Re X (No 1 Fact Finding) [2024] EWFC 224

[2024] EWFC 224

Case No ZE23P00767

IN THE FAMILY COURT

Venue SITTING AT ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/03/2024

Before

MRS JUSTICE THEIS DBE

Between

The motherApplicant

The father1 st Respondent

X (By her Children’s Guardian Emma Huntington)2 nd Respondent

Applicant Did Not Attend the Hearing

Ms Deirdre Fottrell K.C and Mr Tom Wilson (instructed by Gumersalls Solicitors) for 1 st Respondent

Mr Richard Jones and Ms Roseanna Cawthray Stern (instructed by Freemans Solicitors) for 2 nd Respondent

Hearing Hearing dates: 12 th and 13 th March 2024

Judgment: 27 th March 2024

Approved Judgment

.............................

MRS JUSTICE THEIS

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[1]This hearing was listed as a fact finding hearing in the context of cross applications for child arrangement orders made by the mother and father relating to X, age 10 years. The mother and father are X’s de-facto parents. X was born following a surrogacy arrangement in the US and has lived with them all her life. By virtue of ss 33,34 and 35 Human Fertilisation and Embryology Act 2008 (HFEA 2008) they are not her legal parents, although I shall refer to them as ‘mother’ and ‘father’ and collectively as ‘parents’ in this judgment. There is a joint application for a parental order, which the court will make further directions on at the conclusion of this hearing. X is a party to these proceedings, through her Children’s Guardian.

[2]The parents separated in January 2023 when the mother left the family home following her arrest for an alleged assault on the father. X remained living with the father with regular contact with the mother. X last saw her mother in September 2023 but has daily video contact, most recently taking place once a day at a fixed time. In addition, there are frequent messages passing between the mother and X.

[3]In the mother’s C100 application dated 30 May 2023 she did not raise any issues of domestic abuse against the father, although she did subsequently when she filed a C1A three months later on 11 September 2023. The father raised allegations of domestic abuse in his C100 dated 1 June 2023. He had previously issued an application under the Family Law Act 1996 (‘FLA 1996’) in January 2023 when he sought a non-molestation injunction, which was granted on 9 February 2023. At the same time there was a C100 application and C1A from the father, where he made allegations of domestic abuse against the mother. For reasons that are not clear, that application was never issued by the court.

[4]In the related parental order application regarding X the parents are joint applicants and Mr and Mrs Z are respondents. Mrs Z was the gestational surrogate. The parents had a second child, Y, through a surrogacy arrangement with Mr and Mrs Z. Mr and Mrs Z retained the care of that child and subsequently adopted her.

[5]There was a preliminary issue as to whether this hearing should go ahead in the absence of the mother. The mother last attended a hearing on 22 November 2023, when she was represented by solicitors and counsel, as she had been at all previous hearings. She attended the November hearing remotely and was present throughout that hearing, including when the date of the next hearing was discussed and directions made for her to file a schedule of allegations and a statement in support of her allegations.

[6]The mother did not attend the next three directions hearings, or this fact finding hearing. Having heard the submissions on behalf of the father and X at the start of this hearing, I decided that the hearing should proceed in accordance with rule 27.4(2) – (4) Family Procedure Rules 2010 (‘FPR 2010’). For the reasons set out below, I was satisfied the mother knew about this hearing and the issues it was listed to consider, had been served with all the orders and documents, was aware that this hearing may proceed if she didn’t attend and the welfare of X required the hearing to proceed.

[7]The father has filed six signed witness statements and a detailed schedule of the findings he seeks. The mother has not filed a signed witness statement in these proceedings or a schedule of findings, despite repeated directions to do so. There is a C1A form dated 11 September 2023 signed by the mother’s solicitors and an unsigned witness statement from the mother dated 11 September 2023. It was described in the covering letter as having been approved by her and that a signed copy would be made available when the parties attended court on 13 September 2023.

[8]I heard oral evidence from the father and considered the written submissions on behalf of the father and X.

Relevant background

[9]The father and the mother met in 2010.

[10]According to the father, the mother said she was a successful lawyer, was or was about to be appointed a High Court Judge and that it was important to her judicial career that she was married. They married and the mother’s occupation on the marriage certificate was ‘High Court Judge’. The father said the mother told him it was a tradition in her culture to take his name, including his first name, which she did.

[11]According to the mother, it was at the father’s insistence that occupation for her was put on the marriage certificate, the father maintains that is what the mother said her occupation was. In his oral evidence, the father gave more detail of what he said he was told by the mother about her work, including her response that she was under police protection when he said he visited the Royal Courts of Justice after their marriage and her name did not appear on the court lists. The father said her explanation when she said she was undertaking a Masters and then a PHD was that this was necessary to pursue her judicial career as were her frequent absences, purportedly on trips abroad with other senior judges. The father said he helped finance these additional academic qualifications as requested by the mother. The mother maintains this was all at the father’s insistence.

[12]After they married they wished to have children of their own. Following unsuccessful IVF procedures they embarked on a surrogacy arrangement in the US with Mr and Mrs Z using embryos created with the father’s sperm and donor eggs. Following her birth in 2014, X came to live with her parents in England. A full time nanny was employed until July 2019.

[13]In 2017/early 2018 the parents wished to have another child and embarked on a second surrogacy arrangement with Mr and Mrs Z. The embryo transfer took place early in 2018.

[14]In April 2018 the father says he became aware the mother was being investigated for fraud. In July 2018 the father spoke to the local authority and was informed the mother had claimed she was a tenant of a local authority property when she was living with the father. In his oral evidence the father stated it was around this time that he first instructed his solicitor.

