Case No. EWFC-48

13.The judge began by briefly summarising the background to the fact-finding enquiry, noting that the mother had made extremely serious allegations against the father. He explained that case management prior to the fact finding hearing had been far from straightforward and that there had been a number of amended schedules listing the mother’s allegations. The judge did not set out the applicable law, noting that this had been agreed between the parties. However, he recorded that the onus was on the mother to prove the allegations she made on the balance of probabilities. The judge observed that, despite the large quantity of documents before the court, the case was largely centred on the mother’s word against that of the father, therefore making the credibility of those individuals “critical”.14.The judge then proceeded to give his overall impression of both the father’s and the mother’s evidence. He noted that the father had made concessions, accepting that his relationship with the mother was volatile at times and that there were verbal arguments during the relationship. The father had also accepted - in relation to another woman - that he had continued to have sex with her when she had asked him to stop. The judge also recorded the father’s written admission that there were instances when he would insert his finger into the mother’s anus and his acceptance that he would try to do this, despite being told to stop and despite knowing that the mother did not enjoy this sexual act. The judge noted the father’s attendance at an anger management course and his admission that he had smashed property in the mother’s home. Importantly, the judge addressed the submission made on behalf of the mother that the father had raped two other women in June 2014 and November 2015, recording that the mother accepted these allegations were hearsay and that neither woman had given a statement or were available for cross-examination. Overall, the judge acknowledged that the father presented well when giving his evidence and made some concessions which were to his credit. However, the judge said that these concessions together with the case advanced on behalf of the mother caused him concern.15.The judge’s assessment of the mother as a witness was lengthy, because of the submissions made by the father (a) that there were multiple serious inconsistencies in the mother’s oral evidence and (b) that the mother had lied in her written and oral evidence to the family court and had likewise lied in her interview to the police. The judge addressed a number of the submissions made on the father’s behalf. First, he set out the mother’s and the father’s respective submissions about the mother’s awareness of what constituted rape. Having done so, the judge said:“… In my judgment, [the mother] gave a credible, powerful and descriptive account when giving evidence of the alleged sexual abuse and despite extensive cross examination of extremely private incidents she provided answers which in my judgment to a very large extent supported her statements. She was able to explain given both her history of being abused as a child and the nature of her relationship with [the father] that what she now knows to be rape was at the time considered by her to be the norm. I do not find that this undermines [the mother’s] credibility.”16.The judge then addressed the father’s submission that it was surprising that the mother had failed to make reference to oral rape in her first witness statement. He noted the mother’s evidence on this matter and concluded: “…. Whilst it is surprising at first sight that oral rape was not specifically raised in the first statement there are of course accounts of both anal and vaginal rape contained within that statement with one of the exhibits to it being a text message that [the father] “forced her to suck his dick”. On [the mother’s] account there has been significant, multiple and differing types of sexual abuse over many years and I do not find this example given by Mr Latham as undermining [the mother’s] credibility”. The judge then recorded two further submissions made on behalf of the father, noting that they had some merit but, in the context of the case as a whole, were relatively minor and did not fundamentally undermine the mother’s credibility.17.The judge recorded the father’s submissions (a) that the mother’s recollection evidence from 2020-2022 should be treated with caution because it came some considerable time after the more serious allegations between 2012-2015; and (b) that the mother was involved in children proceedings, was represented by a solicitor at the time she gave her police interviews and had an incentive to paint the father in a bad light. The judge then went on to give his overall assessment of the mother’s credibility, describing her as a very plausible witness who gave honest and insightful evidence. The judge noted that the father was unable to give a reason as to why the mother had made her allegations of abuse and went on to explain how this had come about, concluding that “…It is unclear to me why [the mother] would repeatedly lie about these matters as submitted by Mr Latham”.18.The judge then addressed the specific allegations set out in the final schedule dated 12 September 2022. In respect of the allegation of forced anal sex, the judge noted the evidence about the parties’ behaviour in respect of anal sex, some of which supported the father’s case. However, the judge said this was primarily a case of the mother’s word against that of the father and that he had not come to his finding lightly given the seriousness of the allegation. He found that the mother was honest and fundamentally consistent in comparison to the father who he found less plausible. The judge then addressed the allegation of one occasion of vaginal rape, again finding the mother’s account broadly consistent with what the mother had said to the police. 