FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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W |
Applicant |
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- and - |
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X |
1st Respondent |
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- and - |
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Y |
2nd Respondent |
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- and - |
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Z (Through his Children Guardian Lillian Odze) |
3rd Respondent |
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Mr Richard Jones (instructed Direct Access) for the 1st Respondent
The 2nd Respondent Did Not Attend
Miss Kathryn Cronin (instructed by Cafcass Legal) for the 3rd Respondent
Hearing dates: 29th & 30th July 2021
Judgment: 13th August 2021
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HTML VERSION OF APPROVED JUDGMENT
Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
Relevant Background
The evidence
The allegations – the context
Legal framework
(a) The burden of proving the findings that the court is invited to make lies with the party which seeks the findings.
(b) The court must guard against the danger of reversing the burden of proof which remains with the party seeking the finding to the requisite standard.
(c) The standard of proof is the balance of probabilities (Re B [2008] UKHL 35 paras 70 and 72), namely more likely than not. The law operates a binary system: a fact is either proven or it is not.
(d) Findings of fact must be based on evidence, not speculation (Re A (A Child) (Fact-Finding hearing: Speculation) [2011] EWCA Civ 12, per Munby LJ as he then was: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.").
(e) The court must take into account all of the evidence and furthermore consider each piece of evidence in the context of all the other evidence (Re Z [2004] 2 FLR 838 at [33], Dame Butler-Sloss P: "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.")
(f) The evidence of the parents and any other carers is of the utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability. The court is likely to place considerable weight on the evidence and impression it forms of them (Re W and another (Non-accidental injury) [2003] FCR 346).
(g) It is common for witnesses to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything (R v Lucas [1982] QB 720).
103. 'Coercive and controlling behaviour' is defined in the Family
Procedure Rules 2010 PD12J:
"coercive behaviour" means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
"controlling behaviour" means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;"
104. For completeness, domestic abuse is defined more broadly:
"domestic abuse" includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment".
Submissions
Discussion and decision