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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> V (A Child), Re (Fact Finding) [2025] EWFC 136 (B) (29 January 2025)
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Cite as: [2025] EWFC 136 (B)

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Neutral Citation Number: [2025] EWFC 136 (B)
Case No: ZW24P00686

IN THE FAMILY COURT AT WEST LONDON

West London Family Court
Gloucester House, 4 Duke Green Avenue,
Feltham, TW14 0LR
29 January 2025

B e f o r e :

HIS HONOUR JUDGE WILLANS
____________________

Between:
The Father
Applicant
- and –

The Mother
Respondent

Re V (A Child) (Fact Finding)

____________________

Irina Schwab (Solicitor Advocate) for the Applicant
Parveen Judge (instructed by Thompson & Co Solicitors) for the Respondent

Hearing dates: 7-8 January 2025

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    His Honour Judge Willans:

    Introduction

  1. This judgment follows a fact-finding hearing at which the Respondent mother, [ ] ("the mother"), asked for a number of findings to be made against the Applicant father, [ ] ("the father"). I will use the labels of mother and father within this judgment to assist with anonymity (if published). No discourtesy is intended to the parties. The child in the case is [ ] (the child"), he is a boy aged a little over two-years of age. He has always lived with his mother and is having supervised contact with his father. He is not directly subject to the allegations in question but it is said they are relevant to the child arrangements which the Court will turn to next. I heard this case over 2 days, hearing live evidence from both parents and from a maternal uncle and grandmother (to the child). I have read the documents contained with the hearing bundle and some additional documents provided to me in the course of the hearing. Unfortunately, the two days permitted only for the evidence to be completed. I have now received short written submissions from each advocate.
  2. History of the Proceedings

  3. On 10 May 2024 I heard an urgent application for a prohibited steps order relating to removal of the child to the said country. I made such an order without notice to the mother. I next heard the case on 17 June 2024. On that occasion I concluded an application of the father for a Declaration of Parentage by consent. I maintained the prohibited steps order. The father indicated an intention to issue application for child arrangements. Allegations had been raised I directions were given for the same to be set out by each party. I listed a directions appointment on 12 September 2024.
  4. On 1 July 2024, the mother separately applied for a non-molestation order. I refused to hear the same without notice to the father. The application was listed on notice before a different Judge and a non-molestation order was made until 10 July 2025. On 12 September 2024, the matter returned before me. The parties compromised an application for international travel with the prohibited steps order being discharged and the mother having the right to travel to her country of origin. I considered interim contact and ordered interim supervised contact at a contact centre on a fortnightly basis. I gave case management directions towards a PTR on 6 December 2024 and this fact-finding hearing. I heard the PTR on 9 December 2024. The schedule of allegations was carefully scrutinised and some matters were removed with a reduction in the time estimate for the hearing.
  5. The Allegations

  6. Eight allegations were removed at the PTR on the basis that any finding in such regard could not impact on child arrangements. Those retained were categorised into three categories being: (a) Psychological / Emotional Harm: 8 allegations albeit some included sub-allegations; (b) Physical Abuse: 6 allegations, and (c) Verbal Abuse: 2 allegations. One could categorise these matters differently or indeed shift some items in category (a) into (c). Nonetheless there is a benefit to a structure to assist in the fact-finding process so long as the potential interaction of the allegations is kept in mind. I make clear some of these matters came close to being removed at PTR but I erred on the side of caution awaiting a proper understanding how they might come to fit together to make out a case put by the mother.
  7. The complaints relate to period April 2022 to April 2024 but substantially fall within the period of the party's relationship which ended in December 2023. In the paragraphs below I summarise each of the allegations falling within each category.
  8. Psychological / emotional harm

  9. I record as follows (the reference is the allegation number within the schedule of allegations):
    • Being isolated from her family by the father. Not being supported by the father emotionally in the context of their unmarried status being frowned upon. Speaking negatively about her friends and family. Calling her a liar and stupid. On occasion speaking in a manner with racist undertones which left her anxious. Falling to respond more positively / responding negatively on understanding the gender of the child and more generally with regard to the impending birth of the child. Offering to massage her feet and then not following through. Making observations about the attraction he felt towards another woman [3]
    • Using a derogatory word to reference her when pregnant (conveying a meaning of her being a slut or similar). In May 2022 posting a number of A4 sheets on the bedroom walls/ceiling which were negative towards her and were abusive and insulting towards her [4]
    • Recording a conversations between her and her mother without permission [5]
    • Speaking to her about finding a different woman with qualities different to the mother. in May 2023 video recording her when breastfeeding and observing that men would pay money to view the video [13]
    • In September 2023 whilst visiting her home country and out with the father and her friend the father speaking in terms of her friends' attractiveness. He did this to make her feel small [15]
    • After the birth of the baby the father would not attend baby classes with the mother. He manipulated her referencing his need to work and this also put pressure on the mother [16]
    • The father would not give the mother financial support to buy post-birth underwear. In December 2023 when asked he would not give the mother the physical support, she needed with the child leaving her to struggle alone. On 26 December 2023, the parents were living separately. He refused to assist her when she needed help and was feeling unwell and wanted to go to hospital arguing the weather was too bad and he was also not feeling well. Since separating he has not returned copies of photos and other documents he has in his possession. In April 2024 he expressed views with a racist undertone when they were considering the nursery the child was to attend [19].

