Dal v Dad
| Jurisdiction | England & Wales |
| Judge | DDJ Nahal-Macdonald |
| Judgment Date | 13 March 2024 |
| Neutral Citation | [2024] EWFC 60 |
| Court | Family Court |
| Docket Number | Case No: SD23P20366 |
[2024] EWFC 60
DDJ Nahal-Macdonald
Sitting in private
Case No: SD23P20366
In the Family Court sitting at Horsham
In the matter of applications under the Children Act 1989 re L, a boy born November 2022
Fact Finding Hearing
I. Preliminary
This decision follows a fact-finding hearing (‘FFH’) listed before me between Monday 11 and Wednesday 13 March 2024 in the Family Court sitting at Horsham. The FFH arises from a child arrangements application issued by ‘DAL’ in relation to his child ‘L’ whose date of birth is XX November 2022. The respondent is L's mother, ‘DAD’.
The applicant applied on 7 September 2023 for a child arrangements order (‘CAO’); prohibited steps order (‘PSO’); and specific issue order (‘SIO’) because contact had been stopped by the respondent. He was concerned the respondent would seek to relocate with L out of the jurisdiction. Further to the proceedings beginning, the respondent has recently made a formal application via form C2 for her application to relocate with L to Poland to be considered as part of the joined proceedings.
As is the usual custom I may refer to the applicant father as F and respondent mother as M, and of course no disrespect is intended by so doing.
This judgment relates to allegations advanced by M and F against the other which appear in hybrid schedules, which I sought to narrow at a prior directions hearing on 8 January 2024.
At that hearing, as well as setting this matter down for a FFH, I departed from the recommendation in the CAFCASS report and made an order for interim contact to be resumed between F and L, to try and build a platform for resolution, compromise, and better co-parenting in L's interest. I refused an oral application for leave to appeal that decision in the same hearing.
The allegations in issue, per Recital E) of my order of 8 January 2024 were as follows:
a. [M's] allegation that [F] perpetrated coercive and controlling behaviour towards her throughout the relationship.
b. [M's] allegation dating from January 2023 as referred to at Paragraph 31 of her first witness statement dated 7 December 2023.
c. [M's] allegation dating from February 2023 as referred to at Paragraphs 36–38 of her witness statement dated 7 December 2023.
d. [M's] allegation dated 17 July 2023 as referred to at Paragraphs 47–54 of her first witness statement dated 7 December 2023.
e. [F's] allegation that [M] perpetrated emotional abuse towards him throughout the relationship.
At the FFH, F was represented by Mr Miller and M by Ms Geser both of counsel. I commend both counsel for their erudite and balanced approach in adducing the evidence and for their assistance to the court.
I am mindful of the guidance outlined in the case of Re B (A child) (Adequacy of Reasons) [2022] EWCA Civ 407, where a helpful summary of the ingredients which might be present in a “ good judgment” were outlined, including the reminder that “a judgement is not a summing up in which every possible relevant piece of evidence must be mentioned” [para 59].
Accordingly, I have attempted to adhere to a structure such that this judgment will first outline the background [ section II]; then briefly the sources of evidence [ III]; then an analysis of the allegations per the ‘schedules’ [ IV]; an analysis of the relevant law [ V]; my impression of the primary witnesses [ VI]; the secondary witnesses [ VII] a consideration of closing submissions [ VIII]; then findings on the evidence in regards each allegation [ IX-XV] before coming to a conclusion as to the facts I found proven and next steps. For the avoidance of doubt, where I refer to a witness's ‘evidence’ that may include their written or oral evidence or supporting exhibits, unless specified.
II. Background
M and F met via a dating website around November 2020 and started a relationship. They moved in together around January 2022, and their son L was born in November 2022.
At the time of the hearing L was one year and four months old, and I discern from the progress reports that he appears to be an inquisitive, mobile and happy toddler. I take the view — whilst it might be axiomatic- that both parents love him dearly and genuinely want the best for him, as do his grandparents.
The parties both agree that the relationship deteriorated in early 2023 and ended that summer. Each made allegations about the others behaviour as above. Those allegations principally relate to early 2023 to July 2023.
