The Royal Courts of Justice Strand London WC2A 2LL |
||
B e f o r e :
____________________
AB |
Applicant |
|
- and - |
||
CD |
Respondent |
____________________
Dr Charlotte Proudman (instructed by Hudgell Partners) for the Applicant
Mr Michael Gration KC (instructed by Weightmans LLP) for the Respondent
Hearing dates: 17th to 20th July 2023
____________________
Crown Copyright ©
MR JUSTICE MOOR:-
The relevant background
The law I must apply
a. To apply the civil standard of proof on the balance of probabilities;
b. In so doing, to have regard to the seriousness of the allegations and the strength and quality of the evidence;
c. To give the evidence "critical and anxious" examination; and
d. At all times, to apply "good sense and appropriately careful consideration to the evidence".
[2011] EWCA Civ 12:-
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation".
Civ 388:-
"When any fact-finding court is faced with the evidence of the parties and little or no corroborating material, it is required to make a decision based on its assessment of whose evidence it is going to place greater weight upon. The evidence either will or will not be sufficient to prove the facts in issue to the appropriate standard. As has been said many times in one form or another, the judge is uniquely placed to assess credibility, demeanour, themes in evidence, perceived cultural imperatives, family interactions and relationships".
"Any judge appraising witnesses in the emotionally charged atmosphere of a contested family hearing should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so".
"Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness – as here a woman deposing to serious domestic violence and grave sexual abuse – whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core."
"…there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by
(PD12J)."
"The reason it was so important for the judge to give careful consideration to the question of vulnerability in this case is because a vulnerable person may not act in the same way as someone more independent or confident if they are exploited or abused in a relationship. Such an individual may be so anxious for the relationship to succeed that they accept treatment that others would not. They may be easy to exploit. They may not even realise what is happening to them, and will cling to the dream of happy family and relationship.
[83]…Further, it seems to me that the judge's disbelief that the mother would have remained in an abusive relationship led her to conclude that the mother was lying about it. This tainted the whole of her evidence and was a threat which ran throughout the case."
"…The intelligence or otherwise of a victim of sexual assault or of any assault in the context of an intimate relationship is nearly always irrelevant to the reporting of an assault to the authorities. Victims of whatever age, race, sexuality, appearance, intelligence, and background often have the greatest difficulty in reporting when an assault has occurred because of shame, fear of being disbelieved or fear that the process of reporting an assault with itself be traumatic."
The evidence that I heard
48. She was asked about the allegations of sexual abuse. She said it was concerning that the Father had not been respecting S's wishes and need for privacy but she accepted that the Father had never shown any indication that he was sexually attracted to his daughter or to children in general. She told me there was no sexual concern in her mind and it was a boundary issue, but it is clear that she did indicate her considerable concern to both the school and the Local Authority, such as in a text to SWdated 4 May 2022, when she said that S "believes he will touch her inappropriately…". I can see why the Mother would have been concerned and, in fairness to her, she has now accepted that there is no truth in these allegations whatsoever, but I can equally see how distressing and worrying this must have been for the Father, something that the Mother does not appear to recognise. She was asked about a period in the autumn of 2022 when the relationship between S and her Father improved. She said she did not believe there was any correlation between her being less stressed and S's attitude to her Father. I am sure she believes that, but I regret to say that I am clear that she is wrong. She was asked why it was that S called the Father a "psychopath". She clearly did not believe that S had said this. Mr Gration was able to point to the SW saying that she had seen the recording of S saying this. The Mother made the reasonable point that she did not know the context in which this was said but I find that S did call the Father a psychopath. This is clearly not a word she would have known without hearing an adult saying it. The Mother denied ever calling the Father a psychopath but, on the balance of probabilities, I find that she did do so and S overheard this comment. I do not find that this was deliberate but it was damaging to S.
to take the phone upstairs. He said he had but was still recording on it, when he came down, until she challenged him again. He accepted it made her feel paranoid and it was emotional harm but said he did not do it for the purpose of harming S, which I accept. He said it was because of his paranoia following the allegations of sexual abuse. Presumably he intended to use these recordings if he thought he had been falsely accused of something. Whilst this may explain why he did it, it will have distressed S enormously and had a lasting effect upon her. He was then asked about 21 November 2021, when he took S to gymnastics. He said she was playing up and he told her this was not ok. He accepted that he said he would video her and send it to her class teacher. He told me he was trying to get her to comply, as she was not listening to him and, as her teacher is an authority figure, she would be likely to comply if threatened with the teacher. He acknowledged that, if he had sent the recording, it would have humiliated and embarrassed S. He said that perhaps he should just have said he would tell her teacher she was behaving badly. He undoubtedly handled this incident very badly and, again, upset his daughter.
My specific findings as to the Scott Schedule
There have been rows in which he has accused the Mother of being lazy and living off his money. He did ask her to get a job on the tills in a supermarket. He did make unjustified criticism of the Mother booking theatre tickets, particularly as he then used one of the tickets himself. These comments will have distressed and hurt the Mother but I find they were part of the ongoing arguments between the two parents when they lived together. I am sure the Mother said some hurtful things to him as well. The effect of all of this on S will have been serious and profound but I am not able to find that the entire blame rests with the Father.
My overall conclusions
Mr Justice Moor
23 July 2023.