[2025] EWHC 1648 (Fam)

This is an appeal against decisions made at a fact-finding hearing by Recorder Pollard on 16 October 2024. Permission to appeal was granted by Williams J on certain grounds of appeal, but not others. In particular, permission to appeal was refused in respect of the judge’s rejection of allegations that the father had sexually abused the parties’ daughter, to whom I shall refer as ‘C’.

At the hearing of this appeal, the appellant mother was represented by Dr Charlotte Proudman on 12 June 2025 and represented herself on 13 June 2025 when she made brief submissions in reply (courteously and eloquently). The first respondent father has been represented by Ms Hannah Markham KC and Ms Madeleine Whelan. The child, acting through her guardian, NYAS, has been represented by Ms Roseanna Cawthray Stern. I am grateful to all counsel, and to the mother, for their helpful submissions. I also record my particular gratitude to Ms Markham KC, Ms Whelan and their instructing solicitors and to Dr Proudman, all of whom who acted pro bono. Neither Ms Markham KC nor Dr Proudman appeared at the hearing below.

On 14 January 2025 the matter came before me. There was insufficient time to deal with the appeal and consequently I adjourned it. There was some debate at the hearing as to the ambit of the appeal. As is recorded in a recital to my order, the mother made it clear that she does not seek to re-open rape and sexual abuse allegations against the father, which were not proved on the balance of probabilities at the fact-finding hearing. Additionally, the mother agreed that the appeal has crystallised to the following issue:

“Given findings made by judge and other incontrovertible admissions by the father and the evidence before the trial judge, did the judge reach the wrong conclusion about how those findings and material should be categorised?”

The proceedings concern C, who is now aged 9. A striking and depressing feature of the background is that she has been the subject of litigation between her parents since 2016, in other words for almost all of her young life.

The parents never married. They first met and had a brief relationship when they were young adults: the mother was 18 and the father 21. They are now both in their fifties. The parents are professionals who at one stage worked at the same institution.

Some years after their initial meeting, in 2013, the parents met again and renewed their relationship. Matters progressed quickly between them. The mother became pregnant and C was born in October 2015. About a month later the parents separated. As set out by Recorder Pollard, ‘thereafter there were occasional visits and contact with family members present… [the] contact was fraught with difficulty’. C has lived with the mother since the separation. She has not spent time with the father since March 2020, that is for over 5 years.

There have been two sets of proceedings, the first of which commenced in 2016. There was a fact-finding hearing before DJ Collins which culminated in a judgment on 17 June 2017. DJ Collins had previously determined as a case management hearing that out of 18 allegations set out by the mother in a schedule, 12 should be determined by the court. In his eventual judgment, delivered following a hearing which lasted for 3 days, he proceeded to reject the allegations which the mother had made.

On 11 June 2018, DDJ Robinson made a final order for contact by consent: initially this was to be supervised, with a progression towards overnight contact which was to commence at the end of October 2018. The father gave an undertaking not to consume alcohol for 24 hours prior to contact and during contact and not to denigrate the mother.

On 11 December 2018, the previous order for contact was suspended by DJ Collins, pending investigations by the police and social services, after the mother made allegations that the father had touched C sexually.

On 14 October 2019, an order was made by DJ Collins removing the suspension.

On 3 December 2019, the mother applied for a further suspension of the contact. She raised issues in relation to the social services report which had led to the removal of the suspension. She also alleged that since the resumption of unsupervised contact, C had exhibited sexualised behaviour. The case had been referred back to social services. The alleged sexualised behaviour had been identified and described in a report from a play therapist to whom I shall refer as ‘PT’.

On 23 December 2019, DJ Collins made an order varying the arrangements for contact so as to remove the previous provision for overnight contact. He declined to require contact to be supervised, as the mother had requested. Comments made by the judge on that occasion led to him recusing himself, on 20 February 2020, on the mother’s application.

The matter next came before the court at a remote hearing on 20 March 2020, shortly after the imposition of the Covid-19 lockdown. Directions were given by HHJ Bedford.

