A v R & Anor [2025] EWFC 95 (B)

Case No ZW23P01414[2025] EWFC 95 (B)IN THE FAMILY COURT AT East London(Sitting at Croydon)Date 3 rd April 2025
Before
DJ Keating
Between
AClaimantR1 st RespondentZ (a child)2 nd Respondent
Hearing Hearing date: 25 th and 26 th March 2025
Approved JudgmentThis judgment was handed down orally on 3 rd April 2025 and subsequently by circulation to the parties or their representatives by e-mail and by release to the National ArchivesDJ Keating:Introduction
[1]On 30.10.23 A applied for a child arrangements and prohibited steps order about his son, Z, who is 2 years old (ZW23P01414). A is represented by Mr Alam, counsel.[2]Z’s mother is R. She is represented by Ms Murgatroyd, counsel. R has 5 older children. The eldest 2 live abroad with their father. The next 3 live with their father, who I shall call SI, and against whom R has recently sought a non-molestation order. In response to that application, SI has relied on various findings made by other judges in care and private law proceedings concerning those three older children. As will be seen, some of those findings are significant and are plainly potentially relevant to the hearing listed before me.[3]A & R were married to each other in a civil ceremony in August 2018, and the final order of divorce was made in January 2024. An Islamic ceremony of marriage was performed on 14.11.17.[4]On 4.1.24 R applied for a non-molestation order without notice to A (CR24F00004). I saw it that day and was at the time concerned that she had not, when making that application, complied with the duty of candour on her, in particular in respect of findings that HHJ Atkins had made in care proceedings, ZE17C00740, and I declined to make an order without notice. I was not, at that time, made aware by R of an order that had been made in 2015 which specifically required her to disclose earlier findings that had been made about R. She had not complied with the 2015 order, or even acknowledged it in her application. As she had made her application without notice, she had a duty to the Court to disclose it, the pre-2015 findings and the subsequent findings of HHJ Atkins when she made her application: her failure to do so was a serious breach of the duty that she owed to the Court.[5]I note that A gave evidence in the 2017 care case, in support of R. It concerned three older children of R, by her second husband SI. I saw as I was preparing to deal with this hearing that R had recently tried to send an email direct to DJ Baker in which she asserted that “Everyone loves me, and everyone values my advice. The only exceptions are Sutton Social Services, the guardian and Judge Atkin [sic], who have fabricated things and deceived me because [A] entered my life without a visa.” That had not been sent to the parties as FPR 5.7 requires, so I caused it to be circulated to them. It is a significant thing to allege that a Judge’s findings have been fabricated by the Judge, which is one possible interpretation of R’s words. It is all the stranger to say what she did about HHJ Atkins findings because A gave evidence in support of her at the hearing before him: then, it had not been her case that A’s entry into her life without a visa was a problem for her, and it is no part of HHJ Atkins’ judgment that the issue had been raised before him. R is now retrospectively trying to cast aspersions on the findings of fact. That is significant because she has focussed on A’s immigration status in these proceedings, and it may be that her focus is more of an after the event attempt to rationalise her position rather than what she did and said when she and A were presenting as a unified couple before HHJ Atkins. Indeed, it is possible that R decided to marry A despite any reservations she might then have had because she thought it would improve her chances in the care proceedings before HHJ Atkins. If one bears in mind that the civil marriage was less than 2 weeks before the start of the trial in the care proceedings, and she required A to sign a pre-nuptial agreement less than a week before the marriage, then one might see that as R being fully in control of the sequence of events as between A & R at that time.[6]On 7.3.24 the Court consolidated ZW23P01414 and CR24F00004.[7]On 1.7.24 the Court joined Z as a party. A NYAS caseworker, Ms Griffiths, was in due course allocated. Z is represented by Ms Gasparro, counsel.[8]In October 2024 the Court decided that there should be a fact finding hearing to determine the truth or otherwise of the very serious allegations made by R about A. Those allegations include repeated rapes, controlling and coercive behaviour, financial abuse, sexual abuse, threatening behaviour, physical abuse and emotional and mental abuse. A has made allegations about R but does not seek any factual findings.[9]I refused R’s suggestion that this fact finding hearing should be adjourned. R resisted the suggestion that the material from another case, CR25F00037, which is an application that R has made for a non-molestation order against SI, should be disclosed in these proceedings. It seemed to me of central relevance to the issues that I had to deal with. A, R & SI all know each other. SI’s children know A. The material was, for the most part, the material that R should have disclosed from the outset when she made her application against A, including the 2015 order which required her to do so. It was, in my view, entirely wrong for R to have tried to prevent the disclosure of that material.