NF v PJ [2024] EWFC 469 (B)

IN THE FAMILY COURT IN BARNET CASE NO: ZW22P01097[2024] EWFC 469 (B)NFApplicant-and-PJRespondentJUDGMENT OF DDJ STOUT7 TH MARCH 2024Mr Baylis (instructed by Duncan Lewis Solicitors) for the ApplicantMs Johnson (instructed by Ison Harrison Solicitors) for the RespondentIMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for an anonymised version of this judgment to be published.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.
[1]This case is about a little boy called J, who will be 4 years old in March. J lives with his Mother, NF and last saw his Father, PJ in July 2022. The Mother says that during the parties’ relationship and after separation the Father was abusive towards her and for this reason she has not agreed to J having any contact with his Father.[2]This hearing was listed for a fact-finding hearing to determine whether the Father was abusive towards the Mother. This hearing took place over 3 days from 19th – 21st February. The Mother has been represented by Mr Baylis and the Father has been represented by Ms Johnson. Both Counsel have been very helpful and have put their client’s cases thoroughly. I am grateful to them for their assistance.

Background

[3]The parties are both from Country X and came to this country as asylum seekers. The Mother arrived in 2013 and by the time the parties entered into a relationship she had settled status. The Father arrived in the UK in 2015 and at the time that he entered into a relationship with the Mother he was seeking asylum.[4]The parties started their relationship in October 2018 and soon after they got married and moved in together in the Mother’s property, a secure 1 bedroom council flat, in City Y. In March 2020, J was born. The Father was named on J’s birth certificate and holds Parental Responsibility for him.[5]Both say that this was a positive and happy relationship until around a month after J was born, in April 2020, when it appears that the relationship became more strained but they disagree as to why. The Mother says that from this time the Father became controlling and abusive towards her, including emotional, physical, financial and sexual abuse. The Father says that the Mother was suffering from post-natal depression and she became very difficult and argumentative.[6]During 2020 there were a number of pressures on the family. They had a new baby, there was a global pandemic and the UK was in lockdown from the end of March until summer and again in the autumn and winter, the Father had a pending asylum application and he had a bad back, which was causing him difficulties.[7]In September 2020 the Mother had a termination. Her medical records state that her partner was aware of the termination and that they were using protection but she told me in evidence that she had not told the Father about this abortion at the time, and this accords with what the Father said also.[8]In October 2020 the police were called by the Mother. The Mother reported to them that she had been punched to her mouth and torso and that the Father had put a knife to her throat and threatened to kill her and to set himself on fire. This incident is the basis of allegation 3. The police made a Domestic Violence Protection Order for 1 month, preventing the Father from having contact with the Mother and the parties separated. J lived with his Mother during this time.[9]The parties reconciled in December 2020, the Mother saying that their families put pressure on her to get back with the Father and give their marriage another go. The Father says that the Mother couldn’t cope without him and she came back to him.[10]The Mother says that the Father was kind to her initially but soon became abusive again. She alleges that during this period:a. The Father was physically abusive towards her by hitting, punching and slapping her [Allegation 1];b. The Father was verbally abusive towards her, calling her a bitch and a whore [Allegation 2];c. The Father assaulted her by punching her, slapping her, restraining her, putting his hands around her neck and threatening to kill her and then himself whilst holding a knife to her throat [Allegation 3];d. The Father came into the kitchen whilst she was holding J and screamed and shouted at her in a way that caused J to become very upset and urinate on her arm [Allegation 4];e. The Father raped her on two occasions in their home [Allegation 5];f. The Father would make weekly threats to remove J from her care and take him back to Country X [Allegation 6].[11]The Father alleges that during this period the Mother was emotionally abusive towards him and there were occasions when she was physically abusive also, including throwing a hairbrush at him and causing a head injury. He does not invite the court to determine these but he says they are relevant in respect of the Court’s understanding of the dynamic of the parties’ relationship.[12]The parties do not agree about the date that their relationship finally broke down. The Father says this was in May 2021, when he came home to find the Mother in bed with another man and discovered that she and her brother had been growing weed at the property. The Mother says their relationship broke down in June/July 2021 because of the abuse that she suffered in the parties’ relationship. This was the last time that the Father saw J.[13]The Mother obtained a Non-Molestation Order on 6th August from the Family Court in City Y. Her witness statement in support of this Non-Molestation Order makes allegations that the Father was controlling, emotionally abusive, aggressive around J and that he harassed her. It does not make any allegations of physical abuse, sexual abuse, strangulation or that the Father had threatened her with a knife. The Mother told me in her evidence that she told her solicitor about the allegations of physical abuse and doesn’t know why they were not included in her statement. She said that she did not tell her solicitor about the sexual abuse.[14]The Mother alleges that the Father breached the non-molestation order on a number of occasions by sending her messages with threats to remove J to Country X and to harm her and remove J from her care to Country X. The Mother reported these threats to the police, who did not pursue a prosecution.[15]The Mother moved from City Y to London with J in Autumn 2021, with the support of the Local Authority. She says that she did this to escape the Father. The Father says that she had a boyfriend and moved to be with him in London.[16]On 20th July 2022 the Mother applied for a Child Arrangements Order that J lives with her and a Prohibited Steps Order preventing the Father from removing J from her care and control, and from the jurisdiction of the UK. On the morning of 27th July 2022 the Mother applied to extend the Non-Molestation Order. At an on-notice hearing on this date Recorder Bedingfield made Prohibited Steps Orders against both parties, extended the Non-Molestation Order and made a Child Arrangements Order that J shall live with his Mother. Directions were made for filing evidence in advance of the FHDRA. The Court did not make any orders allowing the Father to have contact with J.[17]At the FHDRA before District Judge Doman on 11th November 2022 the Non-Molestation Order was extended until the conclusion of these proceedings.[18]At a DRA before District Judge Doman on 21st April 2023 the Court determined that a Fact-Finding Hearing was necessary and this matter was listed. The relevant documents and evidence have been translated into Language Z for the benefit of the Father. The Court also directed that the Mother provide the Father with details of J’s nursery to allow him to obtain information from them directly.[19]A Pre-Trial review took place before District Judge Dias on 8th January 2024, who directed that the allegations heard at this fact-finding were to be the 6 allegations found in the schedule of allegations. The Court directed that the Mother provide recent photographs of J to the Father once every 4 weeks. The Father says that this has been complied with.[20]The Fact-Finding hearing came before me on 19th-21st February 2024.