[15]Y was born in November 2018 and following discussions between the parties the father states it was agreed that Mr and Mrs Z would adopt Y and an adoption order was subsequently made. The father says this was due to Y’s particular health needs, the difficulties in the parents relationship, the ongoing criminal investigation and the mother’s mental health. In his oral evidence the father was unable to give much detail about Y’s health needs other than ‘breathing difficulties’. In his oral evidence he said there was a lot of ‘back and forth’ about this at the time and whilst he is aware what the mother now says about being under pressure, she did sign the adoption papers at the time. He said it was around that time that he was starting to have real doubts about what the mother was saying about being a High Court Judge and whether she had attended the Priory for treatment he had paid for. He described their discussions at the time of the adoption about how they would manage the information that they were now not having a child and what would be said to X. The father said they agreed not to tell X until she was older. He acknowledged that the mother probably regrets the adoption. According to the mother, she says she was pressurised by the father to agree to this adoption.

[16]The mother was charged with fraud, pleaded guilty in late 2020 and in February 2021 received a 2 year suspended prison sentence. The court bundle includes the transcript of the sentencing hearing, including the judge’s sentencing remarks. The fraud was over an extended period of time, from 2013 to 2017.

[17]The father states that other than writing a brief letter the mother refused to let him speak to her lawyers, attend court or have any contact with her probation officer. He states he paid about £300,000 to her to assist with her legal fees and other court costs.

[18]Following that the father accepts that he could find no record of her ever having been a lawyer or judge and states ‘It is quite shocking to me that she pretended to be a judge and I feel a bit foolish for having believed her’

[19]In June 2019 the father alleges the mother was violent to him, he said she lost control hit him repeatedly in the face, grabbed his testicles and her ring caused cuts to his face that drew blood. He attaches to his statement a photo of his injuries. The nanny was in the house at the time, he said the argument took place upstairs and due to the layout of the house she would not have heard the argument. In his oral evidence he said he believed the argument was caused by the mother’s suspicions about him talking to the nanny. According to the father the mother panicked when she saw the blood and called the police. The father describes the police attending and de-escalating the situation, the father said he did not want to press charges, the mother became angry and aggressive and the police arrested her and took her to the police station. When he collected her later the father says the mother informed him that she had a phone number of a police officer that she could ring if the father did not behave himself and her release from the police station had come about due to the influence of people she knew. According to the father, the mother insisted their nanny was fired and required him to write a letter to her to effect that, which he did. In a subsequent undated document the mother provided to the police in February 2023 she alleged the father had raped her on this occasion.

[20]The father describes the next violent incident taking place a year later, in July 2020, with an occasion when the mother slapped him on the face and chest and then the following day slapped him again in the presence of X. The father has produced a photo taken at the time of his alleged injuries to his cheek and acknowledged in his evidence he was not able to recall this incident as clearly as the first one. In her document produced to the police in February 2023 the mother attaches photos taken at the same time that she says do not show any injuries.

[21]The father describes a further incident on 19 August 2020 when the parents and X were at their holiday home with friends staying when he alleged the mother repeatedly slapped and punched him causing marks to his face. In his oral evidence the father said he thought it was the mother’s brother, his wife and two children who were staying although they were out at the time of the incident. In her February 2023 document the mother produces some photographs said to be taken at that time, which she says suggests the father did not suffer any injuries as he alleges.

[22]On 24 November 2020 the mother pleaded guilty to two counts of fraud in the Magistrates Court and the matter was referred to the Crown court for sentencing.

[23]In December 2020 the father alleges further physical abuse from the mother when she repeatedly hit his face and head, he has produced a photo of his injuries. He described this argument as being caused by a combination of Covid restrictions, the mother’s stress at having been advised to plead guilty in the criminal proceedings and differences between them regarding Y.

[24]The father describes a further incident in January 2021 when he alleges the mother hit him in the face and was verbally abusive to him in the presence of X. He said X was worried because the father could not get the mother to stop hitting him. He described himself at this time as ‘walking on eggshells around her because he never knew what would trigger an attack and they seemed to be getting more frequent and each one was worse’.

[25]On 4 February 2021 the mother was sentenced in the Crown Court. She received a custodial sentence of two years, suspended for a period of two years, together with an unpaid work requirement of 250 hours, compensation of just under £54,000 and costs of about £6,500 both to be paid in 28 days. The transcript of the sentencing hearing refers to her putting Y up for adoption as she was unable to cope with the police investigation taking place at that time. It also refers to her informing the tenant of the flat that she was a High Court Judge.

[26]The father describes further assaults over a two day period in early April 2021, stating that he had paid over £75,500 to the mother in January and February 2021 relating to her criminal court payments. He said she demanded more payments, was abusive about his family and ‘remains angry with me for the second surrogacy arrangement ending in adoption’. Some of the verbal and physical assaults took place in front of X.

[27]In late August 2021 the father describes a further incident when the family were staying in their holiday home when he says she repeatedly hit him in the face, kicked him in the testicles and twice ripped his T-shirt off him. In her February 2023 document the mother produced photos taken at that time which she says are inconsistent with the father’s account.

[28]In September 2021 there is a general reference in the father’s medical notes about an appointment with his GP when it states ‘come to update re marital difficulties, further domestic violence’ .

[29]In early April 2022 the father alleges a further incident when the mother hit him in the presence of X during an argument about what food was being given to X, the father states ‘I was upset about this happening in front of [X], and I noticed that she did not seem to react’.

[30]On 22 June 2022 the father alleges he was assaulted by the mother when she hit him, grabbed his testicles and bit his cheek causing it to bleed. In his statement he said ‘I was completely stunned at how viscous she was, and I was disgusted that she had bitten me, [X] tried to step in and stop her, but all [the mother] could say was ‘tell your daddy to apologise and show me respect’. [The mother] then said to [X] ‘you and he are both the same’’. He said he was very worried what she was going to do next and pushed her away, she stumbled back onto a mattress and bit her lip. He said he spoke to his friend that day and went to his GP the following day. The father has produced photos of his injuries taken that day and two days later. His medical records describe him reporting this incident the next day, he was advised to come into the surgery and when he did the notes record ‘bruising to face left cheek alleged bite by wife second episode yesterday afternoon [X] out with a friend starts with hitting and grabbing by testicles have explained that really have no option but to report will discuss with AP solicitors involved no police called [X] not harmed but witnessed event last week’. In her February 2023 document the mother denies this incident and states the father may have raped her on this occasion.

