B e
f
o r e :
HER HONOUR JUDGE OWENS
____________________
|
M
|
|
|
- and -
|
|
|
F
|
|
____________________
The parties and representation:
The Applicant, M, represented by: Ms Adams,
Counsel
The
First
Respondent,
F,
acting as a litigant in person but
with
a Qualified Legal Representative, Mr Erhabor, Solicitor, appointed
for
cross
examination of the Applicant
____________________
HTML VERSION OF JUDGMENT
____________________
Crown
Copyright
&
copy;
This judgment is being handed
down
in private on 13th March 2024. It
consists
of 17 pages and has been signed and
dated
by the judge. The Judge has given permission
for
the judgment (and any of the
facts
and matters
contained
in it) to be published on
condition
that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name,
current
address or location [including school or
work
place]. In particular the anonymity of the
child
and the adult members of their
family
must be strictly preserved. All persons, including representatives of the media, must ensure that these
conditions
are strictly
complied
with.
Failure
to
do
so
will
be a
contempt
of
court.
For
the avoidance of
doubt,
the strict prohibition on publishing the names and
current
addresses of the parties and the
child
will
continue
to apply
where
that information has been obtained by using the
contents
of this judgment to
discover
information already in the public
domain.
Introduction
- This is a
Fact-Finding
hearing to
deal
with
allegations made in the
context
of
Children
Act proceedings. The parties are the two parents, M and
F.
The
case
concerns
their
child,
A,
who
was
born in 2020.
Background
- The parents met abroad in 2010, moved to the UK in 2016, married in March 2019 and separated in June 2022.
Divorce
proceedings
commenced
in July 2022, though the parties remained living in the same property. In May 2023 M applied
for
a
Child
Arrangements Order in relation to A.
- The
First
Hearing
Dispute
Resolution Appointment (
FHDRA)
was
held in August 2023 before Justices at
which,
with
CAFCASS
safeguarding information and input, it
was
ordered that A
was
to live
with
M but spend unsupervised time
with
F.
That time
was
two hours every Tuesday. Allegations about each parties' behaviour
were
being made at this point so
directions
were
made
for
each party to supply
details
of those allegations and their evidence in support.
- A
Dispute
Resolution Appointment
was
to be listed on 2nd October 2023 at
which
the
court
was
due
to
consider
schedules of allegations produced. It is not
clear
why
the
court
in August
felt
that schedules
were
appropriate in light of recent
caselaw
about
domestic
abuse allegations, but the
court
in August
correctly
noted that Practice
Direction
12J
was
engaged and
determined
that a separate
Fact-Finding
Hearing
was
not required at that stage.
Directions
were
made
for
the Local Authority to
disclose
information in relation to their involvement including any previous assessments. The Home Office
was
also
directed
to supply information in relation to
F's
immigration status. The
further
Dispute
Resolution Appointment
was
to be scheduled
for
2nd October 2023 as I have noted, however
F
appeared to be seeking permission to remove A
from
the jurisdiction
for
a holiday potentially in a non-EU non-Hague
Convention
Country,
so the matter
was
re-allocated to a
Circuit
Judge.
- On 19th October 2023 I
conducted
a hearing ostensibly to
deal
with
review of a prohibited steps order made to prevent
F
from
taking A out of the jurisdiction. However, no application
was
made by
F
either to take A abroad or to vary the previous order so I
directed
that the Prohibited Steps Order should
continue.
Time
for
A
with
F
was
amended to take place every Sunday
from
2pm to 4pm,
with
a plan to increase this after 4 sessions to 2pm to 5pm. I also reconsidered
Fact-Finding
and
directed
that a separate
Fact-Finding
hearing
was
required given the serious nature of some of the allegations, and that
F
continued
to seek a shared
care
arrangement and
would
not accept any restrictions about the time that A should spend
with
him or his interactions
w
M in relation to those arrangements
for
A. The parties
were
directed
to
file
and serve responses to each other's allegations. A
direction
was
also made
for
HMCTS to
fund
a Qualified Legal Representative (QLR) to
cross
examine M since
F
was
a litigant in person
who
indicated that he
could
not afford to
fund
a legal representative and
was
not eligible
for
public
funding.
