JE v TS [2025] EWFC 77 (B)

IMPORTANT NOTICE 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.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.(IN PRIVATE)Case No SA23P00321[2025] EWFC 77 (B)
IN THE FAMILY COURT AT CARDIFF
2 Park Place
Venue CardiffDate 3 January 2025
CF10 1ET
Before
HIS HONOUR JUDGE MUZAFFER
Between
JEApplicantTSRespondent
MR FREDDIE LEWENDON (Counsel) appeared for Applicant (Father)MISS SOPHIE RUDD (Counsel) appeared for Respondent (Mother)
JUDGMENTDigital Transcription by Marten Walsh Cherer Ltd.,2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
[1]This judgment follows a finding of fact hearing that took place in the context of the father, JE’s, application for a child arrangements order in respect of his son, K, who was born in September 2020 and therefore aged four years old. The respondent to the application is K's mother, TS.[2]The background to the proceedings can be stated quite briefly. The parties met in May 2016 and commenced a relationship shortly thereafter. K is the only child of the parties' relationship. They separated in July 2022 after an incident of alleged domestic abuse perpetrated by the father. K then remained in the care of his mother and has not seen his father since that time. The father also has other children from an earlier relationship.[3]The mother reported the father to the police and he was the subject of criminal charges that proceeded to trial before the magistrates' court in February 2023. A common assault charge was withdrawn, seemingly due to an error on the face of the charge sheet, and the father was acquitted after trial of a charge of controlling and coercive behaviour.[4]The father then issued his application to the Family Court some six months later on 11th September 2023. The matter proceeded, via Gatekeeping 2, to a dispute resolution appointment on 12th January 2024. Notwithstanding the fact that the Cafcass Cymru safeguarding letter dated 27th October 2023 highlighted a raft of allegations made by the mother in respect of the father, including physical abuse, emotional abuse and controlling and coercive behaviour and the father's use of drugs and excessive alcohol intake, the lay justices directed that supervised contact ought to take place at a contact centre pending completion of a section 7 report, with Cafcass Cymru to make the necessary referral.[5]As it happens, Cafcass Cymru did not feel able to progress that direction on the basis that it was not the result of a Family Court Adviser's recommendation, and so no contact ever took place. The court was notified that this was Cafcass Cymru's position by way of a section 16A risk assessment dated 4th March, at which point the matter was reallocated to a District Judge. The direction for Cafcass Cymru to complete a section 7 report remained, and that report is dated 19th April 2024. The author of the report, ER, recorded in some detail the nature of the allegations of abuse made by the mother, which now included allegations of sexual assault. Her recommendation was that given the serious nature of the allegations, which were denied by the father, the court should consider the listing of a finding of fact hearing before then directing an addendum report.[6]The parties were directed to file evidence in respect of the allegations at a hearing before a District Judge on 23rd April. Cafcass Cymru was also directed to file an addendum report reappraising the recommendations of the original report once the parties' evidence had been received. This report is dated 4th June 2024, and once again recommended a finding of fact hearing is held as, without certainty, there was conceivably a significant risk to K should any contact progress beyond a supervised basis.[7]A hearing then took place on 15th July, with directions made for further evidence in respect of the mother's allegations and for the parties to confirm their respective positions on whether supervised contact should be directed and how that might progress. The mother remained opposed to contact due to her concerns regarding the father's behaviour and, at a further hearing on 26th September, the court directed a finding of fact hearing should take place in respect of the disputed allegations.[8]The matter was then reallocated to the Circuit Bench, and the matter was then first listed before myself at a pretrial review hearing on 9th October. Although the father had by this point made some partial admissions in terms of his use of language towards the mother and in respect of an incident in which the mother was locked out of the family home, these fell far short of what might have been considered a sound factual basis on which to proceed given the balance of the other allegations. The court therefore considered the schedule of allegations and confirmed that the allegations to be tried were under three broad headings: physical abuse; sexual abuse including rape; and controlling and coercive behaviour. The father, in return, seeks a finding that the mother's allegations are false or have been fabricated in an attempt to frustrate his relationship with K.[9]The matter proceeded to trial on 28th and 29th November. The court heard extensive oral evidence from both parents with closing submissions only being possible on the afternoon of the second day. The court reserved judgment, which was then unavoidably delayed due to my availability, and today was the first opportunity for the court to list the handing down.[10]I record my gratitude to the advocates, Mr Lewendon for the father and Miss Rudd for the mother, for their assistance throughout the trial and in accommodating the hearing today. Legal Framework: General Principles

Legal Framework:

[11]A finding of fact hearing seeks to establish a factual matrix on which the court can base its assessment and analysis of matters pertaining to the child’s welfare. I remind myself that the burden or responsibility of proving a fact is on the party who asserts it. The test is whether I am satisfied that it is more likely than not that the facts are as asserted, what is called the balance of probabilities.[12]The court operates on the basis of a binary system of proof. Disputed facts are either proven on the balance of probabilities and found to have happened, or are not established to that requisite standard and thus are to be treated as not having occurred. Neither the seriousness of the allegation nor the consequences have any impact on the application of the standard of proof: Re B (Children)[2008] UKHL 35.[13]A failure to find a fact proved on the balance of probabilities does not equate, without more, to a finding that the allegation is false: Re M (Children)[2013] EWCA Civ 388.[14]The findings must be evidence-based; that includes facts and inferences that can be properly drawn from them, but not suspicion or speculation: Re (A Child) [2011] EWHC 517 (Fam).[15]All of the evidence must be considered and each piece of it in the context of the rest of it. There is a need to have an overview of the totality of the evidence and for the court to consider the broad canvas of the lives of the people involved:Re T (Abuse: Standard of Proof)[2004] EWCA Civ 558.

Domestic Abuse

[16]The question of how the courts deal with allegations of domestic abuse, including coercive and controlling behaviour, has been the subject of several recent authorities. Poole J summarised the key points in the matter of Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing)[2021] EWHC 1367 (Fam): “[18] This case concerns allegations of domestic abuse, including coercive and controlling behaviour. As such I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010, and the guidance given recently by the Court of Appeal in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA 448 (Civ). In that case at [25] to [27] the Court of Appeal noted that PD 12J remains "fit for the purpose for which it was designed" enabling the courts to recognise domestic abuse and thereafter how to approach such allegations in private law proceedings. In relation to the recognition of domestic abuse in the form of coercive and/or controlling behaviour the Court of Appeal said: "[25] … there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J). [26] PD12J paragraph 3 includes the following definitions each of which it should be noted, refer to a pattern of acts or incidents: "'domestic abuse' includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment; 'coercive behaviour' means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; 'controlling behaviour' means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour." [19] The Court of Appeal set out the harm to children that can be caused by coercive and controlling behaviour: "[31] The circumstances encompassed by the definition of 'domestic abuse' in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see 'Scott Schedules' at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour: i) Is directed against, or witnessed by, the child; ii) 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; iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child; iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men." The Court of Appeal endorsed the judgment of Hayden J in F v M [2021] EWFC 4 in which he referred to 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, and said: "'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." [4]. [20] However, the Court of Appeal emphasised at [32] that: "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." "[25] … there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J). [26] PD12J paragraph 3 includes the following definitions each of which it should be noted, refer to a pattern of acts or incidents: "'domestic abuse' includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment; 'coercive behaviour' means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; 'controlling behaviour' means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour." "[31] The circumstances encompassed by the definition of 'domestic abuse' in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see 'Scott Schedules' at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour: ii) 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; iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child; iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men." "'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." [4]. "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."

Lies

[17]Where it is found that a witness has lied, the court must consider R v Lucas (Ruth) [1981] QB 720 and bear in mind that a witness may lie for any number of reasons. The fact that a witness has lied about one thing does not mean that the witness must necessarily be lying about everything else. A lie should not be taken as of itself direct proof of guilt: Re H-C (Children) [2016] EWCA Civ 136, and a judge must consider the probative weight to be attached to the lies in the context of the totality of the evidence: Re CK (A Child: Fact-Finding)[2022] EWCA Civ 451.

