This is summerised as follows:

a) The Burden of Proof

The burden of proving the facts alleged rests with the party making the allegations. It is for the party to prove those allegations on the balance of probabilities. There is no requirement on the party against whom the allegations are made to show that the allegations are not proved.

The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities deciding whether and balance the event occurred (Re B [2008] UKHL 34 at [15].

Within this context there is no room for a finding by the court that something might have happened the court must decide that it did or that it did not. (Re B [2008] UKHL 35 at [2]).

Findings of fact must be based on evidence and not on speculation.

The decision on which the facts in issue have been proved to the requisite standard must be based on all of the evidence available and should have regard to the wide context of social emotional ethical and moral factors. (A County Council vs A Mother, A Father and X,Y and Z [2005] EWHC 32 (Fam)).

In determining whether the relevant party has discharged the burden upon it the court considers the ‘broad canvas’ of the evidence before it. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly.

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]).

The court must take account of a wide range of matters including any assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence.

Credibility of Witnesses

There is a need for care when it comes to the demeanour of a witness. The need for care and witness demeanour was highlighted by the Court of Appeal in Sri Lanka versus the Secretary of State for the Home Department [2018] EWCA CIV 1391

The authors of Phipson on evidence note as follows at 12 to 36:

“The credibility of a witness depends on his knowledge of the facts his intelligence his disinterestedness, his integrity, his veracity. Proportionate to those is a degree of credit his testimony deserves from the court or jury. Amongst the more obvious matters affecting the weight of a witness’s evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case, all of which may be inquired either into direct examination to enhance or in cross examination to impeach the value of this testimony.”

In undertaking the task of forming a clear assessment of the credibility and reliability of parties in private law proceedings, the court’s assessment should include consideration of matters such as the internal consistency of their evidence is logicality and plausibility, Details given are not given and the consistency of the evidence when measured against other sources of evidence, (including evidence of what the witness has said on other occasions), and other known or probable facts.

In directing a party to identify and rely on a few allegations or to limit the number of allegations, the court must be careful to ensure that significant issues are not overlooked.

Sometimes, a pattern of harassment and other forms of domestic abuse are discernible only by carrying out a wider examination of the allegations (Re LG (Re-opening of Fact Finding) [2018] 1 FLR 1358 FD).

In Re H-N [2021] EWCA Civ 448, the Court of Appeal confirmed that PD12J does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court. A fact-finding hearing on the issues of domestic abuse should be established when such a hearing is ‘necessary’ in order to:

a) provide a factual; basis for any welfare report or other assessment.

b) provide a basis for an accurate assessment of risk;

c) consider any final welfare-based orders in relation to child arrangements.

d) consider the need for a domestic abuse related activity.

When a fact-finding is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination. In every case where domestic abuse is alleged, both parents should be asked to describe in short terms brackets either in a written statement or orally at a preliminary hearing close brackets the overall experience of being in a relationship with each other. Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of Practice Directions 12 J, that assertion should be the primary issue for determination at the fact-finding hearing.

Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies a determination irrespective of any alleged pattern of coercive and/or controlling behaviour.