The Law

[21]Whoever makes an allegation has the burden of proving that it is true. They must do so to the civil standard, ie on balance of probabilities (Miller v Ministry of Pensions [1947] 2 ALL ER 372, and also considering Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141. An allegation will therefore be proved if the person making it establishes that it is more likely than not that it happened. The seriousness of the allegation or the seriousness of the consequences make no difference to the standard of proof to be applied in determining the facts. Findings of fact must be based on evidence and not on suspicion or speculation (Re A (A child) (Fact finding hearing: Speculation) [2011] ECWA Civ 12) and the court may make findings on inferences available to it on the basis of the evidence. Evidence is also not evaluated and assessed separately: "A Judge in these difficult cases must have regard to the relevant of each piece of evidence to the 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 by the local authority has been made out to the appropriate standard of proof" (Butler Sloss P in Re T [2004] ECWA (Civ) 556). The court looks at the 'broad canvas of the evidence' and "the range of facts which may properly be taken into account is infinite" (H and R (child sexual abuse: standard of proof) [1996] 1 FLR 80). It is, however, not necessary to determine every subsidiary date-specific factual allegation (K v K [2022] EWCA Civ 468).[22]I have taken into consideration the principles outlined in Re H-N and others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 with regard to domestic abuse allegations. Practice Direction 12J Child Arrangements and Contact[23]A Court can take into account the demeanour of a witness or the way in which they gave evidence, but needs to be careful in approaching this, noting that in the case of emotive evidence a truthful witness may stumble and struggle whilst giving their evidence, whilst an untruthful witness may give their evidence in a composed manner. The Court may be assisted by internal consistency of evidence and considering how it fits with other parts of the evidence.[24]The principles outlined in R v Lucas [1981] QB 720 may be relevant. Where it is alleged that a witness may be lying that there can be many reasons why someone may lie including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion or emotional pressure, and that just because a witness may lie about one aspect of their evidence it does not necessarily mean that they may be lying about other aspects.[25]I have also borne in mind that abusive behaviour has at its heart an imbalance of power in the relationship and that this is exploited by an abuser for their benefit. As is clear in case law such as Re H-N noted above, it is insidious in nature and requires sophisticated analysis, including an awareness of the potential for abuse to be maintained even after the parents have separated and even where protective orders have been in force.[26]At the same time, a Court has to draw a distinction between abusive behaviour and poor behaviour which falls short of being domestically abusive. Hence the need for the Court to focus upon those findings which will have a material impact on child arrangements if proved.

The hearing

[27]The parties were both represented at the fact-finding hearing by very able Counsel and had the benefit of interpreters. The court ensured that screens were available throughout the hearing and that separate waiting rooms were reserved to ensure that the parties did not come into contact with one another. All of the relevant evidence has been translated into Language Z for the parties to read.[28]At the start of the hearing the Mother made an application to admit some photographs of injuries and I allowed this on the basis that they were relevant. The Father also sought to admit medical evidence to support his assertion that he had difficulties with his back, which I also allowed on the basis that it was relevant.[29]I was told that there is some evidence missing such as body worn footage from incidents where the police had been called but that neither party was seeking for an adjournment of this hearing and wished to proceed with the hearing based on the evidence that was before the Court.[30]The Mother had also applied for a Prohibited Steps Order in respect of the Father not removing J from his nursery. Unusually this was on the basis that his nursery had informed the Mother that they had concerns that they could not prevent J being collected by his Father and that they felt they required a “court order or legal document” that prevents the Father from taking J because “At present now my staff are powerless to prevent this from happening and I do not wish to place them in a possible dangerous situation with the Father”. Although it does not appear in the email, the Mother informed the Court through Counsel that J’s place was in jeopardy without this court order. The Father very sensibly agreed that he would not approach the nursery and the parties agreed that this could be reflected in a recital to the order without the need for a formal order as there is no suggestion that the Father would actually remove J from his nursery.