Witness Credibility and Demeanour

[18]The evidence of the parents and carers is of utmost importance. The court should form 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: Re W and another (Non-accidental injury)[2003] FCR 346.[19]There is a need for a balanced approach to the significance of oral evidence. The court must be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important is for the court to assess all the evidence in a manner suited to the case before it, without inappropriately elevating one kind of evidence over another: Re A (A Child) [2020] EWCA Civ 1230.[20]The question of how the court should approach its assessment of demeanour was addressed by Peter Jackson LJ in Re B-M (Children: Findings of Fact)[2021] EWCA Civ 1371: [25] “No judge would consider it proper to reach a conclusion about a witness's credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only 'what happened in the past?' but also 'what may happen in the future?', a witness's demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable. [26] I therefore respectfully agree with what Macur LJ said in Re M (Children) at [12], with emphasis on the word 'solely':
"It is obviously a counsel of perfection but seems to me advisable that 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."

Hearsay Evidence

[21]In family proceedings, evidence given in connection with the welfare of a child is admissible notwithstanding any rule relating to the law of hearsay: Children (Admissibility of Hearsay Evidence) Order 1993.[22]The weight to be attached to a piece of hearsay evidence is a question for the court to decide: Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703). Within this context, a serious unsworn allegation may be accepted by the court provided it is evaluated against testimony on oath: Re H (Change of Care Plan) [1998] 1 FLR 193. It is very important to bear in mind at all times that the Court is required to treat hearsay evidence anxiously and consider carefully the extent to which it can properly be relied upon (see R v. B County Council ex parte P [1991] 1 WLR 221.[23]Finally, I have also had regard to the Family Justice Council draft guidance on covert recordings in family law proceedings concerning children.

Evidence:

[24]In addition to hearing from both parents, I have considered the trial bundle, including their witness statements, medical records and police disclosure. Whilst I take into account everything that I have read and heard, I shall only refer to that which is necessary to explain my decision. I am going to start with the audio recording that I referred to a moment ago. I have listened to an audio recording made by the mother during an argument with the father on 9th May 2022 and I have read the agreed transcript of the same. The mother made the recording covertly on her smart phone. It is 13 minutes in duration and records the father being extremely irate and remonstrating with the mother about a range of issues, including their finances and the state of the house. K can be heard to be present, and he becomes distressed as the argument proceeds.[25]It does not appear to me that there was any argument about the admissibility of this recording at the point that permission to rely on it was granted by the district judge. I am satisfied that the recording has probative value in respect of the issues that the court must determine. There is no question raised about the authenticity of the recording or whether it is the complete version of the recording as made. That said, the father draws my attention to the fact that the recording does not evidence the argument in full. It starts with the father already somewhat agitated, and it is not known whether the argument continued after the recording had ended. The point is also made by the father that the mother accepted in oral evidence having made at least one other recording on the day after the parties separated but has chosen not to disclose that into the proceedings.[26]The mother was asked in cross-examination what she was hoping to achieve by making the recording, it being suggested that at certain points it appeared that she was trying to elicit a certain response from the father; for example, where she asks him "Are you going to get physical with me?" The mother denied this, stating that she had been caught up in the argument and had actually forgotten that she had started to record it. She stated that she had wanted to record the father further to the alleged assault that had taken place a few days earlier, which is Allegation 1C of the Scott Schedule, and that it was the suggestion of her sister that she do this. The mother regarded this as protection and for proof as to what was going on behind closed doors. I also note that when speaking with the police in July, she described having made recordings "Just to remind myself of how bad it can get" for when the argument had blown over and things had started to improve.[27]I accept the mother's evidence that she started the recording to illustrate the behaviour of which she now complains. The recording does this. Contrary to the father's submissions, there is little evidence within the recording of the mother seeking to provoke him into a response. I was left with the impression that the red mist had descended, and he simply continued on the same path he was always destined to, regardless of anything the mother was or was not saying.[28]That said, I do consider that the recording reveals that the mother also lost sight of the welfare implications for K of being exposed to this incident. The mother accepted in evidence that there were opportunities for her to leave the house with K – for example, by going to the garden or the car. I am not suggesting that it is reasonable that she be pushed into such a corner, but it would have at least ensured that K was removed from the situation and the risk of both emotional and physical harm.[29]In respect of the mother having made a recording of the father at the point she returned to the family home to collect her belongings at the end of the relationship, I do not consider that this ought to undermine or interfere with my assessment of the recording of 9th May. I accept the mother's explanation that she had made the recording to offer some protection in the event of conflict, but that nothing untoward happened. This is consistent with her evidence that some days the father would behave appropriately, but some days he would not. As such, I can understand why she might not have considered this relevant to the allegations that she was pursuing in the proceedings, notwithstanding the fact that it plainly would have aided transparency had she identified the existence of this recording in advance of her oral evidence in order to allow the father to take an informed view as to whether he sought its disclosure.

Witness Assessment:

[30]I found the mother to be a notably composed witness who, save for when discussing the question of the abortion in 2018, gave her evidence with little emotion. She maintained an air of calm, even when challenged robustly in cross-examination and never sought to duck a question. Her oral evidence was consistent with the witness statements filed in these proceedings, although there was a degree of inconsistency with the information and the evidence that she provided to the police in July 2022.[31]I shall consider in due course the question of her delayed reporting of certain allegations – most obviously the allegations of rape – but there is nothing in the mother's evidence that suggested she was seeking to mislead the court. She was content to accept difficulties with certain aspects of her case, but responded with measure and a sense of reflection. By the end of her evidence, I was clear in my mind that she would genuinely prefer the father to have a relationship with K if it was safe for him to do so. She appeared saddened and somewhat conflicted about this predicament, which in the context of the allegations she was asking the court to find, only added to her sense of credibility.[32]The father's evidence was a different proposition and not as straightforward to assess. At times he evaded questions or appeared incapable of giving a direct answer. This included at the outset of his evidence when being asked about his historic alcohol and drug use, much of which did not actually prove to be particularly contentious. Unfortunately, it gave the impression that he was very conscious not to concede anything that might conceivably be detrimental to his case. Whilst I accept that this might be explained by nerves and uncertainty at the start of an arduous process, it was a mindset that he maintained throughout his evidence.[33]Coupled to this were frequent occasions where the father sought to attack and shift blame to the mother in a way that reversed the role of victim and offender. Not only did this present the father as being somebody incapable of taking responsibility for his own actions, but I regarded it as a fairly crude act of manipulation. For example, he told me how "looking back, she was always looking to provoke me into arguments"; how he believed the mother would look to create a reaction by not tidying around the house or allowing vinegar to be put on his chips; how the insults he says the mother called him took its toll and explained his behaviour; and to how it was actually him that was worried about what the mother would do next. I also note other examples away from this litigation, for example, in his police interview under caution where he asserted that it was actually the mother who was financially controlling.[34]The most egregious and shameless examples, however, came in response to the allegations of rape. He told me that he believed that the mother was sexually driven, and he believed she could have had multiple partners "somewhere else" on the basis that he had seen a message pop up on her phone about anal sex. In one single outburst, he told me that the mother had tried to get pregnant from a millionaire, had sex with her teacher not long after finishing school, would be the one to "go after it", and was also "the person the court should be talking about". These comments were entirely gratuitous, and I am satisfied had the sole purpose of deflecting attention to the mother and demeaning her in the eyes of the court. To be clear, the father was not successful in this endeavour.[35]Finally, the father has on more than one occasion lied in respect of matters of relevance to the proceedings, including the following. a) He lied to ER about when he had last abused substances at the time she was preparing her first replied. b) He lied in his witness statement to the Family Court when suggesting that his steroid use was confined to his teenage years, and also that he had never threatened to ‘boot’ the mother out of the house. c) He lied on telling the police on 9th May that there had been no argument. d) He lied to the judge presiding over the hearing on 26th September 2024 that he had last used diazepam a year ago, as recorded on the face of the order that followed that hearing. e) He lied to the police in July 2022 when suggesting that the May holiday had been relaxing and that no argument had taken place which referenced the mother putting food in the bin.[36]These are all examples that the father accepted, although largely because the evidence before the court gave him little choice but to do so. Having had the benefit of seeing and hearing the father give evidence and having regard to all of the evidence before the court, there is significant weight to Miss Rudd's submissions that the father is at ease with lying to a range of professionals and to the court, both directly in terms of what he has said to a judge, but also in statements that he has put forward and verified by a statement of truth.[37]A witness may lie for any number of reasons, but I am satisfied that the lies that I have just identified were all told by the father with the same rationale in mind; namely, to avoid taking responsibility for his actions, whether in the context of potentially getting into trouble with the police or in terms of drug use being adverse to his case in the Family Court. Of course, these lies do not mean that he has lied in response to any of the allegations to be tried, but it would be impossible for the court to describe the father as a witness of truth.