    Physical harm

  10. I record as follows:
    • In June 2022 whilst at the beach the father threw a beer bottle which hit the mother's leg [2]
    • In May 2022 during an argument and whilst she was pregnant the father pushed her causing her to come into contact with a bed frame which left a red mark [6]
    • On three occasions in March, April/May and on 5 June 2023 the father placed his hands around the mother's neck. On at least two of these occasions, she felt her throat constricted and struggled for breath [10, 11, 14]
    • On 5 June 2023, the father sexually assaulted the mother [14]
    • On 14 December 2023, the father hit the mother when she was scratching her eczema [18].

    Verbal abuse

  11. I record as follows:
    • In February 2023, the father called the mother names in the street [9]
    • In May 2023 he said words which the mother interpreted as a threat [12].

    Legal principles

  12. The Court is being asked to make findings of fact. It is the responsibility of the mother to prove each of the allegations. The father has no responsibility or burden to disprove any of the allegations. The mother will prove an allegation if I am satisfied it is more likely than not to have happened. If that is my conclusion it will be treated as a fact in the case. If I am not satisfied to that standard I will proceed with the case without regard to the allegation.
  13. I will have regard to all the evidence in the case and will pay particular regard to the evidence given by both parents. They are key to this factual dispute and what they say requires close consideration. I will look to surrounding or supporting evidence to see whether it can assist me in finding the truth of the case. It may be that I am persuaded one or other or both of the parents have not been truthful in relation to aspects of the evidence. If I reach that conclusion I should not immediately disregard their other evidence as unreliable but should carefully assess the probative value of the lie in the context of the case bearing in mind that there are many reasons why a person may lie and that a lie is not necessarily told to hide the truth of the allegation before the Court. I will have regard to the broad canvas of evidence when reaching my conclusions. I can have regard to the demeanour of a witness when considering the evidence given. I am entitled to have regard to this when considering credibility and veracity but will keep in mind the potential for an honest witness to give evidence in a less than attractive manner and a dishonest witness to be charming and persuasive. Ultimately care is required and I bear in mind assistance will likely be found in factors such as consistency of evidence both internally within a narrative and externally when brought into account with surrounding evidence.
  14. When considering issues of domestic abuse, it is important to conduct an analysis which is both sophisticated and cognisant of the issues and problems that can arise in abusive relationships. It is only by understanding this dynamic that the Court can reach informed decisions. As a result, I must have regard to the potential, at least, for abused individuals to remain within abusive relationships and to continue to accept behaviour which is objectively unacceptable. There are many reasons why this can happen, some of which can relate to the form of abuse itself but other reasons include vulnerability both in the relationship and more generally. The critical point is to avoid simplistic stereotypes or expectations as to how abused individuals are likely to respond. The point to keep in mind is that abused individuals respond out of a position of being the victim of abuse not from a vacuum. At the same time, I must have regard to the potential for false allegations to be made in circumstances in which a relationship has ended in difficult circumstances and a party considers their life will be better served by no longer having to engage with their ex-partner. In this case I have no objective evidence of abuse (medical records, photographs or the like) and no truly independent evidence. This does not mean the abuse did not happen but it means there is a potential for a malicious allegation to be made. The implications of wrongly finding abuse when it was not present are as concerning as finding there was no abuse when it was present. This indicates the challenge faced by the Court. It would be much easier for the Court if witnesses were always truthful or life was led with a constant CCTV camera surveilling day to day activity. However, this is not reality and the Court is left to determine the truth with respect to events which took place in private, often years before and in which there may be no useful independent evidence to rely on.
  15. Finally, whilst there is the potential for a relationship to be either healthy or abusive as defined within PD12J FPR 2010, there will also be behaviour and relationships in which one party acts in a manner which is open to criticism, which is unkind hurtful and cruel, but which falls short of domestic abuse. In short not all hurtful behaviour is a matter for a Court in my position. There will also be behaviour which is abusive but which in the circumstances and context of the case is not such as to impact on the ultimate child arrangements and as such is also not a matter for the Court to determine. I have in regard PD12J, I have in regard to the wide case law on this subject and the associated learning with respect to hearings of this sort.
  16. Background