Analysis

[31]I have considered all of the evidence before me and I will highlight those which relate to the decisions to which I’ve come but just because I do not mention a specific piece of evidence does not mean that didn’t take it into account. I have read the witness statements of the parties, the police disclosure, the Cafcass safeguarding letter, a letter from the London Borough of B in relation to their involvement with the family and the Non-Molestation Order proceedings. I heard evidence from the Mother and the Father.[32]The Mother gave evidence and I am satisfied that she was largely truthful, however there were many occasions where her answers were not helpful. For instance she was asked extensively about why she did not provide evidence of screenshots that she previously had available to her and she did not seem to recognise why these matters may be relevant, and why the Court may need to know why she had not provided relevant evidence. Similarly the Mother did not provide a coherent explanation as to why there were inconsistencies in the accounts she gave to the police about the alleged rape, which differed substantially from the accounts that she gave in her written and oral evidence in these proceedings. I will turn to these in more detail but as a result it has meant that I have placed little weight on some of her oral evidence in these proceedings and focused much more on the contemporaneous reports that she made to the police.[33]The Mother was very poor at remembering the dates or even the rough time of year that various incidents took place. Her evidence was quite contradictory in respect of when things happened and even things as basic as when the relationship began were incorrect in her witness statement. I am satisfied that this is not because she is lying about those dates but because she is a poor historian. What matters much more to me is the detail of the incidents that took place and the context in which abuse took place.[34]My impression of the Father as a witness was that he was very domineering. He frequently spoke over Counsel and did not listen to the questions that were asked of him. Often his answers quickly diverged into a tyrade about the Mother instead of answering the question he was asked. It is my view that he did this because he wanted to control the proceedings and the evidence that he gave. The Father made threats when he became agitated, at one point telling Mr Baylis that he was going to sue him for presenting him as a violent man.[35]The Father also told me on a number of occasions that he loved and respected the Mother. This is entirely at odds with his case that she was abusive to him during the relationship, that she cheated on him with another man and that she has made false allegations against him, preventing him from seeing his child.[36]I did not find the Father to be a credible witness. His oral evidence focused heavily on his account that he had such a bad back that he was severely disabled for much of the relationship, and that he and the Mother didn’t have a sexual relationship which was a leading cause of their relationship breakdown. This is at odds with the pictures painted in his written evidence, where these matters are barely mentioned and are not cited as the key reason for the parties’ relationship difficulties.[37]The Father was also very emotional at times, particularly when talking about J and how he has not been able to see his son since he was a baby. I am sure that the Father loves J and misses him dearly, but it is important to understand why J has not seen his Father for such a long time.