Analysis:

[38]I have decided to consider the allegations of controlling and coercive behaviour before the specifically pleaded allegations of physical and sexual abuse. This will allow an assessment and a better understanding of the wider context of the parents' relationship into which then those allegations might be placed.

Allegation that the father was controlling during the relationship and financially abusive

[39]The mother puts forward 12 individual allegations under this broad heading to demonstrate what she says was a pattern of acts designed to make her subordinate and regulate her behaviour. I do not consider it helpful or necessary to assess each of these allegations in turn. The court must consider the impact of the alleged behaviour cumulatively, and approaching individual allegations in isolation runs the risk of the court losing sight of the wider context and whether there has been a course of conduct that might be described as controlling or coercive.[40]The father makes some limited concessions about his conduct towards the mother. For example, he accepts having called the mother derogatory names during arguments, including telling her that she was lazy, a cunt and fat, albeit he insists that the mother would also name-call towards him, such as calling him a dickhead, gay and a prick. Similarly, the father accepts that he would make belittling remarks about the mother's family, but again states that the mother would do the same when it came to his. The father repeatedly justified his own behaviour on the basis that in arguments "things are said".[41]On balance, I prefer the mother's evidence that the derogatory remarks were not confined to arguments and that the father would frequently criticise and demean her, particularly with regards to her weight and appearance. This included, for example, comments about the mother's weight in the aftermath of having given birth. I also accept the mother's evidence that this played heavily on her mind and had a significant impact on her emotional wellbeing.[42]The other aspect of this broad allegation conceded by the father is an occasion in July 2021 when he locked the mother and K outside the house. The father's concession is on the basis that this was for 30 minutes only as opposed to the three hours asserted by the mother, and that he did not deny the mother access to milk, nappies or toys. He also states that this incident commenced when the mother "lost her temper quite badly and threw K", who was then aged around ten months old, from her arms and onto a sofa. This aspect of the allegation is denied by the mother, and I accept her evidence in this regard. First, it is difficult to see how the mother could have behaved in such an extreme way and not left K with any injuries given his young age; and, second, it is inconceivable that, had the mother acted like this, the father would then respond in the way that he says he did – namely, giving K back to his mother and then locking them out of the house.[43]Indeed, the father was unable to offer any cogent explanation whatsoever as to why he proceeded to lock the mother out, given that she had left of her own volition and taken K to the summerhouse. He does not suggest that he was feeling threatened or in need of respite and, in his words to me in oral evidence, "She went crying as she had caused it". I considered that his lack of concern for K in this incident is indicative of somebody capable of becoming consumed by anger that comes with an argument. The only possible reason for the father acting out as he did was a desire for control, and that desire for control was borne out of a desire to hurt the mother with the welfare of K collateral damage. In the circumstances, I do not consider it at all relevant whether the father let the mother back in after 30 minutes or three hours (I suspect it might have been somewhere between the two) and consider that this highlights a real lack of insight on the part of the father as to what the real issue is here. Even now, he is unable to articulate any regret or insight.[44]I accept the mother's evidence that she had approached the house to try and regain entry whilst the father acted up inside. The father's suggestion that the mother made no effort to regain entry until he went to her in the summer house makes little sense. How would she have even known that she locked out if she had not tried to regain entry?[45]I note that this is not the only occasion in which it is alleged that the father had used access to the house as a means of control or coercion. The mother states that the father would often threaten to "boot me out of the house". At paragraph 14 of his witness statement dated 20th October 2023 the father's response is unequivocal:
"This is a lie again"
. However, when confronted with the audio recording made by the mother during the argument of 9th May 2022 in which he repeatedly states that she will be gone because he would boot her out, the father ultimately conceded that there had been at least one incident of this, albeit plainly he had little choice to do so.[46]In his final evidence, the father also accepted another occasion in July 2022, right at the end of the relationship, where he told the mother "It's not your house". Whether the language used is the same or not, the message is plain and, including the July 2021 incident, is consistent that it is the father who controls access to the house with the mother's presence there being contingent on his say-so. If this is not an attempt to control and coerce by threat, I am not sure what is.[47]More generally, the evidence suggests that there was considerable tension between the parents and within the household from K's birth to the point of their separation. During her cross-examination of the father and in closing submissions, Miss Rudd developed a case that there were two core stresses to the relationship: the parties' finances and the mother's approach to housework and chores. The father accepted this as broadly accurate, and I note that much of his first statement to the court dated 30th May 2024 is devoted to these themes.[48]In respect of finances, it is clear that the father considered the mother to be a loose cannon when it came to spending the household income. He refers to the mother being a bankrupt, although she was actually subject to a debt relief order, yet still overspending and getting into debt. In his statement dated 21st October, he accepted he would become frustrated after bailing her out financially; that "She would take us to the brink of not being able to cope again". It is an agreed fact that the parties' joint spending account was a first direct current account in the father's sole name. The father states that this was because the mother had been refused on her own application, but that, in any event, she still had access to the account by use of Apple Pay, even if she did not have a card in her own name.[49]The mother disputed ever applying to join the bank account, thinking that the father had this in his sole name already. She described how the father would decide what out of her salary would be paid into the spending account and what then she could spend the money on. She described how the father would receive a notification when she spent on the account and how on one occasion a purchase of Calpol pushed the account into its overdraft, following which the father hit the roof. The mother stated that she was never really aware of what money was in the account as the father did not tell her and she did not have access to his online banking.[50]On any reading, the reality is that the spending money was in the control of the father. It was held in an account to which only he had full and unrestricted access. Whilst the mother's debt relief order may have reduced her ability to obtain a new joint bank account, it is a stretch to consider that this was the only or best option.[51]It is also quite clear that money was the cause of real anger on the part of the father, as evidenced in the argument recorded on 9th May. The father's perception was that he carried "the financial weight on his shoulders", notwithstanding the fact that the mother also contributed a part-time income into the pot alongside being primary carer for K. I have little doubt that the father used this perceived imbalance to attack the mother and to seek to exert influence over her actions, including what she spent the money on. The father's desire to highlight what he contributed, such as the deposit on the house, the car and insurance, emphasises the leverage that he thought he deserved.[52]I found the mother's account on this detailed and believable, and I am also satisfied that it extended to the mother being required to explain things such as the use of petrol in their car. I am satisfied that the father's intensity with regard to the question of finances went beyond any notion of sensible budgeting and had a substantial adverse effect on the mother's ability to use her own money and, as such, a finding of economic abuse is made out.[53]Moving away from finances to the second stressor, the father's grievances surrounding the mother pulling her weight with chores in the family home, that is something that is easily identifiable across both his written and oral evidence. In his statement dated 30th May, the father accepts occasions where he has "vocalised his feelings" in this regard but denies doing so in an explosive or aggressive manner. He describes he and the mother having different standards of what was acceptable and frustration about the mother not clearing away mess or mugs or dishes or laundry. He states how "The fact of the matter was that TS was actually quite lazy".