K, Re [2024] EWFC 448 (B)

IN CONFIDENCE

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 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.

IN THE FAMILY COURT AT CREWE

Date 5 August 2024

[2024] EWFC 448 (B)

Between

The FatherApplicant

The Mother1 st Respondent

K2 nd Respondent

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF K

BEFORE HER HONOUR JUDGE HESFORD

________________________________________________

JUDGMENT FOLLOWING FACT FINDING

HEARING ON 22, 26 AND 27 JULY 2024

________________________________________________

The father appeared in person for in person

Mr Brindle (instructed by Ms Stoller of Poole Alcock) appeared for mother

Mr Carey (instructed by Ms Burns of Moorcrofts) appeared for child via her Guardian

Her Honour Judge Hesford :

INTRODUCTION

[1]This is a very difficult case.

[2]This judgment concerns my findings of fact on allegations made by the Respondent mother in relation to the father’s application for a child arrangements order in respect of K, aged about 4

[3]When required to do so, I shall refer to the parents as “father” and “mother”. Similarly, I will refer to K by name or “the child” as appropriate.

[4]Mother seeks findings in respect of conduct by father demonstrated towards her. She says these should be considered by CAFCASS when advising the Court when considering any arrangements and steps required for K to spend time with her father.

[5]This matter has a long and complex history. Proceedings were issued in 2021 and a Finding of Fact hearing took place in October 2023 before a Recorder, with judgment being given on 3 November 2023. That judgment was the subject of a successful appeal to McFarlane P when the decision was overturned and the matter was sent back for reconsideration and allocated to myself.

[6]On 30 April 2024 submissions were made following receipt of the official transcript of McFarlane P’s decision and, although finely balanced and with some reservations, I ultimately ordered a further Finding of Fact hearing. The father had been opposed to the same, the mother and Guardian considered it to be necessary for a factual matrix to be established before considering any progression of the matter. At that hearing it was agreed that the original full schedule of allegations should not be the subject of further consideration but only to consider the making or not of findings in relation to three issues, namely Allegation 1 – throughout the relationship and in the immediate aftermath of separation, the father’s behaviour towards the mother was controlling and coercive Allegation 2 – throughout the relationship, the father engaged in sexually abusive and demeaning behaviours towards the mother Allegation 3 – on 16 June 2020, the father raped the mother

[7]The target of the appeal was the Recorder’s decision with respect both to the direct allegation of rape on 16 June 2020 and, more generally, the allegation of abusive sexual behaviour during the course of the relationship. The other findings (or not) were not directly the subject of specific appeals although of course I am of course aware that the whole matter was submitted for re-hearing before myself. In the light of this, and in the interests of saving valuable judicial time together with the fact that McFarlane P did not criticise the Recorder’s judgment so far as it relates to the narrative and undisputed facts of the litigation and history etc, I intend to ‘borrow’ factual and undisputed parts of the Recorder’s initial judgment to save time in preparing and setting out all of the non-contentious and factual history and background. I can confirm that I did not read the recorder’s judgment prior to hearing the matter myself and coming to my conclusions and although I read the judgment afterwards, I did not read the summary of the parties evidence and additionally I was not influenced by any of his judgment in making my own decisions. The advocates for the mother and the child agreed that I could utilise parts of the judgment as useful and noncontroversial descriptions of factual matters in order to save time and I have done so as set out later in this judgment. I consider that it is important that there should be one detailed document setting out both the full history and decision regarding findings for future reference by parties and relevant others as this case proceeds further, hence this detailed written judgment.

THE HEARING

[8]The matter was conducted as a hybrid “Teams” hearing over three days, with written submissions following later and this judgment being reserved. The mother, at her request and with the agreement of the father and guardian, was only present for her evidence. She would not see the father on screen and refused to give evidence if he was allowed to see her. Her evidence was given remotely as was that of the maternal grandfather. All other parties have attended at court. Procedural fairness was ensured throughout, despite the nature of the hearing and allegations and the lack of legal representation for the father.

[9]Allegations of abuse have been made by the mother against the father. PD12J has been considered throughout. She is also a vulnerable person by reason of her own mental health issues. Section 63 of the Domestic Abuse Act 2021, requires amendment of the Family Procedure Rules to ensure that, where a person is, or is at risk of being, a victim of domestic abuse carried out by another party, or relative of another party or witness, it is to be assumed that the quality of their evidence and, where they are a party, their participation in the proceedings, are likely to be diminished by reason of vulnerability.

[10]Para 3A has as a result been added to FPR PD12J, referring to provision in PD3A of PD12J to victims of domestic abuse giving evidence and making clear that, in that context, it is not necessary for the court to make findings of fact in relation to domestic abuse before assuming that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by another party, a relative of another party or witness. The upshot of this is that where the court has yet to decide allegations of domestic abuse it must treat the person making them as a vulnerable person for the purposes of FPR 3A and PD3AA and must consider the question of participation directions (whether or not requested). The purpose is to ensure effective participation and ability to give best evidence.

[11]The following measures were put in place for the hearing: a) Attendance by teams for mother. At her insistence, father was not allowed to see her image on screen (and vice versa) and was not allowed to speak if she could hear him. b) The cross examination of the mother was undertaken by the court on behalf of the father with him preparing questions before the hearing and having opportunity to prepare additional questions, all pursuant to S.31G (6) of the Matrimonial and Family Proceedings Act 1984. The court also asked additional questions which were pertinent to the matters in dispute and not covered by the father’s own questions. The court did not ask such questions as were repetitive or irrelevant to the fact-finding stage of these proceedings. The father was also allowed the opportunity to ask additional questions and to make written submissions after receipt of those of the father and child in order to assist him in preparing the same. c) The child was represented by Mr Carey at the hearing and counsel asked appropriate questions of both parents throughout.

[12]I accept that the way in which I had to put the questions to mother on behalf of the father was less than ideal, particularly given the nature of the allegations and the fact that that I had a script to follow. I added some questions of my own for clarification where necessary and was also considerable assisted by counsel for K who asked relevant questions.

[13]The father has always been a litigant in person and case management decisions have been made throughout (against which there has not been any challenge or dissent from the father) that he should not be granted access to any medical and psychiatric evidence concerning the mother. Nor has he been allowed to retain copies of large parts of the police disclosure in this case including in particular the video interview of the mother conducted on the 29 March 2021. As a result of those decisions, The father has not been given access to the full e-bundle that is before me now nor the one before the Recorder. Nothing was raised or put to The father that was likely to place him at a disadvantage as a result of those constraints and which might give rise to some procedural unfairness.

[14]It became apparent during father’s evidence that the mother’s solicitors had inadvertently sent him a full copy of the bundle for the April hearing and this contained the mother’s psychiatric report (and possibly other information) which he was not supposed to see but which he had read. Counsel took steps to immediately delete all copies of the bundle from the father’s device whilst at court. The mother was to be informed immediately and the mother’s solicitors would take any appropriate action required by any professional regulations in relation to the breach.

[15]I have had the unique opportunity of hearing and observing the way in which evidence has been given by the mother and the father in person as well as the maternal grandfather.

[16]If in this this judgment I do not specifically refer to any particular aspect of the evidence or the parties’ respective submissions, it does not mean that such has not been considered when reaching my decision. I have read the entire trial bundle and the parties’ written questions/submissions.

[17]A copy of a “schedule of allegations” was appended to the judgment provided to the parties, it contained direct references to the written evidence in the bundle for the specific allegations. I have considered the matter globally and holistically as well, not confined myself to just those specific allegations in line with all relevant caselaw.