- A
Directions
Hearing/Pre Trial-Review
was
held before me on 30th November 2023. The QLR attended this hearing and assisted
with
identifying the scope and likely length of
cross
examination that
would
be
conducted
to put
F's
case.
By this point
F
had not seen A since August,
despite
unsupervised
contact
still being permitted by
court
order. He made it
clear
that it
was
not the practicalities of
when
A
would
see him under the interim arrangements that
were
the issue, but rather that
F
would
not agree
with
any arrangement that imposed limitations on how and
when
A spent time
with
him. In
fact,
he persisted in viewing it as 'his' time
with
A
despite
being told that the perspective of the
Family
Court
was
about A's time
with
each parent. In the end,
despite
trying to persuade
F
of the merits
for
A of him spending time
with
her, and
despite
M being in
complete
agreement
with
the
continuation
of similar arrangements to those that had been in place before, I suspended the order
for
A to spend time
with
F
because of
F's
refusal to participate in those arrangements. The
case
was
listed
for
a 5-
day
Fact
Finding
Hearing before me
commencing
on Monday 11th March 2024 and both parties
were
directed
to attend
court
by 9am on the
first
day
ready
for
a 10am start.
Directions
were
also made
for
both parties to
file
final
evidence including supporting
witness
statements
from
M's
witnesses.
- On
Friday
8th March 2024 late in the afternoon,
F
applied on a
C2
to adjourn this
Fact-Finding
Hearing. His reasons
were
that he had taken on new employment and
was
required to attend training
for
that job and
would
be unable to take 5
days
absence
from
work
and
would
use the time in between now and the new listing to obtain legal advice and representation. He gave no
date
for
having started a new job, and provided no evidence in support of his
claim
that he had started a new job and
was
required to attend training in this
week,
nor that he
was
unable to take 5
days
absence
from
work.
He
was
notified by email at 15.37 hours on 8th March 2024 that his application
was
refused because he had not provided
details
of
when
he started this new role in order to allow the
court
to assess
whether
he had made the application in good time since the hearing had been listed nearly 4 months ago, he had also not produced any evidence to support his
contentions
that he
was
required to attend a mandatory training
course
or that he had told his employer about the requirement to attend
court
and been refused absence to attend
court.
My order refusing the adjournment also noted that he had had time prior to 30th November 2023 and since to organise legal representation and had not
done
so, leading to the appointment of a QLR.
F
had not attended
court
by 10.15am on Monday 11th March 2024, and the hearing
commenced
at 10.20am in his absence. Having heard
from
Ms Adams and Mr Erhabor, I stood the
case
down
briefly to see if the
court
office
could
make
contact
with
F
by phone. Mr Erhabor also indicated he
would
try to make voluntary
contact
with
F,
even though Mr Erhabor
was
not representing
F.
The
court
office
was
able to
contact
F
by phone and
F
initially seemed to say that he had not received the order refusing the adjournment but had had an email
from
the
court
office sent to him on
Friday.
When
it
was
pointed out to him that only one email had been sent to him on
Friday
and that
was
the one
with
the order refusing the adjournment, he indicated that he
was
not in Oxford but
would
not say
where
he
was.
It also became apparent that he had responded to the 8th March 2024 email by email sent
from
his email address on Sunday 10th March 2024. In that second email he repeated that he
could
not be absent
from
work
for
5
days
but
did
not enclose any evidence in support of that
contention.
