MS v HW & Anor [2025] EWFC 267

Case No MA22PA50084[2025] EWFC 267
IN THE FAMILY COURT AT MANCHESTER
Venue Manchester Civil Justice Centre, Royal Courts of Justice, Strand, LondonDate 11 February 2025
Before
DEPUTY HIGH COURT JUDGE LANE
Between
MSApplicant
Ms Shield (instructed on a direct access basis) for ApplicantDr Proudman (instructed on a direct access basis) for 1 st RespondentMs Hargreaves (instructed by Mr Hankinson of Butcher & Barlow Solicitors, who acts the Guardian) for 2 nd RespondentHearing Hearing dates: 13 January 2025 (Manchester Civil Justice Centre)20, 21 January 2025 (Royal Courts of Justice, London)4 February 2025 (submissions : heard remotely via Teams)
JUDGMENTAnonymityIn line with the Practice Guidance of the President of the Family Division issued in December 2018, the names of the children and the adult parties in this judgment have been anonymised, having regard to the implications for children of placing personal details and information in the public domain. The anonymity of the children 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 and may result in a sentence of imprisonment.
[1]I am aware that the timetabling for this case is tight (a welfare hearing following on from this fact finding judgment has been listed for mid-March 2025). I wish to give the mother and the father as much time as possible to reflect on this judgment and to prepare their witness statements addressing the welfare of the child, A. For that reason, I shall provide an abbreviated account of the litigation hitherto. I have not set out the submissions of counsel in detail but have addressed their respective submissions in my analysis of the evidence. Background[2]The court is concerned with arrangements for A who was born on 2 February 2019. Her natural parents are MS (hereafter ‘the father’) who was born in 1993 and HW (hereafter ‘the mother’) who was born in 1985. The mother and the father met in 2017 and began to cohabit from October 2017. The mother found out that she was pregnant in June 2018. The pregnancy had not been planned. The relationship between the mother and father deteriorated during the course of the pregnancy. The parties separated on 11 March 2019. A has lived with the mother since that time and the father has had sporadic contact with her.[3]In 2020, the father made an application to the Family Court for contact with A. On 27 October 2020, the court made an order which included the following provisions: The mother advised the court on the first day of the hearing that she did not pursue allegations 1, 5 and 7 on the Scott Schedule at [A1-5] of the bundle. Thereafter, the mother did not pursue allegations 2 or 8 either. The parties confirm that they understand that the allegations not pursued at this hearing shall not be resurrected at a further time. In any event the parties were able to agree a narrative that reflects incidents that occurred on 8th November 2018, 4th January 2019 and 10th March 2019 and submit that the same can and should be adopted by the court as formal findings. Accordingly, those findings are contained in a schedule attached to this order.[4]A final order for ‘stepped’ contact was made on 18 March 2022. The arrangements broke down and the father applied for enforcement. Both parties now seek to vary the contact order. It has been the father’s case that the mother’s behaviour is preventing him from building his relationship with A. It has been the mother’s case that she is acting reasonably because of concerns about the child’s welfare and the father’s behaviour. She now wishes contact to cease. A was made a party to the proceedings in August 2022 and Ms Lomas was appointed her Guardian (when I refer in this judgment to ‘the parties’ I refer to the mother and the father only unless otherwise indicated).[5]A psychological assessment was carried out in December 2022. The application was listed for final hearing in August 2023. However, at that time the court and the parties considered that a resumption of regular contact was possible and direct contact restarted in March 2024. Further problems with contact arose and the parties asked the court to list the matter for a final hearing.[6]Earlier in the enforcement proceedings, it had been understood that the court at any final hearing would not seek to revisit the agreed schedule of findings of fact reached in 2020. However, at the pre-trial hearing on 20 December 2024, the parties told the court that neither the mother nor the father sought to rely on the schedule. Both the mother and father were of the view that only a comprehensive fact finding hearing addressing all disputed issues between the parties would bring finality to this very protracted matter. Accordingly, the court made an order by consent which provided inter alia as follows: By consent of the parents and court’s determination, the findings of fact conceded by both parties dated 27 October 2020 before District Judge Carr should be set aside not be relied upon furthermore.[7]The final hearing commenced at Manchester Family Court on 13 January 2025. For the convenience of the parties, counsel and the court, the final two days of the hearing (21 and 22 January 2025) took place at the Royal Courts of Justice, London. I heard the submissions of counsel remotely via Teams on 4 February 2025. Following that hearing, I reserved my judgment which I now give. The Relevant law[8]Dr Proudman provided a helpful note on the law to which I have had regard in reaching my judgment.[9]I have reached my judgment having regard to the following principles of law.[10]The burden of proof lies on the party making the allegation. The standard of proof is the balance of probabilities. The law operates a binary system. The fact either happened or it did not. If the Court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, the fact is treated as not having happened. If the party does discharge the burden of proof, it is treated as having happened.[11]Findings must be based on evidence, not suspicion or speculation. The Court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities. The Court must take into account all of the evidence and consider each piece of evidence in the context of all the other evidence. A Judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out to the appropriate standard of proof.[12]The evidence of the parents is of the utmost import and to this end the Court will make a clear assessment of their credibility and reliability. The Court is likely to place considerable weight on the evidence and the impression it forms of the parents. I have throughout considered the written and oral evidence of the parties in the light of any vulnerabilities which they have.[13]Intention to cause harm does not need to be proved to make a finding of abuse. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them.[14]Any decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. ‘Parental alienation’ is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, ‘alienating behaviours’. It is, fundamentally, a question of fact. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of 'alienating behaviour' should be the court's focus, rather than any quest to determine whether the label 'parental alienation' can be applied. I discuss parental alienation in the light of my findings in this case at [104-106] below.[15]If a Court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything. If a witness lies in the course of the investigation or the hearing, the witness may have lied for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure.[16]The present case concerns allegations of domestic abuse, including coercive and controlling behaviour. As such the Court must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010, and the guidance given by the Court of Appeal in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA 448 (Civ). In that case, at [25] to [27], the Court of Appeal noted that PD 12J remains ‘fit for the purpose for which it was designed’ enabling the courts to recognise domestic abuse and thereafter how to approach such allegations in private law proceedings. In relation to the recognition of domestic abuse in the form of coercive and/or controlling behaviour the Court of Appeal said: [25] … there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J). [26] PD12J paragraph 3 includes the following definitions each of which it should be noted, refer to a pattern of acts or incidents:
‘domestic abuse' includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment; 'coercive behaviour' means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; 'controlling behaviour' means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.’ [32] It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be 'abuse' in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 [61] Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to 'domestic abuse', where 'coercive behaviour' is defined as behaviour that is 'used to harm, punish, or frighten the victim…' and 'controlling behaviour' as behaviour 'designed to make a person subordinate…' In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict. a) PD12J (as its title demonstrates) is focused upon 'domestic violence and harm' in the context of 'child arrangements and contact orders'; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court; b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is 'necessary' in order to: i) Provide a factual basis for any welfare report or other assessment; ii) Provide a basis for an accurate assessment of risk; iii) Consider any final welfare-based order(s) in relation to child arrangements; or iv) Consider the need for a domestic abuse-related activity. c) Where a fact-finding hearing is 'necessary', only those allegations which are 'necessary' to support the above processes should be listed for determination.’