[31]According to the father, the next incident was early July 2022 when he describes returning from an evening event at the school, the mother argued with him as she had wished to go out that evening and then lost her temper ‘started hitting me over and over on my face and then she bit me on the face again. It was quite a viscous bite and she had pulled skin off my face’. X was not present but the father feared she may have heard what took place. The father has produced a photo of this injury. In her February 2023 document and in her subsequent police interview the mother alleged the father physically and sexually assaulted her on this occasion. In addition, the mother alleges that the father is a functioning alcoholic, which the father denies.

[32]Later in July 2022 the father describes a further incident when the mother repeatedly hit him around the head and grabbed his testicles during an argument about what the mother had said to X. In her February 2023 police document the mother alleges the father raped her on this occasion.

[33]Two days after this incident the father signed his first statement in support of an application for non-molestation injunctions under the FLA 1996 when he described the escalation of the mother’s violence and its impact on him. He also described in the statement his fears about the impact on X of any injunction application and the mother’s reaction, his fear of not being believed but also considered the impact on X of the increasingly serious assaults on him. In his oral evidence he said this application was made at the start of the school holidays in 2022, as he realised it may have an impact on X and was anxious that it was dealt with during the school holidays. For reasons that are far from clear the application was never issued by the court. As he described in his second statement and oral evidence, once the new term started he did not wish to cause further disruption for X and so did not pursue the application.

[34]According to the father, the violence continued with an assault at the end of July 2022 when he describes the mother slapping his face, grabbing his testicles and biting his left cheek and only stopped attacking him when she saw blood on his cheek and shirt. He said she offered to wash the shirt and wanted them to sleep together, which he declined. According to the father they had been sleeping in separate rooms for a number of years. The father has produced photos of his injuries. The mother’s February 2023 document alleges the father raped and physically assaulted her at this time and has produced a photograph of a light bruise on a person’s arm, although the subject of the photo is unclear.

[35]The father describes a further incident in late November 2022 when he alleges the mother repeatedly hit his face, grabbed his testicles, kicked his lower body and crotch and threatened to kill him. He produced photos of the injuries he says he sustained. In her February 2023 document the mother suggests the injuries could have been caused by a car accident the father had had around that time, although she acknowledges the car accident took place in late December which was after the alleged incident.

[36]According to the father, the final incident of domestic abuse prior to the parents separation took place 10 January 2023. He describes a sustained attack from the mother when she hit him repeatedly, threatened to kill him, brandished a metal sellotape holder and a knife while threatening both to hurt or kill him and to kill herself. He describes X pleading with the mother for her to stop hitting the father. As the alleged abuse continued after X had gone to school the father says he tried to push her away and in the course of that he thinks she bit her lip. The father called the police and his account to the police accords with what is in his written evidence. The police records describe when he rang them there were sounds like a female was attacking him in the background and upon arrival the father made allegations that the mother had attacked him, he ‘looked visibly shook and had injuries to his face with his clothes scruffy looking like he had been in a fight’. The father has attached to his statement photos of what he says were his injuries at the time. According to what the mother has told the police at the time of her arrest she says that she was physically assaulted by the father. The police summary of her account states ‘In summary [the mother] gives partial self-defence and partial denial. She states that she pushed and slapped [the father] once in [X’s] bedroom after he pushed her into the door. In the office she did not pick up and hold up the sellotape holder and denied saying "I will kill you" or anything relating to killing him. She stated that in the kitchen [the father] again pushed her and grabbed her to the scruff of the neck, breaking her chain, she then slapped him once again in self-defence.’

[37]In her February 2023 document she described this incident as follows:

‘This incident occurred as [the father] states, however, I was on the receiving end of the violence…He hit and kicked my lower area (Exhibit thigh/arm/finger). He went out for a meeting and said he was coming home to sort me out and send me to jail forever. He came home. He assaulted me by hitting and kicking me. He threatened me with the red handled knife. It thought I was going to die today.’

[38]Following the mother’s arrest she went to live in the holiday home owned by the parties, where she remains.

[39]The referral to the local authority following the incident on 10 January 2023 resulted in the allocated social worker talking to the parents and X, concluding on 19 January 2023 that no further action was going to be taken by them. In the discussions with X she referred to witnessing the arguments between the parents and that the mother hit the father.

[40]After this event the father applied for a non-molestation injunction on 12 January 2023, with a statement in support dated 17 January 2023. On 9 February 2023a non-molestation order was made for a period of six months until 10 August 2023. Both parties were represented by counsel at this hearing and the mother was directed to file a statement by 9 March 2023.

[41]Also on 9 February 2023 the mother signed a police statement whereby she made allegations of physical abuse and rape against the father, according to the police records she did not refer to her earlier arrest in January 2023. The mother attended the police station for a video interview inJune 2023 when she maintained her serious allegations of physical and sexual abuse, including multiple rapes and X witnessing the father’s sexual behaviour. The father first became aware of these allegations made by the mother to the police in the police disclosure in these proceedings in late 2023. He was contacted by the police on 29 January 2024 and was interviewed by them about them and signed a pre-prepared statement when he denied the mother’s allegations.

[42]On 21 February 2023 the mother signed an application to the GRO seeking to correct details of the marriage certificate to replace ‘High Court Judge’ with ‘Homemaker’. Included with the application was a certified copy of the original marriage certificate, certified as a true copy by solicitors acting for the mother in the family proceedings on 13 February 2023. The mother alleged in the application form she had been the victim of coercive and controlling behaviour by the father and the correction she is seeking ‘arises from the same controlling and coercive behaviour’. She then provides police crime reference numbers saying she is making a complain to the police and continues ‘I am currently estranged from my husband and therefore I make this application as a sole applicant’. At the time this application was made on 16 March 2023 there is a letter to the GRO from a firm of solicitors, Abrham White Law, stating they act for the mother and attach a signed statement from her as requested in the letter from the GRO on 3 March 2023. The marriage certificate was amended. The first the father knew about this was at the hearing in February 2024 when the Guardian informed the court the mother had sent the amended certificate to her. Disclosure orders were made against the GRO who produced the application and supporting material outlined above on 5 March 2024.