It
was
also apparent
from
his
communications
with
the
court
office that he believed there had been a
delay
in the
court
processing his application, but he
was
advised prior to making the application that he
would
need to pay the appropriate
fee
as
well
as submit the
form
C2
and he
failed
to make the necessary payment
despite
chasing
by the
court
office until
Friday
8th March 2024. I am satisfied that he
failed
to make the application promptly, including paying the necessary
fee
and that he had no good reason
for
doing
so. I also remain satisfied as I
was
on 8th March 2024 that he had no good reason
for
seeking to adjourn this
Fact-Finding
hearing and that the
case
should proceed. Having heard
from
Ms Adams and Mr Erhabor, the latter believing that he had sufficient to
cross
examine the
witnesses
as QLR even though
F
had not
filed
a
final
statement as
directed,
I
determined
that the
case
should proceed in the absence of
F
with
the QLR putting such questions as he
was
able to on the basis of the limited information
from
F
about his
case.
- I have read the evidence
contained
in the Bundle
for
this hearing and heard the oral evidence of M and her two
witnesses,
namely the maternal grandmother and a
friend.
F
did
not
file
a
written
statement as he had been
directed
to
do
by 4pm 29th
February
2024, and
did
not attend the earlier part of this
Fact-Finding
hearing so his 'evidence' is limited to a
document
he
filed
on 20th September 2023 (
C119)
and his responses to M's allegations
filed
on 9th November 2023. I have used the
word
'evidence' in inverted
commas
because neither of the
documents
produced by
F
are signed or
dated
and neither
contain
a statement of truth as required by the
Family
Procedure Rules, so they are not proper
witness
statements. At 2.50am on 13th March 2024,
F
emailed the
court
office
with
various
documents
which
appeared to be an attempt to
file
evidence. Again, none of the
documents
produced
were
in the required
format
and
contained
no
declaration
of truth. They largely repeated various allegations that the
Court
had previously
directed
were
not permitted to be pursued as they
were
not relevant. They also
contained
two letters
from
other individuals, potentially as
character
evidence, though again neither
were
in the required
format
and
F
did
not have permission to
file
additional
witness
evidence. There
was
no explanation
for
his
failure
to
file
his statement as
directed
by 4pm on 29th
February
2024. I note that
F
was
told by me in the two previous hearings, and it is
clearly
stated on each
court
order, that no party may
file
evidence unless permitted by
court
direction.
The last
court
order (and at least one of the previous
court
orders) also made it
clear
that a
written
statement had to
contain
a
declaration
of truth and must be signed and
dated
by the maker of the statement.
F's
last-minute attempt to produce
written
evidence is
clearly
in breach of the
court
direction
setting a
deadline
for
him to
comply
and seems to be a blatant
disregard
of the
Family
Procedure Rules. Even if
F
had produced
documents
in an admissible
format
and produced a reasonable explanation
for
their late production, producing them so late in the hearing after
closing
submissions had been heard risked preventing the other party
from
being able to
fairly
respond. However, since
F
did
not attend the earlier part of the hearing and has not provided any explanation
for
the late production of these
documents
(
which
in any event are not admissible), the issue of
whether
this might have prevented an effective hearing
did
not arise. The
documents
were
not admitted given the absence of explanation
for
their late production, and the absence of any attempt to
comply
with
the procedural
formalities
of
written
evidence, and I have therefore
completely
disregarded
their
contents
in
considering
the issues in this
Fact-Finding
Hearing.
F
attended
court
on 13th March 2024. He
was
given an opportunity to explain
why
he
failed
to attend on Monday and to add anything to the application to adjourn
which
had been refused.
Despite
being asked repeatedly to
confirm
when
he started the job that he said meant he had been required to attend training this
week,
he
failed
to answer the question. I
concluded
that he
failed
to answer the question because he knew that it
would
reveal he had started the job
with
sufficient time to make any application to adjourn on proper notice to all
concerned.
As a result, I proceeded to give judgment in the
Fact-Finding.
Parties' positions
- M seeks six
findings
about
F's
behaviour,
which
can
be summarised and
categorised
as
follows:
a) Physical abuse of her
b) Emotional abuse of her
c)
Psychological abuse and
coercive
control
of her
d)
Threats to remove A
from
the jurisdiction
e) Emotional abuse of A
f)
Failure
to parent A in a
way
that protects her
from
harm.
