A Father v A Mother
| Jurisdiction | England & Wales |
| Judge | Willans |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWFC 108 |
| Court | Family Court |
| Docket Number | Case No: BM21P70384 |
[2023] EWFC 108
HIS HONOUR JUDGE Willans
Case No: BM21P70384
IN THE FAMILY COURT AT WEST LONDON
Gloucester House,
4 Dukes Green Avenue
Feltham, TW14 0LR
Ayoub Khan ( Direct Access Counsel) for the Applicant
Gareth Hutton (instructed by AGR Law) for the Respondent
Hearing dates: 30–31 May and 30 June 2023
Introduction
Within this judgment I refer to the parties using the label of mother and father. I refer to other individuals by reference to their relationship to the parties. I do so to preserve anonymity and intend no discourtesy.
This reserved written judgment follows a 2-day fact find hearing in which I was asked to determine a series of allegations made against the father. I have considered the documents in the final hearing bundle (together with some supplemental documents, audio and photographic files received during the hearing); the live evidence of (i) the parents (ii) the mother's sister and (iii) the maternal grandmother, and; the submissions made by counsel for each party. The hearing proceeded on an attended basis although the family members gave remote evidence. Participation directions applied in the form of a screen during the hearing and appropriate breaks during the evidence.
The allegations
I case managed this fact find. Consistent with authority I did not limit the scope of the allegations or restrict them in number. The mother provided a schedule of allegations and a supporting statement 1 in which she alleged:
i) On 4 September 2020 the father forced the mother to have sexual intercourse with him, orally and vaginally …this was reported on 18 July 2021.
ii) On 21 September 2020 I wanted to speak to my mother over the phone which the father did not like, the father therefore verbally abused me, took my phone from me and threw it to the floor causing it to smash. The father then pushed me on his way out and threw objects in my direction….I later reported this incident to the police on 18 July 2021
iii) On 4/5 February 2021 the father verbally abused me and threatened to punch my face. This was after an incident regarding the child's gender, where I was forced to call the hospital also. The father's mother was present. I reported this….on 18 July 2021
iv) On 22 April 2021 the father physically abused me and made threats to kill me and the child (I was pregnant at the time), he did this while under the influence of cannabis. I reported this….on 18 July 2021
v) On 4 July 2021 the father held the child whilst heavily intoxicated with alcohol and cannabis. He refused to give her to me whilst being verbally abusive. I reported this….on 18 July 2021
vi) On 5 July 2021 the father and I were arguing over a Moses basket and he called me a ‘bitch’ a ‘cunt’ and ‘a fucking stupid bitch’ and he said that I never listen to him. I reported this…on 18 July 2021
vii) On 13 July 2021 a toy was used by the father to suffocate the child in her cot. I reported this… on 18 July 2021
viii) On 23 July 2021 the father was demanding contact with our child, he verbally abused me and threatened me with court proceedings. The father called my mother and I ‘snakes’. He also states that he does not care about an injunction and calls me a dog. This was after I applied for a non-molestation order in early July 2021…I did not report this….
The statement focused on each of the allegations without providing a separate detailed narrative account of a pattern of behaviour throughout the relationship. In this regard it might be felt this case is restricted to the matters contained in the schedule only. I intend to take a different approach. This is because in the statement one can pick up elements of alleged controlling behaviour and further in a preceding injunction statement the mother raised concerns as to controlling behaviour, whilst not raising the substantive matters set out in §4 above. So, in the supporting statement the mother consistently states she was unable to report the behaviours of which she now complains because: “ every aspect of my life was monitored”; “he monitored my phone and I was never alone long enough to call someone and seek help; “the applicant's mother would also listen into my calls”. In the injunction statement her focus was on alleged controlling behaviour but set this out in relatively limited detail commenting: …he became very controlling. He stopped me from using Facebook and tried to isolate me from my friends and family. He would tell me what to wear and how to put on (sic) my make up on. He would constantly criticise me for not cleaning or doing things properly”. I intend to consider these allegations within this judgment.