  17. The mother and father come from countries X and Y. These are neighbouring European countries with a not dissimilar cultural structure. The father is aged 36 and the mother 31. The child is their first and only child. They met in this country in late 2021 and started a relationship. The child was born just over a year later. They finally separated in December 2023. They have not reconciled since and it seems there is little if any ongoing direct communication.
  18. I have detailed the various complaints raised which arose between April 2022-2024. In reality all of the matters arose during the relationship. Those matters referenced after the relationship are of questionable relevance and ambiguous. For instance, the mother told me she was concerned when the father told her he needed to be on the child's birth certificate in case anything happened to her or she was in hospital. She was concerned as to whether this was a threat. Absent additional evidence this is not the only conclusion (indeed not the most likely or reasonable) one could draw. A more obvious conclusion is a concern as to whether there would be issues in terms of ability to act unless he was legally recognised were something to happen to the mother.
  19. When the child was about 1 year of age the mother's parents (the grandparents) moved in to live with the parents. I heard this was illegal by which I understand the tenancy did not permit it. They continued to live with the parents until about June 2023 when the parents were evicted, due it seems in part to this fact. An issue in the case is as to the role the grandparents played in the domestic disharmony. In any event I heard evidence from the grandmother relating in particular to the allegation of strangling [11]. During the relationship, the parents travelled within Europe. I heard from the uncle as to the beer bottle incident [2] said to have happened on a beach in June 2022.
  20. The parents continued their relationship after being evicted in about June 2023. In the first instance the mother was temporarily housed with the child alone by a local authority. Shortly afterwards she moved into accommodation shared with the father although he moved out and they separated very shortly afterwards. Both parents remain settled in this jurisdiction and are working here. They both intend to remain here. I understand either or both the grandparents may remain living in this jurisdiction.
  21. Discussion

  22. I start with my impression of each witness. As I have made clear this has some relevance and will be weighed in the light of the actual evidence heard. In a somewhat circular manner, the evidence heard has also impacted on my impression of each witness.
  23. The mother gave generally consistent evidence. She was plainly, and I felt genuinely, distressed when recounting aspects of the evidence. This was not restricted to only the most serious of the allegations. She gave a strong impression of having been affected by the way in which the relationship developed, having a strong desire to obtain a settled lifestyle for her child and being disappointed by her view of what the father was willing to offer. Whether this is her natural character or is a consequence of her experience with the father, I did find her to be an individual who is particularly sensitive to behaviour she perceives as problematic or challenging. I have given the example in §14 above which suffices to make this point at this stage in the judgment. However, although sensitive she did not give the impression of someone who was being either obviously exaggerating or being evasive in her responses or shifting their evidence to fit her case. She was consistent in her case, stood by her allegations (and even when they were less impressive as to significance) and was able and willing to provide details when called upon to do so.
  24. The father varied between giving evidence through an interpreter and directly. I had more issue with his presentation largely as a result of the challenges he faced in dealing with certain aspects of the case and issues with the plausibility of certain points he made. He did have a real issue with regard to the admissions he was willing to make or appeared to have made and how these could be reconciled with the case. In this case there have been a number of occasions when the father has sought to resolve the case by suggesting admissions which he feels should appropriately conclude the fact finding. I will return to this below. However for the time being I note he has then struggled to link what he admits to be the circumstances of the case to the allegations actually before the Court leaving the impression this was tactical in its form - and thus concerning - or that in doing so he had given away more of the truth than he was willing to subsequently and explicitly concede. There were other aspects of his case where he struggled to acknowledge the significance of what he was admitting – see the paper on the wall allegation – notwithstanding the reality of it. But I also bear in mind my ultimate conclusion that not all of these matters are as relevant as the mother considers and this does leave some room for justifiable frustration on the part of the father. This is though limited by the findings I do make.
  25. I heard limited evidence from both uncle and grandmother. The uncle came across as an entirely straightforward witness. He was clear in what he said and unmoved in examination. The grandmother was challenged as to having essentially invented a family meeting involving both parents. Her response appeared to be genuine surprise at this suggestion. As with the uncle I formed the impression of a straightforward, genuine individual. But as with the parents this will give way to my assessment of the actual evidence given and the credibility of the same. I bear in mind neither can be viewed as independent or impartial.
  26. Physical Harm

