IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF S (a child) and L (a child)
B e f o r e :
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F |
Applicant |
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- and - |
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M |
First Respondent |
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- and - |
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S & L (Through their 16.4 Children's Guardian Georgia Mills) |
Second and Third Respondents |
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Ms Matthews for the Respondent mother
Ms Chalk for the children on instructions from the Children's Guardian
Hearing dates: 9, 10 and 11 January 2024
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Crown Copyright ©
HHJ Levey :
Background
The Law
i) The burden of proof is the civil standard of proof, namely the balance of probabilities, in other words whether the fact alleged is more likely than not. The burden of proof falls on the person making the allegation. It is not on the other party to disprove the allegation . (Lancashire County Council v D and E [2010] 2 FLR 196 at paras [36] and [37])
ii) The standard of proof remains the same whether the matters alleged are of the utmost seriousness or not (Re B (Care Proceedings: Standard of Proof)[2008 UKHL 35
iii) The findings of fact must be based on evidence and not suspicion or speculation (per Munby LJ in Re A (A Child) Fact Finding Hearing: Speculation [2011] EWCA Civ 12)
iv) The judge must decide if the facts in issue have happened or not. This is a binary system and there is no room for a finding that something might have happened. (Re B above)
v) The court must have regard to all of the evidence, and not evaluate the evidence and assess it in separate compartments. The court must consider the wide canvas of the evidence. (per Lord Nicholls in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1FLR 80)
vi) The evidence of witnesses is of the utmost importance and the court must make a clear assessment of their credibility and their reliability.
vii) Hearsay evidence is admissible in family proceedings but must be considered in the wider context given that it is not capable of challenge in the same way as first-hand evidence. The court must consider the extent to which it can be relied upon; the weight to be attached to it (R v B County Council Ex parte P [1991] 2 All ER 65)
viii) The court should give itself a Lucas Direction, from R v Lucas [1981] QB 720: that if the court concludes that a witness has lied about one matter it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. The fact that a person has lied does not prove their guilt but is part of the overall evidential picture.
ix) If in any case it is alleged, admitted or if there is reason to believe that a child or party has experienced or is at risk of experiencing domestic abuse, PD12J Family Procedure Rules 2010 applies. Domestic abuse is defined in paragraph 3 as including any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners of family members. The range of behaviour addressed is wide and includes psychological, physical, sexual, financial or emotional abuse. Under PD12J, the process to be adopted by the court where there are disputed allegations of abuse is considered. The court may hold a separate hearing to decide what has happened in order to provide the basis for a welfare report or risk assessment.
x) In Re H-N and Others (Domestic Abuse: Finding of Fact hearings) [2021] EWCA Civ 448. The Court of Appeal held that if either or both parents asserted that there was a pattern of coercive or controlling behaviour then that should be the primary issue for determination unless any particular factual allegation was so serious that it justified determination regardless of any patters of coercive and/or controlling behaviour. In that hearing all parties acknowledged the need for the court to concentrate on the wider context of a pattern of behaviour as opposed to a list of specific factual incidents, which are often set out in Scott Schedules. The court in that case observed that the Family Court should be concerned with how the parties behaved and what they did with regard to each other and their children, rather than whether that behaviour falls within a definition of rape, murder, manslaughter or other serious crimes. In other words, it is what they do with regard to each other as opposed to what it might or might not be called. Serious behaviour might not amount to the equivalence of a serious criminal offence but might still be profoundly abusive. Such behaviour should not be ignored.
xi) In this case I indicated to the parties that although there are specific allegations made each against the other, that I would be concentrating on patterns of behaviour as opposed to working my way through the list of allegations, although I do consider the allegations in this judgement.
Evidence of the Parents
Written material from Other Agencies
Specific Findings
Conclusion
HHJ Levey
Portsmouth
5 February 2024
Below are the allegations made by the mother and the Father against each other which will be determined at the fact-finding hearing which is listed for 9th, 10th and 11th January 2024. This schedule has been prepared by the Children's Guardian's counsel on the basis of the parents' narrative statement and was approved by the Court on 3rd November 2023.