[18]I was also provided with written submissions from all parties and additionally on behalf of K, Mr Carey provided a detailed chronology of both the litigation and major events. BACKGROUND The relevant non-controversial factual chronology

BACKGROUND

[19]The parents met in the early part of 2020. They occupied different flats in the same building, the mother on one floor, the father on the floor above. Their acquaintanceship developed and they formed an intimate relationship from around February 2020. At the time, the mother was [a significant number of years] younger than the father.

[20]Within weeks of the start of their sexual relationship the mother found out she was pregnant with the father's child. It was not a planned pregnancy although both parents were excited about the development in their relationship. For each of them it would be their first child.

[21]At some point in the early summer of 2020 the father moved to a new address, in a nearby town. The relationship continued, and they made plans for the mother to move in and commence cohabitation in the father's rented property.

[22]Sadly their relationship did not flourish and did not last long. By winter 2020 the mother's midwife began to express concerns over the nature of the parents' relationship based entirely upon the mother's reporting of the father's conduct towards her and his behaviour within the relationship. Social services became involved towards the end of 2020. Added to this was the Covid-19 pandemic which undoubtedly exacerbated the difficulties of the parents’ relationship. Both parents agreed that the final separation occurred in early January 2021 when the mother went into the first stage of labour, following which, K was born on [redacted]. The father was not present at the birth nor is he named on K's birth certificate and, he has never met his daughter.

The Applications before the court and non-controversial litigation chronology

[23]The original application by father was issued on the 11 March 2021 which sought a Parental Responsibility Order and a child arrangements order. Separately, the mother issued her own application for a non-molestation order.

[24]The application for a non-molestation order was considered without notice to the father on the 23rd April 2021 and the judge granted the injunction and listed a return date in June. Successive orders have continued the terms of the non-molestation injunction “until further order discharging or otherwise dealing with the non-molestation order."

[25]The mother opposed and still opposes both applications filed by the father. In her C1A acknowledgement form dated 29th April 2021 she alleged that she had been the victim of widespread abuse during their relationship, that abuse taking the following forms: Rape and sexual assault; A threat to kill and aggressive demands that she leave the property where they were living; Financial abuse and control; Emotional abuse in the form of gaslighting; and Violent and abusive behaviour involving verbal abuse and objects being thrown.

[26]Regrettably, this case has had a very troubled and extensive litigation history. On the first day of this hearing we were into week 176 of the proceedings.26.1 The application was issued on the 11 March 2021.

26.2 A decision was reached by DDJ Marwood on the 16 June 2021 that a finding of fact hearing was necessary in order to consider the father's applications and the first listing for the finding of fact hearing was set for early December 2021.

26.3 On 15 November 2021 that hearing was vacated and re-listed for April 2022 by DJ Nassar on the 15th November 2021 when she also gave permission for the mother to expand the ambit of her complaints and objections about the father having a role in K's life pursuant to the developing jurisprudence set out in the reported decisions in F v. M

[2021] EWFC 4 (Fam)

and Re: H-N & Others

[2021] EWCA Civ 488

26.4 At a further hearing on 4 March 2022 the finding of fact hearing was vacated for a second time and re-listed for July 2022.

26.5 Unfortunately, although that hearing did commence in July before DJ Nassar as it became apparent that there were significant gaps in the police evidence and the hearing had to be abandoned and re-listed for a fourth time at the end of November 2022. At the same hearing, permission was granted for the mother to obtain a psychiatric report following concerns as to her presentation and ability to participate in the proceedings to the best of her ability.

26.6 Before the fourth scheduled finding of fact hearing was reached, it was again vacated from the list when the matter was re-allocated to Circuit Judge level by DJ Nassar on the 5 October 2022. I gave case management directions on the 28 October 2022 including appointing a Children's Guardian to represent K who was joined as second respondent.

26.7 My further case management order on the 12 January 2023, mindful of the mother's mental health difficulties and anxieties exacerbated by these proceedings, directed both a capacity assessment of the mother; an intermediary assessment; a ground rules hearing and directed that no medical reports or psychiatric evidence were to be disclosed to the father 'until further consideration by the Court'.

26.8 On the 15 March 2023 I gave extensive case management directions for the hearing of the finding of fact hearing which was then given its fifth listing for 5-days in July.

26.9 Unhappily, due to delays in administration, the notice of listing did not go out to the parties in time with the consequence that by the time the hearing notice was received by the mother's solicitors, her counsel was no longer available and an application was made to vacate and re-list the matter to ensure that the mother could properly participate in the proceedings.

26.10 A pre-trial review was listed for the 5 October with the 5-day finding of fact hearing re-scheduled for the sixth time before a Recorder on the 30 Oct - 3 November.

26.11 The Finding of Fact hearing took place with the judgment being delivered on 3 November 2023, the order being dated 7 November 2023.

26.12 Grounds of Appeal were prepared by the mother and Notice of Appeal was filed and sealed on 1 December 2023 (erroneously refers to order of Recorder dated 24 November).

26.13 Permission to appeal was granted by Moor J on 29 January 2024 and the appeal hearing was listed before McFarlane P on 14 February 2024 when the appeal was allowed and an expedited transcript of the President’s decision ordered. Sadly this was only received on 12 April 2024. Thereafter due to various issues it has taken until now to list the hearing again, this time for 3 days and with fewer specific findings being sought by the mother.

THE LEGAL PRINCIPLES

[27]In determining the facts in this case, I have adopted and borne firmly in mind all of the relevant legal principles. I have received an agreed statement of the applicable law in relation to fact finding and in relation to allegations of rape and sexual abuse; I requested this specifically to assist the father in understanding precisely the issues which were to be determined and the basis for determination of the same. I was very conscious of the father’s lack of legal representation and likely confusion following the complexities of the appeal. A copy of that document was annexed to the original judgment and it has been considered. I also intend to set out the basic legal principles here within this judgment.

[28]The issue that I have to decide is whether the father has behaved in the manner alleged by the mother as set out in the disputed Schedule of Findings. In doing so, I assess the evidence in the bundle before me, direct oral evidence of the mother and father and make findings in accordance with the civil standard and burden of proof which is applicable in all Children Act proceedings. The burden of proving the facts pleaded rests with the person making the allegation.

[29]The standard to which the mother must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not – see Re B

[2008] UKHL 35

where at [2], Lord Hoffman said “In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof."

[30]The legal concept of proof on the balance of probabilities must be applied with "common sense" (The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd

[1985] 1 WLR 948

[31]Findings of fact must be based on evidence not on speculation. The decision as to whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z

[2005] EWHC 31 (Fam)

[32]In determining whether the mother has discharged the burden upon her the court looks at what has been described as 'the broad canvas' of the evidence before it. The court takes account of a wide range of matters including its assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly. Within this context, the court must consider each piece of evidence in the context of all of the other evidence (Re T

[2004] 2 FLR 838

at [33]).

[33]The evidence of the parties is of utmost importance and it is essential that the court forms a clear assessment of their credibility and reliability. The court is likely to place considerable reliability and weight on the evidence and impression it forms of them (see Gestmin SGPS SA v Credit Suisse (UK) Ltd Anor

[2013] EWHC 3560 (Comm)

at [15] to [21] and Lancashire County Council v M and F

[2014] EWHC 3 (Fam)

). When assessing credibility of the witnesses I bear in mind Macur LJ's comments in Re M (Children)

[2013] EWCA Civ 1147

at para 11 "Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so".

[34]I remind myself that it is not uncommon for witnesses in cases of this sort to tell lies during assessments and in the course of the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas

[1981] QB 720

). I also bear in mind that memories can fade or change with the passage of time particularly in respect of events which were traumatic or distressing at the time.