Text Messages

[38]The Mother has exhibited to her 4th witness statement a number of screenshots of messages which she says were sent by the Father to her at the time that their relationship finally broke down in July 2021. The Mother appeared at one time to have more screenshots, which she showed the police, but these are not in evidence before me. Whilst I have some screenshots in the police disclosure, it appears that at one time there were more screenshots. The Father completely denies sending these messages and says that they are fabricated.[39]I have highlighted examples below of some of the most relevant passages from these messages:a. “[NF] send my corpse to [Country X] for your dad’s spirit sake don’t let me stay in this unfair country because I haven’t seen happiness for seven years swear to my [J] my world has come to an end I kill myself I can’t bear this amount of bad reputation being honest was my only guilt don’t let [J] to go to the coward I have no hope you stayed when I was broke I have tried I can’t accept my child’s mother have another partner just know that I’m finished.” [C85];b. “Whatever you say that’s that whatever you want I won’t say no I’ll do anything for you I’ll make it up to you I became a person with the two personalities that poison made me not care…I have a good nature now that everything has been provided lets improve together like a normal man I become a family man to look after my wife and kid I understand many things forgive stop wanting to revenge I became the dirt under your foot I love you like the first days even better than that I didn’t show you affection because I didn’t understand what I was doing that damn thing made me not to care” [C86];c. “You’ve been the best I was vile...I’m here to make it up to you don’t leave me for the sake of our son our life” [C86];d. “I made a mistake, I didn’t show affection.” [C87];e. “I don’t have medication, I apologise to everyone that I am not well…I’m vile I’m immoral and I agree you are pure.” [C89];f. “I became a person with 2 personalities because of drugs I became a different [PJ]…I inflicted pain on you you saw my message I’ve made a mistake.” [C91];g. “Let me be the best dad for [J] and the best husband for [NF] drugs made me blind forgive me for God sake forgive me.” [C92];h. “I’m a Father understand this always stubbornness broke our life I take all the blames I hope you understand I worked hard more or less loved you made a mistake I apologise I’ve been naughty in our life” [C95];i. “I was a bad person I didn’t respected your wishes…I made this mess and I make it work myself… I was destroyed by drugs and I was blind for [J] sake… do this favour for me so I can turn around the hellish life I created to a heaven.”[C95];j. “[NF] I was very bad you ran away from me my cutie I made a mistake I take the blame.” [C96];k. “Think a little bit about your decision destroy my reputation don’t let people say his wife ran away it was the fault of both of us I’m very clean put yourself in my shoes I wasn’t like this don’t irritate me more than this my reputation has been ruined in the family I’ve cut out everyone let me be with you.” [C96];[40]Littered throughout these screenshots are pictures and videos that the Father sent to the Mother. They are blurry because they have not been downloaded but they appear to be pictures of the parties looking happy and in love together, as well as videos of the Father working out in the gym.[41]There are records of some other screenshots of messages from the Father to the Mother in the police disclosure. Some of these are the same as the messages attached to the Mother’s witness statement but some are additional. It is unclear when these were said to have been sent but they include the following message:a. “I swear to you on [J’s] life please look after yourself. Please think a little more about your decision! Don’t bring shame upon me! Don’t let people say that his wife has escaped. We were both at faults! I am all clean now, completely clean! Please put yourself in my shoes! I was not like this! Please don’t humiliate me more than this! I have been disgraced in my family/community. I have cut ties with everyone. Please let me be the head of the household! Whatever you say, my love!” [A182].b. “Don’t dishonour me! I will swear you to your loved ones because I will then close my eyes on everything. I will put a rope around your neck while standing up! I am zealous about you! I am possessive and I am not a dishonoured person! I am not thinking about anyone in my life except you, I would be lost without you and my child. If someone [else] comes into my life, I won’t let him/her breathe. That’s what you should know, my love”. The Father then clarifies that he meant a rope around his neck. [A183].[42]I find that these are messages that the Father sent to the Mother. I make this finding because:a. A number of the themes arising from the messages, particularly about the Father’s reputation being ruined by the breakdown of his marriage, were very similar to what he said in his oral evidence about the pain of having lost his reputation as a result of the allegations of abuse made against him.b. The messages are sent over a number of days and interspersed with pictures, which is entirely in-keeping with how these messages would have been sent originally. It would be a very elaborate fabrication for the Mother to curate the messages as they are, with pictures and time stamps.c. The messages don’t contain any explicit admissions of guilt as a result of abusive behaviour, just the repeated message that he was in the wrong and the Mother was in the right. If the Mother was going to falsify messages to use as evidence then it makes little sense why she would not create damning messages admitting to the abuse that she alleges within the proceedings.d. The messages focus heavily on drugs as being the cause of the Father’s bad behaviour. This is not something that featured in the Mother’s narrative of the parties’ problems and it makes no sense for her to fabricate messages that say this and then not use it as a weapon against the Father in these proceedings. I suspect the reference to drugs is the Father’s way of excusing and not taking responsibility for his abusive behaviour.[43]Having determined that these are accurate messages I find that the Father lied about not sending them. Ultimately he told the Mother in these messages that he was at fault for the breakdown of their relationship, that he had behaved badly, that she had behaved well and that he was going to make it up to her. I find that is because he was abusive towards her and he was placing pressure on her to reconcile with him. They are entirely at odds with the Father’s account of a relationship that broke down in May 2021 as a result of the Mother’s infidelity.[44]These messages also undermine a theme that emerged in the Father’s oral evidence that his back problems were so bad in 2021 that he was ‘just a piece of flesh stuck in the corner of the house”. The messages show him using gym equipment, lifting heavy weights and standing tall. This firmly undermines his account that his back was so bad in 2021 that he could barely do anything, such as be physically violent to the Mother or have sexual relations.

Wider Picture

[45]The Mother had a support network in City Y, where her Mother lives. She was living in secure accommodation provided by the Council and now lives in much more insecure, much more expensive private rental accommodation in London. I am satisfied that she would not have left this behind and fled to London if she did not have good reason and needed to do so. I find that she moved to London because she needed to escape the Father and the threat that he posed to her and J. She placed herself at a significant financial disadvantage in doing so, particularly by giving up a secure tenancy. She would only have done so out of desperation and because she felt at risk from the Father.