F
seeks one
finding
about M's behaviour,
which
can
be summarised as
follows:
a) M has prevented A
from
having a relationship
with
him.
Relevant legal
considerations
Whoever
makes an allegation has the burden of proving that it is true. They must
do
so to the
civil
standard, i.e. on balance of probabilities (Miller v Ministry of Pensions [1947] 2 ALL ER 372, and also
considering
Re B (
Care
Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2
FLR
141. An allegation
will
therefore be proved if the person making it establishes that it is more likely than not that it happened. The seriousness of the allegation or the seriousness of the
consequences
make no
difference
to the standard of proof to be applied in
determining
the
facts.
Findings
of
fact
must be based on evidence and not on suspicion or speculation (Re A (A
child)
(
Fact
finding
hearing: Speculation) [2011] ECWA
Civ
12). Evidence is also not evaluated and assessed separately: "A Judge in these
difficult
cases
must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to
come
to the
conclusion
whether
the
case
put
forward
by the local authority has been made out to the appropriate standard of proof" (Butler Sloss P in Re T [2004] ECWA (
Civ)
556). The
court
looks at the 'broad
canvas
of the evidence' and "the range of
facts
which
may properly be taken into account is infinite" (H and R (
child
sexual abuse: standard of proof) [1996] 1
FLR
80). It is, however, not necessary to
determine
every subsidiary
date-specific
factual
allegation (K v K [2022] EWCA
Civ
468).
- I have taken into
consideration
the principles outlined in Re H-N and others (
children)
(
domestic
abuse:
finding
of
fact
hearings) [2021] EWCA
Civ
448
with
regard to
domestic
abuse allegations. Practice
Direction
12J
Child
Arrangements and
Contact
Order:
Domestic
Violence and Harm is also relevant
which
provides key
definitions
of
domestic
abuse.
- A
Court
can
take into account the
demeanour
of a
witness
or the
way
in
which
they gave evidence, but needs to be
careful
in approaching this, noting that in the
case
of emotive evidence a truthful
witness
may stumble and struggle
whilst
giving their evidence,
whilst
an untruthful
witness
may give their evidence in a
composed
manner. The
Court
may be assisted by internal
consistency
of evidence and
considering
how it
fits
with
other parts of the evidence.
- The principles outlined in R v Lucas [1981] QB 720 may be relevant.
Where
it is alleged that a
witness
may be lying that there
can
be many reasons
why
someone may lie including shame, humiliation, misplaced loyalty, panic,
fear,
distress,
confusion
or emotional pressure, and that just because a
witness
may lie about one aspect of their evidence it
does
not necessarily mean that they may be lying about other aspects.
- I have borne in mind that a
Court
has to
draw
a
distinction
between abusive behaviour or actions that either
cause
or risk
causing
harm, and poor behaviour
which
falls
short of being abusive or
causing
or risking
causing
harm. Hence the need
for
the
Court
to
focus
upon those
findings
which
will
have a material impact on
child
arrangements if proved.
- The
case
of Re S (Parental Alienation:
Cult)
[2020] EWCA
Civ
568 is relevant given some of the issues in this
case.
As
was
noted in that
case,
it is not uncommon
for
there to be
difficulties
in a parent-
child
relationship that
cannot
fairly
be laid at the
door
of the other parent. That
case
emphasised the importance of early
fact-finding
and noted (
drawing
on
comments
by the President of the
Family
Division
in 2018) "that
where
behaviour is abusive, protective action must be
considered
whether
or not the behaviour arises
from
a syndrome or
diagnosed
condition.
It is nevertheless necessary to identify in broad terms
what
we
are speaking about.
For
working
purposes, the
CAFCASS
definition
of alienation is sufficient: "
When
a
child's
resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent". To that may be added that the manipulation of the
child
by the other parent need not be malicious or even
deliberate.
