Case No. EWFC-85

20.I remind myself of the legal framework within which I must consider the evidence and the factual allegations. 21.I must decide this case by considering each allegation individually, whilst also surveying the broad canvas of the evidence. It is for the mother to prove that her allegations are probably true. 22.The allegations in the schedule have formed the core of my deliberations, but I have also borne in mind the Court of Appeal decision in re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448. Directions were given in this case, and statements prepared well before the decision in re H-N. The evidence and submissions focussed largely on the schedule and the allegation of sexual touching has been, in my judgement, the central issue requiring determination. However, the remainder of the allegations have widened the court’s focus to the parents’ and the children’s broader experience of family life, and I have tried also to step back to consider the parents’ relationship as a whole. 23.I can consider drawing appropriate inferences, but I must not confuse speculation and suspicion for evidence. I can consider the inherent probabilities of what is alleged, whilst also bearing in mind that improbable things do happen. 24.I should consider the consistency of the allegations, whilst bearing in mind that genuine accounts are not always wholly consistent over time and, indeed, marked consistency can sometimes suggest a fabricated account. 25.I must consider what, if any, corroboration exists for the allegations from external sources or contemporaneous documentation, whilst also bearing in mind that sometimes parents may cynically ‘build a case’ by reporting to the authorities (for example police and social workers) or by creating recordings or messages. I remind myself that many incidents of domestic abuse are not reported to the authorities at the time they occur. 26.I can consider the parties’ demeanour as they gave oral evidence before the court, yet I must be cautious as I do so. Different people respond to the stresses of court proceedings in different ways. I must also be mindful that the court assesses a witness over a short period of a few hours in court, when parties are simultaneously under great pressure but also usually trying to show themselves in their best light. This can create an artificial impression. 27.I can take account of what third parties say or write who are not attending court to give evidence, but I must exercise appropriate caution in giving weight to hearsay evidence not challenged in cross-examination. In this case the written police evidence has the status of hearsay evidence, from sources who are not involved in this litigation, recording their observations and impressions at or near the time of events. 28.I have borne in mind the legal definitions of coercive and controlling behaviour. As defined in the current version of Practice Direction 12J, at paragraph 3, “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim. “Controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. 29.In this case the mother relies on 3 audio recordings she made of Yasmin, including one recording, covertly made, of Yasmin’s interaction with Social Worker B. Individuals do not need the consent of professionals to record a meeting, as the information is personal to them and exempt from the data protection principles under the Data Protection Act 2018. Recording the social worker’s meeting was not illegal. It is, however, generally good practice and good manners to inform all those involved in a meeting if it to be recorded. The court has the power to control the evidence placed before it under FPR 22.1 and the test is one of relevance. The recordings made by the mother were clearly relevant to the issues in the case, and the father through his counsel made no challenge to the admissibility of the recordings. Transcripts prepared by the mother were, helpfully, very largely agreed between counsel and put before the court without opposition. It is then for the court to consider the weight to be given to the recordings and the light they shed on the issues in the case.