C v D
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Judd DBE,Mrs Justice Judd |
| Judgment Date | 27 November 2020 |
| Neutral Citation | [2020] EWFC 83 |
| Date | 27 November 2020 |
| Docket Number | Case No: TA18P00358 |
| Court | Family Court |
[2020] EWFC 83
IN THE HIGH COURT OF JUSTICE
FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Judd DBE
Case No: TA18P00358
Lucy Hendry for the Applicant
Katherine Gittins for the Respondent
Hearing dates: 9–11 November 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Judd DBE
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.
The Hon Mrs Justice Judd
This is a fact finding hearing within proceedings brought by a father for a child arrangements order with respect to his son aged 5. The child is living with his mother at a location some way away from where the father is living.
Background
The mother and father met through mutual friends when the mother was about 17 years old and the father about 23. At that time they were both living in the north of the country, the mother with her father and his family, and the father in his own property by himself. By all accounts they commenced a relationship very quickly and very soon afterwards the mother discovered that she was pregnant.
The relationship appears to have been somewhat unstable from the start, with callouts to the police in June and September 2014. At some point during the pregnancy or very shortly after their son was born, the mother moved into the father's flat. In June the mother attended the police station with a friend, stating that the father had been violent and aggressive to her during her pregnancy, and on that day had shouted at her and told her not to come back to the flat. In September the father rang the police to say that the mother had stolen his mobile phone and the keys to his flat. This appeared to have been triggered by her leaving him, and taking keys and a mobile with her.
When the baby was a few weeks old the family relocated from where they were living to another part of the country, a considerable distance away.
In May 2015 there was an argument following which the mother contacted the police to say that the father had been violent to her. In her statement for these proceedings she stated that the father had pushed her, pinned her down with his knee and pulled her arm back. She completed a DASH assessment in which she said she was very frightened of him, that he had been rough to the child, violent to her and that she felt he might be further violent to herself and the child, and that he had taken her away from family and friends. She also said that the father had hit the dogs. The mother went to a refuge with the child, but later returned to the relationship. She states that the father's mother told her that he had either taken an overdose or was threatening to do so.
At some point shortly after this the family moved to another flat. The mother started attending a course at college, and when she attended there, the child was looked after by the father. The mother said she had to give this up because the father did not care for him properly. During the course of 2016 it appears that the relationship between the mother and father deteriorated further. In August the mother was having a drink with a neighbour and told her that the father had had sex with her when she did not want it. The neighbour encouraged the mother to contact the police. The mother had also told the neighbour that she wished to leave the father, and on 26 th August that neighbour drove her down to the police station and reported that she (the mother) had been forced to have sex. The mother and child left the father then, and there has not been any contact between any of them since.
The mother was video interviewed on 30 th August and made allegations that the father had refused to stop on one occasion in the middle of having sex when she asked him to, and on another occasion that he had pulled her bottoms down and had sex with her when she was on the bed despite her saying no. She also made allegations about controlling behaviour, including his attitude towards her friends, his jealousy, his pressure on her to send sexual pictures to him, and that he was violent to her on one occasion and rough to the child.
The father was interviewed on 16 th September with an appropriate adult present. He denied all the allegations, and gave the officers an account of the relationship between himself and the mother as he saw it (including saying that the mother slapped him and punched him in the testicles). He did say that the mother would sometimes have flashbacks when they were having sex and asked him to stop, and that he had done so. He said at the time of the separation they had not had sex for two or three months. The police have taken no further action with respect to the mother's allegations.
In October 2018 the father made an application for a child arrangements order. On 8 th August 2019 there was a fact finding hearing before His Honour Judge Tolson QC. His decision was appealed, and on 5 th December 2019 the appeal was allowed. This is the retrial of the fact finding hearing, which was originally listed in May and then July but was adjourned because of the Covid pandemic. All the parties agreed that this case was not suitable for a fully remote hearing, especially as the father has some difficulties with literacy and would have had to attend the hearing using a smartphone if he was not able to be in court.
The allegations
The allegations by the mother are grouped into 7 and set out in a schedule. The first allegation is that the father was extremely aggressive and intimidating towards the mother on a number of occasions when she was pregnant. It is said that he threw a number of objects to scare the mother, such as a toothbrush and shoes when the mother was packing to leave the family home to stay with a friend. The second allegation is that the father was controlling and emotionally abusive towards the mother throughout the relationship. It is said that the mother left the father on a number of occasions and had reported his behaviour to the police but that they reconciled thereafter. The third allegation is that the father shouted at the mother and called her a slag for what she was proposing to wear at an outing to go ice skating in March 2015, and the fourth that the father would repeatedly call the mother ugly and disgusting following the birth of their child, but that if she put on makeup he would accuse her of trying to attract other men and call her a slag. In the fifth allegation the mother says that the father pushed her and pinned her down, pulling her arm back during the course of an argument in May 2015. The sixth allegation relates to the allegations the mother made to the police in her interview on 30 th August 2016, namely that there was an occasion when she asked him to stop in the middle of sex and that he refused (said to be about May 2016), and another occasion where he ignored her refusal to have sex and went ahead nonetheless (said to be in July 2016). Allegation 7 relates to the child. The mother says that on a number of occasions the father purposefully harmed the parties' child, by pinching and squeezing him, leaving marks.
The father denies all the allegations although he accepts that the relationship between himself and the mother was a toxic one. He makes some allegations against the mother himself – saying that she would assault him by grabbing his testicles – and also states that she has demonstrated a pattern of making allegations. Of the two previous liaisons she had had, he said she has alleged that the first man groomed her and the second man had raped her. Further, she had alleged she had been assaulted during the course of an operation in hospital.
The law – fact finding
In determining issues of fact, the standard of proof is the balance of probabilities ( Re B [2008] UKHL 35). The burden of proof lies upon the person or body that makes the allegations (in this case the mother).
Findings of fact must be based on evidence and not speculation ( Re A (A Child)(Fact Finding Hearing: Speculation) [2011] EWCA Civ 12. Evidence must not be looked at in separate compartments and a judge must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion as to whether the allegations are made out to the appropriate standard of proof ( Re T [2004] EWCA Civ 558).
It is common for witnesses to tell lies in the course of an investigation and hearing. The court must bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress and the fact that a witness may lie about some matters does not mean that he or she has lied about everything. In any event, a lie should never be taken, of itself, as direct proof of guilt ( R v Lucas [1981] QB 720, and Re H-C (Children) [2016] EWCA Civ 136 (paragraph 100).
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