It is the process that matters, not the motive" (para 8). I have also had regard to the
decision
by Sir Andrew McFarlane P in Re
C
('Parental Alienation'; Instruction of Expert) [2023] EWHC 345 (
Fam)
which
considered
what
needs to be established to enable a
court
to
conclude
that alienating behaviours (the preferred term) had occurred. Three elements need to be established:
a) the
child
is refusing, resisting or reluctant to engage in, a relationship
with
a parent or
carer;
b) the refusal, resistance or reluctance is not
consequent
upon the actions of the non-resident parent towards the
child
or the resident parent; and
c)
the resident parent has engaged in behaviours that have
directly
or indirectly impacted on the
child,
leading to the
child's
refusal, resistance, or reluctance to engage in a relationship
with
the other parent.
- The burden of proving that there have been alienating behaviours
falls
on the parent alleging them. Behaviour of a
child
is not evidence of the behaviour of an adult, and the
fact
of a
child's
refusal to spend time
with
a parent
does
not automatically mean that the
child
has been exposed to alienating behaviours
from
the other parent. The
fact
that allegations of abuse may be
found
not to be true is also not necessarily sufficient to prove alienating behaviours since there
can
be a multitude of reasons
why
a
court
may not
find
allegations of abuse to be proved, hence the three required elements above need to be established.
Analysis
- M is the applicant and makes the
first
allegations in the
chronology
of these proceedings. She therefore bears a burden of proof to prove them on the balance of probability.
F
does
not have a burden of proof to
disprove
her allegations. I have therefore
considered
M's allegations and evidence in support
first.
- In relation to physical abuse, M's allegations are
detailed
on her
C1A
dated
26th May 2023 (B35), and in her two statements
dated
30th August 2023 (
C68-C118)
2nd November 2023 (
C142-C165).
These
detail
F
making threats of violence
from
around 2016, raising his hand to her
during
arguments, occasionally shoving her or throwing items
during
arguments,
culminating
in his pinning her by her neck on the bed on 4th
December
2021
whilst
threatening other assault. In her oral evidence to me she
confirmed
her
written
evidence about these allegations and explained that in the
December
2021 incident he grabbed her by the back of her neck and
forced
her
face
down
onto the bed. It is
clear
from
her
written
evidence about this that A
was
on the bed and
crying
at the time (
C72).
- In terms of M's allegations of being emotionally abused by
F,
again her
written
evidence is as noted above. She explained in her oral evidence to me, as set out in her
written
evidence, that there
were
aspects of this sort of behaviour and the other allegations about
F's
behaviour towards her that
were
present at times before they married, but that it increased over the period of their relationship and
worsened
twice,
first
when
they got married in March 2019 and then again
when
she
was
pregnant in September 2019.
- In her oral evidence, she
confirmed
that
F
would
insult and belittle her, as
well
as engaging in long periods of 'stonewalling' her. She explained that the latter meant he
would
refuse to
discuss
things that they needed to
discuss
and
would
range
from
lasting
for
a
few
hours to sometimes
days
or
weeks.
She
described
him simply refusing to respond to reasonable enquiries
from
her, sometimes turning up the television volume to
drown
her out. At times she
would
resort to texting him, she told me, as a means of trying to get him to engage
with
her and she has produced some of these texts as exhibits to her statement (see
for
example
C100).
- The next allegation
concerns
psychological abuse and
coercive
control
illustrated by various examples of behaviour
from
F
towards M. Her evidence, both in
writing
and orally to me, sets out that this included threats to leave her, intimidation including the threats of violence noted above, monitoring her movements and those of A,
coercing
her into sex, refusal to allow some
friends
and
family
to visit, not permitting her to leave the house as she
chose,
trying to limit her interactions
with
her
friends
and
family
outside of the house. In reality, although it is put as a separate item on her schedule, this also encompasses
F
threatening to remove A
from
the jurisdiction. In terms of
coercing
her into having sex, she gave
credible
and
consistent
evidence to me that he
would
do
this after a period of 'stonewalling' her. In her
written
evidence she has produced texts
which
demonstrate
that she
would
be trying to resolve issues
with
him and he
would
refuse to
do
so until she had sex
with
him (using, as she explained, a personal
code
between them
which
meant that
when
he said "no 5 min no talk"(
C105)
that
was
about sex). Her oral evidence about this
was
also
clear,
consistent,
and
compelling.