  27. I am mindful of the potential for non-violent coercive and controlling behaviour to be insidious in its form and effect. But as will be clear from this judgment I have reached nuanced conclusions in regard to the non-physical matters. In contrast the physical allegations are not a matter of interpretation or personal reflection or sensitivity. They either occurred or they did not and if they did, in the majority they are serious in nature.
  28. The strangulation allegations, and particularly the latter two allegations in April/May and 5.6.23 [10,11,14] are of obvious significant. To strangle a person in the manner suggested is a peculiarly threatening / fear inducing form of abuse whether or not it is done with an intention to actually strangle to the point of death. This is because such an act conveys a powerful sense of the balance of physical power in the relationship, the respective vulnerability of the victim and the potential of a threat of fatal assault if not then, then at a later point. In the moment, such behaviour will be deeply emotionally damaging because the victim will not be able to gauge the intentions of the perpetrator. It can be concerning because whether or not the intention is to kill there is the risk matters may progress beyond that intended. It has the strong potential to cause serious emotional harm which is likely to endure significantly beyond the act in question. Whilst all physical abuse is of concern it is a form of abuse which is particularly concerning.
  29. In this case the mother alleges three episodes of such behaviour in relatively close proximity. She describes each arising in circumstances which, whilst argumentative, were not predictive of such an extreme response. Whilst on the first occasion the event was described more as grabbing of her neck, the latter two occasions were accurately described as strangling given in the description the mother described feeling constricted when breathing and with her struggling to breathe. She described having to struggle to release the father's hands before he chose to let go. Afterwards she described no sense of remorse or apology on his behalf. She was concerned he did not realise how serious this behaviour was. On her case it was repeated and escalated between the first and second/third occasion. I note it was not repeated thereafter. The child is said to have been physically present on at least one if not all occasions.
  30. The father disputes this ever took place. He acknowledges underlying arguments and a level of heated words which he puts down to disputes arising out the grandparents being in the home and meddling in their family life and/or the refusal of the mother to allow his name to be placed on to the birth certificate but he denies ever assaulting the mother let alone placing his hand or hands on or around her throat. There is no suggested drink, drugs or other component that might be felt to have likely clouded or obscured either parents' memory. This comes down to a clear decision as to which of the parents is giving the correct account of what did or did not take place.
  31. There is no independent evidence which clearly supports one case or the other. I bear in mind the mother does not evidence any marks to her neck and there is no report to either police or GP contemporaneous to the event. This might be thought to weigh in favour of the father given the account of a level of choking and the mother's estimation this lasted for a minute on the first occasion (which was the least significant of the three). This is not a case in which the father sets up an alibi which places him away from the home at the relevant point. The event may have happened but there is no extraneous evidence to say which parent is correct.
  32. There are though two points of evidence which I cannot ignore when conducting this assessment:
  33. i) The mother gave evidence that following the second incident in April/May 2023 she told her parents what had happened. As a result, they organised a meeting at which they asked the Respondent why he had acted in this way. Whilst he was somewhat evasive, he is said to have responded with words to the effect that 'other woman experience pleasure' out of being strangled and that a previous partner of his (from the same country as the mother) had asked him to do this and enjoyed it when he did. The suggestion was of a form of consensual strangulation as an aspect of sexual relations.

    The grandmother was clear in her confirmation of this account. She said the meeting took place and this is what the father said in response. It was clear from the evidence that following this relations were or remained strained within the family.
    The father denied any such meeting, he denied this issue ever being raised by the grandmother with him, or the response attributed to him. I have set out the surprise expressed by the grandmother when this was put to her. She gave the sense of being genuinely bewildered this was being suggested.
    Plainly, whilst a finding as to the meeting does not prove the allegation it does support the allegation in suggesting the mother made a contemporaneous report and that by his response the father was accepting some form of strangulation albeit consensual.

    ii) The second point is problematic but cannot be ignored. At the outset of the PTR in December I allowed the parties extra time as I understood they were making progress in narrowing the issues. When they came into Court the solicitor for the father (solicitor at this hearing) proceeded to tell me there was an agreement that would negate the need for a fact finding. I was then told the father would admit to having strangled the mother in the course of sex play. I naturally sought to confirm this was correct only to be told by counsel for the mother there was no such agreement with her client being clear that was not the case and that she stuck by her account. I was then encouraged to accept the admission but I pointed out this would make any safeguarding analysis almost impossible for CAFCASS given the difference of account and given this was on any view likely to be the most serious allegation. The purported agreement fell away and the PTR continued.