[17]Both parties have made allegations against the other. I understand that the father had intended to call witness evidence, but only the father and mother gave oral evidence. I have considered the written evidence of the witnesses of fact in reaching my judgment. The weight which can be given to witness statements which have not been tested by cross examination is limited.[18]I stress that I have considered the evidence as a totality before making any findings of fact. I have viewed the video evidence and listened to the audio recordings. I have had regard to the psychological evidence of Drs Alwin and Milson and to the local authority and police evidence. The fact that I may not refer to a particular item of evidence does not mean that I have not considered it.[19]Pursuant to Part 3A of the FPR 2010 and PD3AA, the court held a ground rules hearing in advance of the fact finding hearing and ensured participation measures were in place for both parties throughout the hearing. I stress that I considered the impact of trauma or domestic abuse can have upon the quality of the evidence given. A. The Mother’s Allegations The father subjected me to verbal abuse and denigratory and humiliating behaviour to control and intimidate me throughout the relationship, during my pregnancy and after A’s birth. 1(a) The father exposed his penis and put it in my face without my consent on the day of A’s birth.[20]All references to the mother’s written evidence are to her witness statement of 5 December 2024 unless otherwise indicated.[21]The first allegation is not characteristic of the father’s alleged behaviour generally. The mother writes [C106]:
‘I was in bed, and A was asleep in the cot beside me. As [the father] was moving to leave, I gave him a normal kiss goodbye. He responded by quickly unbuckling his belt and taking out his penis, and thrusting it towards my face. I said, “What are you doing?” and tried to move away without attracting the attention of the people in the room, and after a few moments, he just put it away as if nothing had happened. It frightened me for a long time as it was completely uninvited and inappropriate, and he seemed to zone out and lose control of himself as he had never done anything like that before, and I was worried it might happen again. Several people, including nurses, were just 2 feet away from my bed. This made me nervous about him due to his lack of control over himself.’
[22]In oral evidence, the mother said that she had been unable to understand the father’s behaviour as it was so unexpected. The father denied having behaved in as alleged.[23]In her submissions, Ms Shield argued that the mother confirmed that she had not told any of her friends about the incident which, given her usual willingness to discuss her relationship with the father with her close friends, indicated that the incident had not occurred. Dr Proudman submitted that the incident did fit in with the pattern of the father’s conduct. She cited the fact that the father had recorded the mother naked without her consent as another example of sexual intimidation.[24]The first allegation is one of the more difficult to assess. The alleged behaviour is different from that detailed in other allegations. As the mother acknowledges, ’[the father] seemed to zone out and lose control of himself as he had never done anything like that before.’ However, the fact that the allegation concerns conduct by the father which is not at all characteristic does not mean that the incident did not occur. I am reminded that the father was a young, relatively immature man at the time. As the mother says, although separated from the nurses by a curtain, they were only 2 feet away. I find that the father may have derived some immature pleasure from exposing himself to the mother, even if only briefly. Considering the evidence as a whole, I find the father did expose himself as alleged. I find that Ms Shield’s submission has little weight; in my opinion, it is understandable, given the particularly intimate and shocking nature of the behaviour, that the mother did not seek to discuss this information online with her friends.[25]I am, however, not persuaded of the full alleged effect of the incident as claimed by the mother. I find that the father’s behaviour shocked, distressed and embarrassed the mother at the time, especially given the proximity of third parties. However, it was an isolated incident and does not form a pattern with the father’s conduct more generally. I do not agree with the submission of Dr Proudman ([3], above); the behaviour in 1(a) is of a different kind from the father recording the mother without her consent (which I discuss below). The latter behaviour is abusive but it lacks any element of exhibitionism and sexual intimidation. Such an extreme incident had not occurred before and was not repeated. Whilst I find that she was distressed at the time, I do not accept that the mother was left ‘nervous about [the father] due to his lack of control over himself.’ 1(b) The father made sexually degrading comments about me to humiliate and make me subordinate to him.[26]The mother claims that the father ‘told me that whatever happened between us, he would own me for life because every man I got with subsequently would know that he had ‘fucked me first’, so he had ‘cucked’ every man I would ever get with. He also made comments about hoping I died in childbirth and said that ‘the only use women have is for men to have sex into to get a baby out’. [C107].[27]In cross examination, the father denied having spoken in this way and said that the mother had said these things to him. He said that the comments about ‘cuckolding’ had been the mother’s idea, not his. He could not refer the court to any part of his evidence where he had made that allegation. I am aware of no examples in the evidence of the mother having sworn at the father.[28]The father’s evidence was not persuasive. I agree with Dr Proudman that the father has sought to ‘mirror’ or reflect the evidence of the mother, denying her allegations and then turning the same allegations against her. The fact that the father had not advanced any of these allegations about the mother in evidence in proceedings which have carried on for years and in which multiple witness statements have been filed indicates strongly that his allegations are false. I do not accept his explanation/excuse (‘there was a lot I could have put in evidence but have not done so’). He failed to explain why he had not adduced all the evidence upon which he sought to rely.[29]I find that the father used the words as the mother claims in 1(b). The father may have considered his comments as jocular and harmless. However, whatever the father’s intention, I find that the comments were sexually degrading and that they carried the intent and had the effect of humiliating the mother. I find that the comments would have hurt the mother with particular force given that she was a young woman expecting her first child. To say to a woman at such a stage of her life that, having ‘fucked [her] first’ meant that she was ‘owned for life’ does, in my opinion, amount to behaviour designed to subordinate the mother to the father. I find that such comments were intended to cut deep emotionally and I accept that the mother has struggled to process the father’s conduct and to regain her self-esteem. Again, it is the effect on the mother which is important; the fact that the father may have intended his comments as cynical or humorous (rather than as intimidatory and abusive) is immaterial.[30]The mother claims that the father ‘also made comments about hoping I died in childbirth [C107] and that ‘. [the father] also took videos of me at home, postpartum, in various states of undress or breastfeeding and refused to stop despite my repeated objections. … . I felt that this was another way of keeping me subdued and compliant, by stripping me of dignity, and also filming me in an aggressive way. He told me people needed to see how disgusting my body was. He has shown these videos to his mother as she has referenced them in her first statement to the court, she said she was troubled to see it. Although the videos are not sexual content, they are intimate images which other people could use for sexual purposes. I understand now that this is a criminal offence.’[31]In cross examination, the father denied having said or behaved in the manner alleged. He said that that the mother had a blood condition and that he was worried she might be put under physical strain by the pregnancy and birth. He said that he assumed that the mother did not object to his filming the birth or breastfeeding. He accepted that he had not asked for her consent. In cross examination, the mother agreed that the pregnancy and the period around A’s birth had ‘not been an entirely unhappy time.’[32]I find, as the mother now appears to accept, that the relationship was not continuously fraught and unhappy in the period leading up to and immediately following A’s birth. I find that parts of the mother’s evidence refer to aspects of the father’s conduct which did not particularly trouble her at the time but which she now says were upsetting or aggravating (viz. the father sleeping during her labour; playing his music loudly when the couple were in hospital). I find that the mother shows a tendency to attempt to portray every part of her relationship with the father as troubled and unhappy. I find that, whilst undercurrents of stress and unhappiness were present throughout mainly on account of the father’s outbursts and particularly because of his conduct during arguments, the couple did enjoy some happy periods together during the pregnancy and following A’s birth.[33]I find that the father did tell the mother that he ‘hoped she died in childbirth.’ The father’s explanation, referring to the mother’s alleged blood condition, makes little sense. I find that, as with the incident at 1(a), the father was, possibly as a consequence of his immaturity at that time, given to making cynical comments in an effort to be witty. These comments form a continuum of behaviour along with the ‘barrage’ of repeated abuse which the father employed to silence the mother during arguments (which I discuss below). I am aware that both forms of behaviour are to be found in some immature adult men. It has not been argued by the father that the mother did find such comments amusing or that she was able to dismiss and forget them. I accept the mother’s claim that the comments hurt her, whether or not they were intended to so, and that she has struggled to regain her self-esteem in consequence.[34]As regards filming the mother in childbirth or breastfeeding without her consent (which the father now accepts he did), I am not satisfied that the intention of the father in doing so was to humiliate the mother or make her subordinate to him. I take judicial knowledge of the fact that the filming of childbirth and breastfeeding by parents is commonplace. I accept that the father may have begun making recordings and taking photographs on the assumption that the mother would not object.[35]Having said that, I accept the accuracy of the mother’s statement, ‘we had never discussed filming, and he stops when I catch him in the video questioning what he’s doing so it is clear I did not consent.’ (mother’s statement at [C107]). I find that the father did stop recording when the mother objected. I find, however, that the father did share the videos or a video with his mother; in oral evidence, he first denied having done so and then said that he ‘did not know’ if he had. His evidence on this matter I found evasive and unreliable. That unreliability leads me to find that the father did threaten to share the videos with third parties, as the mother alleges.[36]The mother says that, ‘the process of filming and threatening to share the videos against my will has had a significant psychological impact on me. I was degraded, humiliated, shamed and denied dignity and autonomy over my body when Ishould have been allowed to recover from significant illness and childbirth. The videos play over and over in my mind, as well as his comments, and they have affected my confidence and my social life. It left me with a subconscious feeling that I am disgusting. I’ve worked for MPs for ten years, and unfortunately there have been a few instances where I’ve been present when someone has attempted to provoke and record them, and I have found this immensely triggering due to what [the father] did to me, and I have been left shaking, hypervigilant, having panic attacks and reliving events impairing my ability to function and work for days sometimes, and I have tried to mask this and hide it from colleagues and the public to maintain professionalism. Whereas previously it would have been an annoyance but part of the job.’[37]After carefully considering what the mother says about the effect of the recordings on her mental state, I find that, in this instance, she has exaggerated the effects she claims the father’s conduct has had on her. I accept that the videos were made without her consent and that the father threatened to show the videos to third parties (although, apart from his mother, there is no evidence that he did so). I find that the threat distressed the mother at the time and I accept that the mother may as a consequence experience unpleasant feelings about her body image. However, I am not satisfied that the mother has been left ‘shaking, hypervigilant, having panic attacks and reliving events impairing my ability to function and work for days sometimes.’ [C107]. I do not find that the mother continues to experience ‘immense triggering’ on account of the videos. In reaching that finding, I have fully considered the mother’s vulnerability as a witness. 1(C) The father was aggressive to me and staff when I was in the hospital with A[38]The mother [C107-9], referring to the period the couple were in hospital for the birth, states:
‘[the father] had made himself a bed on the floor and gone to sleep, … he was quickly bored of A. I was upset by him being rude to the midwives on several occasions, especially when one midwife was giving me breastfeeding support one evening after Awas born, and [the father] had made a bed on the floor and was asleep. She reminded him of the hospital rules that partners had to stay in a chair if they were staying overnight on the ward, as being on the floor was a hazard in an emergency if staff had to get access to the bed. [The father] argued and said he had a bad back and she couldn’t expect him to sleep in a chair. The nurse politely stood her ground, and then [the father] got angry and announced that she had upset me and made me stressed and anxious, which was not true…’
[39]In cross examination, the mother was asked what exactly the father had done aggressively towards her. She said that he had thrown a bag down on the bed during the argument with the midwife.[40]Considering this allegation in the context of all the evidence, I find that the father did argue with the midwife regarding his bed and that he refused to sleep in the chair as asked. I find that the father was aggressive towards the midwife as the mother states but I do not find that, by throwing a bag on the bed, the father was in this particular instance aggressive to the mother. By her own account, the father was at the time accusing the midwife of upsetting the mother. I find that the argument upset and alarmed the mother but that the aggression of the father on this occasion was not directed at her, but towards the midwife. As regards the degree and consequences of the father’s aggression, I note Ms Shield’s observation that the father’s behaviour was not so bad as to lead to his being asked to leave the ward. I find that the father was aggressive towards the midwife but not towards the mother. 1(d) The father lied about being A’s primary carer and about my illness by stating it was him who was hospitalised.[41]The mother states [C109] ‘ [the father] had claimed that it was him who was ill, and I had a bit of a cold. He also made comments that A hadn’t been ill, and they were just giving her treatment in case she got ill. He kept asking if we could be discharged and complaining he was fed up of it and wanted to go home. He also claimed in statements that he undertook all of A’s care which is a staggering fabrication … [at home following the birth] . I suggested [the father] change [A] as I thought it was something he could have done as he was in the room with her. He looked at me with a strange expression and went back in the living room and a moment later I heard shouting and swearing and he stormed out and started pacing the house shouting about the poo on his sleeve. I did consider whether it was weaponized incompetence so I wouldn’t ask him to undertake parenting duties again…’[42]In cross examination, the mother said that the father’s behaviour had upset her as he was seeking to ‘deny my experiences’ and was reversing the reality of the situation of A’s care which she had predominantly undertaken alone.[43]There is little documentary evidence in the WhatsApp postings or elsewhere in the papers to support the claims of either parent to have undertaken the care of A during the first few weeks of her life. The reality, in my opinion, is that both parents provided care for A. I do not accept that, at this remove, the mother remains upset by the father’s previous claims to have provided most of the care. I do not accept that the father’s claims in this instance amount to ‘gaslighting’ as the mother claims. I accept the effect upon her would be greater had the father told third parties that he had been the main carer but this seems to be a dispute confined to the parties. I do not accept that the effect of the claims has been to ‘deny’ the mother’s ‘experience.’ That, in my opinion, is an exaggeration. 2: The father was economically controlling, threatening and abusive towards me[44]The mother writes [C109]:
‘[the father’s] controlling behaviour around money started very early in the relationship. The father surprised me by asking us to swap mobile passcodes and set up a joint account, which, at the time, I thought was a sign of commitment, but I now know it was about control.’
The mother’s witness statement at paragraphs [27-30] give examples of the father’s alleged parsimony which she says embarrassed her in company and which she considers amount to financially controlling behaviour.[45]Cross examined, the mother agreed that throughout the relationship she had maintained her own bank account and credit card. She said the father had been able to monitor her spending because she had told him how much she spent. She said ‘he regarded his money was his money and my money as his money.’ 2(a) The father and to an extent, his mother, attempted to coerce me into paying for shipping their furniture. 2b) The father threatened me with humiliating and degrading consequences when I refused to pay for shipping the furniture;[46]The father wished to transport furniture from a family home in France to use in the house where the couple and A were living. The mother says [C111] :
‘I was, however, shocked when [the father] told me that it would cost them about £2000 to bring everything over and that his Mother had offered to pay half of this. They wanted [the father] and me to split the cost of the other half, so I needed to pay them just over £500. … I was told by [the father] that I was expected to pay a quarter of the moving costs, which was just over £500. However, that same figure of £537 is cited in the statement as being half of the costs, meaning [the father] or both of them had tried to coerce me into paying his share also.’
[47]At C111, the mother writes :
‘in the end, Mrs S informed us that she had decided to pay all of the cost of couriering her and [the father’s] belongings over from their house as a gift to us both. They both called me ungrateful … . I was told by [the father] that I was expected to pay a quarter of the moving costs, which was just over £500. However, that same figure of £537 is cited in the statement as being half of the costs, meaning [the father] or both of them had tried to coerce me into paying his share also.’