[43]On 10 March 2023 the father alleges the mother sought to breach the terms of the injunction by trying to speak to him via a facetime call from X to the father. According to the father, she not only made contact with him but also sought to intimidate him by suggesting that she was recording everything.

[44]On 4 May 2023 the father alleges a further breach of the injunction when he states the mother tried to approach him in the street and made various accusations against him. He described her becoming increasingly irrational, he was concerned neighbours may be watching and agreed to get in her car when she continued to berate him. The following day, 5 May 2023, he alleges two further breaches when the mother sought to speak to him via her call to X and then, separately, from a unknown number she called the father to seek financial support for her medical difficulties.

[45]On 16 May 2023 the father was contacted by the local authority as a result of a safeguarding enquiry made to them. This had arisen from an allegation made by the mother to another parent at the school that the father had sexually assaulted X by having baths with her and masturbating in front of her. The parent had informed the school and a safeguarding referral had been made to the local authority. The local authority conducted an assessment, spoke to the parents and X, and recommended that no further action was taken by the local authority. The parties were written to on 3 July 2023 to inform them of that outcome.

[46]The parents issued cross applications for child arrangements in May 2023 and the matter was listed for a First hearing Dispute Resolution appointment on 10 August 2023. Just prior to that hearing the father issued an application to extend the term of the non-molestation injunction. The District Judge declined to hear that application on 10 August 2023, however the parties were able to agree cross undertakings signed by them at the end of August 2023.

[47]On 3 August 2023 the parents signed the parental order application, which was issued by the court on 21 September 2023.

[48]At the hearing on 10 August 2023 both parties were represented by leading and junior counsel. The mother’s position at that hearing was that a fact finding hearing was not necessary. The position statement filed on her behalf stated under the heading PD12J ‘The mother has her own concerns about the father’s behaviour during their relationship, but does not seek to pursue them as part of a separate fact-finding’. As regards the way forward the mother said there should be a shared interim ‘lives with’ order. In relation to the father’s application to extend the terms of the non-molestation injunction it was stated on the mother’s behalf that she refutes the father allegations and that she also ‘makes a number of allegations in respect of the father’s treatment of her throughout their relationship. Previously the mother had taken the view that she did not wish to raise these allegations and simply sought to focus upon achieving the arrangements that were in [X’s] best interests’. The mother’s position remained at that hearing to seek a shared care arrangement. The court made directions for the question of interim contact to be determined on 13 September 2023.

[49]On 16 August 2023 the father describes an incident where the mother confronted him in a food shop and told him he was in ‘big trouble’ and then shouted loudly at him ‘you fucking bastard, you’re a rapist’. The father reported this to the police and the account in his statement is the same as is recorded in the police records.

[50]The mother’s counsel denied the father’s account at the next court hearing on 13 September 2023. At that hearing the mother’s position remained that there should be a shared care arrangement providing for X to live with the parents on an alternate week basis with no need for supervision. In the transcript of the hearing the mother’s position regarding any escalating allegations of abuse made by her it was stated to be that ‘She had not wanted to proceed with those allegations because she wanted to focus on looking forward and the parents having a co-parenting relationship’. Later on, it stated in relation to the allegations that the parties have now separated ‘Those allegations – save for the incident on 16 August – have very much fallen by the wayside…’. Paragraph 3 of the order dated 13 September 2023 made detailed arrangements for the mother to have direct contact with X that was supervised. The mother stopped attending for direct contact with X about 10 days after the order was made, they have continued having indirect video contact.

[51]Between February and September 2023 the father sets out various examples of what he describes as inappropriate behaviour by the mother towards X which include the following that have taken place during their indirect contact:(i) February 2023 the mother stating to X ‘Your daddy is bullying me and I will not get bullied by him’

(ii) 12 March 2023 the mother stating during her contact with X that the mother wants to apologise to the father and whether he will talk to her.

(iii) 25 March 2023 the mother saying to X ‘remind me to tell you what the private investigator said’.

(iv) 2 April 2023 the mother telling X ‘if he wants a family why is he telling people lies about her’.

(v) 19 April 2023 the mother telling X that ‘daddy is bullying me. Daddy is destroying everything’, she pressed X to ask the father ‘when am I able to see mummy’.

(vi) 6 May 2023 during contact the mother tried to speak in an aggressive and threatening way to the father in X’s presence about money.

(vii) The mother tried to speak to the father again about financial matters on 7 May 2023.

(viii) 14 August 2023 the mother screamed at X.

(ix) 4 September 2023 the mother accused X of lying and suggested she would record the call.

(x) The father is concerned about the pressure the mother puts on X through her texts.

(xi) The father alleges that the mother has caused X emotional harm by misleading her as to the circumstances of her conception and failing to exercise appropriate care when discussing matters about Y. For example, recently sending her a photo of Y, asking her how she felt. This was also reported in the supervised contact notes in July 2023.

[52]Returning to the proceedings, as a result of the parental order application being issued the matter was re-allocated and listed before this court on 22 November 2023. The mother attended and was represented. Directions included extending the time for compliance with the directions for statements to be filed by the District Judge on 13 September 2023, a further hearing was listed on 15 January 2024 with the dates for the fact finding hearing.

The mother’s engagement in these proceedings

[53]The mother engaged in these proceedings up until the hearing on 22 November 2023, which she attended remotely. At that hearing she would have heard the court making directions for the filing of statements by the parties and the date of the next hearing, on 15 January 2024. That order records, as subsequent orders have, the father’s willingness to fund the mother’s legal costs.

[54]On 14 December 2023 the mother sent a standard form sick certificate stating she was too unwell to meet the Guardian.

[55]The mother did not attend the hearing on 15 January 2024, although I am satisfied she was aware of the hearing. Directions were made with a further hearing on 9 February 2024.