[10]There are some general principles that apply when the Court is asked to determine whether a fact is true or not.(1) It is for the person who says that a disputed fact is true to prove it on the evidence that is before the Court.(2) In making my decisions I must act on the evidence which I find reliable on the balance of probabilities.(3) If I conclude that someone has told a lie about one thing, they may have done so for one or more of many reasons. The fact that they have lied about one thing does not mean that they have lied about anything else.[11]Section 1 of the Domestic Abuse Act 2021 defines domestic abuse in this way:
“Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if— (a) A and B are each aged 16 or over and are personally connected to each other, and (b) the behaviour is abusive. …Behaviour is “abusive” if it consists of any of the following— (a) physical or sexual abuse; (b) violent or threatening behaviour; (c) controlling or coercive behaviour; (d) economic abuse…; (e) psychological, emotional or other abuse; and it does not matter whether the behaviour consists of a single incident or a course of conduct. …“Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to— (a) acquire, use or maintain money or other property, or (b) obtain goods or services.”
The parties were at all material times over 16. (a) A and B are each aged 16 or over and are personally connected to each other, and …Behaviour is “abusive” if it consists of any of the following— (a) physical or sexual abuse; (b) violent or threatening behaviour; (c) controlling or coercive behaviour; (d) economic abuse…; and it does not matter whether the behaviour consists of a single incident or a course of conduct. …“Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to— (a) acquire, use or maintain money or other property, or The parties were at all material times over 16.

Evidence

[12]I heard evidence from A & R. The parties entered and left the Courtroom separately, waited in separate areas and a screen was erected so they did not see each other at Court.[13]R was quietly spoken. She mostly gave her evidence in English, but needed the help of the interpreter at times. That was particularly so when she was asked to consider some written evidence. She appeared to struggle with written English. There is, whenever evidence is given in a second language and/or with the assistance of an interpreter, a loss of immediacy and sometimes of nuance or subtlety of meaning, however careful the witness or skilled the interpreter is, and I bear that in mind.[14]None of her written statements contained the certificates required by FPR PD22A paragraphs 7.3 or 4. None appeared to have been translated to her.[15]She told me that she authorised her then solicitor to electronically sign her first statement without having fully read it, and that she did not read her second statement before it was circulated as approved by her. These are significant failures of preparation which inevitably reduce the weight I will give to her written evidence.[16]It was put to R that she did not make any allegations to the social worker who undertook a pre-birth assessment in April 2022. I thought her evidence as to why that was so was clear and cogent: the social worker was from the local authority which had removed three older children from her care, so she did not want to say anything to the social worker that might cause them to want to intervene in Z’s life. That would have been a powerful motivation, and I decline to draw any inference from her failure to make an allegation about A in that circumstance.[17]R simply does not accept that HHJ Knowles was right to find, as she did in 2011 that R “will stoop to any allegation that she can in order to besmirch the character of [SI]”. Of course that must have been painful, but R’s continued refusal to accept it weakens the credibility of her evidence. One has to bear in mind that since separating from A she has resumed some kind of relationship with SI, because her evidence in support of the application she made recently against him said that SI was coming to her house approximately every day. She said in her oral evidence to me that was not true. She told the NYAS worker that they had reconciled, though she denied that she had said that in her oral evidence to me.[18]R omitted, when she made the Family Law Act application against A, to comply with an order made by DJ Parker in 2015, when she discharged a non-molestation order that R had obtained against SI and ordered that R “is prohibited from making any further applications under Part IV of Family Law Act 1996 without fully disclosing to the Court the findings of fact made by HHJ Knowles and HHJ Welchman in Wandsworth County Court”. R told me that she had forgotten that order. If so, that shows disdain for the findings and decisions of the Judges who have disagreed with her. Quite frankly, I did not believe her. I consider that she has wilfully chosen to disregard the Order because it does not suit her purposes. She hoped to get away with it. That significantly reduces the confidence I have about the integrity of her evidence about any disputed fact.