She
was
very
credible
about
feeling
pressurised into having sex
with
F
despite
the issues in their relationship, and about the numerous instances of
controlling
and
coercive
behaviour that
F
subjected her to.
- In addition, although
corroboration
is not a legal requirement
for
her to prove her allegations, M
was
able to produce two
witnesses
in support of some of the allegations. Specifically the maternal grandmother
who
gave
credible
and
convincing
evidence about two occasions
when
F
tried to prevent M and A
from
spending time either
with
friends
or
family.
These included
F
blocking M's
car
with
his van so that she
was
unable to see her
friends
on 17th April 2021
which
culminated
in M having to ask to borrow her parents'
car
(
C77
for
M's
written
evidence about this and
C180-C181
for
the
written
evidence of the maternal grandmother). The maternal grandmother also
confirmed
that she
was
aware of two other incidents, one on 4th
December
2021
when
F
locked M and A out of the house and she ended up having to ring her parents
for
help and they had to ring
F
to ask him to open the
door.
It
was
this incident that ended up
with
F
grabbing M by the back of her neck and
forcing
her
face
down
onto the bed
which
I have noted earlier in this judgment. The maternal grandmother also gave
clear
and
credible
evidence about
F
ringing her and her husband to
complain
about M on occasions, and specifically about a second incident to the one on 4th
December
2021. She told me that on 20th
February
2022 he rang to
complain
about M taking A out
for
a
walk
in the
cold
and rain and becoming angry and unreasonable. M's
written
statement at
C75
sets out her
detail
about the aftermath
which
shows that
F
became "uncontrollably angry", and she ended up having to ring her parents. The maternal grandmother and grandfather
were
so
concerned
by
F's
behaviour and
clear
anger that they took the
decision
to ring the police, something that
F
clearly
does
not
dispute
happened because he refers to the police arriving that night in his
first
document
and provides a photograph of them on the
doorstep
(
C120-C121,
and
C123).
As M told me in her evidence, the police
disclosure
is
woefully
lacking since it
does
not
confirm
that the police
were
called
and attended on this
date,
but
F
is the one
who
produces the photographic evidence of this, in
fact.
The maternal grandmother
was
also very
clear
in her evidence to me that
F
had made it
clear
to M that she and her husband
were
no longer
welcome
at the
family
home after this incident.
- M's second
witness
was
her
friend
who
told me that she had arranged to meet up
with
M and another
friend
who
also had a small
child
for
a picnic
with
the two
children
on 17th April 2021. Her
friend
told me that she
was
on her
way
to the pre-arranged meeting point
when
she
was
telephoned by M to say that
F
had blocked her
car
on the
driveway
with
his
work
van and that he
was
refusing to move it because he
didn't
want
her and A to meet up
with
her
friends.
She gave
clear
and
credible
evidence,
consistent
with
that of M and the maternal grandmother, that M
was
unable to get her
car
out because of
F's
actions, that
F
was
listening in on the phone
call
at the time (
which
also supports M's allegations of
F
monitoring her), and that they arranged to meet at a
different
location
which
did
not require M to
drive.
- Her
final
group of allegations relate to
F
emotionally abusing A by trying to physically prevent A leaving the house
with
M on two occasions and attempting to use A to get sympathy or emotional support, as
well
as refusing to
co-operate
with
M in
co-parenting
A in a
way
that prioritises A's
welfare
and meets her needs. In addition to M's own evidence about this, and particularly the incidents noted above
when
A
was
present and exposed to
F
preventing M
from
leaving the house or physically assaulting her, M has also produced evidence
from
A's nursery (
C91-93).