Contact between L and F took place on an informal and unsupervised basis until September 2023 when M took the decision to unilaterally stop contact. F therefore applied to court for a CAO, PSO and SIO respectively to allow him to spend time with L; for M to agree not to take him out of the country, and for his passport to be held pending the conclusion of proceedings.
Since that point, M has sought the courts' permission to take L to Poland, I understand on two occasions, and has retuned each time. In the last hearing, I granted permission for her to take him on a further holiday there over this coming Easter.
III. The Sources of Evidence
At the directions hearing in January 2023, I directed that the parties file and serve composite schedules and an updated bundle to assist the court. On Wednesday 6 March I received the audio evidence and transcripts which I had agreed would be allowed to be relied upon in the hearing. Over the weekend prior to the hearing, I spent several hours reading the 545pp hearing bundle; listening to the various audio evidence [Ex. DD2A-DD7] and the accompanying transcripts of the same; then reading position statements from each party. On Monday morning I was sent an agreed supplemental bundle consisting of 92pp, which I read in part in the limited time remaining.
The court heard evidence over the first two days of the hearing. We heard M first, then on day two, from her mother, and then from F and his mother in turn. I also considered the audio evidence, transcripts, and screenshots of text messages among other evidence in the bundle. Counsel made submissions on the final morning, and I used the rest of the allotted time to consider the evidence and write this judgment.
IV. The Schedules
Within the bundle from page 9 onwards were hybrid schedules of allegations and responses by each party. In live evidence, F and M both gave evidence broadly consistent with their written submissions in those schedules, so it is worth repeating them here as a guide to the evidence the court heard.
From p9 of the bundle F sets out the basis of his allegation that M perpetrated emotional abuse towards him throughout the relationship. Examples relied on included:
a. That M accused him of having an affair with his friend ‘CA’ and forbade him from contact with her. M partially accepted this in her response, in that she said she had asked F not to see CA as she believed it would jeopardise their relationship. She maintained that F agreed to this and she later discovered that he was seeing CA in secret. She also accepted messaging one of F's friends and said that other friends got in touch with her directly.
b. That M went through F's phone without his knowledge and recorded him without consent, then forced him to change his number. M partially accepted this; she accepted checking his phone but maintained this was done with his consent, and accepted recording him without consent on the basis that otherwise no one would believe the extent of his behaviour towards her. It is self-evident that several of those audio recordings were in evidence before me.
c. That M sought to isolate F from his friends and would sulk or argue with him if he went out; or spoke to another woman.
d. That M denigrated F's parenting abilities.
e. That M ‘gaslit’ F and initiated arguments making him change his responses to avoid conflict.
f. That M threatened to separate L from F and take him to Poland permanently.
g. That M belittled the F in front of his family.
For the avoidance of doubt, M denied allegations c)-g) but did not elaborate in her written responses.
In turn M set out her own allegations from p13 of the bundle, including as I have said one overarching allegation of coercive and controlling behaviour, and three specific allegations of physical abuse by F. In terms of the allegation of coercive and controlling behaviour, this was predicated on thirteen strands, including:
a. That F did not want M to live in shared accommodation with men.
b. That he used a degrading ‘point scoring system’ to reward or punish M
c. That F tried to control what M would wear and forced her to remove a hat he did not like.
d. That F drove recklessly and very fast during one argument forcing M to apologise to slow down.
e. That F did not want M to join a gym because there would be men present.
f. That F questioned M if she did not immediately answer her phone, he would accuse her of hiding things and would check her messages to see who she was communicating with and why.
g. That M was forbidden from communicating with any males
h. That she was forbidden from going to the pub in case she met men
i. That she was not allowed to go on girls' trips causing her to feel isolated and lonely
j. That F often followed M around the house and even into the bathroom with her.
k. That F demanded M engage in sexual activity with him and she did not think she had a choice.
l. That F controlled the spending via the joint account and accused M of overspending “his” money if they went over drawn. F had shouted at M owing to a perceived error or overspend by her involving the energy bill.
m. [later withdrawn during the hearing by agreement]
n. That F suggested M engage in oral sex by way of apology in an argument.
All of these examples were denied by F, and in some cases he used his...
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