“This is an unusual case.”
Just over six months ago that is how Mrs Justice Arbuthnot opened her 74-page Judgment in a perplexing case case – AA v ZZ [2024] EWHC 2008 (Fam) – where the Family Court was tasked with ascertaining whether or not the respondent had given birth to twins. This was what had been alleged by the applicant who was her former partner.
The facts of the case are not rehearsed in detail here. In short, the applicant denied the existence of the children, and even the pregnancy. Various witnesses gave evidence and there was a plethora of documentary evidence in addition to various recordings and exchanges that had previously taken place between the parties and the witnesses. The parties had appeared before Arbuthnot J over the course of a dozen hearings and by the time of the final hearing both were litigants in person. The Court’s ultimate finding? That there was “strong evidence” that there was a pregnancy and there was “some evidence” that at least one child was born. The Court was however unable to say where the child(ren) had been born or where it was now.
The Judgment ends by setting the application down for further directions. What however does the Court actually do in circumstances where it has found that there is “some evidence” that a child exists, but notwithstanding the wealth of evidence before the Court, it cannot ascertain where the child was born let alone where it is now?
A particularly troubling aspect of the case with wider application to litigation in the Family Courts is the limitation which is placed on a Judge’s ability to fully explore and investigate a set of facts in the absence of legal representatives. The Court acknowledged that “There was evidence in these proceedings that may well, had it been explored appropriately, have led to a different conclusion”. However, as Arbuthnot J makes clear within her Judgment – “The Family Court cannot act as an investigator”.
It always remains for a party making an allegation to prove it. Findings are made by a Court based on the evidence that is made available to it. Legal representatives often work tirelessly in the background gathering and investigating every aspect of their client’s case, making applications to the Court wherever necessary to ensure that the case will be as strong as it possibly can be at trial. The legal representatives are tasked with being the investigators. Their absence will often leave the Court with an evidential difficulty when trying to fully explore a set of facts – particularly in a complex case. Delays and ineffective hearings are also often an issue when parties are unrepresented – something highlighted by this Judgment. There remains no solution as to how this can be grappled with in the absence (for the majority of cases) of legal aid.
The case also demonstrates the benefits of the reporting pilot. The BBC was quick to report on it, the author of the online article referring to the parties’ presentation in the Court room and the lack of legal representation available to either. The pilot has shone a light on a case which may have otherwise gone under the radar from the general public’s perspective, one which emphasises the difficulties the judicial system faces when both parties are self-represented.
Reflecting back briefly on the Judgment, so many questions have been left unanswered. Plainly contact cannot even be contemplated until the child or children – if they do in fact exist – are located. It would be of interest to see how this will be grappled with by the Court, and whether or not the applicant “father” will ever have the opportunity of building a relationship with them.