[48]There are extensive text exchanges between the mother and the father regarding the furniture. (see in particular, C193; C196;). The father in cross examination said that the original estimate had been £1,000 and that he had never had any intention of compelling the mother to pay the entire costs.[49]I have considered the evidence both oral and documentary very carefully. I considered the particular allegations in the context of all the remaining evidence. My first impression of the text exchanges regarding the furniture is of an equality in the discussion between mother and father. The debate remains relatively civil on both sides although there is a degree of ‘tit for tat’ in the exchanges. Ms Shield referred the mother in cross examination to C343 which concerns another text discussion regarding payment for the upkeep of the mother’s horses (this also relates to one of the father’s allegations against the mother which I discuss below at [101]). The tone of the exchanges is very similar to that concerning the furniture; there is no suggestion that either party is seeking to close down the argument or to force a particular outcome on the other. (eg, regarding the upkeep of the mother’s horses at C343: ‘We are going to have to start paying for the horses so [I] won’t be putting so much into the joint account’ ‘I’m not paying for your horses. Nice try’ ‘Household expense – you know what you were getting into … I’ll just detract from my input [to the joint account] etc etc). Ms Shield put it to the mother that she had ‘fought back’ and that ‘you were not intimidated’ in these discussions about money. I find that this accurately describes the character of the exchanges.[50]I find that other aspects of the father’s conduct towards the mother were aggressive, demeaning and intimidatory. However, it does not inevitably follow that the same was the case in respect of the discussions about money; it does not follow that, because the father attempted to control some aspects of the mother’s life, he must have intended to control all aspects. It is important that the court reaches findings based on the evidence and I find that there was generally a equality in the discussions about money. I note that the estimate for moving the furniture was greater than the eventual cost. I do not find that the father intended the mother to pay the whole cost. I do not find that the father’s conduct in this instance was coercive or that he degraded or humiliated the mother as alleges. 2(c) The father coerced me into giving up my home and cancelled a tenancy without my knowledge causing me to become homeless when I was 7 months pregnant, and then blamed me for it in court.[51]At [C112], the mother writes:
‘After a brief separation, we reconciled in September 2018 and had a few good weeks, which resulted in us agreeing to move to the property on Bouncers Lane … Unfortunately, once the tenancy had been agreed upon, and I had given notice on my house, and a new tenant was found, [the father] returned to being nasty again. Not long before we were due to move in, I received a phone call from the new property agents about the cancellation of the contract, which had been done some time prior. I knew nothing about this and had expected the call to be about collecting the keys. When I called [the father], he was evasive about the whole issue pretended he knew nothing about it and blamed it on estate agents being incompetent … I was devastated at the realisation that I was nearly 7 months pregnant and would be homeless in two weeks' time.’
[52]In cross examination, the mother denied that she had exaggerated this incident including saying that she feared homelessness, which Ms Shield put to her had never been a realistic possibility. In cross examination, the father admitted that he had not been truthful regarding his involvement with the tenancy; contrary to what he said previously in evidence, he had made enquiries with the agents about the ‘cooling off’ period under the agreement.[53]In my opinion, the father has damaged his credibility by not being truthful regarding the tenancy agreement. I find that this is an example of the father interfering unreasonably with the affairs of the mother. I do not find that it constitutes an incident or part of a pattern indicating financial coercion or control. The father seeks to explain his conduct by saying that he was worried he and the mother would be committed to a financial liability at a time when their relationship was very volatile and could end at any time. Given the state of the relationship, that explanation is plausible although the father’s conduct betrays a complete and unreasonable lack of trust in the mother with whom he should have discussed the matter first. Equally, I find that the mother has, after the event, sought to exaggerate the distress which she felt at the time. I agree with Ms Shield that there had been no realistic probability that the mother would have been made homeless. She could, in any event, have returned to her family in Bolton, if necessary. (2d) The father became controlling about how I spent my own money, monitoring my purchases and our joint grocery shopping, causing me to have to purchase and eat food in secret. The father emptied the joint bank account as punishment when I opened a packet of biscuits without his permission.[54]At [C113], the mother writes:
‘In the joint grocery shop, [the father] used to take control and would mainly buy what he wanted to eat, which I could not because I was pregnant. It felt like he was controlling what I ate. I started buying food from my personal account and eating in secret to avoid confrontations, threats, and pressurised conversations with [the father]. Soon [the father] found out I was secretly buying a cheese pasty every day at work with my own money for about £1.30. He was angry with me for this and would shout at me about how I was irresponsible with money. He threatened not to pay the rent until I spent less than 50p per day of my own money on my lunches. It’s impossible to eat much at all for 50p a day in Great Britain, let alone as a pregnant woman. He said he was not going to enable my spending habits. His meals all came out of the joint account. I felt like a second class citizen, and that [the father] wanted me to be a second class citizen. I felt he was monitoring and controlling what I ate, and I feared repercussions about it.’
[55]In cross examination, the father admitted that, on 10 March 2019, the day before the couple separated, he had taken money out of the joint account to buy ‘luxury’ biscuits some of which the mother had eaten. He said in oral evidence, ‘yeah, it was petty, but it was agreed so it was not controlling.’[56]At [C199], there is an exchange between the couple via Facebook in which the father queries the mother’s purchase of a dress on eBay and asks why she does not buy used clothes. He also calculates that the mother is spending £50 per month on her lunches when at work which he describes as ‘spendthrift.’[57]Considering the examples above at [33-35], I find that the father has in this instance sought to control the mother’s financial activity. His behaviour goes beyond mere parsimony. I accept that the mother maintained her sole bank account, but the father’s interference in her activity on the joint account was unreasonable (in a way his conduct regarding the furniture was not) and it was intended, in my opinion, to compel the mother to do as he directed. I agree that the text exchanges seem to indicate a willingness on the part of the mother to ‘fight her own corner’ but her response does not affect the fact that the behaviour was and intended to be controlling. The father’s comment in cross examination (‘yeah, it was petty, but it was agreed so it was not controlling.’) is telling; the arrangement was only ‘agreed’ because the father had used controlling behaviour to achieve agreement. Further, in the light of the evidence as a whole, I find it likely that the father did, despite his denial, compel the mother to ask for his permission if she spent more than £3 from the joint account. 2(e) The father coercively controlled how much money I spent on our home and for A and refused to contribute towards reasonable costs related to her care.[58]In cross examination, the father said that he had eventually closed the joint account. In cross examination, the mother agreed that, taken individually, the incidents cited were minor but she said that cumulatively they had upset her.[59]This allegation covers the same ground as 2(d) and adds little to the overall picture. However, both the evidence in support of the allegation and the oral evidence do not, in my opinion, establish that the father ‘refused to contribute towards reasonable costs related to [A’s] care.’ I do not find that any of the father’s conduct with regard to the family finances had a negative impact on A’s welfare not do they indicate any negative attitude towards A by the father. 3: The father used animal cruelty against my dog, Harvey, to hurt him and intimidate and belittle me. 3a: The father was violent towards Harvey because I asked him to make dinner. 3b: The father taunted me about Harvey’s death to upset and distress me;[60]The mother details her allegations regarding the father’s conduct towards her dog, Harvey, at [C116] et seq. She claims that, during an argument, the father, deliberately threw frozen meat at Harvey. The father denies this. He also denies saying that he wished Harvey would die and otherwise insulting the dog in front of the mother.[61]I shall be brief in respect of this allegation. Viewing the evidence as a whole, I find that the father would, occasionally say hurtful things about Harvey (including after the dog’s death) because he knew the mother loved the dog and that his comments would upset her. I find, on consideration of all the evidence, that the father threw frozen meat because he was in a rage in an argument with the mother and that the meat hit the dog but I do not find that he had the intention of hitting the dog; there are no other allegations of physical violence by the father towards the dog. Given that the incident was an accident, I do not find that the father was ever cruel to the dog in order to ‘hurt him and intimidate and belittle [the mother].’ 4: The father subjected me to a pattern of coercive and controlling behaviour. 4(a) The father used coercive and controlling behaviour regarding the keys to my property. 4(b) The father behaved coercively with his mother about my medical treatment on Christmas Eve 2018 to humiliate and distress me.[62]In cross examination, the mother said that she had never been denied access to the family property by the father although there were occasions when she ‘had to knock to get in as he didn’t trust me with the keys.’ She was asked about C224 which is a text exchange between the mother and a friend, GH. The mother says, ‘I’ve decided I want [the father] to go back to his mum’s. He won’t leave though so I’m going to wait til he goes to France and then lock him out.’ She said that she had not carried out the plan to change the locks.[63]At [C118], the mother writes:
‘I had come down with a bad case of thrush, and because I was heavily pregnant … At one point, [the father] phoned his mother and said that we were arguing over [whether I needed a prescription], and I heard his Mother agree that I was being ridiculous and my behaviour sounded concerning. She asked [the father] what I needed a prescription for, and he told her, which I objected to as it was personal and I would not have shared. I heard his mother then ask if I’d been a good girl and if I deserved to have my prescription, and they both laughed. It was humiliating.’