On 7 April 2020, the proceedings were dealt with for the first time by DJ Pollard (as he then was). He made an order for video contact to take place while the Covid-19 restrictions remained in place; thereafter contact was to be supervised by the paternal grandmother subject to her signing a schedule of expectations provided by the local authority. Directions were given for the local authority to file a family assessment.

On 19 July 2020, the mother applied for a variation of the contact order so as to provide that it should be professionally supervised, a step which the local authority had recommended.

On 24 September 2020, the father made an application to enforce the arrangements for contact, which had not been taking place as ordered.

On 17 November 2020, DJ Pollard approved the instruction of a psychologist, Dr Bailie, to prepare a report in relation to the issues in the case and gave other directions. Dr Bailie was directed to prepare an interim report addressing the question of interim contact. C was joined as a party to the proceedings and NYAS were appointed to represent her. A social worker recommended that the father’s contact with C be suspended pending the assessment to the avoid the risk of C becoming re-traumatised.

On 23 March 2021, further directions were given by DJ Henry, including the discharge of the direction for the preparation of an interim report by Dr Bailie. The case was listed on the first available date after 18 June 2021.

The matter was listed on 1 November 2021, but this hearing was ineffective after Dr Bailie indicated that he needed to meet again with the parents.

On 6 April 2022, the mother made an application to reopen the fact-finding previously undertaken by DJ Collins.

On 28 April 2022, DJ Pollard gave further case management directions and listed the mother’s application to re-open the fact-finding for a hearing. The timetable set out in his order was delayed after the mother filed a statement running to 51 pages of narrative together with a lengthy exhibit.

On 5 August 2022, Recorder Pollard (who had retired as a full-time judge and thereafter sat as a Recorder) heard submissions in relation to the mother’s application to reopen the fact-finding and adjourned the matter for judgment.

On 7 September 2022, judgment was handed down. The judge’s decision was to accede to the mother’s application, which had been supported by NYAS. At paragraphs 10 and 11 he said:

“I should add that I do not make, nor should I make any criticisms of my brother judge District Judge Collins, for when he heard the case in 2017 he followed the practice which was then in place. It can be summed up as we dealt with specific allegations to the [Scott] Schedule rather than concentrating, as we do now, on a pattern of coercive, or, controlling behaviour. Judges, then, often told … parties to give one or two examples of the oldest, the newest and most serious of alleged behaviours. It was in my judgement as though the court was then looking at a still photograph or a scintella temperis rather than a video or a pattern of behaviour.

There has been a quantum leap in jurisprudence on this topic since 2017 when District Judge Collins heard this case as to how the concept of domestic violence is defined and more particularly how it is dealt with and in particular the use of Scott Schedules has been criticized as being inappropriate and inadequate.”

In explaining his decision to reopen the fact-finding, the judge said at paragraphs 29 and 30:

“29.

I further do not accept that the father’s submission that there is no new evidence or the criticism that Mr Howe QC in his Position Statement failed to show that there is new evidence to support the mother’s account of the father’s behaviour. District Judge Collins held that the father’s aggression was associated with his misuse of alcohol. However, there is now evidence that demonstrates that his aggression, anger, and irritation occur when not in drink. Dr Baillie in a report ordered by the court identified evidence and reached some pertinent conclusion about the father that tends to lend support to the mother’s evidence about the father’s behaviour towards her. Further, [the father] presented as anxious and occasionally quirky and irritable. Further, Dr Baillie reports that, [the father] tends to become irritable and argumentative when challenged or questioned particularly by females and sees himself as right and more able than those around him. [The father] struggles to work in partnership. He prefers his own approaches and bristles at being told what to do, or, others expressing an opinion, particularly it would appear if they are female as they are perceived by [the father] as less intelligent and/or in a position of authority. [The father] struggles to understand his own thoughts and feelings which reflect how he is with others and how others experience him. This pattern of difficulties goes across his relationship and fits with [the mother]’s experience of the father. Dr Baillie also had the opinion that [the father] caused the distress and emotional harm that [the mother] experienced with him. In the light of [the father]’s difficulties in reflecting on his own wellbeing and the impact that his words and behaviour on the mother and his difficulties in seeing this situation from other people’s point of view and Dr Baillie was concerned that [the father] would struggle to engage with a further assessment of [C]’s thoughts and feelings about him and would struggle to accept the findings of such an assessment. The father would likely struggle to engage in any intervention focused on him responding to [C]’s needs and being supervised in caring for her for the time being. He further reported on 13th September that the father referred to the contact supervisor as a nasty woman but denied being aggressive or intimidating however, describing the contact supervisor as having a breakdown so on 30th July 2017 the contact supervisor did not feel safe with the father so stepped out of the room and sought support and [the father] was repeatedly disrespectful to the contact supervisor and her colleague in front of [C].