19.The judge then addressed the allegation that the father had anally raped the mother on four occasions, noting carefully the submissions made by Mr Latham on the father’s behalf. Those submissions were that the mother had reluctantly submitted to anal sex as part of a routine of consensual anal sex or that she had reluctantly acquiesced to anal sex. Mr Latham also submitted that the father may have been under the impression that the mother was consenting. The judge stated that he found the mother’s overall account of the anal rape to be consistent, this being reinforced by other evidence in her medical records. The judge carefully noted that this evidence was based on self-report and came many years later. He stated that he found himself to be persuaded by paragraph 68 of the mother’s counsel’s submissions and found it more probable than not that the father anally raped the mother on four occasions.20.With respect to multiple oral rapes, the judge set out the submissions made on behalf of the father, namely that the mother had consented, even if reluctantly, as part of the relationship. The judge said:“…I find the comment at 25b of “[the mother] choosing the path of least resistance, which is part and parcel of a relationship” to be unfortunate. Whilst it may be the case that oral sex is used as an alternative to other forms of penetrative sex this should be on a consensual basis and not to prevent the other partner from “kicking off”. It is not rape however if the oral sex was consented to. However, having heard the oral evidence of both parties and along with my findings in respect of the other allegations of sexual violence, I prefer the evidence of [the mother] which I find to be the most plausible”. The judge went on to note that, with respect to the incident on 17 August 2018, the father accepted in evidence that he had slapped his penis against the mother’s face and that, on a previous occasion, he had grabbed the mother’s nose to force her mouth open so that he could place his penis in it. The father had also accepted that the mother had threatened to bite his penis if he attempted to insert it into her mouth but had suggested that this was all part of sex play. The judge rejected that suggestion and found the father to have, on occasion, attempted to force oral sex on the mother and, on occasion, to have successfully orally raped her. He found specifically that, on 17 August 2018, the father had attempted to rape the mother orally.21.Turning from the allegations of sexual abuse, the judge found the mother’s account of a violent assault by the father in March 2015 not to be made out, observing this was an incident where “neither party covered themselves in glory”. The judge went on to make findings in relation to an incident in April/May 2015, in large part because of the father’s admissions of kicking and damaging the mother’s property. The judge also found the mother’s allegation that the father had assaulted her in early November 2015 to be credible given the father’s anger management issues. He then made findings about a row in which the father blamed the mother for the damage to A’s face during childbirth but noted this had been said during an argument and in the heat of the moment during what was a turbulent relationship. The judge made a finding in relation to the father’s behaviour towards A at bath time when she was a baby but said this was not a deliberate act by the father who had no intention of hurting his child.22.The judge refused to make a number of findings sought by the mother, for example, about a row between the parties in September 2016; about the father’s alleged aggression towards the mother and children; about the father’s alleged financial control of the mother; and about the father admitting to the mother that he had raped her while she was asleep. In conclusion, the judge said this:“… Given my findings in respect of the sexual abuse allegations it is my judgment that throughout the parties’ relationship that [the mother] has been subjected to controlling and coercive behaviour in respect of [the father’s] sexual demands and desires. I also find that the parties’ relationship has been turbulent and I find [the father] does have anger management issues, has damaged some of [the mother’s] property and has said some hurtful things in arguments and texts.”23.On 13 October 2022, Mr Latham on behalf of the father sent a lengthy document seeking clarification of the judge’s draft judgement. First, Mr Latham drew some apparent inconsistencies in the oral evidence to the judge’s attention but the judge stated that, even if his note of the oral evidence was incorrect, it did not impact upon the findings in question. Mr Latham then set out a list of eleven matters which had not been addressed in the judgment. The judge responded by saying that he had considered in detail the written submissions and did not believe it was necessary to respond to each and every one. If a submission had not been specifically referred to in his judgement, then the judge did not consider it relevant to his overall conclusions. Finally, Mr Latham invited the court to clarify 13 matters within the body of the draft judgment, by posing a series of detailed questions. The matters of clarification went, in essence, to the credibility of the mother’s evidence and the judge responded briefly to each question, indicating that he found the mother’s evidence to be more compelling than the father’s and attributed little weight to the matters of detail raised by Mr Latham.