    In the course of the fact finding, I enquired as to whether this proposition was to be put to the mother as a challenge to her account. I was told it would not be put and was no part of the case. In examination in chief the father sought to move away from the 'admission' setting it out as a form of negotiating gambit which should be ignored as it was not accepted.
    In closing submissions, the representative for the father has sought to expand this account. I am concerned the expansion extends beyond the evidence given, to include purported discussions held outside my knowledge at the PTR. I am asked to entirely ignore what was said at the PTR.
    The issue with this point is that the father plainly expressed the notion of sexual strangulation as a proposed line of admission at the PTR. Whilst this was to compromise the fact finding I was not told it was put forward despite not being true. If I had been told this, then how could I have accepted such an account as being the conclusion of a fact-finding process given it would be the opposite of the same? It would not be a fact but a fiction. I must also remind myself that the mother without any obvious hesitation rejected the suggestion when it was raised. I had no sense it had been agreed prior to coming into Court.
    A further issue is the coincidence between this 'admission' and the suggestion said to have been made at the family meeting noted above. I enquired of the father whether he was saying he formulated this admission in the light of the evidence of the mother (which he disputes) as to the meeting. He denied the same. I find it hard to navigate a sensible route through this evidence as presented by the father.
  34. There are opposing features which cause pause for thought. It might be thought odd that a family would convene a meeting of this sort having been told their daughter has been strangled and then move on without more ado, as they did following the meeting. I enquired politely as to whether there was said to be any different level of cultural or societal acceptance of such behaviour within their home country. I was told this was not the case. I also have to consider why it is the family were not told informed the following month when the father repeated his behaviour. The response of the mother was that she knew what their advice would be. It would the same as they gave her in the preceding month, that she should tell the police. They knew she had not taken this advice and so she felt there was little point in telling them again.
  35. It is also a matter of note that the mother continued to live with the father despite this behaviour being said to have happened on three separate occasions. Any suggestion of isolation at the time would need to be viewed in the light of the fact her parents were living with her on each occasion. I have to weigh up the evidence of the mother which highlighted her sense of desperation at the time, being financially dependent on the father, wanting to maintain a home for her baby and fearing a report might cause the child to be removed from her care. A point I find less helpful relates to the questioning of the grandmother as to whether she heard anything during the event in question. This is of questionable relevance as it is not in fact established, she was in the house at the time. However, in any event there is no evidence given of the event being surrounded by any particular noise which would have come to her attention. Finally, she gave plausible evidence of keeping to herself on occasions on which she heard the parents arguing.
  36. Whilst each allegation stands to be considered in its own right there is obvious potential for mutual corroboration. It is of course more likely that a person who has strangled on one occasion may do so again. Further the circumstances said to lead to each event are replicated on the other occasions in one way or another. It would it seems to me, on the facts of this case, requires a reason for finding one occasion of strangulation but rejecting the other.
  37. I have considered all the evidence and reached the conclusion the mother has proven each of the alleged acts in March, April/May, and 5 June 2023. In reaching this conclusion I have drawn on the evidence of the grandmother which I wholly accept of a meeting and the words said. This leads me to the clear conclusion the grandmother was told of the strangulation by the mother shortly after it is said to have happened. This does not mean it happened but it is important evidence. I have struggled to identify a reason this would have been wrongly reported by the mother. She certainly did not take any consequential action which would suggest she did this to generate a particular outcome. Indeed, she immediately rejected the advice of the grandmother and did not follow through on making a report. I also accept the account of the meeting given by the grandmother including the words spoken by the father. This conclusion is supported by the admission made by the father. It cannot be ignored that he was willing to accept an act of strangulation in a case in which this is actually alleged. It cannot be ignored that what he is reported to have said at the meeting is tolerably close to what he raised as an admission at the PTR. The reality is he was proposing not to deny the act but to deny the context of the act. I find the willingness to make such an admission if the same did not happen to be an act requiring a clear explanation. I am not satisfied with the explanation given. Ultimately, his explanation was he was willing to say something that was not true to get to the outcome he wanted.
  38. However, I am also very mindful of the parents own evidence. I found the mother clear and compelling in her account. Whilst it is troubling to consider she maintained the relationship I found her explanation to be cogent and one which sadly made sense in the circumstances of the case. She not only conveyed by her words the desperation she felt but her emotions when giving the evidence were entirely fitting with the account she was given. Her emotions did not appear staged or theatrical but real and heartfelt. In contrast the father simply denied the events happening. In the light of all the evidence I found the mother more reliable and accept her case. The suggestion of sex-based strangulation has a powerful sense of the father looking to produce a form of acceptable explanation when confronted by the allegation. I consider it relevant his response was not to deny the allegation but to contextualise it. I consider this gives insight into the truth of the allegation.
  39. I next turn to the sexual assault allegation [14]. Having heard all the evidence, the issue is narrower than it first appeared. In summary the mother claims on the night of the 5 June 2023, and sometime after the events above, the father whilst in bed sought to initiate sex. He agrees he did. She told me of the actions he took which included hugging her, touching her breasts and tickling her (which conveyed a sense of touching her vulva or surrounding area). She rejected his advance. The sense of his evidence was that he might have touched her breasts and generally made sexually encouraging motions. He agrees she rejected his advances. To this extent there is disagreement but only in the detail. Finally, the mother says the father was at some point on top of her and tried to open her legs, she resisted and he tried again. When she continued to resist, he stopped and they argued about her family. The father denies this part of the account but agrees they later argued. The strong sense is of an argument based on frustration as a result of the mother's refusal to have sex. It is not suggested there had been any previous sexual assaults and there is no suggestion of further assaults. It is said to be a one-off event. The next day there was messaging between the parties. The mother raised the event and wrote in terms of the father acting as if he wanted to rape her. The father responds, does not reject any notion of an event but plainly did not accept that suggestion.