[19]R’s evidence was characterised by her changing her account when giving her oral evidence. By way of illustration, her first written statement said that A had followed her on 29.11.23 from her GP. Her second statement did not mention that he had followed her. In her oral evidence she accepted that he had not. She said that the two had seen each other in Poundland. She gave, in her oral evidence, various accounts as to whether A was already in the store when she saw him from outside and then entered or whether she just saw him in the store. It seemed to me that she saw him from outside but entered anyway, intending to keep at least an aisle away, as that was what she said to me – but she then realised that this wasn’t what her written statement had said, and changed her evidence, settling on an inability to remember the precise sequence of events. Her evidence was littered with such inconsistencies. Each in turn reduced a little the confidence I had in her evidence and cumulatively they reduced that confidence rather more.[20]Another example came in respect of SI, whom she accuses of dropping Z in June 2024. R was inconsistent in her written and various oral accounts as to quite when SI had spent time with Z before and after that event, and I formed the view that R was either guessing when she had no clear recollection or in some details actively lying and then realising that her lie was inconsistent with an earlier account, or in some way potentially unhelpful to her. In respect of SI and R I thought there was a mix of not being clear about the sequence of events and lies about details, but overall I did not feel that R was telling me the truth about the extent to which her relationship with SI has developed over time.[21]R found it difficult not to offer a running commentary on A’s evidence as he gave it and not to interrupt her own barrister, even after she had been reminded that I might, ultimately, need to consider removing her from the Courtroom if she continued to do so.[22]A was quietly spoken, too. He relied more on the assistance of an Interpreter than R had done. He was clear and consistent in his denials of the allegations made. He spoke clearly about the way that R would sometimes lock him out of their home, and accepted that he called her three times on 28.2.19 when he had been locked out. He denied, as R alleged, kicking the door, banging the letterbox and ringing the bell. He accepted that he was upset, but said it was “not a big upset”. It seemed to me that his willingness to concede some upset would have been natural, and that enhanced a little the credibility of his account.[23]He told me that he signed the pre-nuptial agreement at the insistence of a solicitor who had not read the document. I found that specific element of his evidence very hard to believe. I didn’t find it hard to believe that he had only a limited understanding of the pre-nuptial agreement or the process involved in creating it, but I found it harder to believe that a solicitor would advise a client to sign such an agreement which they had not themselves read. I do not believe A’s account about that element to be accurate, but I bear in mind that he may have been telling me what he believed to be true on this point. Nevertheless it did reduce by a small amount the confidence I had in the reliability of his recall in that respect.[24]A’s witness statements also lacked the certificates required by FPR PD22A. Both of A & R’s solicitors must read that practice direction before they allow any other client to sign a witness statement in family proceedings, not least because they are risking a professional negligence claim sooner or later. Findings[25]I note that R has been involved in extensive litigation in respect of her previous husband and three older children, half-siblings of Z. She is also involved in a current Family Law Act application against their father, SI, in CR25F00037.[26]The previous proceedings include a care case, ZE17C00740, and I have the benefit of reading the Judgment of HHJ Atkins dated 22.8.18, following a 7 day fact finding hearing. In this extract from his Judgment, reference to ‘the mother’ means R and reference to ‘the father’ means SI. The judgment includes: “I mention, first of all, the judgment of Her Honour Judge Knowles of 23 March 2011, …, and the position is that on that occasion Judge Knowles was conducting effectively a fact finding hearing. There was an application by the father for contact, and the mother was alleging domestic violence, so there was a fact finding hearing. This was the judgment in relation to that, and in the course of that judgment the judge made a finding that none of the mother's allegations against the father were proved.