[35]When considering the evidence I additionally give myself a revised Lucas direction, namely, I should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied. I also take into account the decision of the Court of Appeal in Re H-C

[2016] EWCA Civ 136

where McFarlane LJ (as he then was) said at para.100:

‘One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the 'lie' is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is 'capable of amounting to a corroboration.' In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim. L.R. 251. 'In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should, therefore, take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt'.’

I entirely accept that the mere fact of a lie being told does not prove the primary case against the party or the witness should they have been found to have lied to the court. I also bear in mind that there is no obligation on a party to prove the truth of an alternative case put forward by way of defence and the failure by the party to establish the alternative case on the balance of probabilities does not of itself prove the other party's case, Re X (No 3)

[2013] EWHC 3651

Fam and Re Y (No 3)

[2016] EWHC 503

Fam.

[36]I also remind myself of Practice Direction 12J and the presumption that any such incident of domestic violence must be harmful to the child, directly or indirectly. PD12J Paragraph 4: Domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

[37]I now set out the relevant definitions of domestic abuse here from PD12J and the Domestic Abuse Act 2021: “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. “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”.

[38]In circumstances where allegations of both domestic abuse in the form of coercion and rape are alleged, I have reminded myself that the court must consider carefully patterns of behaviour, rather than looking at individual incidents in isolation; If a pattern is identified, it must be evaluated objectively but in the context of the whole picture. If a pattern of behaviour falls within the definition of coercive and/or controlling behaviour the intention of the alleged perpetrator is immaterial.

[39]I note Peter Jackson LJ's comments in Re L (Relocation: Second Appeal)

[2017] EWCA Civ 2121

( para 61), cited with approval in Re H-N at para 32, to the general effect that:

"… not all directive, assertive, stubborn, or selfish behaviour, will be 'abuse' in the context of proceedings concerning the welfare of a child..."

[40]I have taken account of the observations and references highlighted by Knowles J in A & Anor v B & Ors

[2022] EWHC 3089 (Fam)

and cited with approval by the Court of Appeal in Re A v B and C

[2023] EWCA Civ 360

(paras 11 and 12) concerning stereotypical approaches to allegations of sexual assault. In summary, in private law proceedings, the Family Court should refrain from introducing and developing its own free-standing definitions of rape, sexual assault and consent, or to import such definitions from criminal law. Parliament had comprehensively considered the Family Court's approach to domestic abuse during the passage of the Domestic Abuse Act 2021 into law. The focus of the 2021 Act was to support and enhance victims' ability to achieve recognition of past domestic abuse and protection from further abuse, and that aim would not be furthered by the introduction of an additional legal threshold to be satisfied before the court could find that a complainant had been the victim of rape or sexually abusive behaviour.

[41]I have also taken into account the overriding objective and the Presidents guidance in his road map and of course the recent senior courts cases concerning domestic abuse including F v M

[2021] EWFC 4

; Re B-B (Domestic Abuse: Fact-Finding)

[2022] EWHC 108

; K v K

[2022] EWCA Civ 468

; H-N & Ors (Children) (Domestic Abuse: Finding of Fact Hearings)

[2021] EWCA Civ 448

[42]As well as the parents’ evidence there is also live and written witness evidence from the maternal grandfather who also gave evidence at the hearing before the Recorder. No other party gave live evidence in relation to the allegations although statements of others or character references had been filed on behalf of both the mother and father. None were called to give evidence and their evidentiary value is accordingly reduced; they were not subjected to any testing or cross examination. Corroboration often has a vital part to play in these cases and where there is none, it often comes down to one person’s word against the other which can make it very difficult to make findings, even where the court may prefer one party’s evidence over the other due to the manner in which they presented themselves and the consistency of their evidence. That, however, may not be enough to legally justify findings being made in the absence of any other evidence.

[43]In this case we do have additional evidence in the form of text messages, notes, phone messages and police evidence. It is important to record that the veracity and existence of the messages was not disputed by the mother or father (in the main); they accepted sending them, the contents are accurate. They did on occasion dispute their context, intention, meaning and effect and father disputed the dates of at least one of the recordings. Meta data for the same was requested but not provided.

[44]It is mother’s case that father has behaved abusively towards her and has harassed her and that he poses an unassessed risk to both K and herself.

[45]It is father’s case that mother is making damaging and false allegations against him with the aim of frustrating his application and preventing any meaningful relationship between K and her father.

[46]The purpose of the fact-finding is to inform the ultimate welfare determination with respect to this young child’s future relationship, including whether it should start to become established, with her father. The Court is not there to consider what went wrong in the parent's relationship (limited or extensive) in the past, save strictly to the degree it impacts on the decision concerning the child in the future.

THE EVIDENCE

[47]Much depends upon how I perceive the parties’ own live evidence, taking what help I can from any corroboration offered by the text messages, notes etc. It is important that in coming to my conclusions that I analyse the significant allegation of rape and the more general allegations of sexual abuse throughout the relationship in the context of the evidence as a whole and not merely as individual issues.

[48]For both parents, there was a powerful desire to ensure that their own perspective of the truth was presented to the court. Sadly, the adversarial nature of fact finding rarely reveals the best qualities in those who appear in court and in evaluating the parents, I have been careful to have this fallibility in mind and strained not to be unduly critical of them. However, even making all the allowances I can, particularly in relation to the mother’s vulnerabilities, I regret that both parents were unimpressive. Both gave evidence strongly advocating their own interests primarily, despite mother’s protests that this was all for K. In the case of the mother this was to protect herself and K, for the father it was to show himself as a wrongly accused man who merely wants a relationship with his child. This is not a case where I am able to determine the disputed issues by wholly preferring one party's evidence to the exclusion of the others, but instead, as I will set out in this judgment, I will accept some parts of each parents evidence whilst rejecting other parts.

[49]I have not separately addressed the written evidence in this judgment, it would be disproportionate for me to do so and it is unnecessary particularly now that the scope of the fact finding has narrowed. I have referred to the relevant written evidence only where appropriate, although I have read it all. The “condensed” bundle of papers before me now, not including all the papers relating to the appeal, some previous documents and the parties position statements is still over 900 pages.

[50]Both parents have filed numerous narrative statements with significant attachments and exhibits including voluminous text messages and I have accordingly had the benefit of very substantial written evidence from both parties and from others on behalf of mother including the maternal grandfather. I am conscious that I do not have a full text message or notes history between the parents and that they have both selected the messages which they consider assists their case best. Likewise, I have only excerpts from recordings etc, again selected by the parents and I have no meta data or other information which dates these or even any evidence to show whether they were part of a larger conversation or the context etc. I have accordingly treated all of these with caution. I have also received and considered the police evidence including interviews of both parents. All the evidence has been taken into account in coming to my conclusions. I have addressed some of the evidence specific to the three findings sought by the mother in the relevant findings section but my comments about all the evidence generally are also relevant there. Medical & Psychiatric Evidence

[51]A psychiatric report was prepared within the proceedings by Dr Rafiq dated 30 November 2022. I have read this but I specifically directed that neither a copy nor its contents should be disclosed to the father (although it was in error) and I will add no comment save that it confirms the evidence that I heard and read from both the mother and her father that the mother has had a deeply troubled psychiatric history and been plagued from her teenage years with very considerable mental health issues which have necessitated psychiatric in-patient care for 12-months as a [xx]-year old and a further period of compulsory detention in 2019 as a [xx]-year old.

[52]The mother herself accepts that she has mental health issues and I ensured that she had both a capacity assessment and an intermediary assessment. There was a ground rules hearing before the recorder to ensure provision was made to enable her to give her evidence to the best of her ability and she was supported by an intermediary and her solicitor when giving evidence. The same support has been provided for this hearing although no formal GRH has taken place.