  40. It is clear this event happened. The father wanted sex and the mother did not. This is hardly surprising on her part given the events of the day as found above. He attempted to encourage her by foreplay which she rejected. On balance I accept this included the action of opening her legs which she resisted. The father then accepted the rejection but in frustration argued with the mother. Much of this turns on agreed facts or flows from those matters which are agreed. I do not consider the finding as to the legs being opened has serious implications for the finding but I suspect the father fears this may be viewed to elevate the significance of the event which is why I find he has lied. I note the mother has not sought to exaggerate the event when she might easily have done so had she wished to do. I found the mother's account more persuasive of the two. To the extent there is dispute is it comparatively minimal.
  41. It is important I do not fall into the trap of applying criminal principles to this fact finding. My job is to simply find what happened not what its criminal significance may or may not be. Here I find there was an unwanted sexual advance which was not reciprocated, indeed was rejected. It took the mother to repeat her feelings on a number of occasions before the father accepted what she was saying. This is plainly a matter of regret but for my part I do not see this finding as being one of the greatest significance within these proceedings in relation to child arrangements. The event was not sustained and the father appears to have ultimately acted on the mother's response, albeit not as promptly as he should have. It is not behaviour which has been repeated. I observe the parties maintained a consensual sexual relationship for about 6 months afterwards. It is noteworthy the mother reports this event but does not appear to overstate its significance to the case. So, I find this happened but I am not persuaded it is of the greatest relevance to welfare decisions. My chief finding is the father was not responsive to the mother's feelings by his actions. I will return to this below as a theme of my findings. However, this was not in my view an act of coercive control or pursued to abuse the mother.
  42. I turn to the beer bottle incident [2]. The mother tells me she was standing on the beach about 10-12 feet from the father (he was sitting on a rock). There was tension in the air due to an argument about her favouring her brother in some way. The father drunk his bottle of beer and then threw it in her direction causing it to strike her on the thigh before it dropped on her toes. The mother did not make the fact of actual contact clear in her written evidence but her statement did not suggest the contrary. The uncle supported her evidence. He was sitting in a semi-circle with the father and another. He saw the father drink his beer and then throw the bottle which hit the mother. Neither could comment as to the intention of the father but reached their conclusions based on the proximity of the mother when the bottle was thrown and the fact it hit her. The mother spoke of a form of shock/pain when hurt but on my assessment, this should not be overstated. No injury was caused and the distance and speed of the throw appear to have been minimal but sufficient for it to take place. In his written evidence the father did not appear to accept the account of throwing a bottle but in his live evidence accepted he did throw a bottle but this was not at the mother, did not land near her and certainly did not hit her. It was inherent to his case that both the mother and her brother were lying to the Court.
  43. I have reached the conclusion this event happened as described by the mother and her brother. It should not have happened. It was inappropriate. I found the uncle a dependable witness of fact. I accept his account. He was well placed to see what happened and gave a clear account which was not shaken at all in examination. The mother's evidence was balanced. For instance, she accepted when questioned that she had not in fact seen the bottle thrown but drew the obvious conclusions. It was impossible to reconcile this with the father's account and on balance I prefer that of the other witnesses. I am supported by his changing account and his ultimate acceptance of (a) throwing a bottle and (b) the surrounding upset which I find explains his actions. I also draw on my assessment of the character of the father found elsewhere within this judgment as far as it concerns his unpredictable behaviour on occasions.
  44. I also find the allegation with respect to the bed frame push [6] proven. I consider this a relatively less significant event. I accept the mother's account of an argument, which is well supported by the other evidence, and there being a limited push which caused her to move a short distance and come into contact with the bed frame. I am not persuaded this was done to harm the mother in any material manner. On balance I consider it was likely the father in a frustrated and angry manner pushed her out of the way. I accept she suffered a short-lived red mark as a result. I preferred the evidence of the mother over that of the father. I found her account credible and consistent. I cannot overlook the support offered to her account by my findings elsewhere.
  45. I make the following points in summary under this heading. I have made significant findings of serious physical assault in respect of strangulation [10, 11, 14]. I accept the account of the sexual encounter [14] but judge it is not of itself of particular materiality to the welfare decision having regard to the circumstances of the event and the fact it is not an instance of sustained behaviour. I have found established both the beer bottle [2] and bed frame incident [6]. I question whether they alone would have justified a fact-finding approach as taken alone (or indeed were they the only two matters) I would find it hard to see how they might have a significant impact on future welfare planning. What I do though take from each incident is the tendency of the father to act without thought and without appropriate care for the mother or for her feelings. They suggest, and I find, he tends to elevate his own needs as most important and, in the moment, disregards the impact of his actions on others. I agree with the evidence of the mother that she is most concerned by his apparent lack of realisation and acceptance that what he has done on occasion is not acceptable. This may be partly shaped by the fact both parents are caught within oppositional litigation and there is a likely tendency to defend one's position but it is also suggestive (see further matters below) of a personality which does not give appropriate regard to the feelings of others or as to the full or likely consequences of his actions.
  46. Psychological / Emotional harm

