How does the court determine the truth of any abuse allegations?
It is sadly not unusual for one party to child arrangements proceedings to make allegations of abuse against the other party. Perhaps the most common scenario is where the father is seeking contact with the child and the mother alleges that the father has been abusive towards her.
The law recognises that domestic abuse is harmful to children, including where they are victims of abuse by witnessing one of their parents being violent or abusive to the other parent, or by living in a home in which domestic abuse is perpetrated.
Obviously, therefore, the court will need to determine the truth of any abuse allegations before it makes a decision upon arrangements for the child, but exactly how does it do this?
The court will normally arrange a separate hearing to determine the truth of abuse allegations. This is known as a 'fact-finding hearing'.
At the fact-finding hearing the court will consider the evidence of both parties, and decide the truth of each allegation.
This will involve the parties themselves giving evidence to the court, along with any witnesses they wish to call (although it is the nature of abuse allegations that there are rarely other witnesses).
When hearing such evidence the court will follow certain legal principles.
The first principle relates to the burden of proof.
The burden of proof rests with the person making the allegation. Thus, for example, if the mother is alleging that the father has been abusive towards her then she must prove those allegations.
The second principle relates to the standard of proof.
The standard in these cases is the 'balance of probabilities', in other words in order to find an allegation proved the court must be satisfied that it is more likely than not that the allegation is true.
Note that there is no room for a finding by the court that something might have happened – it must find either that it did happen, or that it did not.
An important factor in deciding whether an allegation has been proved is the credibility of the witnesses. The judge will therefore form a view as to the credibility of each witness, and the reliability of their evidence. Obviously, the evidence of a witness who is considered reliable is more likely to be believed than the evidence of a witness who is not.
It is also obvious that it is not uncommon for witnesses in cases of this sort to tell lies when giving evidence.
The court will be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. And the fact that a witness has lied about some matters does not mean that they have lied about everything.
The judge will also bear in mind that memories can fade or change with the passage of time, particularly in respect of events which were traumatic or distressing at the time.
And just because a party is found to have lied to the court, that does not prove the case against them. Thus if a mother makes abuse allegations against a father and the court finds that the father has lied to the court, that does not of itself prove the truth of the mother's allegations.
Lastly, if the party defending abuse allegations fails to prove the truth of their alternative version of the events surrounding the allegations, that again does not of itself prove the truth of the allegations.
The court's decision
Once the court has heard all of the evidence, it will make its decision upon each of the allegations, applying the above principles.
The court will normally go through each of the allegations in turn, and give its finding as to whether or not that allegation has been proved.
Unless there is a successful appeal against the findings, they will be considered to be true in the course of the rest of the proceedings, and will obviously have a significant bearing upon the final decision regarding the arrangements for the child.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.