[53]The predominant condition which the mother suffers from is that of obsessive compulsive disorder for which she is prescribed a powerful SSRI, Fluoxetine.

Mothers Evidence

[54]I have carefully read all the mother’s statements and evidence and particularly the relevant excerpts as set out in the revised schedule of findings. I do not intend to repeat the written evidence herein as this judgment would them become excessively long.

[55]Before I address the mother’s live evidence and my impressions of her as a witness, I wish to make it clear that I make no findings that the mother has been deliberately dishonest or misleading in her evidence either written or live. I accept that she genuinely believes all her allegations to be true and that the father has behaved in an appalling manner towards her throughout the relationship and afterwards. Indeed she still considers him to be deliberately harassing her by virtue of the very existence of these proceedings. Further, I consider that the mother’s views, especially in light of her vulnerabilities and mental health difficulties, are now so entrenched that it is highly unlikely that she will accept any judgment of the court unless she is vindicated and the father strongly criticised, i.e. that I uphold all her allegations and evidence. Sadly she firmly believes herself to be a victim even if the same is not true or proven. That is not a judgment which I am able to give.

[56]Additionally, I do not make any findings that the mother has set out to deliberately alienate the father from his daughter. In her evidence it was clear that she considers that the father is motivated not by seeing K but by wanting to remain involved with and control the mother herself. Her actions are due to her genuine belief in her allegations and that K needs to be protected. This does not appear to be a case of deliberate and sustained parental alienation.

[57]I am conscious that the decisions and findings which I make in this judgment may adversely affect mother’s morale and mental health and that this may impact K. However, mother has insisted on the fact-finding taking place and consequences may follow.

[58]Having read all the papers in this matter and taking into account mother’s emotional issues, I was anticipating that in giving evidence the mother may appear to be cowed and vulnerable, to possibly be rather insecure, fearful and timid, and that she would need to be addressed carefully and on a very sympathetic basis to encourage her to give her best evidence. In the event, she was confident, calm, and occasionally rather bullish during her evidence in chief and whilst I asked the father’s questions of her. She showed little emotion. I am of course not disputing her extreme vulnerability and I accept that her external appearance was potentially very different from how she was feeling inside. She commenced her evidence by discussing how contaminated she felt by anything concerning these proceedings and the father and how it triggers her OCD.

[59]She appeared to be well prepared for the hearing and had answers ready without hesitation, possibly rehearsed, answering questions with information and opinion which had not necessarily been sought and expanding to ensure that she made the points which she clearly intended to make. These answers showed the preparation for the hearing and her what became almost repeated “mantras” such as her frequent use of phrases used regarding domestic abuse including for example the phrase “cycle of abuse” which was used on numerous occasions in different scenarios to describe the father’s behaviour. She made frequent references to the father’s behaviour being designed to “beat the system” and that he was “playing games” and “trying to look good for the court” and clearly this is how she views his behaviour. The reality is that there is no suggestion that the father has behaved in anything other than a proper manner throughout these proceedings. I remind myself that mother has been having these discussions with various professionals for almost 4 years now. She accepted in her evidence that she had been told that historic events were abusive by various professionals including domestic abuse workers (IDVA), My CWA, midwives, health visitors, social workers, her lawyers, and by friends, family and workmates. It was possible that her understanding of these events being potentially abusive has also been affected by having given her narrative on many occasions, with considerable input from others and also with the benefit of hindsight. I do not necessarily criticise her for that but her answers were in my judgment repetitive and rather rehearsed. I have no doubt that she believes everything that she says but it is impossible to ascertain what she actually thought and believed at the time compared to what she now believes with hindsight and such input.

[60]Her demeanour changed when asked questions, very skilfully and tactfully, by Mr Carey and she showed more emotion including tears and flashes of anger or frustration with the questioning.

[61]There were numerous inconsistencies both in her live evidence compared to her written evidence and within the written evidence itself. In her C1A form she claimed that the father was “violent and aggressive towards me” and also claimed in her first statement that the father was “aggressive” and “made threats of violence” but was contradicted later by her own evidence, with her referring to the father only being verbally abuse to the midwife and to the police. I bear in mind of course, that events are several years old and take into account the mother’s personal difficulties and OCD but there were clear differences in the presentation of the mother’s evidence when she was making the points which she wished to make and those where she had to answer more probing questions. Where she had prepared there was more consistency, repetition, and no hesitation but where the question was unexpected or she was unprepared, there were contradictions and deviations.

[62]Examples include the issue of when she knew about the father’s Children Act application to the court. She initially stated that when she reported the father to the police for the alleged rape in late March, she was adamant this was before she knew about the court application by father. This is incorrect. The father’s application was issued in March and by the time the CAFCASS safeguarding letter had been filed on 21 March, the mother had been directly spoken to by CAFCASS. Additionally the mother had emailed the court on 5th April stating that she had received the court papers “the week before”. Later in her evidence she stated that she had cut off all contact with the father when he said he was applying to court on 11 February 2021, as she states in her second statement. She had also been told of the father’s intention to make an application during the social services assessment, this commenced early 2021.

[63]By the time of her fourth and very detailed statement, the mother claimed that “during my pregnancy I had a low sex drive”. The explicit text messages sent by the mother which were attached to the father’s statement dated 29 July 2020 show a very different story where the mother graphically told the father what would happen between them later that day.

[64]There were also inconsistencies in relation to the date when mother told the midwife of the alleged abuse. In her live evidence she was adamant that she had told her midwife about alleged abuse in November 2020 before the December 2020 incident. The midwife’s evidence shows the first mention by mother to the midwife was in fact on 21 December 2020 and there is no mention of the alleged rape or indeed any direct physical or sexual abuse at all. The report merely refers to “escalating verbal abuse” and the murder threat.

[65]She informed the court that she had been specifically advised not to add the father to K’s birth certificate by a health visitor since this would amount to “failure to protect” but then changed this to it being her decision with which the health visitor agreed.

[66]When asked about the father’s alleged harassment she insisted that it continued to date, including being this court application, but then accepted that there had been no contact from the father at all since April 2021. Whilst asking questions I reminded her that the father had offered to be bound by an indefinite non-molestation injunction, of which she seemed to be unaware.

[67]As I have set out earlier, the mother’s demeanour changed from being confident and prepared when she was asked questions by Mr Carey for K and she became upset and required a break when she was being quite appropriately challenged. This followed a line of questioning about the police download concerning ongoing contact between the mother and father by text at around the time of K’s birth. Mother answered questions firstly by denying that factual matters were accurate, then by accusing the father of lying or twisting things or denying that she had replied even though it was her own messages which she had sent on her phone and the police who had undertaken the analysis and produced the evidence. At this point she became upset and ultimately the hearing concluded for the day.

[68]When the court reconvened, mother continued to challenge the factual accuracy or meaning of the police message summary, and to minimise the effect, attempting to link all the relevant messages to the events of 20 December whereas the messages related to ongoing contact between the parents around the time of K’s birth and afterwards, with the argument about the birth certificate and father’s ongoing relationship with [a woman] which the mother appears to consider was ongoing. At one point in answer to a question by Mr Carey her reply was “grow up” and whilst she later claimed that this was really addressed to the father, I took it at the time as has her reaction to the nature of the questioning. Again she appeared to be confident, on occasion quite bullish and challenging and she showed little vulnerability on the surface.