Allegation 3: Physical abuse on 26th October 2020

[46]The Mother says that that the Father punched her, slapped her, pulled her hair, restrained her, put his hands around her neck and held a knife to her throat whilst making threats to kill her and to kill himself. The Mother originally said in her first witness statement at C4, paragraph 16 that this took place in June/July 2021 but she corrected this in her first witness statement at C27, paragraph 6 where she says that it took place in October 2020. Given what I have already said about the Mother being a poor historian when it comes to dates I do not think this error is relevant.[47]In her third witness statement at C27 the Mother says that a verbal argument escalated and the Father punched her, slapped her, restrained her, pulled her hair and put his hands around her neck. She said she would call the police at he got a knife from the kitchen and threatened to kill her and take J if she called the police. The Mother says that she locked herself in the bathroom and called the police, and that when they arrived they interviewed her separately and took pictures of the injuries that she had sustained, which included bruises on her arms.[48]The Mother gave a witness statement to the police on 27th October 2020, found at A22-23, where she said that on 26th October she wanted to go out with her Mother and the Father stopped her from doing so and left her mother an abusive voicemail message. The Mother was very upset by this and told the Father that their relationship was over. When she tried to call the police he assaulted her by punching her, pulling her hair and throwing her onto the bed. She reports that there are no visible injuries but her shoulder feels sore and tender. She says that the Father came over to her and held a knife close to her face, telling her that if she called the police he would kill her and set himself alight with petrol. During this incident J was in the living room and was crying at this point. The Father went to see J and the Mother called the police and quietly said “help, help, help”. She does not make any allegations of strangulation and when asked by the police in their DASH questions she says “no” to the question “Has the perpetrator ever attempted to strangle/choke/suffocate/drown you?”.[49]The Mother says at the end of her witness statement at A24 that she doesn’t support a prosecution or attend court because she has been through enough and doesn’t want further litigation.[50]The Father denies this and said in his first witness statement at C40, paragraph 14, that he had been preparing milk for J, the Mother went to the bathroom and left J alone in the living room. He went to check on the Mother and they started arguing and the Mother phoned the police for reasons he didn’t understand. He was arrested because the Mother had bruises but the police confirmed that these were from vaccinations and released him. He suggests that the mother may have made false allegations against him to try to get a two bedroom flat from the council.[51]In his second witness statement the Father gives a different account. At C121, paragraph 22 he says that he woke up that morning to discover that J was left alone in the living room without telling him to watch J. He says that he telephoned the Mother and told her that this was irresponsible and he was going to tell the police. When she got home he confronted her and said he would report her to the police, after which she called the police and made false allegations against him, using his poor English against him. The Father maintained this account in his oral evidence.[52]The Father provided a short witness statement to the police on 27th October 2020 where he denied assaulting the Mother, threatening her with a knife or threatening to kill her. He said that they were having an argument over the Mother’s treatment of J because she left the house at 7am to go out with her Mother and left J alone in the living room whilst Father was asleep and he threatened to report this to the police.[53]The police disclosure says the following:a. “This is a report of a dropped 999 call from a distressed female. Upon playback the female is heard to whisper and ask for help.” [A6];b. PC A attended the property to find that the Mother was “upset and tearful” and records in a witness statement what the Mother told him, which accords with what she wrote in her police witness statement. He says that the Mother had no visible injuries but she showed him pictures of bruises caused by the Father and “some video files from her phone which she explained were [PJ] being abusive and assaulting her. The files were just audio recordings though and [Language Z] was spoken throughout so I have no idea what was being said.” [A19-20]c. PC A says that when the Father was arrested he began shouting to the Mother in [Language Z]. The Mother told the police that she was afraid of what the Father might do to her when was released as he was angry and she was unsure what he was capable of.[54]I find that the incident took place as the Mother reported it to the police at the time, namely that the Father punched her head, punched her torso, hit her wrist, pulled her hair and held a knife in a threatening way close to her face whilst threatening to kill her and himself. I do not find that the Father put his hands around her neck. This was not something that the Mother mentioned to the police at the time and she specifically denied it when asked. This doesn’t affect the rest of my decision in respect of the Mother’s evidence. It may be that the Mother now genuinely believes that the Father did also put his hands around her throat.[55]J was not in the room at this time but was awake and in the home. As a result of this assault his needs were not met and he was left crying in the living room. He will have overheard the Father shouting and the Mother being upset and he will have seen his Mother being upset after this incident. She would not have been emotionally available to him to meet his needs as a result of how upset she would have been by this assault. This will have been very upsetting for J and the blame for this lies entirely with the Father.[56]Aside from the allegations of strangulation, the Mother’s account of this incident is largely consistent. This is a contrast to the Father’s account, which different substantially between his two witness statements in these proceedings. I also find it very persuasive that the Mother did not wish to prosecute the Father for what happened. This suggests that she called the police because she required their protection and not because she wanted to make false allegations to get the Father in trouble.[57]I also find it inherently unbelievable that the Father would have told the Mother that he would have called the police when he woke up to find that J had been left alone in the house whilst he was sleeping. He said in his oral evidence that he told her he was going to call the police and social services. I asked him to explain this and he told me that it was because she had done it a number of times before, and then he ranted about how she would go out with her friends, come back with bruises, that she was receiving child benefits and working in a coffee shop. None of it explained why someone seemingly in a loving relationship would call the police or the local authority on their partner, potentially risking authorities concluding that their child was at risk of harm. I find that the Father is lying about this.[58]I am mindful that the mother did not mention any physical abuse in her application for a Non-Molestation Order in August 2022. I am satisfied from the police disclosure that she did suffer from physical abuse and I accept her explanation that she told her solicitor about this but it was not included in the witness statement. Sadly the quality of solicitors varies hugely within the family justice system and serious mistakes are often made.

Allegation 1: Physical abuse throughout the relationship

[59]The Mother alleges that during the relationship from April 2020 to July 2021 the Father was regularly physically abusive towards her and he would hit, punch and slap her. This is denied by the Father who says that if anyone was the victim, it was him.[60]I find that the Father did assault the Mother on a regular basis. The Mother told PC A on 26th October 2020 that the Father assaulted her regularly and she showed him injuries, including pictures of bruising to her arm and her leg caused by the Father [A19]. The Mother says in her witness statement to the police dated 27th October 2020 that the Father would be physically abusive to her regularly and that she had a picture from 7th June of bruising caused by the Father punching her in her arm. In her oral evidence the Mother said that these photographs were in relation to injuries from 26th October 2020. Given how poor a historian the Mother is in respect of dates and what she told the police on 27th October I am satisfied that these photographs were from previous injuries.[61]I find that this bruising was caused by the Father and that the photographs relate to incidents that took place earlier in the relationship, including on 7th June 2020. I find that the Father was frequently physically abusive to the Mother throughout the relationship.

