Case No. Case-No.-LV21P00249

5.The relevant parts of section 11 of the Civil Evidence Act 1968 provide as follows:“In any civil proceedings, the fact that a person has been convicted of an offence by or before any Court in the United Kingdom, shall be admissible, in evidence, for the purpose of proving where to so is relevant to any issue in those proceedings that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise, and whether or not he is a party to the civil proceedings, but no conviction other than a subsisting one will be admissible in evidence by virtue of this section. In any civil proceedings in which, by virtue of this section, a person is proved of being convicted of an offence by or before any Court in the United Kingdom, he shall be taken to have committed that offence unless the contrary is proved”.This provision was considered by the House of Lords in the case of Hunter v Chief Constable West Midlands Police [1982] AC 529. At page 544, Lord Diplock said this:“This wide variety of circumstances in which section 11 may be applicable includes some in which justice would require that no fetter should be imposed upon the means by which a defendant may rebut the statutory presumption that a person committed the offence of which he is being convicted by a court of competent jurisdiction. In particular, I respectfully find myself unable to agree with Lord Denning, Master of the Rolls that the only way in which a defendant can do so is by showing that the conviction was obtained by fraud or collusion or by using fresh evidence which he could not have obtained by reasonable diligence before, which is conclusive of his innocence. The burden of proof of ‘the contrary’ that lies upon a defendant under section 11 is the ordinary burden in a civil action: proof on a balance of probabilities; although in the face of a conviction after a full hearing, this is likely to be an uphill task”.6.As Sir Andrew McFarlane, President of the Family Division stated in Re H-N and Others (Children) (Domestic Abuse: Finding-of-Fact Hearings) [2021] EWCA Civ 448, paragraph 73:“It follows, therefore, that a family judge making a finding on the balance of probabilities is not required to decide and does not decide whether a criminal offence is being proved to the criminal standard. Any use of familiar terms should not give the impression that the abusive parent has been convicted by a criminal court. Equally, where an abusive parent has, in fact, been convicted of a relevant offence, e.g., a sexual or violent offence against the other parent, the conviction is proof of the fact that he or she committed the offence unless the contrary is proved”.7.Through this hearing, the father has made it clear that he does not accept that he has committed any offences in respect of the mother or E for that matter. His case is that a criminal case was brought against him in respect of the complaints made by the mother and E, and that the complaints were based on a complete fabrication by the mother and that the mother has coerced E to join with her in falsely accusing the father of multiple serious violent sexual offences. It was clear from his evidence that he does not and will not accept or acknowledge guilt in respect of a single matter for which he was convicted, and as a result, refuses point blank to undergo any work in respect of sexual violence against women. There is no insight, contrition or desire to change. As he said when giving evidence he will not undergo any such course and admit guilt until his last breath. 8.Since the father has been sentenced, he has been serving his sentence in the following prisons: (redacted). Since the father has been incarcerated, it is clear that there have been communications between the mother and the father, either direct or indirect, which continued up until January 2021. The father has produced documentation to show that the mother was sending him romantic cards and love notes. These can be seen from G23 to G29, on one occasion, a sexualised letter at G30, books at G33, 11 emails at G62 to G73, six emails, G110 to 115 and three text messages, G116. It is clear from the documentation that the mother was using different names to avoid the prison authorities discovering their communication. She changed her name by deed poll. She also appears to have used postal systems like Snapfish to avoid detection.9.The mother and father are diametrically opposed as to why this communication took place. The father’s case is simple. He says that he has been falsely accused and convicted of each and every offence in respect of the mother and E, that the mother’s conduct after his conviction has been part of a concerted course of controlling and coercive behaviour over him which, in turn, has caused him emotional harm. He argues that it is clear from the fact that the mother was communicating with him as much as she did and in the manner that she did, that it was to control him and cause him emotional harm. In other words, he is the victim in all of this. So much so that he now needs the Court’s protection of a non-molestation injunction. He asserts that the mother has lied to Social Services, the police, the Courts, the prison authorities and now this Court, and is manipulating the system. This was, undoubtedly, one of those cases where one has to have the opportunity to see and hear the parties giving evidence to fully understand the import and impact of their credibility on the case.10.I found the father’s account inherently improbable. He sought to suggest that it was the mother’s sophistication that devised the system for communication between the two of them to avoid detection by the prison authorities and was nothing to do with him. I simply do not believe that, despite the father producing evidence of one Google search by the mother on how to visit someone in prison. She readily accepted that it was the sort of thing that she would have done at that time as she was still, clearly, dependent upon him notwithstanding the sexual violence that she reported he had perpetrated upon her. The father was the one with, already, extensive prison experience. The mother had none. He well knew what was required. He said that the communication from the mother was causing him emotional harm. I do not believe that evidence. I found him to be a deeply unimpressive witness and I reject his account as fanciful. Indeed, four of his own comments exposed him for the type of person that he is.11. At one stage in his evidence, he said rather menacingly that he could have had the mother followed if he wanted to know where she lives. On another occasion, he said that he could not say too much as he had employed a private investigator to look into how the mother was living her life. He then rode back from that to say that he had suggested that to his barrister, (implying a barrister instructed in connection with a proposed criminal appeal). At another stage in the hearing, he described the mother as having been “a bit on the side” of his relationship with E. Finally, he said, at different points during his closing submissions, that he would tell his son not to be violent with women, not to make the same mistakes he did, and not to be like him. I also found him to be a person who would misconstrue or misrepresent matters. At one point, he suggested that I had said that his previous convictions could not be used against him, that they were not relevant. He went on to suggest that I put that in one of my orders. None of that was true. In terms of discharging the burden of proof on him on a balance of probabilities by reason of section 11 of the Civil Evidence Act to show that he was convicted in error in 2019, he did not even begin to do so in my judgment. 12.The mother’s case is quite different. I found her to be a singularly impressive witness who was prepared to acknowledge where she was to blame for what happened. I accept her evidence and greatly prefer it to that of the father, whom I find to be dishonest. I found the mother to be utterly compelling, speaking with a disarming honesty. I found her to be entirely candid in the way that she dealt with falling back into a relationship, as she perceived it to be, with the father after his convictions, and how she was duped. She readily admitted her role in deceiving the prison authorities and lies told to Social Services. As she said, she had not been ready to leave him at that stage. She clearly still loved him, and it was only over time and with the benefit of professional help that she was able to see the father’s motives for what they really were. Like so many survivors of domestic abuse and sexual violence, she developed a toxic, mutually dependant relationship with her abuser. She simply could not do without him, irrespective of the emotional and physical cost. 13.The father sought to attach great weight to the mother getting the end date of her letters incorrect, suggesting that he was able to prove that they continued longer into 2020. He suggested that she committed perjury giving an earlier date. However, the mother was clear in her evidence that she was not good on the dates, and I attach no real significance to this point. In my judgment, she was not being dishonest; she was doing the best she could to remember and was mistaken. The father did, as he did more than once in the case, latch onto a point that was less than significant to try to create a smokescreen for the real truth. He also wanted the Court to attach great weight to a report from a cognitive behavioural psychotherapist, F, at G24. That document does not advance the father’s case, in my judgment. The mother gave clear evidence that she had not made false allegations about her stepfather.