[69]The mother sought to persuade the court that the father had deliberately sought to trigger her OCD by putting cat litter in her bin (in October 2019), leaving lights on, a car unlocked and a wardrobe in the rain. To me, this is an example not of poor behaviour by the father but more of the mother’s obsession and belief that everything the father has done was designed to control or affect her coupled with the effects of her own OCD. This issue forms part of one of the findings sought, being controlling and coercive behaviour. I do not accept that any such acts or omissions by the father were done deliberately – indeed his evidence on this point was clear and credible – he makes mistakes and forgets things.

[70]In her evidence she sought to excuse or minimise her own behaviour with comments such as “I think I just said things” or “now I know I was under his control” (repeated on many occasions), “I’m doing this all for K” or “I cant remember” and clearly sought to paint the father in the worst possible manner whenever the opportunity arose. She became angry at one point, accusing Mr Carey of calling her a liar and stormed out of the hearing at her solicitor’s office. At this point, the intermediary inappropriately attempted to influence the direction and nature of cross examination and had to be warned not to interfere inappropriately by myself, at the request of Mr Carey.

[71]In short, I was unimpressed with her live evidence, and her clear rehearsal and repetition of answers coupled with a lack of any spontaneity in dealing with challenges led me to assess her credibility as low. Some of her evidence was contradictory and much of it was also answered with additional comment purely to criticise the father. I accept that her need for preparation will likely have been affected by her OCD but as I have already said, her answers seemed to have been rehearsed and rather than answering questions in a more natural manner, she deliberately and carefully utilised a considerable array of specific language usually used by domestic abuse workers rather than lay persons. It is clear that the mother is a very intelligent lady and she has taken their opinions, definitions and guidance to heart, genuinely accepting and believing them and repeating them; she remains vulnerable and suggestible and in my judgment, it is clear that she has been influenced by the professionals. She admitted this throughout her evidence (both live and written) with many references to all the professionals she has worked with and the advice she has received. As I have already stated, I accept that these are now her beliefs but it is difficult to ascertain how they have truly arisen. They are firmly entrenched and she cannot countenance any challenge, that all may not be as bad as the picture she paints.

[72]It is clear from the evidence that the relationship between the parents was at least initially a highly sexually charged consensual relationship, with the mother herself claiming to the police that at an early stage there was a threesome, with sexual activity (not intercourse) taking place. She told her father that the father was being hyper-sexual with her and she was uncomfortable, but she at no stage alleged any abuse to him other than the phone call regarding the alleged rape. There were also many extremely sexualised messages between the parents included in the bundle, initiated and freely responded to by both. They do not evidence a controlling and abusive relationship sexually but rather a more equal relationship, at least at the time of the messages. Many of these postdate the accusation of rape.

[73]The paternal grandfather’s evidence was impressive and he was a credible witness. His live evidence was generally consistent with his written evidence. He showed considerable thought and balance. It was clear from his evidence that he was unhappy at the whole relationship between the parents, from start to finish but he and his wife, with great difficulty, gave their support partly as the relationship was what mother wanted but also, as he repeated on two occasions, a conscious decision taken so that they could be there to protect their daughter. He stated that he had been aware of the father’s behaviour for some time mainly based upon what was said by the mother but they also had their own concerns. He recognised the relationship as being overall immature, mainly the father’s behaviour as told by the mother, but also recognised the mother’s part in the behaviour. She had shared sexual matters with him in a way which he clearly found to be rather uncomfortable, again this admission showed balance, that he was not seeking to blame the father for everything which was wrong within the relationship.

[74]He had not addressed any further issues of alleged sexual abuse or harm in his statements but said that he recalled the examples given by mother of “helicoptering” and mother being approached by father when on the toilet. He did not suggest that the mother had ever suggested to him that these were abusive but merely “my understanding was that she felt she needed to engage.” This answer was in relation to questioning about the immaturity of the father/sexual relationship rather than about alleged abuse.

[75]He did say that he was not concerned about the age gap between them, pointing out that there was an age gap in his own relationship. This is at odds with his first witness statement which clearly states “we were particularly concerned at the age gap between them” (also in his police statement).

[76]He had taken notes at the time of the phone calls on 16 June 2020 and 20 December 2020. In relation to the allegation of rape, he considered his recollection of the events to be an accurate description of what mother told him.

Father’s evidence

[77]As the mother sought to paint the father in the worst light possible, so the father sought to portray himself in the best light possible. He told the court that he wanted to look after the mother given what he knew of her past. He sought to downplay or deflect any evidence which could be viewed as negative towards him or could cast him in a bad light. Again, like the mother, I found him to be an unconvincing witness and lacking in credibility. The father did not strike me as a particularly intelligent or educated man and this may explain the naivety in some of the excuses, denials or alternative explanations which he put forward in his evidence to explain certain matters; they were obvious lies and would be recognised as such by most people. I will highlight a few of these issues as examples which lead me to question the veracity of some of his evidence.

[78]His evidence commenced with his refusing to accept that the mother was likely to have been vulnerable when he met her and he learned some of her background including her OCD, hospitalisation and previous abusive partner and he should have known this, until pushed in cross examination when he initially replied “not sure where you are going with this” and then ultimately replied “I suppose so”. There then followed a complete denial that a threesome had taken place as alleged by the mother, the meeting was just “for them to get to know each other” and they merely talked and drank. The mother’s version of events is supported by her friend’s statement, although she was not called to be cross examined but it is also volunteered in mother’s police interview. I cannot see any viable reason for the mother to lie about or indeed make up such an incident, particularly when reporting an alleged rape to the police. The events were described in some detail, corroborated by Ms X’s statement and father suggested no reason for why mother would choose to completely make up such an event – particularly since she reported that it was entirely consensual. His plain denial simply did not ring true.

[79]Nor did his frankly ludicrous explanation for attending at the mother’s place of work in April 2021, claiming to be seeking an apparently very hard to obtain item of men’s clothing (extra long men’s joggers, 38” leg) at a women’s clothing shop. Again, I simply do not accept this evidence, this was example of the father lying and trying to offer an explanation to extricate himself from an allegation of bad behaviour. Indeed he admitted to the police in his interview that he had been looking for the mother in [a town] and asking people about her.

[80]A further example is the downplaying and refusal of the father to accept that the events of 20 December 2020 would have been traumatic for the mother. He was only prepared to accept that he had behaved badly and regretted it. He refused to accept that the use of the phrase “I could bloody murder you” was anything other than “a flippant remark” which he did not mean and the mother “took it out of context.” For the sake of clarity, I accept that he did not mean to murder the mother but even in what was a clearly and accepted heated argument with both the parents saying things to each other, the phrase was neither flippant nor appropriate. Father admitted that he was angry but when mother’s description of how he looked physically during the incident was put to him “into my face with you (sic) body tensed up, teeth gritted and your hands in a fist with angry eyes” he continued to minimise the matter stating that he couldn’t grit his teeth and he couldn’t see his eyes to see if they were angry. I note he did not deny his appearance in the text messages. Later there was the incident when the father held a knife to his wrist, and his complete refusal to accept that this appeared like a threat to kill himself, relying on the fact that because he did not intend to kill himself it wasn’t meant as a threat. He said that it was done “in the heat of the moment.” I do not consider that he is lying but it shows a clear lack of insight into his own behaviour and the effect of this on the mother. On several occasions in his evidence he repeated that they had both behaved badly on that occasion and were both abusive to each other and whilst I accept that there was likely to be bad behaviour on both sides in an argument (the mother was displaying controlling behaviour into his contact with his ex partner and his use of Facebook), it is clear that he behaved in a much more threatening and abusive manner, something he simply refuses to either see or accept. He agreed to attend the Lifeline course and did so, accepting his behaviour as abusive on that occasion but later in his live evidence he sought to share the blame for the bad behaviour.