[54]Reading this statement, it is difficult to arrive at any other conclusion other than that the father held very little respect for the mother, far less any reasoned understanding of what it takes to maintain a home whilst also working and caring for a very young child. The father's oral evidence continued in a similar vein. He said "The amount that I had to do versus how little she would do was the problem. I felt she should be doing more than she was." He went on to say "I felt that she was lazy, and I did tell her she was lazy. There were derogatory comments made that should not have been made. I don't recall saying the house was a pigsty, but the house looked like shit." The father continued, "I feel like she was choosing not to do them on purpose" (i.e. the chores). "She had the child, but I was using my time wisely, and I think at one point she stopped doing chores on purpose to provoke an argument to make me seem like the bad person." The father was unable to explain why the mother would have been inclined to do this.[55]I accept the mother's evidence that the father held extremely unreasonable and inflexible expectations of her ability to complete chores whilst also caring for K. This might be said to be just a sign of an incompatible couple with different priorities and tolerances. The problem here though is that this would cause the father extreme and disproportionate frustration and anger. An example of this can be heard within the recording of 9th May. The father is plainly very agitated and embarks on nothing short of a tirade against the mother. His behaviour is absolutely abusive and represents a complete loss of control. I do not propose to rehearse the recording at length, which really needs to be listened to, but simply read into the judgment the following which was shouted at the mother by the father as an indicator for the level of content, tone and aggression. He said, almost screaming:
"You were going to do the garden as a project, which you haven't done. No; but you haven't even tried. You haven't chipped in one little thing, not even weed the front garden, TS. You need to pull your finger out of your arse. You can't expect me to do all the working."
[56]I simply note that the father then goes on to tell the mother that she ought to have sorted the garden whilst K – then aged 18 months old – was out and running around. This again perhaps highlight how poorly the father understood the responsibilities that the mother had at this time and how difficult such an activity with a young child might be.[57]A sense of the quiet fear of treading on eggshells that the mother had to endure also exists within text messages that she exchanged with the father whilst she was pregnant with K. I note the one exhibited at page D55 of the bundle in which the mother writes:
"Thank you for not having a go at me falling asleep earlier and thanks for just letting me sleep. I'm exhausted on top of normal pregolife. I'll make something better for dinner tomorrow to make up for the bacon and egg sandwich tonight."
The father's response is "It's fine. I'm calmer when other stuff is getting done."[58]I accept this as good evidence of, firstly, the mindset the mother was left with: namely, thanking the father for not shouting at her; secondly, the effect that this had on the mother – namely, a sense that she needed to do better; and, thirdly, the father's own acknowledgment of not being calm if he does not consider that things are getting done.[59]In respect of the father's general behaviour and the mother's assertion that he would routinely explode and shout for no reason, I note the father's case at paragraph 6 of his statement dated 30th May that:
"I categorically deny ever having screamed at TS"
. In oral evidence, the father continued to suggest that the recording of the incident of 9th May evidenced shouting rather than screaming. The father's refusal to acknowledge the obvious – namely, that he most certainly did scream at points of that exchange – did his credibility no favours; nor did his assertion that he was simply responding to being provoked and that the mother was being clever in that regard. The father obviously fails to understand that only one person is responsible for his behaviour; namely, him.[60]The father also sought to put forward an explanation for him kicking items around the house, as heard clearly within that recording. His response once more showed a complete lack of remorse, insight and understanding of the harm that K was being exposed to. "Things had been left in the utility room for months and months. I had asked for help with the house. She wouldn't keep helping. Stuff was cluttered everywhere. Toys going into the utility room. Yes, you can hear me kicking things in the utility room. She had agreed to take stuff to the summer house and get it out. I felt it necessary to show her the mess she had not tidied up. It had been sat there for months, and I was still renovating and working 50 hours a week." Even now, the father seeks to justify his behaviours because of a failing of the mother to act.[61]For the avoidance of doubt, I reject the father's contention that he was nothing more than boisterous or loud during arguments or that he would tend to bicker rather than argue. I prefer the mother's evidence that the father would fly off the handle at things as insignificant as a cluttered utility room, or indeed, as is also alleged by the mother and supported by way of the contemporaneous text messages at D59, the noise caused by the mashing of potato. I accept that when the father did lose control, this could lead to screaming and actions such as kicking things around. I also accept the mother's evidence that these outbursts would take place regardless of whether K was also present and would leave her fearful for both his and her own safety.[62]Ultimately, I do find that the father exhibited a pattern of coercive and/or controlling behaviour towards the mother during the relationship, escalating in intensity towards its end. The course of conduct included name calling and verbal abuse, threats regarding access to the home, financial control and bouts of volatility and aggression if the mother did not do as the father desired her to do in and around the house. I am satisfied that these behaviours were intended to punish or frighten the mother and make her subordinate. I accept that she was left both emotionally and psychologically harmed because of the father's actions and that, although very young, K was also a witness to this behaviour.[63]I consider it necessary to consider one further aspect of the father's behaviour under this heading. Within the section 7 report dated 19th April it is recorded that the father had contemplated whether there was a possibility that K might not be his biological child and, as such, had considered requesting that a paternity test be completed. The father stated he had considered this might be an explanation for the mother's efforts not to promote contact. The father then quickly resiled from this position after the report had been produced, with it being recorded within the addendum section 7 report that the father now accepted paternity and never really doubted it after all.[64]That said, the father again sought to justify his position on this in his oral evidence, stating that the arguments towards the end of the relationship "gave me massive doubts whether K was mine. Maybe he wasn't mine and maybe she was trying to protect me from finding out. I really didn't know whether he was my son." If this is the case and bearing in mind that no paternity testing has ever taken place, it is difficult to see what had caused the father's shift of position back to accepting that he is K's father. The mother has always been clear on paternity and said the father's belief that K might not be his because the mother was seeking to frustrate contact is plainly illogical, given that it would be a very straightforward way for her to have him excluded from K's life.[65]On the basis that the father waited some seven months into the proceedings before raising the question of paternity, it strikes me that the father never seriously considered it an issue. I find it more likely than not that the father raised it to embarrass and hurt the mother, knowing full well that it created an inference as to her sexual promiscuity. As I have already referenced, this was a theme to which the father returned in his oral evidence when responding to the allegation of rape. For now, I am satisfied that it ought to be considered as an attempt to control and/or coerce the mother as part of the ongoing litigation. I am also satisfied that it had the desired effect and accept the mother's evidence that she was both shocked and upset on receiving the first section 7 report.[66]Finally, there is one specific part of the mother's allegation that I have not yet addressed; namely, the suggestion that the father coerced her into having an abortion against her wishes in the summer of 2018. I have considered both the written and oral evidence on this carefully and note the mother's particularly emotional reaction when speaking on this subject. I found the question of choice versus control a difficult question to assess so long after the event in the absence of any contemporaneous records. It is also an allegation that falls quite separately in time to the other examples of controlling and coercive behaviour that the mother had identified, making it arguably distinct from the course of conduct that I have identified. What is clear is that the mother has been left deeply upset and with considerable regret at the decision to abort her first pregnancy, and there is now a risk of valid decisions taken at the time being reviewed and re-evaluated on account of that distress and regret.[67]The father's stance that he would not live with her if she continued with the pregnancy may have been a powerful consideration in the choice that she ended up taking, though it is not the same as saying that she was forced into an outcome. Ultimately, I am not persuaded to make the finding that the mother seeks in respect of this particular aspect of the allegation; nor am I persuaded that it is even necessary for me to do so, given the other patterns of behaviour that I have found proved.