These records show the impact on A of
F's
leaving
without
telling M or A
where
he
was
going, of his preventing M and A
from
leaving the house and
F
making
comments
to A about taking her abroad. I have also been
concerned
to note that
F,
both in his
document
at
C166
and in the last hearing before me, has raised
doubts
about A's paternity. He told me in the November 2023 hearing that he
wanted
a
DNA
test because of his allegations that M had been unfaithful to him (even though he had no evidence of this), but also that the result
would
not affect his relationship
with
A.
When
he
was
asked about how A
when
she is older may view his
doubts
about paternity and his need to have proof that he
was
her
father,
he seemed totally unable to see that this may have any impact on A. I have noted that, as Mr Erhabor elicited in
cross
examination
from
M and both of her
witnesses,
there
was
also evidence of how much A
clearly
loved
F
and his
demonstrating
that at times
despite
their evidence about his abusive behaviour.
- Much of M's evidence
was
not in
fact
challenged
by
F
because either he has not addressed it in his 'evidence' provided to the
court
or has not participated in the hearing and thus not provided the QLR
with
information about the
case
he is pursuing against M. It is striking how little of
F's
written
'evidence' actually addresses any of the allegations, in
fact.
Instead, he has
focused
on
what
can
only be
described
as a
wholly
irrelevant and
deeply
concerning
character
assassination of M. At one point,
without
the permission of the
court,
he sought to adduce evidence about M's behaviour many years before they met, including photographs
clearly
taken
whilst
she
was
at university. I
determined
that this
was
not relevant or admissible and the photographs in question have been removed
from
the bundle at my
direction.
- M's
written
and oral evidence
credibly
described
how scared
F's
behaviour made her
feel,
including
when
she
was
heavily pregnant
with
A. As Ms Adams submitted in
closing,
there is also ample evidence
from
M in the bundle
which
shows that she tried time and again to resolve the issues in her relationship
with
F,
trying to get him to spend time
with
A (
C115),
and to engage
with
counselling
and seeking the assistance of his
church
pastor (
C154;
C156).
She also sought assistance on her own,
which
resulted in her being referred to specialist
domestic
abuse support (
C89).
All of this
conveys
someone
who
has been subjected to a pattern of abusive behaviour by
F
and yet
who,
as she told me, still loved him, and
wanted
him to have a relationship
with
his
daughter
who
also
clearly
misses her
daddy.
All of this is also relevant
when
I turn to
consider
F's
evidence and his allegation about M's behaviour.
F's
allegation against M is that she has sought to prevent A spending time
with
him and has engaged in alienating behaviours. It is
difficult
to
work
out
what
precisely he relies upon to prove this, though.
From
the outset of the proceedings, it has been
clear
that M is
willing
for
A to spend time
with
F
and
for
that time to be unsupervised. Her only
caveats
have been around handovers being safe so as to protect her and A
from
the sort of abusive behaviour that
forms
part of her allegations against
F.
This is not necessarily the
case
in all
cases
where
domestic
abuse is alleged, and M is to be
commended
for
such a
child-focused
approach. However,
despite
this,
F
has not seen A since last August and it appears that the only reason he has not seen A is his unwillingness to participate in spending time
with
A that is in any
way
curtailed
by either
court
order or, perhaps more significantly, by the practicalities and needs of a
child
of A's age. I have already noted that M has produced
compelling
evidence to show the efforts that she has gone to both
during
the relationship and afterwards to try to ensure that A spent time
with
F.
In addition,
contrary
to
F's
allegations about M trying to interfere
with
his visa application, M has produced evidence at
C157-C164
to show that she tried time and again to help him
with
his visa application.
