S (Private Law: Fact Finding) (No.1), Re
[2024] EWFC 156 (B)
V (Article 21 of the 1980 Hague Convention - fact finding), Re
14 August 2023
[2023] EWHC 2983 (Fam)
High Court
A mom said her ex-husband abused her and their kids. A judge listened to both sides and decided some of the mom's claims were true (like emotional and physical abuse), but others weren't because there wasn't enough proof. This will help decide who the kids live with and how the parents communicate.
Key Facts
- •Fact-finding hearing concerning Article 21 of the 1980 Hague Convention application by the Father for access rights to his two children.
- •Father, Mother, and children are Lithuanian citizens; children were born and raised in Lithuania.
- •Mother and Father separated in April 2015; Mother subsequently brought children to England in December 2020.
- •Mother alleges various forms of abuse by the Father (emotional, psychological, financial, physical, sexual) against herself and the children.
- •Father denies all allegations of abuse.
- •Prior Lithuanian proceedings involved a residence order being granted to the Father, then overturned on appeal.
- •English proceedings initially involved a dismissed summary return application under the Hague Convention.
- •The current proceedings are focused on determining the Mother's allegations of abuse to inform future child arrangements.
Legal Principles
Purpose of fact-finding hearing is to produce something of importance for the welfare decision.
Re HDH [2021] EWCA Civ 1192
Fact-finding hearing is not free-standing litigation; it must be relevant to determining future child arrangements.
Re K and K [2022] EWCA Civ 468
Burden of proof is on the Mother to prove allegations of abuse on the balance of probabilities.
Judgment
Consideration of witness credibility, including the possibility of lies, and the fallibility of memory.
R v Lucas [1981] QB 720, H v City and Council of Swansea [2011] EWCA Civ 195, Re H-C (Children) [2016] EWCA Civ 136, Re A, B and C [2021] EWCA Civ 451, Lancashire County Council v C,M & F [2014] EWFC 3, Gestmin SGPS SA v Credit Suisse [2013] EWHC 3560
All evidence given in connection with child welfare is admissible, including hearsay evidence.
Civil Evidence Act 1995, sections 1 and 4
Definitions of domestic abuse and coercive/controlling behaviour from the Domestic Abuse Act 2021 and PD12J.
Domestic Abuse Act 2021, PD12J para. 3
Outcomes
Several allegations of abuse by the Father against the Mother and children were found proven.
Judge's assessment of evidence, including witness testimony and contemporaneous documents, determined that the allegations met the balance of probabilities.
Other allegations were found unproven.
Insufficient evidence to meet the balance of probabilities.