Allegation of physical abuse

[68]I will take the allegations of physical abuse in the order that they appear on the schedule, notwithstanding the fact that they are slightly out of time in terms of chronology.[69]The first allegation is that the father threw a bottle of beer at the mother, which smashed when it hit her arm. The father than pushed the mother to some outside decking and forced her to sit down. The mother's account is set out at paragraph 5 of her statement dated 7th May 2024 and her oral evidence was largely consistent with the same. When it was put to her how the bottle smashed against her arm without causing injury, the mother refined her account to state that she could not remember whether it smashed at the exact point that it hit her arm or whether it hit the ground. Regardless, she was clear that it smashed having been thrown at her from approximately 1.5 metres away. The mother also described with considerable clarity precisely where she was standing in the garden at the time and where the father stood in relation to her. The mother explained that she did not report the incident to the police, friends or family members. Her rationale for this was that she did not feel ready to let people know what was going on; that K was very young, and she wanted to make things work with the father.[70]In his witness statement dated 20th October, the father stated he had never thrown a beer bottle at the mother, but little else. In his oral evidence the father stated that he did remember the evening in question, including the bonfire and his attempts to teach one of his other children how to use an axe. The father also accepted that he had been drinking that night, although he did not remember how much. He accepted, however, that his standard then might have been six cans of beer, half a bottle of wine and "maybe a little bit more".[71]The question of the father's alcohol intake and, to a lesser extent, his drug intake was the subject of some focus during the hearing. The father told the court that he has a long standing substance misuse problem, having been introduced to alcohol at the age of 11. He was taken to, and accepted, references in his medical records regarding the extent of his alcohol use, including one dated 4th November 2021 in which he volunteered drinking half a bottle of whisky every day. The father accepted that he would frequently pass out given the amount of drink consumed, and for a time it was a regular occurrence not to have memory of the night before where he would reach a "black-out stage". The father acknowledged that alcohol was an issue in the relationship, but that he and the mother rarely spoke about it. Whilst the father now insists that he has taken steps to address his alcohol intake, he does not suggest that he did so prior to the end of the relationship with the mother.[72]When cross-examined on this particular allegation, the father spoke of his general frustration at the mother telling off his other children, something that the mother suggests she did when the children were swinging the axe. The father also voiced his belief that the mother was trying to split the children; i.e. separating K from his other children and that this was what lay behind her decision to take K to bed. It is with this in mind that I consider it likely that the father would have been irritated with the mother on the evening in question, and, whilst heavily intoxicated, threw a beer bottle at the mother and pushed her as the mother describes.[73]The mother provided a broadly consistent and extremely detailed account that had the clear sense of being a lived experience. She was believable, whilst the ability of the father to provide a credible account is compromised by the extent of the alcohol that he himself accepts it likely that he had consumed that evening. I do not place any weight on the fact that the mother did not report this incident to anybody at the time. I accept the mother's evidence that she was not ready to share it and that her focus was on maintaining a happy family for K whilst the father promised to change, as evidenced by his regular attendances at the GP around this time. Whilst the mother was criticised for not reporting this incident to the police when speaking to them in July 2022, I note that she did refer within her section 9 statement to the father throwing things at her, and so the basic allegation existed long before the Family Court proceedings.[74]The mother’s second allegation of physical abuse is dated March 2021. On this occasion the mother alleges that the father threw a full baby bottle at her while she was holding K during an argument regarding the state of the house. The allegation is denied by the father. In her oral evidence, the mother denied that her statement was vague and repeated her rationale for not reporting it to others at the time. I agree that the mother's account of the allegation as within her statement is limited, but she does not suggest it was a particularly complicated or involved account.[75]I accept the mother's evidence as to what happened on this occasion. Her account, albeit limited, is measured and without embellishment. It sits within the context of not only the father's tendency to argue and lose his temper about home conditions, but the other available evidence that the father's life was in a period of crisis around this time.[76]I note the detail of the consultation the father had with his GP in the same month as the mother states this incident took place at page C17 in the bundle, which records the father as having stress with a new job, house and baby. The father reported feeling overwhelmed and drinking heavily twice per week to try and deal with his emotions. I note that the father was signposted to cognitive behavioural therapy to assist him, but he did not follow this through. In addition, whilst the father was prescribed medication, he accepted in evidence that he did not consider that this worked and so was relying on Valium purchased online instead. In all of the circumstances, I find this allegation proved on the balance of probabilities.[77]The third allegation of physical abuse is recorded as follows: that the father physically grabbed the mother by her arms and slammed her into the wall of the caravan and then shouted at her face in May 2022. This is an incident taking place during a weekend that the family had away in Town X. The mother's account is set out at paragraph 4 of her statement dated 7th May, and is supported by text messages at page D38. The messages at page D38 are between the father and the mother and incorporate the mother's assertion that the father did not want to go on the trip; for example, where it is stated that "As for Town X, stick it right up your fucking arse. You're a prick." The messages at pages D39 – D41 are between the mother and her sister and detail the mother bemoaning the father's behaviour, including her being spoken to poorly, being ignored and being shouted at.[78]In his oral evidence, the father accepted that he had not wanted to go on the holiday, and he was upset that they were spending money that they did not have. He described how the mother had allowed for vinegar to be put on his chips from a fish and chip shop, something that he felt had been done deliberately to annoy him. He was also frustrated that they had travelled to Town X in her car and not his and that "she had turned the music down in the car on purpose".[79]In respect of the final night of the trip, he accepted that they had argued on account of her putting a full plate of food that he had cooked in the bin, something I note he denied when interviewed by the police, stating that "that definitely didn't happen" and that it was "100% a lie". Whilst he considered the food in the bin to be a disgusting act, he was insistent that he did not push the mother or act in any way physically towards her.[80]It is noted that the argument recorded by the mother on her phone took place a matter of days after this alleged incident on 9th May and that this was what ultimately led to a police call out initiated by the mother. The log for this call out is at page F106 of the bundle in the police disclosure section. Within it, the mother is recorded as having told the police that there had never been any violence in the relationship. When challenged on this in cross-examination, the mother accepted that she had lied to the police, but wanted in some way to record her concern that matters were escalating. She described how she was worried that, had she said what had gone on, there would be no going back – no chance for the father to change his behaviour – and that K would not have two parents.[81]Whilst I obviously weigh this apparent inconsistency in the balance, it must be viewed in the context that neither party had seemingly been ready to end the relationship at this time. I accept the mother's evidence that she still held out some hope that things would get better. Ultimately, I prefer the mother's evidence that the father lost his temper on this occasion following tensions simmering over several days. The allegation is measured and sits within the context of the father accepting that he did not want to go on the holiday; that he had been annoyed by vinegar being put on his chips; and had been annoyed by the mother placing a plate of food that he had cooked in the bin. I consider it likely that the father will have been unable to control his temper once the mother had done this, and I accept the mother's account that he shouted and screamed in much the same way as he did, as recorded by the mother a matter of days later.[82]I also note that the mother's account to the Family Court is broadly consistent with the account that provided to the police two years earlier in July 2022, albeit I note that there she describes being pushed and stumbling back into the wall of the caravan, as opposed to the wording used here. That inconsistency was not actually put, to my recollection, to the mother in cross-examination, but, in any event, I do not consider it to be particularly material. The mother does not suggest that she suffered any injuries in this incident, but seeks to emphasise the point that this was the first time the father had been physically aggressive in this particular way towards her. Meanwhile, the father's account to the police in an interview that the holiday was "a very relaxing time" was plainly incorrect and misleading, even on what he himself accepts to be the case.

Allegation of sexual abuse and rape

[83]I am going to deal with this allegation in two parts: firstly, considering the evidence before the court, before then moving to consider by way of discussion what the evidence tells me.