[64]As regards the keys to the house, I find that this is an instance similar to that discussed above, of the mother seeking to ‘rebrand’ (to use Ms Shield’s phrase) past events to support her case. I stress that I do not find that there existed an ‘equality of arms’ in the relationship; as I discuss below, when he chose to do so, the father would abuse and intimidate the mother so as to compel her to do as he wished and to deny her the ability to engage in the argument. In certain aspects of the relationship, however, and at times when the father’s temper remained under control, there would exist a situation in which the father and the mother would trade comments and criticisms on apparently equal terms (see for example [28] above concerning the upkeep of the horses). I find that the mother had planned, however tentatively, to change the locks whilst the father was away. I also find that the father kept the mother’s keys as alleged and that she had to knock the door to get in. I am not satisfied that any of these exchanges amounted to controlling or coercive behaviour by either party.[65]As regards the mother’s medical issue, I find that the father did tell his mother about this (it is clear from all the evidence that the father and his own mother are close and that he shared details about his relationship with the mother, often without the latter’s consent). I find that, given the intimate nature of the medical issue, the mother was distressed that the father had done this. I am satisfied on the evidence that the father made comments about the mother as she claims but it is difficult at this remove and with limited evidence to determine whether the mother felt humiliated as she now claims. There is some force in Ms Shield’s submission that it is difficult to make a clear finding without knowing the context of the conversation between the father and his mother. I do not find that the father’s behaviour in this particular instance can be properly described as coercive. 5: The father used physical abuse against me to hurt, punish, frighten, and control me. 5(a) The father physically assaulted me for not wanting to accompany him to his mother’s when I was heavily pregnant; and 5(b) During the assault on 4 Jan 2019, the father used DARVO to try and reverse the victim and offender to get me into trouble for things he did; 5(c) The father used physical force against me and A, filmed the assault and taunted and humiliated me for my distress on film; 5(d) The father premeditatedly edited the recording of his assault on me to gaslight me and others that this was evidence of my ‘mental illness’ to have A removed from my care.[66]5(a): In the light of what both the mother and father said in evidence and considering the evidence as a totality, I find that the father did use physical abuse towards the mother on 8th November 2018 as she details in her witness statement at (6) [C118]. I find the mother also bit the father as she acknowledges in her evidence. I find that the incident ended when the father fell after the mother employed a rape defence manoeuvre. In the circumstances, I find that the father did use physical abuse against the mother to hurt, punish, frighten, and control her; it is difficult to see what other interpretation can be given to his conduct. The fact that the mother retaliated is not material; there is no suggestion (and Ms Shield did not submit otherwise) that this was in any sense an equal contest between the mother and the father.[67]5(b): In the context of all the evidence and my findings and observations generally, I find that the incident on 4 January 2019 occurred as detailed in the mother’s witness statement at (61) [C119]. I find that the father did use DARVO (Deny, Attack, and Reverse Victim and Offender) by subsequently complaining to the police that the mother had assaulted him (see mother’s witness statement at [63]).[68]In cross examination, the mother said that she had ‘felt strange’ so had started to record the incident. Ms Shield submitted that the fact that the mother had recorded the incident cast doubt on the extent to which she had been distressed; having the presence of mind to gather evidence indicated, she submitted, that the incident was not as serious as the mother claims and that she was less distressed by it than claimed.[69]I reject that submission. A striking feature of this case is the readiness of both parties to record arguments even when (as we will see below) the recordings viewed years later do not always show the recorder in a good light. I accept the mother’s explanation that she recorded the father because he was ‘so unpredictable.’ It seems reasonable that in a relationship in which both parties accused the other of wildly erratic behaviour (calm one moment, enraged the next) that they would wish to gather incontrovertible evidence of those changes. Moreover, victims of domestic violence are sometimes criticised (often unreasonably) for producing only subjective evidence in support of allegations; it seems sensible, therefore, to gather as much evidence as possible.[70]5(c): The events of 10 March 2019 represent instances of some of the worst abusive behaviour perpetrated by the father. The events are also the best evidenced; there is a disturbing video recording which the father made on his phone and which was viewed in court.[71]The mother had taken A out in the pram when they had been caught in a hailstorm. The mother writes [C121]:
‘[the father] was visibly angry when we got home and started shouting at me. He said I had gone out without his permission and endangered the baby, and he was going to have to report me because he wasn’t happy with me and couldn’t trust me to be alone with her. He took pictures of the pram and held his phone up a few inches from my face to film me as he shouted at me. He stated that I had taken A out in a snowstorm and asked me if she had got wet. I went upstairs with A to get out of his way for the rest of the day.’
