of fact hearing is, accordingly, to consider the evidence in its totality and to make such findings on the balance of probabilities as are appropriate. This means that, in accordance with the foregoing general principles, when assessing whether the allegations are proved to the requisite standard, the court must consider each piece of evidence in the context of all of the other evidence (Re T [2004] 2 FLR 838 at [33]). In Re A (Children) [2018] EWCA Civ 1718, the Court of Appeal once again emphasised the overarching importance, when determining whether or not the case has been proved to the requisite standard, of the court standing back from the case to consider the whole picture and ask itself the ultimate question of whether that which is alleged is more likely than not to be true.