  47. I can deal with this category of allegation in relatively shorter order.
  48. Having considered the allegations and the supporting evidence I find my attention drawn to allegation 4 This is the allegation which relates to A4 writing being affixed to the bedroom room. Writing which upset the mother and is said to be abusive in part. As with other aspects of this fact finding there was substantial agreement as to this allegation. The father agreed he had constructed and affixed to both a bedroom wall and the ceiling of the bedroom a number of A4 pieces of paper on which he had written messages or observations directed at the mother. He agrees he subsequently left the property with the mother returning home to find the property in this state. For her part, the mother suggests the documents affixed covered 2 walls of the room (not one) and were more numerous in total compared to that accepted.
  49. Whilst there is no record kept by the mother of the messages, the father did produce a series of pages during examination of the mother. She agreed these were part of the messaging but not its totality. The father agreed there had been other messages. The key dispute between the parties was as to whether the messages included abuse of the mother or were in any other way inappropriate. Particular focus was placed on the message affixed above the bed on the ceiling. Translated the mother suggested the message was abusive of her stating:
  50. You stupid pregnant, all of you [X] girls like the carrots to fuck you and now you will have a child born out of wedlock

    I should clarify there is a separate but related allegation that the father abused the mother by use of a word in their language which strictly translates as 'pregnant' or 'a pregnant' but which connotes a sense of loose morals. On any reading the suggested message would be abusive, it was placed above the bed and out of reach of the mother who was pregnant at the time. The father accepts a message was affixed as suggested but explicitly disputes the wording of the message as alleged above, or that the word noted translates with a derogatory meaning. He did not give a clear account of what the message in fact said.

  51. I have not struggled to determine this issue. I reach the following conclusions:
  52. i) This behaviour would have been disconcerting for the mother. To return home and find her room treated in this way would be a matter of real concern. If the messages had been loving or were placed to surprise her for instance to inform her of positive news then they might have been excused. However, on any objective assessment the messages were not so structured. These were not motivational observations to lift the mother's mood or cause her to feel better about herself or the day she had experienced. Rather, they are plainly critical in nature. They reference at one point that she is unable to decide and is the one who needs a psychologist. I was surprised the father could not see the negativity in the messages he was presenting to the Court.

    ii) This state of affairs is somewhat menacing in portraying the thought patterns of a partner who considers it appropriate behaviour to leave this for his partner to return home to. The attachment above the bed is particularly odd behaviour and suggests it was done to require the mother to take it on board when she was lying down to relax. I remind myself she was pregnant at the time. It was out of reach. This was both inappropriate and abusive.

    iii) Having regard to my findings as to this incident I favour the mother's account as to the message attached to the ceiling. It is not so far from the other language used by the father albeit more direct, abusive, and upsetting in its form. That it was the message on the ceiling is a matter of note.

    iv) I note the messages have no balance. The father appeared to see them as positive in form and aimed at solidifying their relationship. If this is right it suggests poor understanding on his part. He confirmed none of the messages identified any failings on his part or steps he could personally take to improve the situation. It is plain this was focused criticism of the mother alone.

    v) The father does not seem to be able to reflect even now as to the impact this would have had on the mother. To return home and find your room defaced in this way with wholly critical messages. What this would suggest about your partners thought patterns and what this might suggest about their behaviour on their return would be the likely next consideration. I consider whilst not threatening in nature they would create a level of mixed distress and concern as to what might next occur. It speaks of a complete lack of consideration on the part of the father together with poor insight and problematic judgment.

