FD25P00113 - [2025] EWHC 2670 (Fam)

I have been assisted by counsel’s skeletons here.

The hearing was, primarily, a fact finding hearing. The burden of proof is on the applicant. The standard of proof is the balance of probabilities. It is a binary system.

Findings must be based on evidence, rather than suspicion or speculation. See Re A (A Child) (Fact-finding Hearing: Speculation) [2011] EWCA Civ 12. I must look at all the relevant evidence. I need to take care given that these are allegations as between private individuals. As Baroness Hale cautioned in Re W (Children) [2010] UKSC 12,

“there are specific risks to which the court must be alive [in private law children proceedings]. Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”

As to demeanour I need to be cautious and guard against an assessment solely by virtue of behaviour in the witness box and indicate if I have done so. See Macur LJ in Re M Children [2013] EWCA Civ 1147 :

“Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box, and to expressly indicate that they have done so.”

The focus of the court should be placed on matters such as the internal consistency of the evidence, its logicality and plausibility, details given or not given and consistency against other sources of evidence (including what the witnesses have said on other occasions) and other probable or known facts. However, where facts are not likely to be primarily found in contemporaneous documents, an assessment of credibility does include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence: Re B-M(Children: Findings of Fact)[2021] EWCA Civ 1371. Further, memory may be fallible.

The father has admitted lying to the Moroccan court. I pay close regard to the Lucas direction R v Lucas [1981] QB 720. I remind myself that it is common for a party or witness to tell lies in the course of the proceedings or within their evidence. The court must be careful to bear in mind that someone may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that somebody may have lied about some matters does not mean that he or she has lied about everything. As Lord Lan CJ stated in Lucas:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”