[81]As a final example, the father stated that he considered that the grandfather was lying in his statement. Father did not accept that he said “she’s nothing to do with you” to the grandfather and at one point even suggested in relation to the mother’s conversation with the grandfather about 16 June “who said the conversation took place?”. I do not accept his evidence, I prefer that of the grandfather, that a conversation took place. Whether the detail of what mother said in the conversation was true or not is another matter but to simply try to deny the conversation ever took place because “he’ll say anything to help her” is very weak argument. The grandfather was an impressive witness.

[82]The father’s evidence of the sexual side of the relationship was more coherent and credible, and stood up to challenge by way of cross examination. He explained that he was aware of some of the mother’s past sexual history from observation of her previous partner in the property and from what the mother had told him. This led to him taking their move to a full sexual relationship slowly, with several weeks passing before full sexual intercourse. This was not challenged by mother and is, I understand, accepted. He was calm and relaxed throughout this line of questioning despite Mr Brindle cross examining him thoroughly and he gave straightforward answers. The text messages show that this was a highly sexually charged relationship and that the physical side was important to both of them. The father comfortably described their lives together, being in bed together and having consensual sexual relations. Throughout his evidence there were no admissions of abusive behaviour to the mother, he was, he stated, always respectful and never forced her. His evidence was straightforward, plausible and not contradictory. He was adamant that he had never acted without consent from the mother and their behaviours had always been natural and in the bedroom, never in the lounge. The written evidence of both parents including the text messages , notes and photographs shows that sexual activity was frequent and consensual. With the exception of the rape allegation, there was nothing in the mother’s evidence accusing the father of actually forcing her and his denials of this behaviour rang true and did not waver, he did not seek to make the same excuse for matters as he had with some other issues and he showed no frustration at the questioning. He was rather evasive as to the meanings of some of the text messages he had sent and to his responses to some of mother’s messages and when defending his lack of denial to the message about the alleged rape he claimed a phone call had happened. This can be neither proven nor disproved as there is no corroborative evidence produced.

[83]He seemed reluctant initially to admit that the relationship had been in difficulties before December 2020. He accepted that they had got serious very quickly and got engaged and that he was besotted. He thought the chance of children had passed him by. The miscarriage scare in August reduced the amount of sexual contact and arguments, whilst always present, increased thereafter which were due to money troubles as well as other matters. Certainly by 20 December 2020 the relationship was deteriorating but he denied being abusive. Indeed he stated that looking back the mother was being abusive to him, by controlling what he spent, seeing friends etc; she was using her power over him and being controlling.

[84]He completely denied trying to trigger the mother’s OCD by leaving lights on etc and I accept his explanation as credible. He also accepted calling the mother names on two occasions, but this is neither controlling nor coercive behaviour and not relevant to my findings. In any event it is not of great significance.

[85]I am not convinced that the father is fully aware or accepting of how vulnerable the mother is, and accordingly how much she could be impacted by his behaviour, in particular the events of 20 December 2020. He was fully aware that he should not have received the psychiatric report on the mother but had clearly read it as he referred to part of it. When challenged he accepted no responsibility or poor behaviour in reading the same but merely blamed the solicitors for sending it to him, saying that is it was sent to him, he thought he was entitled to it. This is an example both of an obvious lack of good judgment on the part of the father and also of another attempt to minimise his behaviour. He also gave no thought to how the mother would react to knowing he had read the report. I am entirely satisfied that he knew that he should not have received the same.

ADDITIONAL ANALYSIS

[86]Earlier in this judgment I addressed the issue of the mother’s evidence and vulnerabilities and my reservations about holding a further finding of fact hearing. I was conscious of the mother’s emotional difficulties both in attending court and with her OCD following such a hearing, being the need to wash herself in bleach and repetitively cleanse herself and her house. I was concerned also about the emotional effect upon her giving live evidence to the court, it being her clear assertion that she finds the whole court process deeply traumatic and it significantly triggers her OCD afterwards. Indeed, these vulnerabilities were part of the issues I considered when deciding whether to hold another this hearing or not. Mother, however, was absolutely insistent that a further fact-finding hearing was necessary and ultimately I listed the same, albeit with misgivings. I was additionally concerned about how the mother would present and cope in the event that I did not find her to be vindicated in her allegations against the father.

[87]Another consideration relevant to the issue of further fact finding related to what would follow thereafter – whatever the outcome there would clearly be a need for a full expert assessment and indeed permission for the same had already been granted in principle with dates pencilled in for October. Whatever the outcome of this fact finding, mother’s position will likely remain the same – she believes that she has been abused as alleged and the expert may need to deal with the matter on that basis. Given her entrenched position, it is clear that it is unlikely that she would accept that the father has been exonerated from the specific wrongdoing as she has alleged; in my judgment she expected to be believed in full and to be entirely successful, I doubt that is has properly crossed her mind that she may have to deal with the fallout if her case was unsuccessful. She, I have little doubt, will remain firmly of the view that she has been badly wronged by the father and that my decision is wrong. The expert assessment of the mother will need to proceed on the basis that it is recorded that the court accepts that mother still believes that the allegations are true despite the decisions in this judgment and it could have proceeded as such without the fact finding having taken place.

[88]For both parents, there was a strong desire to seize the opportunity to ensure their perspective of the truth was spoken in Court. The adversarial nature of this process rarely reveals the best qualities of those who appear before the Family Court and in evaluating the parents I have been careful to bear this in mind and strained not to be unnecessarily critical of them. However, even making all the allowances I can, I regret that neither of the parents were impressive.

[89]It is clear from the evidence that by August 2020 the relationship was already under strain. This was exacerbated by a combination of events. The mother’s OCD was stable and she had chosen to voluntarily reduce and stop her medication without medical supervision, from taking the maximum dose of 60Mg Fluoxetine in June/July down to quickly stopping completely in August. In addition to this, there were lockdowns due to the Covid-19 pandemic, the father had ceased his employment for assorted reasons and there were financial difficulties. Arguments increased between the parents. The mother did not contact her GP again until May 2021 although she spoke to her psychiatrist in February 2021 and declared herself as happy. Certainly by October 2021 there were problems as evidenced by the text messages supplied by father where the mother accepts that they have argued and disagreed a lot.

[90]I have little doubt that this was not a particularly positive or healthy relationship and that the Covid-19 lockdowns had an impact. With hindsight both parents now view it negatively. They both showed obsessive behaviour, mother showed insecurity and jealousy (of father’s previous partners, demands to delete Facebook etc) and father was very much aware that this was probably his last chance at fatherhood. The age difference was no doubt relevant but the chasm between the parents in terms of life experience and level of vulnerability leads me to conclude that this was not a balanced relationship, that there was likely a power imbalance in the father’s behaviour. However this does not itself make the relationship abusive and it is not evidence that the relationship was controlling or coercive in line with the definition of the same.

THE FINDINGS OF THE COURT

[91]I shall now turn to the specific allegations. I will address some of the relevant evidence dealing with these issues in more detail but the overall assessment of the evidence which I have already set out is also taken into account in coming to these conclusions and findings. Allegation 1 – throughout the relationship and in the immediate aftermath of separation, the father’s behaviour towards the mother was controlling and coercive

[92]I do not find this allegation proven. Neither the mother nor the father’s evidence was credible throughout this matter. I have addressed this issue in considerable detail earlier. In my judgment the mother’s beliefs and allegations have been so affected by the advice and support which she has received throughout the last 3 years and has wholeheartedly embraced that it is now almost impossible to know what she genuinely thought at the time and what she believes now after endless repetition, hindsight and influence. She considers herself to be entirely innocent of poor behaviour and paints everything the father does as bad. That does not establish evidence sufficient to satisfy the burden of proof. Further there is no evidence that the father intended to punish the mother or make her subordinate or dependant.