The photograph of the pram was examined in court. It shows some rainwater droplets on the cover of the pram.[72]In submissions, Ms Shield described the video recording of 10 March 2019 as ‘concerning.’ She was correct to do so. The film shows the father relentlessly repeating the same phrases over and over again as he forces himself on to a bed upon which the mother is attempting breastfeed A. At first, it appears that the mother is irritated rather than distressed by the father. However, she very clearly becomes very distressed as the father persists.[73]In her submissions, Ms Hargreaves described this sort of behaviour by the father as a ‘barrage’. It is an apt description. It is, on one level, an extreme arguing technique designed by its relentless, rapid repetition of phrases and insults to starve any reasonable argument or discussion of oxygen and to prevent the other person from complaining or arguing back. Ultimately, having silenced the other party, it then distresses them as was clearly the case here; having at first told the father to get off her, the mother eventually began to cry. She is clearly in distress. She is also plainly worried that the father’s aggressive pushing and shoving on the bed could endanger A although there is no suggestion that the father is attempting to harm the child directly. Having seen the video, it is frankly immaterial whether the argument (the video shows the end of a row which the father says had lasted most of the day) had originally been started by the mother or the father. Whilst the father’s ‘barrage’ persisted, I find that it manifestly constituted behaviour intended to control the mother and coerce her into a particular response, that is subjection to the will of the father. In short, by the end of the ‘barrage’ the mother was rendered by her evident distress incapable of resisting the father. Whether the ‘barrage’ of 10 March 2019 forms part of a pattern of similar behaviour or an isolated incident I shall discuss below.[74]At the hearing, the court viewed another video which shows the mother holding A whilst the father repeatedly asks to be allowed to pass and exit through the door. It is clear that the mother is not blocking the father’s way but the father persists, relentlessly and aggressively asking to be allowed to pass. The mother becomes upset and eventually the father leaves the room. This video reveals a pattern of behaviour with the other video of 10 March 2019, that is the use of a ‘barrage’ to subdue and the distress the mother.[75]In oral evidence, the father agreed that his behaviour on the bed as seen in the video was completely unacceptable and said that he was ashamed of it. He told Dr Proudman that he now considered his behaviour to have been ‘cruel’. I find that the father used physical force against the mother, filmed the assault and taunted and humiliated her ‘for her distress on film’. I do not find (as per allegation 5(C)) that the father used physical force against A; his efforts were directly solely against the mother. I do, however, find that his conduct was reckless and showed a disregard for A’s physical welfare. His pushing against the mother is violent; the mother would have been in fear that she might lose her grip on A and she experienced distress because she feared that might happen.[76]5(d): I find that, the next day, the father edited the video ‘to around two seconds, showing [the mother] hitting him’ as the mother claims. I find he did so to turn around the true sequence of events and to blame the mother. This behaviour, in my opinion, amounts to what is described by Dr Proudman as ‘gaslighting’ and the use of DARVO. I find the father’s closing remarks on the video (repeatedly describing the mother as ‘mentally ill’) particularly chilling. Here and elsewhere in the evidence (especially, in the text exchanges) I find clear evidence of the father seeking to construct a claim that the mother is mentally unwell such that she may be considered unfit to care for A. I find that his repeated references to the mother’s mental health go beyond mere insult uttered in the heat of the moment. I find that the father was aware that the relationship was likely to end and that he believed that it might be to his advantage to have evidence of the mother’s mental instability in any proceedings concerning A which might follow a separation.[77]At [C239], there is a transcript of a discussion between the father and the mother in which the father says that he will call the mother’s midwife ‘to come down here calm you down ‘cos you’re violent.’ There is a thread throughout the evidence which clearly shows, in my opinion, that the father was intending to(i) brand the mother as mentally unwell and therefore possibly unable to care for A and(ii) that the mother alone had been violent. The editing of the video of 10 March 2019 is a clear example of that intention. The father makes numerous references to the mother ‘being on fantasy island’ [C153] and being in her ‘own fucking world’. I find that the father did intend, albeit not systematically, to assemble evidence which he believed might in the future be able to show that he was the victim of domestic violence rather than vice versa and that the mother was mentally ill. Seeking to distort the reality of the relationship in that way amounted to controlling behaviour; it imposed his view of reality on the mother and denied her autonomy. Subject to those observations, I find, as the mother alleges, that father premeditatedly edited the recording of his assault on the mother to ‘gaslight’ her and potentially others that the video was evidence of her ‘mental illness’. I find as a fact that the father’s intention was to use such evidence, should he need to, to gain an advantage over the mother in any dispute which might arise as to contact/residence for A. (6a) The father pre-emptively case built against me during the relationship to control me and make me fearful to leave him or fearful of losing A; and (6b) The father would film me without my consent to ‘gather evidence’ to use against me in court.[78]The particulars of the mother’s allegations at [6] are given in her witness statement at [81-84]. Neither party was cross examined in detail regarding these allegations. The mother said that she believed that the father wanted to ‘smear my reputation in court.’ She referred to the father ‘professionally grooming’ health workers and others to present her as an unfit mother. She said in respect of this that ‘I now realise that he was planning to do this early in my pregnancy.’[79]I find that the account of events provided by the mother is, in the light of all the evidence, accurate. I accept that the mother was told by a counsellor that ‘she was concerned that [the father] was trying to build evidence against me, and said if he was threatening me, to record this if I safely could. After that advice, I did record some of the arguments.’ I am not satisfied that the father was seeking to build a case against the mother ‘early in [the] pregnancy.’ I find that the father was genuinely pleased that the mother was pregnant and looked forward to becoming a father. I do accept that there were severe tensions in the relationship before and during the pregnancy and I find it likely that the father struggled with the idea of having to commit to the relationship because there would soon be a child to care for. I find that, soon after A’s birth, the father wished to end the relationship and considered how he might gain an advantage over the mother, including in respect of A. Subject to that observation, I find that the father did pre-emptively case build against the mother during the relationship to make her fearful of losing A.Such behaviour can, in my opinion, properly be described as controlling. I find also that the father would film the mother without her consent with a view to using that ‘evidence’ against her in the future. 7. The father was psychologically abusive to me causing me to doubt my reality and create the false narrative that I was mentally ill; 7(a) The father used my maternity notes to paint me as mentally ill to professionals; 7(b) The father falsely claimed that I had been diagnosed with PND to paint me as mentally ill and an unfit mother. 7(c) The father tried to make other people believe that I was abusive to him and A.[80]The allegation that the father compelled the mother to ‘pre-wash’ not only clothes for A (which the mother did as a matter of course) but also her own lunch is supported by the texts between the mother and her friend at [C303]. The mother says here and elsewhere in her conversations online with friends that she believes the father is ’making out that I have got mental health problems.’[81]As regards the father’s use of the mother’s maternity notes, the father admitted in cross examination that he had taken the notes and read these ‘upstairs in the bathroom’. He said he was concerned regarding the mother’s behaviour. He was worried for her welfare as she was crying a lot and not eating.[82]In his oral evidence, the father sought to justify his calling medical services on 111 and seeking medical advice without first consulting the mother because he was genuinely concerned for her welfare. In the context of all the evidence, I do not find that the father’s motivation was genuine concern for the mother’s welfare. I agree with Dr Proudman that the father’s actions were not remotely supportive of the mother. As already noted, in several of the recordings, the father repeatedly uses the mother’s mental health as a slur or as abuse. Had he been genuinely concerned for the mother I find that he would not have referred to her mental health in that way.[83]I am satisfied also that the instances of the father contacting medical professionals, attending appointments with them in the absence of the mother and even answering questions for the mother at medical appointments amounted to his ‘grooming’ of professionals. I find that the father wished to control the narrative of the mother’s mental health (including asserting that she was suffering post-natal depression (PND)). In short, he wanted mental health professionals to agree with his claims that the mother was mentally unwell. He did not do so out of any genuine concern for the mother but in order to enable him to be in control of events as they might develop following the breakdown of the relationship.[84]I find that the father did falsely claim (as detailed in the mother’s witness statement at [87]) that the mother had been diagnosed with PND to paint her as a mentally ill and an unfit mother (7(b)). Dr Proudman described the father’s behaviour as ‘weaponising’ the mother’s mental health against her. The expression is, perhaps, emotive but it is also apt.[85]In oral evidence, the only issue in 7(C) addressed in any detail concerned the star chart: ‘The weekend I left, he showed me some star charts online that he said he was buying, and he would judge how well I had done at keeping A alive that day and would give me a gold/silver or bronze star. After he said that, I raised the star chat with him, I said I wasn’t comfortable with it. He gaslit me and said he’d never suggested it. But when the social worker mentioned the star chart he did not deny it. I remember telling my friend that I was relieved that he did not deny this like he does about everything else he has done. I felt like I was losing my mind, and he was impacting my ability to properly parent. He undermined me at every turn.’ [mother’s witness statement, (94)].[86]At [C285], there is a text conversation between the mother and her friend, LH. The mother states that ‘…[the father] said that he was going to do a chart for me and at the end of the day he would review how well I’d done keeping the baby alive…’ I find that the father did tell the mother that he would purchase such a chart and that he did so to undermine her self-worth as a mother. Having said that, it is difficult to see how the evidence about the chart supports a finding that ‘the father tried to make other people believe that I was abusive to him and A.’ Moreover, I find that the incident in Tesco’s car park [93] and likewise the father photographing the mother with her head in her hands (the photograph is in the papers) did occur as described by the mother. However, as regards Tesco’s, I find that third parties would have witnessed nothing more than a row between a young couple; I do not find that they would have believed, as the mother claims, that the father was trying to portray ‘the mother [as abusive] to [the father] and A.’ The same is true of the photograph; I accept that the mother was distressed that the father had taken it but there is no clear evidence that he used it to influence the opinions of third parties. 8: The father used parental alienation allegations to distress and frighten me in court; (8a) The father's litigation conduct affected A directly;[87]I find that, following the breakdown of the relationship, the father did tell third parties that the mother was preventing him from seeing A. I find that there is no clear evidence to show that he specifically referred to parental alienation on the part of the mother. At [97], the mother writes:
‘[the father] also travelled to London and met up with a former boyfriend of mine who had been very erratic and had difficulty moving on, had broken my windows, kept sending me songs, kept my dog as his profile pics. The ex-boyfriend was on bail for sexual offences against other women at the time. They said they would form a band called ‘Revenge The Bitch’
. He got my prior ex to file a statement to court with wild accusations, knowing it would be distressing and would put our daughter at risk. [The father] filed this statement in 2020. The former ex relayed all this to a third partywho did not know me, but they reported it to the Met police as they had talked about how they would get A put into care as a punishment to me.’ In oral evidence, the father admitted that he had contacted the mother’s former boyfriend. This conduct became, in my opinion, seriously abusive of the mother when she became aware of the meeting. I find the mother’s account of the incident at [97] is accurate. I find that this incident forms part of a pattern of behaviour, together with the grooming of professionals and the father’s false allegations regarding the mother’s mental health, which was intended to be controlling of the mother.[88]The incident involving the father’s use of the mother’s Netflix account to watch a film (Daddy’s Home) which he knew would upset her raises the question, present in other parts of the evidence, as to the true extent to which the mother was distressed by the father’s conduct to the point that her mental health and her self-esteem have suffered in the manner she describes. As I note above [17], the mother has exaggerated the effect of the videos which the father made without her consent. She raised the Netflix matter with her friend in texts and one’s first impression of her comments is that she regards the event as comical. I am not satisfied that the Netflix incident distressed the mother to the extent that she now claims.[89]I find, however, that the mother’s apparent resilience and willingness to ‘give as good as she gets’ or to engage in ‘tit for tat’ squabbles with the father do not diminish the seriousness of the father’s abusive conduct. The mother’s resilience did not mitigate the impact of the father’s behaviour on her.[90]I make those findings for the following reasons. First, I acknowledge that the mother may, to some extent, have consciously and/or unconsciously masked the true impact of the father’s behaviour upon her, especially when discussing the relationship with friends. Indeed, there are text exchanges when it is the friend, rather that the mother, who calls out the father’s behaviour as abusive (eg, the conversation with LH at [C285]). Secondly, I find that there were periods in the relationship when things were calmer and happier; the relationship was not as unrelentingly bad as the mother now seeks to characterise it. Moreover, I find that the mother regretted the breakdown of the relationship as her texts at the time to the father indicate. This was not a relationship in which father continually oppressed the mother day in day out; there were times when the mother hoped and possibly believed that the father would change. Thirdly, there were arguments in which the mother did appear to hold her own, at least to begin with; the very lengthy text exchange regarding the furniture, for example [C193 et seq]. None of these observations, however, persuade me that there existed any true equality in the arguments between the father and mother, as Ms Shield submitted existed. When arguments took place face to face, the father’s ‘barrage’ technique, including his relentless swearing and abuse, silenced the mother and left her deeply distressed.[91]8(a): I have considered what the mother says in her witness statement at [99-103]. I have no reason to disbelieve what she says about A’s behaviour around contact sessions but I do not accept that the mother can attribute that behaviour to the father’s application in the Family Court. What she says at [101] (‘A is unhappy about some things, such as him lying to her to try to get her to stay and engage, and she has memories of bad experiences and handover attempts.’) is speculative. I do not find that the mother has proved that ‘the father's litigation conduct affected A directly.’ `B. The Father’s allegations[92]Cross examination of both mother and father and the submissions of all counsel were very predominantly focused on the mother’s allegations. Several aspects of the father’s allegations were focused upon in oral evidence whilst others were not addressed at all. I am required to make findings on the father’s allegations but, given the emphasis placed by all counsel on the mother’s allegations, my analysis will be briefer that that of the mother’s allegations.[93]I shall begin by making the following general observations. First, I will not repeat findings which I have made in respect of the mother’s allegations. Secondly, I considered both sets of allegations before making my analysis of the mother’s allegations. I have not considered the father’s allegations after or in the light of my findings of fact on the mother’s allegations. I have considered the evidence as a totality before reaching any findings of fact. Thirdly, as with the mother, I have considered the father’s evidence in the context that, like the mother, he required special measures in court whilst giving oral evidence. Fourthly, both Ms Shield and Dr Proudman focused on the same parts of the father’s allegations. I have done likewise. I address those allegations before making findings in respect of all the allegations. Fifthly, in her submissions, Ms Shield rejected criticism of the father for having made allegations against the mother. She submitted that the father had been fully entitled to make allegations in the proceedings. I agree with that submission. I make no criticism of the father for exercising his right to raise allegations against the mother.[94]I shall begin my analysis of the father’s allegations by addressing those matters which were addressed in oral evidence and submissions. I have then applied my findings on those matters to the particular allegations in the father’s schedule. The mother told the father that he was not the father of the baby[95]In cross examination, the mother denied that she had ever told the father or third parties that the father was not the father of A. There is no evidence in the text exchanges or recordings to support the father’s allegation. I find that up until and shortly beyond the separation, the mother wished the relationship to continue. Such a wish is not consistent with the mother seeking to cast doubt on the parentage of A. In the context of all the evidence, I do not find that the mother told the father that he was not the father of the baby. The mother hid a treasured photograph of the father’s deceased father while taunting and laughing and while saying if he was warmer or colder depending on his proximity to the photograph.[96]This incident was addressed in oral evidence. The mother denies having behaved as alleged. Having considered what both parties said in oral evidence and in the light of all the evidence, I find that the mother did deliberately hide the photograph and taunted the father in the manner alleged. I do not accept her evidence that the photograph was accidentally mislaid. As I have noted above, there were times when the mother would act in a ‘tit for tat’ manner with the father and I find that this was one such occasion. I find that the mother was capable and willing to taunt and seek to hurt the father during arguments. However, for the reasons I have given above, there never existed an ‘equality of arms’ within the relationship. Recordings allegedly made by the father/Recordings made by both mother and father[97]In cross examination, the father said that he had numerous recordings of exchanges between himself and the mother (eg referenced at [C314]) which he had chosen not to put in evidence. I found this statement puzzling. It makes little sense that the father claims to have evidence which he claims proves his allegations against the mother but that he has, in the course of nearly five years of litigation, chosen not to produce it. I can place no weight on items of evidence which I am told exist but which have not been filed and served in the proceedings.