Allegation 2: the Father calling the Mother derogatory names such as “whore” and “bitch”

[62]The Mother’s written evidence of this is as follows:a. She says in her first witness statement that since J was born she was constantly criticised no matter what she had done, that the Father would constantly call her words like ‘bitch’ and ‘whore’. She repeated this in her second and third witness statements, which used the exact same wording.b. In her Non-Molestation Order witness statement dated 6th August 2021 she says that the Father would call her names such as ‘bitch’, ‘pervert’, he would tell her that she was a bad mother and that she was useless and that he would gaslight her [F14].c. In the witness statement she gave to the police on 27th October she said that the Father would regularly say horrible things to him such as ‘you used to be a bad woman’, that the Mother was a whore and that she was sleeping around [A22].d. In a witness statement she gave to the police on 13th July 2021 the Mother says that the Father called her “bitch”, “paltry” and “pervert” on a daily basis [A124];[63]The Father denies this and says that in his culture women are respected and he would never be abusive to the Mother in the way that she alleges. He says that the Mother was frequently abusive to him calling him disabled and ridiculing him.[64]I note that the Father said in his first witness statement “The Applicant was disloyal to me during our relationship. She would speak to other men during the relationship.”. He goes on to describe how he came home from a trip in May 2021 to find the Mother in bed with another man. This is entirely at odds with what the Father said in the texts that he sent in July 2021 and in his evidence about respecting and loving the Mother, save for a video recording of a voicenote with the Father saying “Who is this [NF] swear to [J’s] life he has nothing to do with you” [C71].[65]The Father sent a message to the Mother saying “Don’t dishonour me! I will swear you to your loved ones because I will then close my eyes on everything. I will put a rope around [my] neck while standing up! I am zealous about you! I am possessive and I am not a dishonoured person!” [A183]. This chimes with an allegation that the Mother made to the police that the Father called her on 12th July 2021 and said “if you leave me, I will call all your family in [Country X] and tell them I caught you with another man.” before threatening to suffocate the Mother [A124].[66]None of these things fit with the Father’s assertion that woman are highly respected and that the Mother was the one in the relationship with control. They suggest the opposite: that the Father treated the Mother as inferior to him and was possessive of her, as though she was his property to control.[67]I find that the Father was regularly emotionally abusive to the Mother and that he called her abusive and derogatory names on a daily basis. He was possessive and jealous of her. Mother’s written evidence on this point has been consistent and I was not persuaded by the Father’s evidence that he would not do this because he respects women. It is significant that he said in his witness statement that he felt the Mother was disloyal to him by speaking to other men because this shows that he jealous and it chimes with what the Mother was saying about him seeking to control her. I find that this pattern of emotional abuse was designed to erode the Mother’s self-worth and was part of a wider pattern of coercive and controlling behaviour, which I will address further below.[68]This abuse will have eroded her self-worth and caused her significant emotional harm. It is hard to see how J would have been shielded from these comments but I accept that when the Mother left the relationship in July 2021, J was only 16 months old and would have been too little to understand fully how harmful they were. J will have been harmed however by the Father saying these things to the Mother in an aggressive way and by witnessing the Mother’s distress and upset at being shouted at and belittled by the Father.

Allegation 4: Father shouted at Mother causing J distress

[69]The Mother alleges that the Father shouted at her when she was holding J, that she had been changing his nappy and that J did not have a nappy on. She says that J “was incredibly distraught and very scared of the respondent” and that he urinated when he heard the Father screaming [C28]. She says that she tried to remove J from the situation by taking him to the bedroom but the Father followed her and was shouting outside of the room. During this time J was screaming and crying.[70]The Father denies this allegation and says that the Mother is making it up to prevent me from seeing my son.[71]I am satisfied that this incident took place as the Mother describes. I have already found that the Father was regularly verbally abusive towards the Mother and I find that this included frequently shouting at the Mother in front of J.[72]I don’t place particular significance on J urinating because a baby who is not toilet trained may not always urinate through distress. I do however think it is significant that the Mother says that J was distraught, scared and crying. The Father’s behaviour in shouting at the Mother in front of J and not allowing her to escape the argument when she tried to remove J from the situation will have caused J emotional harm. Whilst J may not have been able to understand what was being said he will have been able to understand that the Father was acting in a way that was scary and that his Mother was upset.