[93]In addition to my analysis of the mother and her evidence, I will add further comments on some specific issues for the purposes of clarity. The mother’s suggestions of the father deliberately trying to control her through her OCD is unevidenced and unsustainable. The cat litter issue predates the relationship, the mother claims herself that she only found the car left unlocked on only one occasion and it is not uncommon for people to forget to turn lights off. Further, there is no evidence whatsoever save in the mother’s mind, that the father acted deliberately in doing any of these things if he even did. It is not a “pattern” as she claimed

[94]There is no doubt that the behaviour of the father on 20 December was both abusive and no doubt deeply unpleasant to the mother and using threating words such as “murder” and actions such as holding the knife to her wrist was wholly inappropriate. To father’s credit he had accepted that he behaved badly, although unwilling to accept the full extent of his bad behaviour, attempting to share the blame for bad behaviour with the mother. There is no doubt his behaviour was worse. However, with regard to the effect upon the mother, she gave very different versions. In her statements to the court some time afterwards, in April 2021 and July 2021, she claimed that she was terrified for her life and that of her unborn baby. In her contemporaneous report to the police, following her father calling them, it is reported “The female does not believe this to be true and confirmed he has never been violent but it did scare her” and that the [AP – mother] “does not believe the threat to be credible”. She did not report any violence to her midwife the following day – mentioning only that she considered that the father was “becoming increasingly controlling and… escalating verbal abuse.” There was no mention of her being terrified or fearing for her life and no mention of any previous physical or sexual abuse whatsoever to the midwife. She went back home to the father the following day, having exchanged text messages during the evening.

[95]Whilst this does not appear to have been a particularly healthy relationship, with an experienced older man and a young vulnerable woman, effectively thrown together during Covid-19 with the isolation which that brought, and it was clearly a dysfunctional relationship at times, I do not accept that there is sufficient evidence to support the mother’s assertions that these has been a course of conduct amounting to controlling and coercive behaviour. Indeed the mother appears to have acted in ways which the father considers to be controlling – money and friends as examples but there are also relevant matters relating to the mother’s jealousy and her insistence on the father deleting Facebook as well as cutting off contact with his friend, which ultimately led to the December 2020 argument. This too does not amount to controlling and coercive behaviour. I wholly accept that the father behaved in a very unpleasant and abusive manner on that occasion but again this falls short of satisfying the definition in the Act.

[96]The evidence clearly shows that although the relationship broke down around Christmas 2020/early January 2021, the mother was still in contact with the father herself for some time thereafter, until at least February. The messages sent by the father until 4 March were requesting updates regarding his daughter.

[97]For the sake of clarity, I do not accept that the father pursuing this Children Act application to seek a relationship with his child is either abusive, controlling or harassing as the mother claimed. Further, whilst there is no definition of the phrase “immediate aftermath,” the application was not issued until March 2021.

[98]I am not satisfied that the mother has been subjected to abusive and harassing behaviour by father throughout the relationship or in the immediate aftermath of separation nor she has been caused distress because of this. The father’s behaviour does not fall within the definition of controlling and coercive behaviour set out within the Domestic Abuse Act. There was no such a course of conduct during the relationship and following only a few text messages after the mother told him to desist from contacting her, and she would consider it to be harassment if he did, the father had remained away and had no contact with the mother at all. Allegation 2 – throughout the relationship, the father engaged in sexually abusive and demeaning behaviours towards the mother

[99]I do not find this proven. My comments in relation to the above allegation are also relevant here. The text messages between the parents as well as the notes and admissions in evidence show that both parents engaged in a highly charged and sexually active relationship with explicit suggestions to each other. It went beyond flirty banter and was at times graphic. They also engaged in risky sex in public places on the mother’s own evidence and indeed the relationship appears to have commenced with a threesome in its early days – I do not accept the father’s denials of this. It is clear that sex was important to both of them but less important to the mother after the miscarriage scare in August. The father’s interview with the police where he easily starts a discussion on sexual matters evidences how important this part of the relationship was to him. The mother made no complaints to the father – not any serious complaints about his behaviour although according to the grandfather’s oral evidence (nothing in his written statements at all) she appears to have mentioned some matters to her father, but even then, did not describe them as abusive. In the words of the grandfather, she went along with most of it. Even comments to the father such as calling him a “sex pest” or sending “vomit emojis” in response to him sending intimate images is not evidence of abusive or demeaning behaviour – there is no persuasive evidence to say whether comments at the time were meant as jokey or serious or indeed the context in which they were sent, and the latter was in April 2020 when they had just got engaged.

[100]The voice recording which was played is relied upon by the mother as being evidence of this finding. I do not accept that. It is a conversation between adults about what they each think – setting out the father’s feelings and it is not solely that the mother is there to satisfy him, but he to satisfy her. In any event I have absolutely no context for the recording – I have requested but not received any meta data, we have no idea of the date of the same or even who transcribed it. The mother submitted that it was around the December time, father submitted that it was earlier. I am unable to say which is true or accurate but, in any event, in my judgment it is not evidence of what is alleged by mother.

[101]From the evidence, at no stage in the relationship or for some time after did the mother report the father to any professional for abusive sexual behaviour – or rape – until she went to the police in March 2021. She claimed in her oral evidence that she had told the midwife about his behaviour in November 2020 – I have already addressed this issue and her claim is rejected. It is a claim that she repeated to the police too, but this time claiming she started reporting the behaviour in September.

[102]Again, I question the effect of hindsight upon the mother together with the support given to her by professionally but also the ending of the relationship, itself. There were no complaints to any third party of the father’s alleged sexually abusive behaviour at the time these events occurred (which the mother said were frequent) despite ongoing involvement with her health visitor. There is no evidence whatsoever to support the mother’s contention that she told her health visitor of any abuse in November 2020 as she claims; if she had the health visitor would have made a note. This again is either the mother being mistaken, seeing matters with hindsight or even being untruthful to bolster her case.

[103]I also note that the mother claimed in her fourth statement to have never found the father sexually attractive yet she sent him many sexually explicit text messages setting out what she wanted them to do together sexually. These were neither coerced nor forced and they provide further insight into the mother’s contradictory behaviour and evidence at times.

[104]In my judgment here is insufficient evidence for me to make this finding, I am not satisfied that this was a sexually abusive or demeaning relationship. Allegation 3 – on 16 June 2020, the father raped the mother

[105]An allegation of rape is a very significant matter and if true would certainly cause trauma to the victim. I am of course familiar with the CPS Guidelines as referred to in the agreed note of law and of all the guidance from the family courts which evidence a clear distinction between the family and criminal courts.

[106]The mother’s accounts of the rape are set out in her various statements and I have read and considered them very carefully although I do not intend to set them out in detail here. In her first statement she describes the events as commencing when she was sitting on the sofa and the father pulled her pants down, starting to perform oral sex. She told him that she did not want to and he then “picked me up and slammed me onto the floor.” She “repeatedly told him to stop.” In her second statement the description is the same. According to the grandfather’s statement (and her took contemporaneous notes) she told him that she was in the kitchen, by the sink, when the father first pulled down her leggings. Later, she stated, the father “picked her up and threw her down” and she continued to say no. The grandfather’s statement reflects this. In her ABE interview, the mother states that she was on the sofa when the father pulled her trousers down and he put her down on the floor. There are differences in the accounts, both in the manner which she was “thrown,” “slammed” or “put” on the floor and also as to where the first sexual contact took place, the kitchen or the lounge.