[22]She additionally made a number of comments during the course of that judgment, of which I mention some. There was an allegation, for example, that the father scalded [Child A’s] face with a hot substance and the judge said … 'In my view that is a lie and a lie of the worst possible kind'. She dealt with another allegation that the father held a knife to the mother's throat and body, and threatened to kill her and the children. Put his hand around her throat, she said … 'This is another allegation made up in order to discredit the father'. She.. said … 'The mother, I feel, will stoop to any allegation that she can in order to besmirch the character of the father'.[23]There was a further hearing, with the same judge, Judge Knowles, on 14 June 2011. This hearing came about because [R] was refusing contact for [SI]. The judge on that occasion made a finding that there was no reason for a refusal for contact, and she said …. 'I am afraid I am driven to the view the mother's recent actions, are borne again out of her continued desire that the father was deprived of the company of his children'.[24]The final judgment that I am going to refer to, which I have in the bundle is the judgment of His Honour Judge Welchman, which was 14 February 2013. This was because of an application by [R] to vary the arrangements for the children. This application was on the basis of further allegations brought by [R], and the application was dismissed. Amongst other things, Judge Welchman saying … 'There are matters of very real concern as to the reliability of the mother's testimony and I am afraid her motivation' .”[27]HHJ Atkins also heard evidence from A in the care proceedings and said this about his evidence:
“I did not find him a particularly impressive witness. He struck me as somebody who was somewhat reluctant to answer questions directly. He struck me as somebody who was under the mother's influence to a considerable extent, and I did not form the impression that he was a particularly reliable witness.”
[28]A was then R’s husband. He was called as a witness by R in support of her case in the care proceedings concerning Z’s three older half siblings. HHJ Atkins went on to reject all the allegations made by R and to make all but one of the findings sought by the Local authority. Whilst he noted the previous findings, he carefully considered that R might have changed in the years since they were made, but also explained the other reasons why, on the evidence he had heard, he rejected her version of events. In so doing, HHJ Atkins concluded that the threshold criteria alleged by the Local Authority were, save for one item, true. The findings include that R made allegations including serious physical assaults, repeated rapes and threats to kill as against SI which were found by a judge to be untrue.[29]As HHJ Atkins said, the fact of the previous adverse conclusions reached by other judges does not mean that R is lying about the subsequent events that she pursues before me. Nor does it mean that her credibility is automatically reduced. I bear in mind that R was placed in a potentially vulnerable position because of those findings: she had not been believed and knew that anyone asked to determine the truth of future allegations might doubt her. That brings a disincentive to report concerns. However, in support of her recent application for a non-molestation order against SI, R has repeated some of the allegations previously found by HHJ Atkins to be untrue. She plainly does not accept that his findings were correct. That is also evident from the email she sent DJ Baker, which I referred to above. That all affects the weight that I feel able to give to the uncorroborated elements of her evidence to me.[30]R tries to rely on a pre-nuptial agreement. As she did not sign it, on the evidence before me, it is unenforceable in any event. Even if it had been validly executed, I do not consider that it could validly have prevented A from applying to the Court about contact for Z, as it purports to do. The main significance of the document, in my view, is that it contains the matters that she wanted A to commit to. That indicates that R was not being controlled or coerced by A in the weeks before their civil marriage.[31]R told me that she does not accept that HHJ Knowles was right to conclude as she did. R maintains that the allegations she made against SI were true. She also told me that SI “never wanted the children” even though it was positively his case through bitterly contested care proceedings that they should live with him.[32]The allegations she makes against A are strikingly similar to those that she made against SI, save that she says that SI was motivated by a desire to secure the child benefit that flowed from the children moving to live with him, whereas she says that A is motivated by a desire to improve his chances of securing an immigration status in the UK. The allegations made against SI have been repeatedly rejected in robust terms by a series of experienced judges. R does not accept their findings and continues to express the allegations. I am worried about the welfare of her younger children with SI (2 of whom are under 18). R continues to make allegations about the care they get. I anticipate that the NYAS worker will make or have made a safeguarding referral about them(a) because of the things R said in her evidence and(b) because of the emotional harm they are likely to be exposed to by her continued narrative about her and their experiences at the hands of their father.