[56]On the 16 January 2024 the father’s solicitors served the mother by email with the disclosure from the local authority, the father’s statement dated 7 December 2023, schedule of allegations and the father’s parental order statement on 17 January 2024 and on 18 January 2024 a copy of the order made by the court on 15 January 2024. The latter email made clear in the body of the email the date of the next hearing and the fact finding hearing date. In addition this information was sent to the mother by WhatsApp.

[57]On the 19 January 2024 the mother’s Independent Domestic Violence Adviser (IDVA) Ms R-C telephone the Guardian at the mother’s request and the Guardian reports that she asked Ms R-C to encourage the mother to engage in the court proceedings.

[58]On 22 January 2024 the father’s solicitors served the mother by email with the statement from the father’s solicitor setting out the steps taken by her to serve the mother with the statements and orders. On the same day there is evidence from a process server that he left copies of the various documents sent by email in the secure porch of the holiday home where the mother was residing. The process server considered the mother was in the property.

[59]On 23 January 2024 Ms T from Barnados called the Guardian and conveyed the mother’s poor health and some of the allegations made by the mother. Ms T agreed to encourage the mother to speak with the Guardian.

[60]The mother telephoned the Guardian on 25 January 2024 when she requested the Guardian to meet her remotely on 1 February 2024 with Ms T.

[61]On 1 February 2024 the Guardian records that the mother sounded ‘distressed throughout the telephone call and largely used the call as an opportunity to raise her concerns in respect of [the father] and to complain that [X] was not being adequately protected. There was little opportunity for dialogue, although I sought to encourage [the mother] to engage within the proceedings and informed her of the hearing on 09/02/24. [the mother] indicated that she had run out of funds, and that [the father] had failed to meet the costs of her previous solicitors. [the mother] also raised further concerns in relation to [X], which resulted in a referral to the local authority and a 16a risk assessment to the court. [The mother] terminated the call after 45 minutes…[the mother] subsequently called me back and we spoke for a further 15 minutes. She remained tearful, but appeared to have reflected upon our previous discussion, raising her concerns that she would not be able to evidence the allegations that she raised against [the father] as things had been removed from her phone, computer and home by [the father]. However, as we ended the discussion, [the mother] said that she would engage with the court.’

[62]The mother contacted the Guardian by text messages on 3, 4 and 6 February 2024. On 6 February 2024 the Guardian sent a very clear message to the mother outlining the Guardian’s role and the importance of the mother engaging in the proceedings. On the same day the Gurdian made a referral to the local authority as a result of the new matters the mother had raised with her including that the father had had sex in front of X and that the son of a person who the father was having a relationship with was trying to touch X in ‘the wrong place’. In that referral the Guardian referred to the mother stating X wanted to speak to her and when the Guardian spoke to X she denied expressing a wish to speak to her.On 7 February 2024 the Guardian sent a text to the mother asking for further details about the allegations she made on 1 February 2024.

[63]On 7 February 2024 the father’s solicitors sent an email to the mother raising various issues, including making clear the father’s willingness to fund the mother’s legal costs.

[64]On 8 February 2024 the mother sent the Guardian a lengthy text message setting out a recording of X talking to the mother about her headphones. On the same day the child’s solicitor sent the Guardian’s position statement by email to the mother and the father’s solicitor sent an email reminding the mother of the hearing the next day.

[65]The mother did not attend the hearing on 9 February 2024. The order made comprehensive directions for the mother to file further evidence, providing for her to attend the hearing on 29 February 2024 remotely and made clear that the court may decide to proceed if she didn’t attend.

[66]On 15 February 2024 the mother sent the Guardian a further audio recording of her discussions with X about her bath arrangements.

[67]On 16 February 2024 the child’s solicitor sent an email to the mother confirming the hearing on 29 February 2024, the fact finding hearing dates on 12 – 14 March 2024, the father’s willingness to fund legal representation, that she could provide a list of solicitors and stated ‘if you continue not to attend Court hearings, the court will proceed on the basis that you are not asking for allegations to be considered’. On the same day the father’s solicitors served the mother by email with the order made on 9 February 2024 and copies of the recent court bundles.

[68]On 22 February 2024 the mother sent the Guardian and the child’s solicitor an email stating that all evidence and reports should be sent to the judge to make an informed decision and judgment about X and that she had no legal representation as the father has failed to pay the fees. Later that day the child’s solicitor emailed the mother reminding her that counsel’s fees for the mother would be paid by the father. Separately the Guardian emailed the mother asking her to meet the Guardian, there was no response.

[69]On 26 February 2024 the mother sent an email to the Guardian and child’s solicitor of a text exchange between the mother and X. That is the last communication from the mother to any party in the case or to the court. The mother has maintained daily indirect contact with X.

[70]On 27 and 28 February 2024 the Guardian, the child’s solicitor and the father’s solicitor sent communications to the mother, with no response.

[71]The mother failed to attend the hearing on 29 February 2024. The court made further directions for the mother to file evidence and made it clear on the face of the order what the March hearing was for and that it could proceed even if she doesn’t attend.

[72]On 4 March 2024 the father’s solicitor emailed the mother with the details of the directions made by the court.

[73]On 8 March 2024 the mother was served with the bundle electronically and a hard copy was left in the secure porch at the holiday home on 11 March 2024.

[74]On the morning of the first day of this hearing the Guardian and the child’s solicitor made further attempts to contact the mother, with no response.

[75]The mother has sent to the court and the Guardian medical certificates from her GP stating that she was not fit for work or to attend court due to ‘anxiety, stress, insomnia, slipped disc issues’ or more recently due to ‘stress, anxiety, slipped disc issues and insomnia’. Despite directions for more detailed medical evidence to be provided the mother has not provided any more detail.