Considering
the guidance in Re S
which
I have noted above,
F
has
failed
to produce any evidence to show that A
doesn't
want
to spend time
with
him either. In
fact,
in the
documents
he has submitted there is absolutely no mention of A not
wanting
to spend time
with
him. Instead, he
focusses
on largely incoherent and irrelevant allegations about M's
character
and behaviour both before,
during
and after their marriage. It is a bit
difficult
to
work
out
from
his
documents
because they are so incoherent, but it seems at
C123
as if he is alleging that M tried to prevent him
from
knowing about a medical appointment
for
A in
February
2023. His account is a bit
difficult
to
follow,
but it seems he
was
working
away and thought that M
was
reluctant to tell him
whilst
he
was
away that A
was
ill.
When
he
came
home, he alleges that she
did
not
want
to tell him
which
GP's surgery she
was
taking A to.
What
M said about this
was
that A
was
ill, she
did
tell
F
(and even on his own account at
C123
it seems he
did
know she
was
ill before he
came
home), but that only one parent
was
allowed to accompany A to
what
was
an out of hours emergency GP appointment because of lack of
capacity
at the surgery and residual
Covid
restrictions.
F,
of
course,
has
chosen
not to attend this hearing so has not given me any oral evidence about this or any of the
disputed
aspects. He has also, as I have noted,
failed
to produce
written
statements verified by a statement of truth signed and
dated
by him, so the evidential value of his
documents
is therefore limited.
- M has produced
credible
and
compelling
written
and oral evidence, supported by evidence
from
other sources including two
witnesses
in relation to some aspects that they also
witnessed.
She has accepted that there
was
one occasion
where
she behaved inappropriately as a response to
F's
abuse of her,
whereby
she thumped her hands on his
chest.
I
did
not
find
her evidence to be exaggerated and she
was
also a
careful
and reflective
witness
who
very
clearly
agonised about having loved someone
who
has subjected her and A to sustained and
corrosive
domestic
abuse.
Findings
- Given my analysis above, I
find
on balance of probabilities that M's allegations about
F's
behaviour are proved.
F
has therefore subjected M to physical abuse, emotional abuse, psychological abuse, and
coercive
control,
has made threats to remove A
from
the jurisdiction, and has subjected A to emotional abuse. I am also satisfied on balance of probabilities that M has proved that
F
has
failed
to
co-parent
A in a
way
that
would
protect A
from
a risk of harm. He has exposed A to his abuse of M, both indirectly and
directly,
and has
failed
to see A
for
several months
due
to his putting his own needs above those of A.
- I
do
not
find
that M has
done
anything to prevent A
from
having a relationship
with
F
and
from
spending time
with
him. In
fact,
the only person
who
has prevented A
from
spending time
with
him is
F
as I have noted. I am very
concerned
that
F's
behaviour
within
these proceedings,
for
example seeking to adjourn at the last minute
without
good reason, is a
continuation
of his abuse of M and
further
evidence that he is unable to put A's interests
first.
Conclusions
- Practice
Direction
12J remains relevant now that I have
dealt
with
the
fact-finding
element of these proceedings. Para 21 of PD12J makes it
clear
that the
court
needs to think
carefully
about
whether
CAFCASS
should be
directed
to prepare a report under section 7 of the
Children
Act 1989. PD12Q is also relevant since PD12J makes it
clear
that a
court
may need to
consider
an order under section 91(14) preventing
further
applications to the
Family
Court
under the
Children
Act 1989 in relation to A
without
leave of the
Court.
I am
concerned
that
F
has subjected both M and A to significant
domestic
abuse and is still behaving in a
way
that is abusive and there is evidence of an inability to put A's needs above his own. Balanced against that is A's statutory right to a relationship
with
both of her parents if it is safe and
CAFCASS
may need to explore
with
both parties
what
safeguarding steps may be necessary and practicable.
Whether
F
is able to accept the outcome of this
fact
finding
and take steps to address his perpetration of
domestic
abuse may
well
be relevant to any
welfare
outcome of this
case.
It is also
concerning
that
F
has not so
far
shown that he really accepts the authority of the
court
and has not
complied
with
previous
court orders.
HHJ Owens
13th March 2024