[107]Mother’s first statement continues with her stating that she called her father the next day to tell him what had happened. There is no mention in the first statement of her asking the father “did you just rape me” and indeed it is not mentioned in her second statement either. In neither statement does the mother state that she confronted the father, immediately afterwards or accused him of rape, only that he spoke to her afterwards. In her police interview she stated that she confronted him immediately after she had cleaned herself. The first mention of this phrase was in the grandfather’s evidence when he states that the mother told him that she immediately confronted the father by saying “’I think you just raped me’ or words to that effect.” There is also no mention of the alleged rape to any professionals at or near the time, the mother did not mention the rape to the midwife, her GP or psychiatrist and the mother did not mention the alleged rape to the police during the December incident. Indeed in the midwife’s evidence, there is reference only to “emotional abuse.” The first mention of any risk related to sexual matters is in the [Local Authority] CAFA dated 8 March which refers to “a risk of escalating abuse resulting in Father’s physical harm / sexual assault of mother during her pregnancy and / or following birth”. The midwife’s referral followed the 20 December incident. The CAFA stated that the mother had informed the author that she was worried that she “was at risk of sexual abuse as father often used explicit language and behaviours.” Again, no allegation by the mother of rape against the father. Even in her police interview it appears that she is not entirely sure that it was rape committed by the father, with comments such as “I didn’t feel like I gave consent” and “did you potentially rape me there” whilst claiming that she said no throughout. I have no doubt that at this moment, the mother has no doubts whatsoever.

[108]I am of course conscious that rape victims do not always refer or even disclose the assaults but here this was a mother very much involved with professionals from December 2020 onwards and the first full allegation of the rape is made to the police shortly after the father has issued his Children Act application, a fact of which I find the mother was fully aware of when she contacted the police. That itself does not of course make the allegation untrue, but the mother’s denials of such knowledge of the court proceedings do affect her credibility.

[109]There is also the evidence of the mother’s phone call to the grandfather and the text messages between the parents, both of which are relevant to this issue. Dealing with the grandfather’s statement, he informed the court that he took notes at the time of the call and it is from those that he made his court statement. The statement recites what he was told by the mother and I accept his evidence that the conversation took place on the 17 June 2020, that the mother informed him that she thought that she “might have been raped”. It is a balanced statement and he accepts the mother’s decision to reconcile with the father and that she was struggling to comprehend what had happened. It is clear that something had happened which had upset the mother enough to call her father. Of course he has no first-hand knowledge of events. They spoke for 40 minutes and he himself thought she had been raped but admitted that his feelings as a protective parent may have impacted and she should talk to the police. It is highly likely that he shared this, that she had been raped, given that the mother had phoned him to ask for his opinion.

[110]In mother’s live evidence she initially stated that the sexual activity had started (pulling her leggings down) on the sofa but then added that there had been activity in the kitchen beforehand. She had not informed the police of this; it was not in her interview and it is not in any of her statements. When it was pointed out that she had told her father she was at the kitchen sink she replied “can’t remember, it’s been years.” She said that father “put” her on the floor and when it was pointed out that she had previously used words such as “slammed / thrown” she admitted that she was neither slammed nor thrown although she accepted saying so previously. She then stated that it depended on interpretation, it felt like that to her. She accepted that there was a difference, that being thrown/slammed would be violent, and that she did not seek medical attention, or sustain any injuries. She was clear that she had said no multiple times during the incident.

[111]When asked about the “did you just rape me” comment and its timing she admitted that it was when they were getting into bed later but she could not say what time or even if it was afternoon or evening; it was still daylight. This is in direct contrast to her evidence to the police that she confronted him almost immediately afterwards. They then watched a movie or went to sleep.

[112]There are then the text messages between mother and father attached to her statement. I only have very few of these messages and no context. It was rapid fire texting and I cannot be sure which replies are to which message. They appear to have been sent on 8 July and the mother sent a message to the father stating “I’ve forgiven you for forcing yourself on me”. Father does not reply as you would have expected someone effectively being accused of rape, namely to deny it or even to ask what she meant. Instead he replies that “So what haven’t you forgiven me for.” His live evidence was that he thought that she was talking about him trying to force his opinions on her, and he was replying to an earlier message which is not shown.Father also claimed that there was also a phone call between them during the messages. I do not consider that the father’s evidence in this regard is plausible but I have no proof which would satisfy the civil burden of proof of what exactly the messages referred to, what was said beforehand and the context of all the messages. Consequently in my judgment this is not corroborative evidence to support the mother’s allegation. I am also conscious that the text message exchanges have taken place several weeks after the alleged incident and after the mother has had discussions with her father which may have affected her thoughts and beliefs about the incident.

[113]The father denies that it was rape. In his witness statements it is barely mentioned, he is adamant that they had a very active and consensual sexual relationship, and although less so following the pregnancy scare, an active sex life. . The texts, messages and notes which the parents sent to each other tend to support this statement. His interview with the police set out the same description. He denied ever having sex on the floor at the flat or that mother had ever asked him “have you just raped me” or that he had said “that’s just what couples do.” He also set out that there was not even any room on the floor for them to have sex and drew a map. He said that there was no such conversation and in his oral evidence he started that he did not even know if they actually had sex at all that day. He believes that the mother has made up this allegation to “put [him] out of K’s life.”

[114]I simply cannot be satisfied that there is sufficient and cohesive evidence to support the making of this finding. The mother’s own evidence is contradictory and even she had doubts as to whether it was rape or not from the very beginning or whether she merely acquiesced. I do accept that there was an incident when the mother and father had sex on that day and that the mother was at least reluctant to engage or unhappy about something – it would be wholly irrational to suggest that the mother has simply made the whole scenario up and gone to the lengths of phoning her father about it the next day, as a weapon again the father in respect of K who was not even born at that time. The police were not informed at the time, the relationship continued for many months afterwards and it can be seen from test messages that separation was not something which was even envisaged by the mother at the time. If this was to be a deliberate false accusation against the father for her own purposes, she would have followed it up earlier. The fact that the mother telephoned her father about the incident is not in itself evidence that she confronted the father about the incident immediately afterwards but I can easily accept that she will have had discussions with him, what I cannot do is make any findings as to precisely what was said.

[115]In coming to my decision in relation to the issue of alleged rape, I have taken all the evidence into account holistically as well as the guidance and case law. My decision is not merely based on the paragraphs in this section but on the assessment of the evidence throughout this judgment. I have not found that this was an abusive or harmful, coercive or controlling relationship, to the mother, and I have found that neither witness was particularly credible.

ADDITIONAL RELEVANT FINDINGS

[116]The father lied about the purpose of his visit to the mother’s shop in April 2021. This behaviour was harassing and the visit was specifically made to either see the mother or to find out information about her. Given that the visit was made after the mother had asked him not to contact her this amounted to an incident of harassment

[117]The father’s behaviour on 20 December 2020 in threatening to murder the mother and holding a knife to his wrist was clearly abusive to the mother (as he accepts) but was a deliberate attempt to persuade the mother not to end the relationship which could have led to the father being denied the opportunity to be on K’s birth certificate or have contact in the future. It was not simply a case of flippant remarks. The father has deliberately downplayed both the meaning and his understanding likely effect of his words in order to minimise his behaviour. This, however, does not equate to coercive and controlling behaviour, it is a single incident.

[118]The mother first disclosed any alleged or (otherwise) abuse by father to professionals, to the midwife following the 20 December 2020 incident.

[119]The mother was aware of the father’s application to court at the time she made the accusation of rape to the police

CONCLUSION AND NEXT STEPS

[120]This is my judgment.

[121]An order reflecting the findings made is requested from the parties

[122]This matter is listed for consideration of the welfare part of the application on a date to be fixed. Her Honour Judge Hesford Dated 5 August 2024