[98]I have addressed the mother’s recordings above. As with the mother, I do not criticise the father for making recordings of what he considered to be abusive behaviour by the mother. However, as I have said, the court can only attach weight to those recordings which have been put in evidence. In January 2019, the mother got out of the father’s car at a roundabout following an argument causing the father to be worried about her wellbeing[99]This allegation was addressed in the hearing. Having considered the responses of both parties in cross examination and the evidence generally, I find that the mother chose to get out of the car voluntarily and walked off. I find that, on this occasion, the father was genuinely concerned for the welfare of the pregnant mother and that he attempted to contact and find her. I stress that this finding is not inconsistent with my finding above that, later in the relationship, the father’s motive for contacting health professionals was primarily to support his claim that the mother was mentally ill. That finding does not exclude the fact that the father was, in particular during the mother’s pregnancy, concerned with her welfare and that of their unborn child. I find that the father has always shown genuine affection and love for A although as I note above, there is evidence that he acted recklessly on occasion and without understanding as to the impact his behaviour might have on A. The mother’s use of derogatory names for the father.[100]I find that, in course of arguments, the mother did call the father ‘fat’, ‘stupid’ and ‘a little boy’ and said that she hated the father and claimed that he ‘sucked on his mum’s tits.’ It is clear from the evidence that the mother and father would trade accusations and counter accusations. It seems likely that they traded insults also although I repeat that there is no evidence of the mother swearing at the father. Allegations concerning direct and indirect contact between the father and A. [Allegations 12-14][101]None of these allegations were addressed in the oral evidence. I will say this in respect of contact. First, I am aware from my own long association with this case, that contact arrangements have rarely operated smoothly. The mother has stated her agreement to contact and I am aware that the father has shown determination in his wish to maintain contact, often travelling long distances and incurring significant expense to do so. I consider that is evidence of his commitment to maintaining a relationship with A. Notwithstanding the mother’s claim that the father grew tired of A, I have seen no evidence of that in these proceedings. I shall deal with the father’s allegations of parental alienation below, but, beyond that, I am not prepared to make any findings at this stage as to the reasons why contact has often not been successful. There is simply inadequate evidence for me to make the findings on contact which the father’s allegations appear to seek. Financial abuse [allegation 11][102]I have addressed the upkeep of the mother’s horses above at [29]. I find that the parties argued a great deal about money. In the context of all the evidence, I accept that the allegations at 11 (i-iii) accurately record what was said by the mother in course of arguments. Coercive Control of the father by the mother[103]I refer to my findings above regarding the nature of arguments between the mother and the father and instances of the father’s coercive control of the mother. In the light of my findings and, in particular, what I say regarding the balance of power within the relationship and the father’s ability to close down discussion and assert his will, I reject the father’s counter allegations of coercive control against the mother. The allegation that the mother threatened ‘to send copies of recordings to a newspaper if the father did not comply with her demands’ lacks any ring of truth’ No newspaper is specified and it is wholly unclear why a newspaper would in any event be interested in the personal affairs of the mother and father. Allegation 8 (iii) is without foundation. I do not accept that the presence of the press at hearings has anything to do with any attempt by the mother coercively to control the father. Physical Abuse[104]I find that, in the course of arguments, the mother did hit and bite the father (see above at [45]}. However, for the reasons I have given, any physical contest was not equal. I do not accept that the mother ‘would often physically intimidate the father with her overwhelming height and body mass.’ The mother is taller that the father but the difference is certainly not ‘overwhelming.’ In any event, this was not a relationship in which the most serious abuse was physical in nature. Certainly, blows and bites were occasionally exchanged but both parties (and, in particular, the father) have sought to exaggerate the seriousness of any physical contact. The allegation that the mother had worked as a prostitute in Cheltenham and Worksop[105]This allegation was addressed in oral evidence. The mother denied that she had ever claimed to have worked as a prostitute. Having considered all the evidence, I find that this allegation is not proved. I can see no reason why the mother should have ever made such a claim, even in jest, to a man with whom she wished to continue a relationship.[106]Subject to the findings which I have set out above, I find that none of the remaining allegations in the father’s schedule of allegations has been proved to the necessary standard of proof. Conclusions: The Mother[107]Pursuant to PD12J, the court should make findings as to the effect of domestic abuse on the child and the parents. The mother writes that, ‘I have spoken to my GP and they diagnosed me on 21/11/24 with adjustment disorder, anxiety and stress. I feel I might be suffering from PTSD, and I have asked for an assessment. I fit the PTSD criteria due to the symptoms I suffer such as hypervigilance, sleep disturbances, chronological recall, and reliving the trauma.’ I accept that the mother has been diagnosed with adjustment disorder, anxiety and stress. There is no objective medical diagnosis of PTSD. I agree with Ms Shield that, other than the obvious stress of being involved in protracted litigation, it is not clear that the mother has been subjected by the father to any post-separation conduct which can be regarded as abusive. I do not accept that the father’s application for and efforts to enforce an order for contact constitute abuse of the mother.[108]The mother claims that she has become introverted as result of the father’s conduct. It is, however, unclear whether the mother is not working at present because of stress and anxiety or because she has been made redundant (witness statement at [5]). Certainly, she has said that she intends to return to work when these proceedings have concluded which indicates that any ongoing trauma will not prevent her from working.[109]Considering these matters in the round and in the absence of any clear objective medical evidence, I find the mother’s account of the effects on her of the father’s conduct, as she claims to experience it now following a relationship which ended nearly 6 years ago, to be problematic. I accept that the full effects of abuse can take years to become evident and that the harmful residue of abuse in a victim’s life can be difficult to eradicate. However, in the mother’s case, the effects appear to be intensifying rather than diminishing with the passage of time. Ms Shield submitted that the stress which the mother continues to suffer is the consequence of her unreasonable opposition to contact between the father and A. I make no comment on that submission but I am concerned that the reasons the mother now gives for opposing all contact between the father and A, having previously agreed to contact in principle and having facilitated it as recently as late 2024, remain unclear. I fully accept that the mother wishes to ensure A’s best interests are provided for but I consider that the welfare hearing will need to examine carefully the extent to which the mother opposes future contact for her own reasons, rather than because she genuinely fears for A’s welfare. The Father[110]The father alleges that the mother has sought to alienate A from him. The Family Justice Council Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour (December 2024) states that: A court would therefore need to be satisfied that three elements are established before it could conclude that Alienating Behaviours had occurred:(1) the child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer; and(2) the reluctance, resistance or refusal is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an appropriate justified rejection by the child (AJR – see Glossary above), or is not caused by any other factor such as the child’s alignment, affinity or attachment (AAA – see Glossary above); and(3) the other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with that parent.[111]At [18], the Guidance states:
‘Given the relative impact of domestic abuse, the harms that flow from it and the importance of protecting children, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent.’
[112]I find that(i) although A has shown some reluctance to engage in contact, she has not done so consistently. Her attitude to contact needs to be considered very carefully at the welfare hearing. Before that assessment has been completed, I cannot say that element (1) is satisfied;(ii) It is not possible at this stage to be sure that any reluctance which A has to engage in contact is not the result of her alignment, affinity or attachment (AAA) to the mother;(iii) as a consequence of (i) and (ii), I am not satisfied that the elements of Alienating Behaviours have been established.(iv) In the light of (iii), it is not necessary for me to address what the Guidance says at [18] and at this stage I make no findings as to whether A has shown appropriate justified rejection (AJR), or in respect of protective behaviours (PB)[113]I am well aware that the court should be reluctant to attach weight to the demeanour of a witness in court in forming an impression of that witness whether such an impression be favourable or unfavourable. For that reason, I reject Ms Shield’s submission that the mother appeared at times bored and listless whilst giving evidence indicating a lack of interest in the proceedings. The submission overlooks the need to take account of the mother’s vulnerability as a witness. I have hesitated before attaching any weight to the father’s demeanour for the same reason. Having acknowledged that, I did find his contrition for his past behaviour to be genuine. Certainly, his answers to some questions in cross examination were evasive and defensive and Dr Proudman was correct to characterise some of his responses as evidence of his remaining in denial of his past conduct. However, for the first time in proceedings between the parties, he was prepared to admit that he had, on occasion, lost control and that his behaviour had been ‘shameful.’ Having initially used his video to support his claim of having been abused by the mother, he now admits that the incident on the bed on 10 March 2019 was ‘the lowest moment of my life.’ I accept that the father’s contrition does not diminish, still less excuse, the impact of his behaviour on the mother but I consider that the father is more mature than he was at the beginning of these proceedings. The assessment of future risk to A is, as Dr Proudman rightly submitted, a matter for the welfare hearing, but the court will need to consider both the father and the mother as they are now when assessing what outcome will best promote A’s welfare. 114. That is my judgment. Upper Tribunal Judge Lane sitting as a Judge of the High Court (Family Division) 11 February 2025