The evidence

[84]The mother particularises two allegations of rape: the first in December 2021; and a second in June 2022. However, it is pertinent to note that it is the mother's evidence that the father actually raped her on multiple occasions in this window of time, and in both her written and oral evidence she suggested that this took place once a month or more, although it was also interspersed with occasional consensual intercourse. The mother described the December and June incidents as stand-out events.[85]The detail of these incidents is set across two separate witness statements. In respect of the December 2021 allegation, the mother describes an incident that commenced in the kitchen and concluded in the living room. The mother states that the father choked her with a hand to her neck during the assault. The mother provides a vivid description of what she says happened before, during and after the rape, and says she made it clear that she wanted the father to stop and that he proceeded without her consent.[86]The mother's account of the June 2022 incident is equally clear, with specific detail being provided [redacted]. The mother's evidence is that she again made it clear that she wanted him to stop and that any sex was non-consensual. The mother states that the father had been drinking and was intoxicated during both incidents. It is the mother's evidence that she challenged the father the morning after the December 2021 incident, but that he did not seem to remember what had happened, or even having sex at all.[87]The father has always and continues to vehemently deny any allegations of sexual misconduct and invites the court to find that these have been fabricated to obstruct his relationship with K. His evidence was clear. If the mother ever said no to sex, he would accept this, and sex would not take place or continue. That said, the father accepted that, given his drinking at the time, he would at times have little memory of the night before and with complete black-outs of the last hours of an evening.[88]The father seeks to draw the court's attention to two core issues: first, the way the mother has raised these allegations, including to who and when; and, second, the mother's behaviour in the relationship being inconsistent with her being the subject of multiple rapes.[89]A third point that the father puts forward is that he suffers from erectile dysfunction, even more so when intoxicated, meaning that almost all sex took place in the morning or the afternoon. I shall deal with this issue first before returning to the core issues. Within his witness statement the father states that the mother was aware of the erectile dysfunction issue and that he now received medication to address the problem. He stated that the reason for seeking out medication now was to ensure that he could have a sexual relationship with his new partner. He suggested that he had self-medicated whilst with the mother by purchasing Viagra online.[90]In support of his case, the father puts forward evidence within his medical records of a telephone consultation with his GP on 23rd April 2024. The note reads as follows:
"ED [i.e. erectile dysfunction] in the past. Tried Viagra which worked well. Stress. Problems with getting and maintaining for years. Happened with ex-partner and now in new relationship."
The note then goes on to describe the medication that the father was prescribed.[91]When asked why he had not sought treatment before April 2024 when the father had been in regular contact with his GP regarding anxiety and depression, the father stated that it was "not easy to talk about". The father denied that it was a coincidence that he approached the GP about this issue on 23rd April 2024 just days after ER’s section 7 report dated 19th April which made known seemingly for the first time that the mother had made a complaint about his sexual conduct towards her, albeit not one identified necessarily as rape.[92]It was also noted that the day of the appointment, 23rd April, was also the date of a hearing within these proceedings. This hearing predated the mother filing witness evidence setting out her allegations, but it is plain that the questions of sexual assault and rape were discussed during that hearing with there being a recital on the face of the order of 23rd April in the following terms:
"Upon the court recording that whilst the mother is making sexual assault allegations against the father, they do not, on the face of it, seem to be relating to rape. Reallocation can be considered if necessary once the mother's evidence is received."
[93]The father was unable to say whether his GP appointment took place before or after this hearing, but it seems likely that it took place after. The hearing was listed at 10.00 am, and the father accepted that he would have been required to be present at court for 9.00 am for a conference with his legal representatives. The father would have been travelling from Town O before this, making an even earlier appointment with his GP improbable.[94]The mother disputes that the father ever had any difficulties with having sex, even when intoxicated. She was adamant that any assertion he had erectile dysfunction was untrue. I note that, on the father's own case, he says that he and the mother had an active sex life for a period and that he was "not saying that it was impossible to perform" whilst in drink, but that, "he was just not very good", and so his preference was for sex the next morning or afternoon.[95]Whilst I cannot say that there were not times when the father was intoxicated and unable to maintain an erection for intercourse, on balance I prefer the mother's evidence that this was not a significant or routine obstruction as the father now seeks to make out. I do not accept the father's assertion that it is pure coincidence that the first time he sought help for the problem was not within the relationship with the mother or in the nine months that followed, but within days of receiving ER's report and on the very same day as a court hearing at which the prospect of an allegation of rape was at least raised.[96]The father's GP summary reveals regular attendances for appointments with his GP in the months preceding April when sensitive issues, including his abuse of alcohol, depression and anxiety were all discussed. I consider it more likely than not that the reason this went from being something that was "not easy to talk about" to something that he sought treatment for at this precise moment was a direct response to the developments in the litigation. Although the precise details of the mother's allegations remained unknown, I am satisfied that this was a calculated attempt by the father to pre-empt the mother's evidence and to generate something that he could rely on himself.[97]That said, I do not go as far as to find, as Miss Rudd invited me to, that the father can only have acted in this way because he knew allegations that were substantially true were on the horizon. If the court is to treat the father's reports to the GP as effectively a lie, then it would be impermissible to hold it as direct proof of guilt absent further consideration of the totality of the evidence before the court.[98]Turning back then to what I described as the core aspects of the father's response to the mother's allegations, and first considering the way in which the mother raised the allegations, the mother does not suggest that she made any form of contemporaneous report, whether to friends, family or potentially a GP or health visitor. The allegations were not made to the police when they attended at the family home on 9th May, or when the police attended to obtain a first account of her complaint of physical assault and controlling and coercive behaviour on 18th July 2022.[99]The transcript of that particular account reveals that the mother was asked directly about her sexual relationship with the father, with the exchange recorded as follows. The police officer states as follows: Full quotation redacted: gist – the mother describes the father pressuring her into sex by making her feel bad and being in pain during sex due to a medical condition.[100]The discussion then moved on, but returned to the question of sex once more. The police officer states as follows:
"Okay, going back to the question of a sexual nature where you mentioned about him pressuring you to have sex, are you saying that this was consensual sex or did you not consent to that?"
The mother responded:
"I did to begin with but, as going on, so I've never expressed I didn't want it not to continue. Like I would say he –– Like he would stop sometimes and say, 'Are you okay', and I would just lie and say 'Yeah, I'm fine'."
[101]The mother was then directly asked "Would you say he raped you", and the mother's response was "No. Err, no; he's quite quick so I would just kind of think 'It's not going to be long'."[102]I also note that within this exchange the mother was asked whether the father had attempted to strangle, suffocate or choke her, which was also a question to which the mother gave a clear response of "No".[103]Following on from this, the mother provided the police with a section 9 statement two days later on 20th July 2022. Whilst the mother does not assert an allegation of rape, she does state as follows (and it is necessary for me to quote somewhat extensively in respect of this): Full quotation redacted: gist – the mother describes being pressured into having sex with the father and that the father would not take into account how painful it was for her. She describes crying after the event. I should note that the condition that the mother refers to is documented within her medical notes, dyspareunia, and I note that the father accepts this to have been an issue after the birth of K.[104]In terms of the development of the mother's allegations from this point on and within the proceedings, I note that the mother made no allegation of sexual abuse, or certainly one is not recorded within her safeguarding interview with Cafcass Cymru on 9th September 2023, although she did raise the physical assault and the controlling and coercive behaviour and cited these as reasons why she opposed contact taking place. It does not appear that the allegations of a sexual nature were made at the hearing on 12th January 2024, with the next hearing being delayed until after the receipt of ER's section 7 report dated 19th April. Within her report, ER reports that one of the allegations made by the mother included that the father "sexually assaulted her on multiple occasions when they lived together". No further detail was provided, and, as I have already noted with reference to the recital on the face of the order at that hearing on 23rd April, it does not appear, even then, that a clear unambiguous allegation of rape was being made.