  53. I find this allegation proven. I accept the translation of the word as suggested by the mother although this adds little to the allegation.
  54. Having made a number of detailed findings I can and intend to deal with the balance of matters under this heading together. I have reached the following conclusions:
  55. i) Whilst I accept the genuineness of the report of feelings of isolation raised by the mother, I do not find this allegation established. On the evidence I am satisfied the father was discontented with his partners parents and the role they played in his relationship but this is not a basis for a fact finding. On the evidence the grandparents in fact lived with the parties for a significant period of time, the mother travelled and visited both friends and her family – see other allegations. This does not support an allegation of isolation as a form of control. However, the fact I reject a finding does not mean I reject the genuineness of the complaint.

    ii) I make no finding as to racist observations. There is disagreement between the parties and room for misunderstanding. But taken at its highest it is difficult to understand how this properly forms part of a fact-finding hearing. The mother says the father spoke about the risk of being attacked by 'Black people' in particular areas of London and cautioned the mother. Whilst this suggests inappropriate stereotyping on the part of the father and whilst it may have left the mother worried when in proximity to members of that part of the population it really is not part of this Court to restrict or limit contact because a parent holds such regressive views.

    iii) I do not find proven any allegation about the father not wanting a baby boy or a baby in general. There may be an element of truth in this regard, indeed the father appeared to accept he had hoped for a girl baby, but this again falls outside of fact finding. I accept it may have upset the mother to understand the father was not as excited as she was and it may have left her feeling wholly unsupported but this is not a matter which should now govern child arrangements in circumstances in which the father has established a relationship with his son and seeks to develop it further. For my part I consider his motivation is at this time genuine and is not of itself a form of continuing abuse.

    iv) I take a similar view as to suggested comments made by the father about another woman. Again, I do not reject the truth of this evidence but I cannot see it is a matter of fact finding. If true it was both crass and insensitive but the Court has to accept adults can express such views without the Court restricting their relationship with their child. That this may have upset the mother is one thing but the Court sets its threshold for engagement at a higher level.

    v) There is agreement the father recorded the mother when she was talking to her mother. This is inappropriate behaviour but it seems clear to me the father did this to demonstrate he was correct in his assessment of the situation. In any event he then proceeded to share the recording with the mother. This was a relatively limited matter and again is not a matter which touches on child arrangements.

    vi) There is agreement the father recorded the mother whilst breast feeding. He agrees he did. There is nothing in principle wrong with this. The mother is concerned he then spoke of other people paying money to watch the video but there is no tangible evidence or basis for suggesting this was other than a crass and thoughtless comment. There is no suggestion it was in fact done or indeed threatened to be done.

    vii) The balance of allegations largely touch on a lack of support when sought by the mother. If true, and I tend to the view the allegations as likely true, these would be matters of understandable criticism but not fact finding.

  56. My overarching conclusion in this regard has two components. First, I do find the mother is to a degree sensitive to the issues highlighted above. It is clear to me from her evidence that she was looking for a supportive partner who would take from her shoulders more of the burden of caring and raising the child. Second, the father's character is one which did not give proper regard to the mother's feelings. He was too ready to speak in a manner and about topics which would upset the mother and cause her to feel belittled. It maybe he took some pleasure in this. In respect of a number of topics her upset is not simply a matter of sensitivity as I expect many adults would be upset to hear their partner act or speak in such a manner. But fact finding is a matter of identifying conduct which has bearing when considering the child arrangements under consideration. Unlike matters found above these points do not in my judgment cross the threshold to have such an effect. I bear in mind this is a case in which the separation has created a satisfactory protective barrier for the mother. The father has not conducted himself inappropriately in the period that has followed and had sought to engage appropriately via the Court process.
  57. I therefore make the finding at [4] but whilst making observations as to the case do not make further findings under this heading.
  58. I intend to conclude the fact finding at this point. It will be noted I have not addressed allegation 9,12 or 18. I have recorded this hearing overrun and neither submissions not judgment could be concluded. This flowed from poor time management on behalf of the advocates (and particularly representative for the father) who struggled to keep to their stated time estimated despite my encouragement. I made clear I could not countenance the evidence being part-heard and encouraged proper focus on the allegations to ensure all matters were properly addressed. By the conclusion of the evidence neither party had traversed these allegations.
  59. On the basis I am not willing to entertain findings in such regard. I make clear I am satisfied that a further finding or rejection in such regard would not materially impact on an understanding of the case or the capacity of CAFCASS to fairly report in this case. I make clear that I have not made a finding and any report should disregard these matters.
  60. I will now send this judgment to the representatives. The judgment can be shared with their clients. I would like any proposed corrections, requests for clarification and proposed redactions to enable confidential publication by 4pm on 24 January 2025.
  61. This case now requires a CAFCASS section 7 report. This will require 23 weeks. I consider the father should also file a statement setting out his response to the findings by 7 February 2025. This will need to be shared with CAFCASS. There will need to be a DRA at about week 25. I intend to continue contact on a supervised basis. I consider this is compliant with PD12J. I will hear submissions further on this at the handing down but I hope these observations may assist.
  62. I will hand this judgment down at 9.30am on 29 January 2025 with a time estimate 30 minutes. I will want a draft order in advance of the hearing. I am content to hear it remotely if this works better.
  63. His Honour Judge Willans

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