Allegation 5: Sexual Abuse

[73]The Mother said in her first witness statement dated 11th July 2022 that the Father raped her on two occasions in the same way. She says that they were in the living room, that the Father forced her clothes off against her will, held her down and penetrated her vaginally. She says that she became pregnant after the second occasion and was forced to get an abortion. The Mother repeated this allegation word-for-word in her third witness statement save that she changed the dates. There is no mention of the Father forcing the Mother to perform oral sex and whilst the Mother does not say it explicitly, she gives the clear impression that the Father penetrated her vaginally.[74]The Father completely denies that he sexually abused the Mother and says that their sexual relations were entirely consensual. He did not know about any terminations. He says that the Mother is making this false allegation to block him from seeing J. In his oral evidence he told me that he could not have raped the Mother because he was not physically capable of having sex with the Mother, let alone forcing himself upon her. I note that this is not something that he says in his witness statements and the medical evidence he provided does not substantiate that he had difficulties with sexual dysfunction in 2020 or 2021.[75]An allegation of sexual abuse is not made in the Mother’s non-molestation order witness statement. An allegation of sexual abuse is not made to the police the first 5 times they administer the DASH questions to the Mother. The question that the police ask is a very broad question, “Does the perpetrator say or do anything of a sexual nature that makes you feel bad, or that physically hurt you or someone else”. The Mother answered “no” to this on 5 separate occasions. At times she mentioned things such as the Father having sex with her and not using a condom when she thought he had, or making sexual comments, but she never says that he raped her on two occasions.[76]I pause at this moment to note that the Mother’s allegation to the police that the Father had failed to use a condom without her consent does constitute sexual abuse. However this is not something that was raised in either party’s witness statements or oral evidence and it is not appropriate for me to make any findings in relation to it as it would not be fair to the parties.[77]The first time that the Mother makes allegations to the police of sexual abuse is on 7th December 2021. At this point the Mother has reported the Father to the police for harassment and numerous breaches of the non-molestation order. She is frustrated that the police aren’t taking this seriously and that they don’t appreciate that she is at risk of harm. During a phone call with the police officer about the harassment the Mother mentions that the Father raped her by sexually assaulting her in the living room, removing her clothes, telling her that she was still his partner and she will sleep with him and then penetrating her. The mother told the police that he ejaculated inside her and on the second occasion she became pregnant.[78]The police then interview the Mother and she gives a detailed account of the alleged rape. She told the police that the Father made her perform oral sex on him and then he threw her on the floor and penetrated her [A293 and A297].[79]The police got hold of the Mother’s medical records in an attempt to verify the abortion that she says took place in 2021. The police say “I have applied for medical records relating to the termination. No records can be found. A note from the GP which has been uploaded onto niche cannot find any entry relating to a pregnancy or termination from 2021.” [A165]. Records of an abortion in September 2020 do feature in her medical records but the Mother had been clear with the police that the abortion as a result of non-consensual sex took place in 2021. She told me in her oral evidence that the first time she was raped took place in the “winter lockdown”, after she and the Father reconciled. This has to have been after the Domestic Violence Protection Notice expired in late November 2020, so this abortion cannot be the abortion that the Mother is referring to.[80]The Father was interviewed by the police in respect of this allegation. The police took no further action on 3rd November 2022 because they could not find a record of the termination, the Mother had not alleged sexual assault in 5 previous DASH question interviews and there was no digital evidence, no third party evidence, no witnesses, no CCTV and no forensic opportunities [A164].[81]I find that the Father did not sexually abuse the Mother and that the Mother lied about this. It is my view that she lied to the police initially due to her exasperation that they were not taking her case seriously enough and she was afraid that she was going to be harmed or killed by the Father so she made an allegation in the hope that the police would take her case more seriously. Having lied to the police, the Mother was then forced to continue the lie by making the allegations in these proceedings, knowing that this information would come out.[82]The reasons that I find that the Mother was not sexually assaulted are:a. There are significant inconsistencies between the Mother’s account to the police of being orally and vaginally raped by the Father and the Mother’s account in these proceedings of being vaginally raped. She did not provide any explanation for this in her oral evidence, despite being asked.b. The Mother did not mention this abuse to the police when she previously reported the Father for other serious incidents, including in July 2021.c. The medical records do not support the Mother’s allegation of a termination in 2021. Even if this happened through a telephone service due to covid, I would expect there to be an entry on her GP records about the phone call made where she was referred to this service, as well as information in her medical records about this service. This was specifically sought by the police and was not present.d. The Mother did not mention any sexual abuse in her Non-Molestation Order witness statement and told me in oral evidence that she hadn’t told her solicitor about it at the time because she felt uncomfortable doing so. It is much more likely that she didn’t tell her solicitor at the time because it didn’t happen and she had not yet made that allegation to the police in August 2021 when she wrote this statement.[83]I bear in mind that the Father gave unconvincing evidence about his back difficulties during this period, saying that he couldn’t walk or stand. This is at odds with descriptions of him in the police disclosure of having no difficulty standing and it is at odds with the videos that he was sending the Mother of him lifting heavy weights in the gym at July 2021. This has factored into my overall assessment of the Father’s credibility but I do not think there is sufficient evidence for the Mother to substantiate her allegations of sexual abuse.[84]I remind myself of the guidance in R v Lucas that witnesses can lie for many reasons and just because a witness lies about one thing does not mean they are lying about everything. I am satisfied that the Mother lied about there being sexual abuse in her relationship out of desperation that the police were not taking her case seriously. This does not mean that she lied about the other abuse that she suffered during the relationship, particularly when that abuse was contemporaneously reported to the police.