[76]I heard submissions from Ms Fottrell K.C. and Mr Jones at the start of this hearing as to whether it should proceed in the absence of the mother in accordance with rule 27.4 (2)-(4) FPR 2010. They referred the court to cases where the court had proceeded to hear a case in the absence of a party (see Re X (A Child) (No 3)

[2016] EWHC 2755

; AB v CD & Ors

[2018] EWHC 1590 (Fam)

; Re AL M (Fact Finding)

[2019] EWHC 3415 (Fam)

). Each case is fact specific but they all make clear the absence of a party or parties has no impact on the burden and standard of proof and ‘the absence of one parent from the forensic field of play does not in any way reduce the court’s responsibility carefully to examine all the evidence and only reach factual conclusions if it is satisfied, on the balance of probability, that they are proved’. [Re AL M at [28])

[77]Having heard the submissions of the parties I concluded this hearing should proceed for the following reasons:(i) The mother is aware of the hearing, no further proportionate steps can be taken to enable her to engage in the proceedings. I am satisfied that the arrangements regarding legal representation are known by her and legal representation could be made available to her if she wished to have it.

(ii) Whilst there is some medical information regarding the mother she has failed to provide any further information and has been able to engage with the Guardian and others. In addition, she has been able to maintain regular indirect contact with X.

(iii) X’s welfare requires a determination of the facts so informed welfare decisions can be made. The disputed facts are very serious and their determination is likely to have a direct consequence on welfare decisions relating to X.

(iv) The burden of proof remains on the father regarding any allegations he seeks to prove and must be established to the required standard.

(v) The court has detailed information about the mother’s account of events including a s9 police statement with an ‘aide-memoire’ attached, that was described as a document the mother had produced which she wished to use in interview; a video recorded interview that was intended to stand as her evidence in chief in any criminal proceedings; the C1A in these proceedings signed on her behalf by her solicitor and her approved statement in September 2023. Although the mother has failed to file a schedule of allegations or a signed statement, as directed, the court will need to carefully determine the weight it attaches to this evidence.

(vi) The father has denied the allegations made by the mother and his evidence would be tested in cross examination on behalf of X, Mr Jones having confirmed that he will actively explore the evidence.

Legal framework

[78]There is no issue between the parties as to the relevant legal principles in fact finding hearings, recently summarised by Cobb J in BY v BX

[2022] EWHC 108 (Fam)

at [26] as follows:(1) The burden of proof lies throughout on the person making the allegation.

(2) In private law cases the court needs to be vigilant to the possibility that a parent may be using their allegations to gain an advantage in the battle between them.

(3) It is not for either party to prove a negative.

(4) The standard of proof is the balance of probabilities; the law operates a binary system which needs to be applied with common sense.

(5) Generally speaking the judge ought to be able to make up their mind about where the truth lies without needing to rely on the burden of proof.

(6) The court can have regard to the inherent probabilities of events occurring.

(7) Findings must be based on evidence, including inferences properly drawn from evidence, and not on suspicion or speculation.

(8) The court must survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence.

(9) The parties' evidence is of the utmost importance; the court must form a clear assessment of their credibility and reliability.

(10) The court must bear in mind that witnesses may lie for many reasons. (R v Lucas

[1981] QB 720

)

(11) The family court has a completely different function to that of the criminal courts.

(12) The fact-finding exercise is to determine what has happened so as to inform the welfare evaluation in respect of the options for the child or children.

(13) At all times, the court must follow the principles and guidance contained in PD 12J of the Family Procedure Rules 2010.

Submissions

[79]Ms Fottrell and Mr Wilson accept the court needs to carefully scrutinise the evidence the father relies upon. Their overall submission is the father’s evidence is reliable, consistent with other evidence, supported by evidence such as photos and the independent investigations undertaken by the local authority.

[80]There is nothing to suggest the care given by the father to X is inappropriate in any way and the allegations raised by the mother are seriously undermined by her failure, for no apparent good reason, to engage in these proceedings. The father has made clear he would fund legal representation. His reasons for not funding one of the solicitors firms the mother has previously used are rational and clear. She has been encouraged by the children’s solicitor to seek legal advice but has chosen not to do so.

[81]They submit it is noteworthy that when the mother has had the benefit of expert legal advice she has not sought to raise the allegations of domestic abuse and has positively advocated as part of her case the father playing a significant role in the care of X, which is wholly inconsistent with the serious allegations she has made to others, including the police, but not made and maintained in these proceedings.

[82]In summary, they submit the mother lacks credibility in relation to the matters that have been raised and has deliberately not provided evidence to substantiate her allegations in these proceedings. In the particular circumstances of this case they submit the court can and should draw an adverse inference that the mother has deliberately chosen not to file evidence because she knows that her allegations are untrue and they cannot be proven. The court’s approach in circumstances such as this has recently been considered by the Court of Appeal in Re C (A Child)(Fact-Finding)

[2022] EWCA Civ 584

at [27]. In this case there is no credible explanation for the mother absenting herself from the Court process. The reasons advanced for her non-engagement do not stand up to scrutiny in the context of the father’s offer to fund legal costs, her ability to communicate with the Guardian and child’s solicitor and her failure to produce anything other than generalised non-specific medical evidence. This is all in the context of her remaining in regular contact with X.

[83]Ms Fottrell also relies on the fact that the mother has shown herself capable of deception. Her conviction in November 2020 of two offences of fraud of a public body over a six and a half year period was a sustained and deliberate fraud, which included encouraging the tenant to deceive and deceiving the tenant in relation to her status. This course of action demonstrates the mother’s ability to lie and deceive over an extended period of time.

[84]In addition the mother’s evidence supports what the father alleges. For example, the unchallenged reference in the criminal proceedings that she held herself out as a High Court Judge.

[85]Ms Fottrell submits it is in this context the court needs to consider the father’s evidence, which demonstrates that his account of the mother’s behaviour, in particular regarding her volatility and her lies, provide support for the court to accept the father’s account as credible. The mother’s actions when compared with the reliable consistent account provided by the father support the court finding that his evidence should be preferred as being more credible. In his oral evidence he readily acknowledged if he could not remember matters. The father may be naïve, and with the benefit of hindsight should have challenged the mother earlier regarding her various lies, but his reasons in not doing so were credible, in particular his wish to try and keep things together for X.