Father's allegations against the Mother |
Allegation |
1. The mother has tortured and continually abused the children as evidenced by the following: |
A. 2017 – Mother punched S nearly closing his left eye |
B. June 2018 – beat S on his bottom causing wounds to his bottom |
C. November 2018 – beat S causing bruising and bleeding. Exposed the children to a drug addict – B |
D. 2018 – on N's birthday M punched S |
E. July 2019 – On S' birthday, S said that N had dropped him on the floor and kicked him and that his back hurt. S showed father that she had made him bleed from his stomach. S then said Mummy did this to me. |
F. Father's day 2020 during a video call with Father he witnessed the children being abused by their mother. The phone was thrown from S's hand and he was screaming. L described pain and agony on her bottom. When father asked what had happened the Mother ended the call. |
G. The children have been subjected to physical abuse from mother including pinching, smacking and putting hands in L's mouth to make her mute. |
H. During a video call S said that mother had hurt him and showed an injury to his nose. Mother in response grabbed S's neck and tried to twist his head to the other side to hide the injury. |
2. The children have suffered emotional harm and been exposed to conflict between the parents including Mother being verbally and physically abusive to the Father as evidenced by the following: |
A. December 2018 Christmas day – mother had a verbal argument with father in the presence of the children and called the police. |
B. 2019 – Mother was verbally abusive to father in front of the children and hit him in front of the children. |
C. 25th March 2020 – S showed father scars on his leg from his mother torturing him. |
D. On an occasion in 2020 the mother force fed the father in the presence of the children. |
E. On the same occasion as 2D above, Mother started talking about her father raping her and tried to kill her. Mother started shouting and screaming at father in front of the children and "turned into a demon". |
F. The Mother would be verbally abusive to the Father in the presence of the children and would shout and scream at him. |
3. The Mother has attempted to alienate the children from the Father as evidenced by the following: |
A. Mother has attempted to alienate the children from him by saying that "Father's are nothing" |
ALLEGATION |
MOTHER'S ALLEGATIONS AGAINST THE FATHER |
4. The Father has been physically, verbally and emotionally abusive towards the Mother and her friends and family as evidenced by the following: |
A. i. End of 2015 when S was 3 months old, the Father assaulted the Mother by punching her in the face. In response, the Mother grabbed a shoe and threw it at him. The Father cornered the Mother into the wardrobe and she fell unconscious and later woke up on the floor. The Father only stopped as Mother's older daughter I intervened. ii. Mother was left with swelling, a black eye and unable to hear from her right ear for a period of time. The Mother had bruising on her face from this attack which she took photos of and stored on her laptop but these were later deleted by Father. . S was present during this assault. |
B. In November 2018 the Father attended at Mother's home and was aggressive and violent to her friend B who was present at the home. |
C. The father has previously punched a work colleague of the Mother at the Mother's family home. |
D. 26th December 2018 – Mother called the police as a result of father becoming aggressive. Father refused to leave when asked and whilst Mother was feeding S, the Father grabbed her on the shoulders and started to shake her and shout in her face. The Father was shouting and cursing at the Mother. |
E. Post separation, during video calls with the children the Father would be verbally abusive to the Mother in the presence of the children. |
5. The Father has been controlling and coercive towards the Mother as evidenced by the following: |
A. The Father would subject the Mother to verbal arguments referring to her having demons. |
B. During the relationship, the Father belittled the Mother and complained about her body, appearance and way of dressing. |
C. The father told lies to the Mother's sister and alienated the Mother from her sister. |
D. The father would constantly tell the Mother she was demon, possessed or working with the devil. |
E. The Father has on several occasions attempted to alienate the children from Mother by asking them to say bad things about the Mother and saying: a. "Your mother won't let me see you" b. I want to come but your mum won't let me" c. Is…hurting you" d. "Are you scared of…? e. "you do not have to say sorry S" F. "Did…. hurt you? |
G. In March 2020 the Mother allowed the Father to stay with them as a result of the covid pandemic. During this time the Father would instigate fights with the mother and her older daughter and would interfere with daily routines. The Father would tell the children to ignore what the Mother was telling them and would undermine Mother by praising any behaviour that contradicted what Mother told them to do. |
H. During the relationship, the Father was abusive to the Mother and harassed her as detailed above. The stress of the father's behaviour caused her to suffer a miscarriage. |
I. The Father has made false allegations to children's services and the Court and other professionals. |
J. The Father has attempted to alienate the children from the Mother by telling the children that the Mother has hurt the Father. |
K. The father covertly recorded the mother frequently. |
L. The father intentionally coaches the children and makes them believe the mother has hurt him. |
M. The father has misrepresented the parties relationship to fit his narrative |
N. The father has used these proceedings to continue to abuse and degrade the mother. |
6. The Father has neglected the children's needs by way of example: In July 2018 the Father dressed the children inappropriately for a hot day out at Alton Towers. |