Unusual fact-finding hearing on children’s actual existence

Eva Rovnakova, a Trainee Solicitor in our family law department, reports on the case of AA v ZZ [2024] EWHC 2008 (Fam) which involved a highly unusual fact-finding hearing where the Court had to determine whether any children existed.

This case concerned an application for a Child Arrangements Order made by the Applicant Father in respect of twin boys who he claimed were born in February 2021 to his former partner, the Respondent Mother. The Respondent argued that she was never pregnant, and that no twins were ever born, and that the Applicant was using these proceedings to continue to exercise coercive control over her. It was for the Applicant Father to prove the existence of the children.

During the course of the fact-finding hearing, the Court heard from the parties and several witnesses and considered a variety of recordings and documents supplied by both parties. Evidence provided by the hospital suggested that the Respondent Mother had been in contact with them, trying to find out if her records at the hospital would be safe from disclosure. The Registrar General was unable to trace any newborns registered at the relevant time with the parties’ family names. Further, a key witness in the case, the Respondent’s GP and therapist, had provided a further statement, claiming that the Respondent and a child, aged about three years, had attended her address in February 2024 and the child had called the Respondent “mummy”. The witness further asserted that she saw that the Respondent was pregnant in December 2020 and that she saw a child with the Respondent in the car in July 2021. The Respondent denied this.

The Court discussed the mass of documentary evidence, which included ultrasound scans as well as material from the hospital. The Court considered that the WhatsApp exchanges between the Applicant and some of the Respondent’s witnesses were likely forged by the Applicant. In considering the Respondent’s credibility, the Court noted that the Respondent had for two years participated in conversations which had made it clear that the twins existed. The Court further commented on the compelling evidence provided by the Respondent’s GP. The Court noted that until receipt of the evidence from the hospital and the Respondent’s GP in 2024, there was insufficient evidence to support a conclusion that the children existed. The Court considered that it was this new evidence which had strengthened the Applicant’s case.

It was ultimately determined that there was strong evidence of the Respondent’s pregnancy and some evidence that at least one child was born, but the Court found it insufficient to say that there were two children born. The Court considered it probable that the birth was likely to have been in a private hospital, but was unable to say where the child was now. The Court interestingly noted the difficulties that a Family Court has in fully exploring a set of facts in a case when there were no legal representatives, as there was evidence in this case that may well have led to a different conclusion, had it been explored appropriately.