The law
The basic principles of any fact finding are well established and can be summarised as follows:
5.1 Whoever makes an allegation has the burden of proving it is true. It is not for the other party to disprove the allegation. An allegation will be proven by establishing it is more likely than not to have happened. If this standard is met the allegation will be regarded as a fact. If not, it will be wholly disregarded.
5.2 The Court acts on evidence not suspicions or anecdotal evidence. The evidence of the key participants (here the parents) will be central to any evaluation and should be considered with care. However, all evidence is relevant and the Court should have regard to the wide canvas of evidence in assessing whether something happened.
5.3 In cases involving alleged domestic abuse it may be helpful to focus on clusters of allegations (e.g., physical or sexual abuse). Over-reliance on schedules will likely be unhelpful. In cases in which controlling behaviour is alleged the Court is concerned with patterns of behaviour. The Court will benefit from a holistic evaluation and should avoid a compartmentalised approach.
5.4 It is inappropriate to import criminal concepts into this civil assessment. The Court should look at the reality of the behaviour rather than becoming tied down in criminal legal definitions. This does not mean the Court should not be mindful of lazy stereotypes of how ‘victims’ are expected to behave. Guidance given to criminal juries in this regard are of assistance. In any event authorities such as Re H-N set out with care the step change in understanding as to the reality and impact of domestic abuse for victims of the same.
5.5 The Court can have regard to the inherent probability of an event taking place but should guard against over-reliance on this noting that there will be very many allegations which are inherently unlikely at a general population level but which are known to occur at a micro level in society. Over-reliance on inherent probability in such circumstances would lead to an incorrect outcome. The touchstone for all cases is for the Court to focus on the evidence before it and what it suggests as being accurate. Inherent probability is but one aspect of this assessment and should not be the determining factor. In any event the standard of proof is not changed by reference to the inherent probability of an event.
5.6 In considering where the truth lies the Court can have regard to the demeanour of a witness or the manner in which evidence was given but should approach this with care noting that in the case of emotive evidence a truthful witness may stumble and struggle in giving their evidence whilst an untruthful witness may give their evidence in a composed and attractive manner. The Court will find assistance in the internal consistency of evidence and how its fits with other parts of the evidence. The Court will often be faced by evidence of a party lying to the Court. Such a finding does not justify the Court rejecting the evidence of that witness wholesale. Rather the Court should approach the lies through the guidance set out in the authority of R v Lucas to establish whether the lies can be shown to be probative to the issues in dispute.
5.7 The Court is alive to the fact that abusive behaviour has at its heart an imbalance in power within the relationship and the exploitation of the same for the benefit of the abuser. Domestic abuse as with all abuse is the imposition of one parties wishes onto a weaker party. Domestic abuse typically occurs in the private sphere and with this comes real challenges as to assessment and obtaining of evidence. It will often be the case that the Court is left to evaluate the diametrically opposed evidence of the key participants without any help from extraneous sources. The Court can find guidance in Practice Direction 12J as to the concepts of domestic abuse including coercive and controlling behaviour. The Court is reminded through the guidance found in Re H-N & Others [2021] EWCA Civ 448 as to insidious nature of domestic abuse and the need for sophisticated analysis. This includes awareness as to the potential for abuse to be maintained notwithstanding parental separation and even so where there are protective orders in place.
5.8 At the same time the Court has to distinguish between abusive behaviour and poor behaviour which falls short of being domestically abusive and relevant within children proceedings. Not every act of unkindness, rudeness or misconduct will be such as to justify fact finding. The Court needs to clearly delineate between those findings which will have a material impact on child arrangements (if proven) and those which will not. It is not for the Court to resolve all disputes between adults and it is positively unhelpful for the court to allow the proceedings to become ‘another battleground for adult conflict’.
Background
This is intended to be a summary of the known and agreed background to this case. I will identify when issues are said to have arisen but will return to the competing views in my summary of the evidence below.
The parents are 35 (father) and 31...
To continue reading
Request your trial