[86]Ms Fottrell acknowledges that a finding as the father seeks, that the allegations made by the mother are untrue, does not equate to a finding that she has deliberately and maliciously lied about them and people lie for a wide range of reasons. However, she submits, there is sufficient evidence to justify a finding that the mother has deliberately lied and manufactured these allegations and relies upon the following matters.

[87]The mother first made allegations regarding the father’s sexual abuse of X in May 2023, which refers to the mother saying the father and X bathed together and were involved sexual abuse and the mother had been told not to tell anyone. In her discussions with the local authority the mother said she had witnessed the father masturbating in the same bed or bath as X ‘on many occasions’, stating that it happened on the day of her arrest in January 2023 and happened ‘everyday’. She is reported to have told the social worker that X had made no direct disclosures to her as the father had threatened X that if she speaks she will get into trouble.

[88]As Ms Fottrell submits, these are extremely serious allegations the mother reported she had witnessed and had taken place each day, however the mother did not mention them in her police interview on 10 January 2023, during the first child and family assessment in January 2023 or in the non-molestation proceedings when she failed to file a statement as directed, or in these proceedings where she has repeatedly failed to file any written evidence in support of her allegations.

[89]Ms Fottrell outlines clearly the impact of this on the father. He has been X’s main carer for many months, has sought to manage the difficult task of managing the risk of X continuing to have contact with her mother, which X clearly wishes to do. The mother in turn has sought to ruin the father’s reputation and cause him real emotional and psychological harm. The difficulties this caused for the father in relation to X’s school was plain to see and the continuing risk of the mother repeating them to X and others. Ms Fottrell submits, particularly when considered in the context of the chronology of events since January 2023, the evidence demonstrates the allegations are false and have been deliberately and maliciously made to cause the maximum amount of harm to the father.

[90]Mr Jones and Ms Cawthray Stern submit on behalf of the Children’s Guardian that it is important to consider the chronology of events. The mother’s allegations against the father were first made to the police on 9 February 2023, two days after she was served with the father’s non-molestation application and statement in support. In the child and family assessment completed in February 2023 the mother repeats the allegations of domestic abuse about her but as in January to the police makes no mention of the allegations that X is a victim of sexual abuse. The first time this is raised is in May 2023 when the school report the matter to the local authority following the mother reporting to another parent that X is experiencing sexual abuse. The subsequent local authority assessment, (undertaken by the same person who completed the earlier assessment) comments on the fact that the mother did not mention these allegations earlier when she alleges that they were going on every day.

[91]In their questioning of the father when he gave oral evidence Mr Jones asked questions based on the information that had been provided by the mother. He submits the Guardian is conscious of the gravity of the allegations made by both parents and would have welcomed the mother’s engagement in the proceedings as the implications for X of any conclusions reached by the court are profound.

[92]As Mr Jones noted, the evidence of the father’s account that the mother was a High Court Judge and all she said about it did seem incredulous and all happened at a time when he had recently been widowed and, according to his evidence, was not familiar with the legal world. His mounting suspicions about the mother’s behaviour came about over an extended period of time as their lives had become more enmeshed. The mother has made allegations about the father’s connections but has not produced any evidence about that.

[93]The mother has alleged that she fears the father and the father has made threats towards her however she has failed to engage in these proceedings, despite there being a clear way for her to do so. She has been able to reach out to professionals as evidenced by her contact with the Guardian, the child’s solicitor, the IDVA’s and other support workers who have contacted the Guardian. When the mother spoke to the Guardian on 1 February 2024 it was in the presence of her GP social prescriber and her care co-ordinator.

Discussion and decision

[94]Although this hearing was originally intended to consider the cross allegations made by the parties against each other, that has not been possible due to the non-engagement by the mother with these proceedings since December 2023. She has not filed a schedule of allegations nor a signed statement, despite many opportunities being given for her to do so.

[95]The father’s allegations include repeated incidents of physical harm perpetrated on him by the mother since 2019, her breaching the non-molestation injunction by trying to contact him, behaviour by the mother since the parties separated of unnecessarily involving X in the adult issues and making false and malicious allegations against the father.

[96]The court has considered the detailed written evidence from the father as well as his oral evidence. He was appropriately cross examined on behalf of X by Mr Jones as it is clearly in X’s interests, in the unusual circumstances of this case, for that evidence to be tested in the way that it was. However, the court has to recognise and weigh in the balance that is not the same as having a party fully engaged in the proceedings with the benefit of legal representation but in this case the mother has failed to file a schedule of findings she seeks or to file sworn evidence by her in these proceedings in support of her allegations she makes outside them.

[97]There are a number of important factors for the court to consider when weighing up the evidence in this case.

[98]This court is acutely aware of the sensitivities and difficulties encountered by those who have suffered domestic abuse and the need for the court to be fully aware of those matters when assessing the way allegations have been made, the timeline, the consistency of the accounts and the overall reliability of any allegations made.

[99]The father’s statements are detailed in the descriptions they give of the events he seeks findings on and he denies the allegations of domestic abuse alleged by the mother. According to the father, the accounts in his statements are supported by contemporaneous notes he sent to his solicitor after each event occurred and on many of the occasions when he alleged any injury caused to him there is a photo that he relies upon. He described in his evidence the system he had in place to send these photos to his solicitor at the time of the events he alleges. In her statement to the police the mother takes issue with the reliability of these photos and has produced her own photos to the police.

[100]The account the father gives is supported by a number of other matters, in particular:(i) The police records that describe what was seen when they attended on 10 January 2023.

(ii) The father’s GP records.

(iii) What X has reported when she was spoken to as part of the child and family assessment.

(iv) What was said in mitigation on the mother’s behalf in the criminal proceedings.

(v) The photographs attached to the father’s statements.

[101]The evidence in the father’s GP records about alcohol consumption raise concerns and will require further investigation but do not, on the information the court has, support the suggestion by the mother that the father was a functioning alcoholic.