Allegation 6: The Father threatened to remove J to Country X

[85]The Mother alleges that the Father threatened to remove J on a weekly basis, including threats to remove him to Country X.[86]This is denied by the Father who says that he would never go back to Country X as he would be killed. He pointed to his status as a refugee and that he had been granted asylum on the basis that there was a credible threat to his life in Country X. He spoke at length in his oral evidence about the respect that he had for the UK and how he felt it was a much better country than Country X.[87]I am satisfied that the Father regularly verbally abused the Mother for the reasons that I have already outlined, and that this pattern of behaviour was designed to control her. I am also satisfied for similar reasons that the Father made threats to remove J from her care as part of his desire to control her and deter her from leaving him. I suspect the Father did not intend to take J to Country X but I find that he made these threats to make the Mother afraid of leaving him. This was part of a general pattern of coercive and controlling behaviour.[88]It is clear from the text messages that he sent to the Mother after their relationship broke down that he was very upset that she had taken J when she left, and that he felt that the Mother had dishonoured him and damaged his reputation by leaving. This accords with the actions of a man who was saddened that he had lost control and that his reputation in the community was damaged by his wife leaving him.

Coercive and controlling behaviour

[89]I satisfied that the Father’s actions in belittling the Mother and threatening to remove J from the Mother’s care were part of a pattern of coercive and controlling behaviour. Additionally part of the Father’s physical abuse was designed to coerce the Mother to do things that she didn’t want to do, for fear of reprisals.[90]I am also satisfied that during the relationship the Father was jealous and possessive of the Mother. This lead him to behave in a controlling way towards her out of a desire to ensure that she was not cheating on him or dishonouring him by speaking to other men.[91]I do not find that the Mother cheated on the Father in May 2021, as he alleges. This is something he has said in these proceedings to make good his threat that if the Mother made allegations against him then he would tell her family that she cheated on him with another man. Such actions are dishonourable within the Mother’s culture and could lead to a backlash from her community. I think that the Father has lied about this specifically to try to discredit the Mother.[92]The Mother makes additional allegations of controlling behaviour such as not letting her get a job after J was born, controlling what she wore and isolating her from her friends and family. These did not form part of the oral evidence before me and the parties were not cross-examined in respect of it. It would therefore be unfair for the Court to make any findings in respect of this in circumstances where the parties have not had these elements put to them properly.[93]These are my findings. I have directed that a risk assessment of the Father is necessary before the Court can make any determinations about whether the Father can spend time with J. I encourage the Father to reflect on these findings and move quickly in accepting them and taking responsibility for his actions. Only once he has accepted that he was abusive can he begin to show insight and reduce the risk that he poses to J and the Mother. I have encouraged the Father to take steps to enrol on a DAPP course.[94]J will have suffered immense harm as a result of witnessing the Father’s abuse towards the Mother and whether the Father can safely spend time with J needs to be the subject of an expert risk assessment, conducted by an ISW or Cafcass officer.[95]When considering the impact of domestic abuse on children exposed to it I remind myself of the words of Sir Andrew Macfarlane in Re H-N & Others [2021] EWCA Civ 448:[29]As can be seen at paragraph 27 above, central to the modern definitions of domestic abuse is the concept of coercive and/or controlling behaviour. Shortly before the hearing of these appeals, Mr Justice Hayden handed down judgment in F v M [2021] EWFC 4. The judgment followed a two-week fact-finding hearing of domestic abuse allegations centred on coercive and/or controlling behaviour. The arrival of Hayden J’s judgment was timely. All parties commended it to the court for its comprehensive and lucid analysis, and for the plea contained within it urging greater prominence to be given to coercive and controlling behaviour in Family Court proceedings. The parties’ endorsement of the judgment in F v M is, in our view, fully justified. It is helpful to set out one of the central paragraphs from Hayden J’s judgment here:
“4. In November 2017, M [the mother] applied for and was granted a non- molestation order against F [the father]. That order has been renewed and remains effective. The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part. In the Family Court, that expression is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation. There has been very little reported case law in the Family Court considering coercive and controlling behaviour. I have taken the opportunity below, to highlight the insidious reach of this facet of domestic abuse. My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focused training for the relevant professionals.”
[30]Whilst the facts found in F v M may be towards the higher end of the spectrum of coercive or controlling behaviour, their essential character is not, and will be all too familiar to those who have been the victim of this form of domestic abuse, albeit to a lesser degree or for a shorter time. The judgment of Hayden J in F v M (which should be essential reading for the Family judiciary) is of value both because of the illustration that its facts provide of what is meant by coercive and controlling behaviour, but also because of the valuable exercise that the judge has undertaken in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. That guidance is relevant to the evaluation of evidence in the Family Court. Is directed against, or witnessed by, the child;[2]Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;[3]Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;[4]Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.[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 (paragraph 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.”

Order

Domestic Violence and Harm is also relevant which provides key definitions of domestic abuse including coercive control.