FD25P00022 - [2025] EWHC 1222 (Fam)

Fecha: 16-May-2025

Oral evidence

Oral evidence

M applied for oral evidence to be given by the parties, and M’s mother, in respect of her allegations against F of domestic abuse. Both parties accept that it is a matter for the court to decide whether and to what extent oral evidence should be given. In Re A and B (supra),the Court of Appeal upheld the decision of Poole J at first instance not to conduct a fact finding inquiry into allegations of domestic abuse by a mother when determining whether to order a return of the children to the UAE, nor to hear oral evidence. Moylan LJ said at para 72:

“As in all welfare decisions, the extent of the court's inquiry and the court's determination of what order to make will depend on the facts of the particular case”.

It is M’s case that a fact finding is necessary for the purpose of (i) determining the application for a return order and (ii) future welfare proceedings. She has set out her allegations in writing in comprehensive detail. In summary, she alleges against F a pattern of coercive and controlling behaviour towards her throughout the marriage, characterised by:

Emotional harm and verbal abuse, including F calling her “mentally unstable”, “a bitch” and a “disgusting nightmare” and saying that he would “destroy her”.

ii)

Financial control.

iii)

Other matters such as accessing M’s private emails when she was seeking legal advice.

iv)

Intimidating behaviour, notably in an incident in August 2022 captured in a short phone video, and a highly charged episode in December 2024.

Threatening to “lose it” with the children”.

F denies the allegations, whilst acknowledging that at times during the relationship emotions ran high. It is his case that M displayed erratic and unstable behaviour.

10.

So, says M, the court needs to establish these factual matters in order to assess the level of risk upon return, and to ensure that the essential factual matrix is established before the court (whether here or in Dubai) can embark upon the welfare analysis which will govern child arrangements. She says that, applying PD12J and K v K [2022] EWCA Civ 468, it is relevant for the welfare of these children to establish the factual matrix.

11.

I declined to conduct a fact finding, or to hear oral evidence, for the following reasons:

This is an application for a summary return order rather than a child arrangements order. Usually, and as with 1980 Hague Convention applications, the purpose of the return order decision is essentially to determine where future welfare child arrangements should be decided, in this case in Dubai or in England. It is for the courts of the seised jurisdiction then to determine whether there is a need for a fact finding hearing/inquiry into domestic abuse, and if so how it should be case managed.

ii)

It is open to me to adopt the approach in Hague Convention cases where the Article 13(b) defence is pleaded, by hypothetically taking M’s case at its highest (albeit not making any findings), and assuming the maximum level of risk to the children alleged by her in the event of return. That was how Poole J took account of the allegations in Re A and B, and it seems to me to be a proportionate and pragmatic way to deal with an issue which can be highly contentious, and consuming of a considerable amount of court resources.

iii)

There is a welter of written evidence for me to evaluate and consider when determining whether a return to Dubai should be ordered.

iv)

As it happens, a significant amount of unsupervised contact between F and the children is taking place and M has stated in her evidence that it is “vitally important” for the children to have a relationship with F, and that they should continue to see him on an unsupervised basis in this country, but not in Dubai. Although it will be a matter for another court to decide whether inquiry into domestic abuse is relevant and proportionate for any welfare disputes, on the face of it, there may not be a justifiable need to do so given the apparent acceptance about the benefits to the children of ongoing contact with F.

I note that usually in these cases, to conduct a fact finding hearing will lead to a lengthy delay before the adjudication of the application for a return order. That is contrary to the summary nature of the proceedings. I was told that oral evidence would take two days, which would have inevitably led to adjourning the case part heard for submissions and judgment.

12.

There are usually two distinct stages in these cases; the first is the return order application, and the second is the subsequent determination by the court of the long term child arrangements. The child’s welfare is the test in both stages, but the first stage is more susceptible to abbreviated proceedings.

13.

My view is that oral evidence should be expressly justified in these non-Hague return cases, and should not be regarded as the default position, although ultimately it is a matter of judicial discretion in each case.

14.

One can see that if there is an issue about whether consent to removal was given, there may well be a need for oral evidence on that particular issue, but issues about conduct are less likely to require oral evidence. At case management hearings, the focus should be on having the return order application dealt with as promptly as possible in the interests of the children. After all, it is only when the return order application is determined that the court can fully move on to long term welfare decisions.

15.

Having now heard submissions, I am satisfied that I have had ample material to reach a just decision and it was the correct decision not to receive oral evidence on the domestic abuse allegations.