[33]There are numerous problems with the way R’s case was prepared. Large swathes of her medical records were missing, including times when she told me she had told clinicians about her allegations: there was therefore no corroboration of whether she had done so. She told me that she had reported some of her allegations to a termination of pregnancy clinic, but the records that might have corroborated that account had not been obtained. She had not read at least two of her statements before approving them. Significant allegations were not made in her first statement without any real explanation as to why not. R said that she had not had time to read the statement while she was at work, having only a short lunch break. I did not think that a satisfactory explanation, because there would have been time outside her work (even if that was 8am -5.30pm) when Z did not need her attention. She maintained as factually true matters that had been found by a Court not to be true. She makes extraordinarily serious allegations of repeated rapes with almost no detail as to many of the events in question. I do not pretend fully to understand the extraordinary impact that significant trauma has on someone. Everyone will respond differently to the traumas they experience. But I bear in mind that R has been through a fact finding process in the family court at least three times prior to this case. She has been seen in a Haven suite and interviewed when she made the first allegations of rape against SI. The lack of almost any corroborative detail apart from an email she sent to a generic NHS email address shortly after telling A that he would need to apply to the Court for an order if he wanted to see Z is, in the overall context, telling. I note, too, that her application for a non-molestation order was made a few weeks after A made his application about Z.[34]I found myself inexorably drawn to the conclusion, as I listened to the oral evidence of R, that her evidence was wholly unreliable when it came to the allegations that she made.[35]It is plain that R had financial control in her relationship with A. She had her own bank account. She moved most of A’s wages from their joint account to her account. I accept that the parties arranged their financial affairs in this way so that R could ensure that the household bills were paid. A was working two jobs, in long hours, for low pay. No doubt money was very tight indeed, and that always brings with it tensions for any family. I was not however persuaded as the evidence unfolded that R was able to demonstrate any financial control or abuse being exerted by A.[36]As to her wider assertions of coercion and control, I bear in mind the findings of HHJ Atkins, when he said that “[A] struck me as somebody who was under [R’s] influence to a considerable extent”. That also was my impression of the parties as they gave their evidence. R gave no sense of having been cowed by or subservient to A. In contrast, A gave numerous small but telling examples, of how he avoided calling or contacting A when he knew that she would not like this, of his wages being largely taken as soon as they went into the joint account – the only bank account he had for the majority of the parties’ relationship.[37]R makes much of A’s immigration motivation. He has made many applications to the Home Office for permission to remain in the UK. I do not doubt that this is a matter of importance to A. It also renders him rather vulnerable to control based on his immigration need, and I note that he was not challenged about this quote, from his first statement:
“Rather she would threaten me on my immigration status in the UK”
. Nor was he directly challenged, in his second statement, when he said that “she would control me by pressurising to put her chosen password in my phone”. As A did not pursue any allegation that he was being controlled or coerced by R, that may be partly why he was not challenged on those, but given that R was seeking a finding that A coerced and controlled her, that was still a curious omission.[38]I have, for all of those reasons, and despite some reservations as mentioned above about A’s evidence, a very strong and clear preference for the evidence of A over the evidence of R.[39]It is not the task of the Court to pick through every unhappiness that there was as the parties’ relationship faltered and failed. I simply need, at this stage, to determine whether R can show that any of her allegations are more likely than not to be true.[40]I have carefully re-read every element of the schedule of allegations. I am very clear that R has failed to show that any of her allegations are more likely than not to be true.[41]R denies that she told Ms Griffiths that she had reconciled with SI when she saw Ms Griffiths in November 2024. A reconciliation would have been a surprise given the gravity of the allegations that she had made against SI over the years. As I have not heard evidence from Ms Griffiths I cannot determine whether R said that she had reconciled with SI. Even if she did say that, it does not mean that SI would have recognised that there had been a reconciliation.