[105]It was only within the mother's statement dated 7th May 2024 that a clear particularised allegation was made. The father's case, in simple terms, is that, had the mother considered that he had raped her, she had ample opportunity to make such an allegation in advance of when she did, most obviously to the police in their dealings with her in July 2022. Moreover, not only did the mother not make any form of allegation at this time, but she actively responded in the negative when asked directly whether any sex had been non-consensual.[106]The father also makes the point that it would have been open to the mother to make the allegation at the outset of these proceedings when setting out the other allegations that she states constituted a bar to contact taking place and that the timing of the allegation has to be looked at in the context of the court looking to progress contact in accordance with the supervised contact order dated 12th January; albeit, as I have already noted, the reason for that not progressing is seemingly the decision of Cafcass rather than any decision on the part of the mother.[107]In the mother's second witness statement, she states that she was "still mentally under the coercive control" of JE and the realities of what was normal and what was not when she first spoke to the police in July 2022. She states that she did not know how to respond when asked if there was any sexual abuse as she still loved the father and wanted to protect him and not make matters worse for him or herself. She went on to state, "I tried my hardest to forget about the times I didn't want to have sex and only through my Own My Life course and time away from being in a relationship did I realise that I was raped; that being worn down to give into sex was not consent. I had no choice. I was made to feel like if I didn't just lay there, then I would be punished. Telling him 'No' and to stop fell on deaf ears and I was going to be raped if I liked it or not."[108]The Own My Life course is a course for victims of domestic abuse organised by Rise, Cardiff Women's Aid. It appears that the mother completed this course between September and December 2023. In a letter dated 27th September 2024 and exhibited to the mother's second statement as Exhibit EN6, the group facilitator sets out the following:
"TS has asked that I highlight a particular session within the Own My Life programme. In session 10 of the course we discussed sexual control and sexual abuse. The course material helps women to explore the nature of sexual violence and the ways in which it is used by a perpetrator. It also provides a list of definitions relating to sexual violence. In TS’s own words to me, 'It certainly hit me hard, and it was in that room that my eyes were really opened to what had happened to me. It was only after this lesson did I really come to realise that it was in fact rape, which is something I have had to come to terms with and still am.'"
[109]This sentiment and reasoning was also expressed by the mother to ER during the production of her second report in June 2024. In her oral evidence to the court, the mother stated that she did not report the alleged abuse to friends and family as it was not something that she wanted to talk about. She described how her mentality and thinking was different and that she did not consider what happened to her was rape. She volunteered that hers and the father's sex life was "not vanilla" and that they might have had sex like she described in normal circumstances, but that here she told him that she did not want to; that it was causing her pain; but he did not care.[110]The mother accepted that she had told the police that sex had been consensual, but considered that this was what went on as a couple and that the Women's Aid course helped her understand the reality. She accepted that the father would occasionally ask her if she was okay and that she was trying to protect him. She pointed out that her statement to the police came within days of their separation and that she did not want to make things worse for him, and did not even know if she wanted to press charges in respect of the other matters.[111]In relation to the proceedings, the mother stated that she had not mentioned it as part of the initial safeguarding enquiries as she did not think it was necessary to bring it up. She believed that everything that she had already raised would be enough to protect K and that it was not something that she wanted to deal with. She stated that she wished that it was not true, but that it was.[112]In response to the assertion that she was trying to frustrate contact, she stated as follows:
"I would want the father and K to have a meaningful fabulous relationship, but it has to be safe, and I have to protect K. He" (as in the father) "isn't safe and won't protect K. He will be in harm's way."
[113]The second core aspect of the father's case in response to the mother's allegations focuses on the mother's behaviour during the relationship and in its aftermath, being inconsistent with her being the subject of multiple rapes.[114]Starting with the relationship itself, the father relied on cards given to him by the mother during the relationship to "highlight how sexually driven TS was, even when pregnant with K". These cards, dated circa 2019 to April 2020, contain some sexually explicit language and inuendo, and, in the father's words, show "the real TS". In his oral evidence the father stated that his purpose for including these cards within his evidence was to show that the mother "really did enjoy sex". However, as the mother herself said in evidence, these cards were sent prior to K's birth at a time when both parents agreed they were happier and maintained an active sex life.[115]In cross-examination, the father refuted the suggestion that he was trying to equate having a high sex drive with an improbability of sex being non-consensual, but I do query the purpose of putting this evidence before the court if it were not in some way an attempt to undermine the mother's credibility with reference to her past sexual history. For the avoidance of doubt, I do not consider that the cards sent in 2019 or 2020 have any relevance whatsoever to the allegation that the mother was raped in 2021 or 2022. Consent cannot be implied by somebody having a high sex drive or because somebody has consented to sexual intercourse on previous occasions.[116]The father also argued that, if these allegations were true, the mother would not have allowed the father to spend time with K unsupervised until the end of the relationship. This implies that it is possible to tell if somebody has really been raped by how they act afterwards. Whilst such behaviour might appear counter-intuitive, reactions to rape are highly varied and individual. It is well understood that leaving an abusive relationship is easier said than done, and it is perfectly conceivable that the mother maintained the relationship, which inevitably included the father caring for K, far longer than she ought to have given the findings of controlling and coercive behaviour that I have made separately.[117]As the mother stated in cross-examination, she was in a relationship where she had to go to work with the knock-on being that she had to leave K with his father on occasions. The fact that the mother did not instantly flee the relationship at the point she states the rapes took place is not indicative of the allegations being a fabrication; nor that the mother did not consider K to be at some risk of harm.[118]The same point can be made in respect of the mother's decision to return to the family home the day after the relationship ended to obtain belongings and medication that both she and K needed over the weekend. The mother accepted in evidence that she had been advised against doing so by the police because, seeing as that she had little choice and so sought to protect herself as best as she could by attending with her father. Whilst this may appear to be a strange course of action in the circumstances, it is a stretch to suggest that it is evidence that the mother was not fearful of the father or had not been subject to sexual violence. People make unwise or unsafe decisions in the context of necessity and the mother had to continue with as normal a life as normal for the sake of K.[119]Finally, the father highlighted that, as recently as 9th September 2024, i.e. in the midst of these proceedings, the mother sent him a photo of K on his fourth birthday by email with a message that read in the following terms: "Hey, not sure if you have been getting the photos I have been sending as the text is green. So I thought I would email his birthday photo to you to make sure you get them. Can't believe he's four! x".[120]The mother was not cross-examined on this, but I felt obliged to ask my own questions at the end of her evidence to understand her thinking on sending this picture. She stated that she had initially started sending some photos – she had earlier mentioned sending Halloween and Christmas Day photos – as a means to say to the father that the door is open and that he was still K's dad. She went on to say as follows:
"Truthfully, we would be able to co-parent amazingly, but there are so many barriers to that. K would be put at risk of direct physical harm. I felt a duty to send something. It's hard to send them and it's upsetting that nothing can be sent back. I don't want anything back, but I wish he would ask if it was possible. I probably would have a panic attack had he responded. It would not be easy to be in a room with him. I am off work with panic attacks and anxiety caused by this case. K has witnessed this and said, 'Mummy, no need to cry'."
[121]I considered that this part of the mother's evidence was entirely authentic and neatly highlighted the conflict at the heart of her position – that she does not really know what to do for the best. She craves normality, but the risk of harm that is all too real to her pulls her back.