[102]By contrast, when considering the allegations made by the mother to the police, but not part of any sworn evidence by her in these proceedings, her accounts are unreliable and unsupported by other evidence the court has. I have factored in that the court has not had the benefit of hearing from the mother and must guard against reaching any conclusion that is based on her non-participation. The burden of proof remains on the father regarding his allegations and the standard of proof does not change.

[103]By way of example, the allegations made by the mother, particularly of sexual abuse by the father towards X, are of the most serious kind, yet three months after making those allegations she proposed at the hearings on 10 August 2023 and 13 September 2023 shared care arrangements for X, with the father playing a significant role in X’s care. Such a proposal is wholly inconsistent with such serious allegations the mother has made.

[104]The mother failed to mention those allegations at an earlier child and family assessment undertaken by the local authority in January 2023, when she was interviewed by the police in January 2023 and by her failure to file any evidence in response to the non-molestation injunction obtained by the father.

[105]Turning to the allegations of physical and sexual abuse the mother alleges the father perpetrated on her again there is no apparent reason why the mother failed to mention them in the C100 application she made to the court in May 2023, in fact all the boxes on the form that asked about issues of domestic abuse the ‘no’ box was ticked. This was some months after she had made these allegations to the police in February 2023. The mother had the benefit of legal advice at that time. As with the allegations made against the father regarding X, the allegations she subsequently made were very serious and, if true, would appear wholly inconsistent with the case she was presenting to the court.

[106]Even factoring in the difficulties for parties who are the victim of alleged domestic abuse every possible step has been taken in this case to enable and facilitate the mother to engage and participate in these proceedings, including funding expert legal advice and assistance, which she has refused. She appears able to access support as evidenced by the extent of third parties who contacted the Guardian. She has, in my judgment, chosen to remain in the shadows of these proceedings continuing to make serious allegations against the father that have long term consequences for X. If true they are clearly relevant to welfare decisions regarding X, if untrue they are equally very relevant to welfare decisions about X.

[107]It is important the court considers all the evidence and material that is available in assessing matters of credibility and reliability.

[108]On any view the relationship between the parents is complex. It seems incredulous that the father did not question earlier the mother’s assertion that she was a High Court Judge and her increasingly extraordinary accounts when asked about her role. In his oral evidence the father acknowledged that it seemed incredible but he said when he raised questions she always had answers, which he thought were strange. He recalled a conversation at the time they got married when the mother asked him what she should put on the marriage certificate and accepted he had been naïve. He said on learning of the mother’s involvement in the alleged fraud he wanted to try and do what he could to help but she resisted that other than to ask for increasing amounts of financial payments. Her ability to deceive as the father alleges is to some extent supported by what was said in the criminal proceedings about the way she secured the agreement of the tenant to maintain the fraud she perpetrated over an extended period of time.

[109]The mother’s actions impact on her credibility when making serious allegations against the father about his behaviour towards her and X to many others but then actively proposing welfare orders that, if her account is correct, would put X at serious risk of harm and then not engaging in these proceedings, which are focussed on X’s welfare, despite, in my judgment, having sufficient legal and other support to enable her to do so. If the allegations made by the mother are true the mother’s actions do not stand up to close scrutiny.

[110]Having stood back and considered all the evidence I am satisfied the evidence given by the father of the incidents of domestic abuse perpetrated on him by the mother are credible. As set out above, his accounts are reliable, consistent and supported by other evidence; by contrast the information provided by the mother outside of these proceedings has been wholly inconsistent and unreliable, particularly when looked in the context of other events.

[111]I am equally satisfied that the mother has on the occasions the father describes breached the non-molestation injunction by seeking to contact the father, either directly or via her indirect contact with X, and the mother’s behaviour towards X during contact has been inappropriate in the way described, causing X emotional harm. During her police interview the mother said she had told X of her allegations. The allegations regarding the mother’s behaviour towards X as described by the father is wholly consistent with the text messages sent by the mother to X, her inappropriate behaviour described by others towards X and the impact on X of that (for example, as described by the Children’s Guardian in January 2024). The most recent example of this is the text from the mother to the Guardian on 6 February 2024 where the mother alleges X has told her that the father has been threatening to her and she is frightened.

[112]The allegations made by the mother against the father are, I am satisfied to the required standard, false. They simply do not stand up to any scrutiny. Many of them are extremely serious yet at the same time the mother is either denying them in documents filed with these proceedings or making detailed welfare proposals to the court which are wholly inconsistent with the allegations she has made.

[113]I am satisfied that due to the way the mother has made the allegations both as to their nature and timing they are maliciously made. This is illustrated by the sexual allegations regarding the father’s behaviour towards X. These are of the most serious kind, if true they would have had serious welfare implications for X, yet, for no apparent reason, she delayed making them for four months when there had been plenty of opportunity to do so and she had legal representation at the relevant time. Then, despite having made them, the mother then seeks orders that would leave X being cared for by the father for significant periods of time, which is simply incomprehensible if the mother considered the allegations to be true.

[114]The father’s written and oral evidence about the impact on him of the mother’s allegations about him was compelling. He was able to describe the way he felt when he was first contacted by the social worker and the police about the allegations, the impact those allegations have had on him and permeated the way he behaves due to his fear of anything being misinterpreted. As regards the delay in reporting or doing anything about the allegations of domestic abuse he made he described how he feared what the fall out would be for X. He talked to his GP, as the records record, the mother was away a lot and when he did decided to take steps in the summer of 2022 there were huge delays in the court processing his application, which was never issued. Then the school term started again and he didn’t press the matter then due to his concerns about the impact on X.

[115]There is no sign of the mother ceasing to make these allegations. For example, the recent recordings of the mother talking to X about the bathing arrangements and in a recent message to the Guardian the mother states that X has told her ‘that her father has been threatening her & she is very frightened, frustrated and doesn’t know where to turn….The system has clearly failed my daughter and me’. In his oral evidence the father said he had not seen these messages before and was shocked by them.

[116]For the reasons set out above the father’s schedule of allegations dated 29 January 2024 are established to the required standard of proof.