Decision & Order

[42]On the non-molestation application, the failure to comply with DJ Parker’s order from 2015 was serious and has not been adequately explained. It could justify the refusal of the application, even if I had found some of the allegations proved. As I have found them not proved, I dismiss that application in any event.[43]A confirmed that the only part of his application that he pursues is the ‘time with’ element of it, which I shall record on the face of the order I make today.[44]A does not earn much, but he has consistently paid child maintenance. He made an application to the Court soon after contact was refused, and has patiently pursued it in the face of very serious allegations which I have found to be false.[45]The relevant local authority has been directed to report pursuant to s37 by 21.4.25. The order from this hearing and this note shall be served on the Local Authority by Z’s solicitor forthwith.[46]I take the view that A should be permitted to disclose the orders from this case and this note of Judgment to his immigration solicitor and to the Home Office and to any Tribunal to which he may appeal a decision of the Home Office in support of any application he may make based on his family life with Z. I think it may assist any decision maker to understand the hurdles that he has had to overcome to pursue his relationship with Z, and to note the commitment that he has shown to Z. He acknowledged that he had not sent Z a birthday present for his first birthday, but he explained that R had made very clear to him that she did not want him to go to her house, and he knew that. As he explained his view on that point, the extent to which he was subservient to R showed on his face. He seemed to me to show a mixture of shame, upset and continued subservience as he explained why he had not sent a birthday present. It is plain from their communications that even after they separated, R felt able to ask A for practical support. I accept A’s explanation was true.[47]I was heartened to be told by Ms Gasparro that Ms Griffiths might, if I concluded that the allegations were not made out, be able to start some reintroduction work with Z and A, even before the LA report is prepared. I am inclined, subject to the views of the parties, to the view that I should direct R to make Z available to spend time with A at such times and places as Ms Griffiths may specify between now and the next hearing, and to direct Ms Griffiths to file and serve a report setting out her advice as to future contact fairly soon thereafter, with a view to listing a Dispute Resolution Appointment a week or so later than the report.[48]R has disregarded Court orders in the past, so I am also inclined to include a penal notice on the ‘time with’ part of my order.[49]R needs to understand that Court Orders must be complied with. If she fails to comply with my order today there may be any or all of the following consequences:(1) A might apply to enforce the order, which might ultimately lead to her being ordered to pay financial compensation to him, or to do unpaid work; and/or(2) She may be held in contempt of court; and/or(3) If A comes to feel that the only way that he can enjoy a relationship with Z is for Z to come and live with him, he might say that he wants to pursue his ‘live with’ application after all.[50]I do not want there to be a repeat of the sequence of events in 2011. Z cannot afford for his relationship with A to be interrupted any longer. S1 (2A) of the Children Act 1989 gives statutory force to what should be obvious: it is in Z’s best interests for him to have a meaningful relationship with both of his parents, so long as that is safe. There is no reason for me to consider that it would not be safe in this case.[51]I have explained to the parties that if the LA issues care proceedings rather than file a s37 report, it is very likely that these proceedings will be subsumed within the care proceedings.[52]I ask Ms Murgatroyd to draft the order in conjunction with the other advocates.[53]I invite the parties’ submissions as to directions for the disposal of the remaining application, interim child arrangements and costs. In respect of the application for a non-molestation order, I am concerned that R did not disclose the 2015 order or the previous findings to the Court. If she failed to disclose them to her solicitors, and therefore to the Legal Aid Agency, it might need to have sight of this Judgment so that it can consider whether anything flows from that omission on R’s part.[54]An anonymised version of this judgment will in due course be published. I have drafted it so that simply by removing the names of the parties and child in paragraphs [1 and 2], above, it will be anonymised – if any of the advocates wish to invite any further anonymisation, I ask them to let me have a co-ordinated list of proposed anonymisations by 10am 4.4.25. DJ Keating