Discussion

[122]The allegations of rape are obviously pursued by the mother and therefore are hers to prove. The father does not have to prove anything to defend the allegation.[123]The mother's accounts of the two specific incidents being tried are detailed and believable. Each contains features that are of such precision that it is difficult to conceive them being anything other than a product of lived experience. For example, in respect of the December 2021 allegation, [redacted].[124]Both allegations are made on the basis that the mother actively communicated that she did not consent. The allegations sit within the context of the mother's pain during intercourse and reduced sex drive, and the father's drinking being at its worst. As I say, in advance of the December 2021 incident, the father had attended his GP a month earlier to record that he had been drinking half a bottle of whisky a day.[125]The mother's oral evidence on these allegations was calm, composed and very matter of fact. There was an almost numb way in which she stated that she wished it was not true, but it was, and that was in keeping with her general sense of credibility.[126]That said, the father is right to draw the court's attention to several evidential issues with the mother's case. The fact is that there was no contemporaneous corroborative evidence and, when she was expressly asked whether there had been non-consensual intercourse and indeed any choking in the immediate aftermath of the relationship, the answers she gave went beyond even a simple no, and included a positive statement that she had never expressed that she did not want intercourse to continue and that the father would sometimes stop and ask "Are you okay". Add to this behaviour such as the mother's decision to attend the family home after separation, her failure to raise these allegations at the outset of these proceedings and her sending the father pictures and messages of K, then, on the face of it, the father has a clear basis for arguing that the mother has failed to discharge the evidential burden upon her.[127]The father is also fair to question the mother's evidence that she had not considered what she says happened to her as rape until she had completed the Own My Life course in late 2023. As Mr Lewendon put it in his closing submissions, what the mother describes in her statements are horrendous incidents involving violence and sex when the mother states that she had clearly identified to the father as being non-consensual at the time it was happening.[128]In assessing the father's response, the court must guard against making assumptions or perpetuating common myths about rape and sexual violence. I have already touched on a couple, but, in the context of this case, the relevant ones for the court to have in mind might include: a) that if the victim did not complain to the police immediately, it cannot have been rape; b) that, if the victim had previously consented to sex with the accused a number of times, then she must have consented; c) that you can tell if someone has really been raped by how they act afterwards; d) that a real victim of rape would never be able to carry on with their normal life; and, e) that inconsistencies in accounts provided by a victim, always means they lack credibility as a witness.[129]Focusing on the delay in the mother raising the allegation and her decision at the outset to tell the police that all sex had been consensual, the court must consider the overall context of the parties' relationship and what she states were the reasons for the delay. Here, the mother was the subject of a controlling and coercive relationship and at the point that the relationship ended seemingly she still had strong feelings for the father and a desire for the family unit to remain intact. While she had explored her options quietly about leaving the relationship, including with Domestic Abuse Support Services, this was not something that she had been willing to see through.[130]I accept the mother's evidence that in the days that followed the separation, she still felt a desire to protect the father, and I am satisfied that this would have existed equally during the relationship in terms of her speaking out to friends and family with the ramifications of doing so, including a wave of potential pressure that she departs the relationship being in mind.[131]This follows through to the mother's hesitancy about whether to press charges on what she did allege, as evidenced within the transcript of her first discussion with the police on 18th July. When she is asked whether she would be willing to give a statement regarding the controlling and coercive behaviour, she responds, "I would. I just, I don't know if it's necessarily the right thing right now" and that she wanted to sleep on it. The court also acknowledges that the process of reporting rape can be traumatic and that it is not atypical that the mother did not feel ready to go through with this on the spot.[132]Even with this in mind, it ought to be remembered that the mother did actually give the police a form of account regarding sexual misconduct at the hands of the father. In the initial discussion, she refers to giving in to having sex with the father, [redacted] and then crying in the bathroom. This is then expanded upon within her section 9 statement just two days later, as I have just outlined, in which the mother states that the father would push the issue of sex when drunk, [redacted], to which she would say no, and would wear her down with emotional blackmail. She describes how the father would have sex with her knowing that she was in pain and how he would call her stupid if she tried to talk back to him about this. On any reading, the mother there is describing controlling behaviour and submission to sex, which is a concept entirely distinct from consent.[133]Elements of the broad account given by the mother to the police are consistent with the evidence that she now gives to the Family Court, which the mother states is not only given with the benefit of distance from the relationship, but reflects the education and support that she has received from Women's Aid. I bear in mind that there is a risk that the mother may now be applying a degree of revisionism to the events that took place years earlier, but, on balance, I accept her evidence that this was a genuinely transformative time in terms of her perceptions about sex in the latter stages of the relationship, specifically in respect of rape within a committed relationship as she was; also that submission does not necessarily mean consent; and, finally, the work and its impact in emboldening her to call it what it was.[134]This also explains why the mother did not mention to Cafcass Cymru as part of their safeguarding enquiries in September 2023 that she alleged rape. That is the month that she commenced the course, but instead that it was raised in or around March 2024 after she had completed the course and when Cafcass were tasked with completing the section 7 report. I accept the mother's case that it was not flagged at the hearing in January 2024 while she battled with whether it needed to be raised at all, but her thoughts progressed when the magistrates seemingly made an order for contact notwithstanding the lack of any enquiry into risk being undertaken.[135]I reject the father's assertion that the allegation was borne out of a desire to frustrate or obstruct his relationship with K. The mother has been consistent from the outset of the proceedings that she considers contact to be a risk in light of his behaviours towards her and his substance misuse.[136]Ultimately, I accept Miss Rudd's submission that the way in which the allegations have emerged is entirely natural in the circumstances of the case, with the mother moving through a series of stages, starting with wanting to protect the father and then a slow realisation from a distance that his behaviour was wrong and culminating in a battle as to whether to open up the allegations to scrutiny within these proceedings on the basis that everything needed to be on the table to ensure that K would be protected.[137]I consider that there is force in Miss Rudd's submission that, had these allegations been fabricated with an intention to cause the father difficulties, whether with the police or within these proceedings, then they might reasonably have been expected to have been made earlier. I am satisfied that the mother has been and remains genuinely conflicted about what to do for the best regarding these allegations on account of a genuine desire for the normality of a co-parenting relationship.[138]Set against this, I have had some real difficulties with the credibility of the father in his response to the mother's allegations in this part of the mother's case. As I have already outlined, I consider that he sought to use the mother's allegations as an opportunity to denigrate and demean her, casting unnecessary and gratuitous aspersions regarding her sex life before the relationship and adducing irrelevant evidence – namely, the intimate cards and notes – that did little to further the case, but would have no doubt been the subject of some embarrassment. I am satisfied that, in doing so, the father hoped to deflect attention from his own conduct, or what he was able to remember of it with his alcohol-induced memory lapses in mind.[139]Returning to the question of the father's asserted erectile dysfunction, I am satisfied that it ought to be treated as something entirely manufactured with the intention of misleading the court and bolstering what defence he was able to put forward. It is essentially a lie that only has one explanation; namely, a desire to evade responsibility for his actions, which runs in keeping with the other lies that he has told within these proceedings.[140]In conclusion, having carefully balanced the totality of the evidence before the court, I prefer the evidence of the mother and find it more likely than not that the two allegations of rape happened as the mother describes. I accept that these incidents took place in the context of the mother's dyspareunia and reluctance to have sex with the father; the father's excessive drinking; and the controlling and coercive abuse that the mother was subject to in the latter years of the relationship. There was a clear imbalance of power within the relationship at this time, underpinned by the father's anger, volatility and general disdain for the mother, and I am satisfied that the father would not have been willing to accept no for an answer.[141]That, unless the advocates tell me otherwise, deals with all issues that I need to deal with and, plainly, these findings will need to be now reduced in summary form on the face of an order to allow Cafcass Cymru to undertake their work whilst a transcript of the judgment is produced. In terms of a timeframe for Cafcass Cymru to complete further enquiries, I am not sure whether the parties had something in mind, but I would be keen to give them at least eight weeks from now to work on matters, with them looking for a date to return to court after that. But before we get to case management moving forward, are there any points arising that require further clarification or correction from the judgment? MR LEWENDON: Judge, just one from myself. In respect of the third allegation of physical abuse, I believe it is, which was the physical assault in the caravan, was it the court's finding that father had pushed mother into the caravan physically? JUDGE MUZAFFER: Yes. MR LEWENDON: Yes. JUDGE MUZAFFER: As I say, I think I identified that there was some inconsistency with the police in terms necessarily perhaps the description of the force, but, ultimately, it was not necessarily the force which was the issue here. It was the act itself of pushing. MR LEWENDON: Thank you very much. (Submissions Followed) ----------------------------------- Postscript[1]The father objected to the publication of the transcript of the judgment on the basis that he was concerned it would be weaponised by the mother, that there was risk that both he and K might be identified, and that publication would have an impact on his mental health. The mother did not oppose to publication if there was suitable anonymisation.[2]The court considered the Publication of Judgments Practice Guidance dated 19th June 2024, and having balanced the competing ECHR Article 6, 8 and 10 rights of the parties and K, considered that the balance fell in favour of publication. In addition to proper anonymisation, the court opted to redact certain parts of the judgment relating to the specific details of the sexual abuse. Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com

Cited in 1 later judgment