CONTACT: Re P (Contact: Finding of Fact) [2009] EWCA Civ 908

02 SEP 2009

(Family Division; Longmore LJ and Bodey J; 7 July 2009)

The parents separated when the child was 2 years old. Eventually the court made a contact order, which provided for staying contact with the father every other weekend, further contact with the father during holidays, and some visiting contact. When the child was about 6 years old, the mother sought a suspension of contact, on the basis that the father was causing the child emotional and possibly physical abuse during contact. The mother claimed that the child had told her of a number of completely inappropriate things said to the child by the father. The child told the GP and the Cafcass officer of some of the remarks allegedly made by the father. At the fact-finding hearing the judge accepted that the father had said some inappropriate things, but not the more serious things alleged.

Although there was some independent confirmation of the mother's account, the judge had been entitled to find that that, against a background of chronic unremitting strife and acrimony between the parents, the mother had probably misconstrued innocuous things said to her by the child, and that, through her, these things had then come to take on a status of their own as the mother's anxieties fuelled the things that the child was saying. There had been a raft of material to justify the judge's finding that the father was not the sort of man to make the serious alleged remarks to the child. The judge had been right to admit a DVD made without the mother's knowledge during an argument between the parents, which showed the mother as the dominant party, shouting at the father and pointing at him, and provided insight into the mother's expressed 'fear' of the father. The court needed all the help it could get, in such extremely difficult cases, in trying to understand the dynamics of a couple's relationship. The judge's comment that before a court could make a finding that a fact was proved it needed to exclude all other reasonable possibilities did not elevate the standard of proof to a near criminal standard: a decision on the question whether a fact was proved on a balance of probabilities must have regard to the alternatives; the judge had to weigh up the probabilities, and the existence of other possibilities must always be relevant.

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