30.

On 4th January 2019 [the father] was leaving long angry voicemails on social workers phones and presenting angry on the phone with professionals. [The father] by way of explanation once said, “once you say no to a woman, they don’t like it do they? In my experience. “As to father’s current drinking of alcohol use he described consuming half a bottle of red wine a night and having done so for the last eight years. [The father is] also said to have spoken at length and told a Miss [X] to “Shhh” when she sought to interrupt him, he also swore and became quite escalated in his presentation. That together with the mother’s statement at section 48 onwards, which can be found in the trial bundle at page 239, is where the mother describes the father’s abusive behaviour as [continuing]. At paragraph 53 the mother reports that the father sent an intimidating message to [the social worker], (page 240) and PT the play therapist the father also made allegations that the mother was a lesbian to a number of professionals and also accused her of being sexually involved with two of her friends who were then required to file statements in the proceedings and the father was considered [by] a GP to be unsettling and aggressive at the centre, (page 276 of the bundle) and a health visitor considered that he engaged in an inappropriate conversation about sex with her.”

The matter listed for a further case management hearing on 25 November 2022. On this occasion, Recorder Pollard gave further directions including for the filing of witness statements. The proceedings were listed for a pre-trial review (‘PTR’) on 14 February 2023.

On 14 February 2023, Recorder Pollard give further directions. These included a direction permitting the parties to file the bundle of text messages running to 2425 pages. Other directions made provision for the mother to file a composite schedule of allegations and a statement in support and for the father to respond. The matter was listed for an adjourned PTR and ground rules hearing.

On 19 June 2023, Recorder Pollard gave further directions including for the filing of an amended schedule of allegations and response. A yet further PTR was listed on 19 October 2023.

On 19 October 2023, Recorder Pollard gave further directions in relation to the attendance of witnesses at the fact-finding hearing and the evidence to be included in the bundles. He acceded to an application by the father that the play therapist, PT, should be called to give evidence. Recital 11 to the order provided as follows:

“AND UPON the Court indicating its view that:

i.

The Court shall not decide each and every allegation made by the parties but will look at the overall picture as to whether the mother’s case for a pattern of coercive and controlling behaviour on the part of the father is made out;”

The application was to be listed for a seven day hearing in June 2024, although in fact a notice of hearing was issued by the court setting the case down in October 2024.

Recorder Pollard finally heard the matter in October 2024. That is, almost five years after the mother had applied, for the second time, for a variation and/or suspension of the terms of a contact order made in 2018. Throughout that period C’s life had been overshadowed by the fact that very serious allegations had been made against her father, including that he sexually abused her. It had previously been determined that she should have regular staying contact with her father. The length of time it has taken to resolve these allegations caused her relationship with him to be severed. At one time the father was offered supervised contact, which he declined. Standing back, I consider the length of time taken to resolve the factual issues to be shocking as well as harmful to C. The precise reasons for the delay are unclear to me, but it is accepted that some of the delay has been caused by the father and some by the local authority which has been involved in the case. Inevitably, this appeal has added to the delay.

As had been directed, the mother’s case was encapsulated in an amended schedule of allegations dated 26 June 2023. The document begins by setting out an overview of her case, as follows:

“1.

Abuse of mother

The mother seeks findings that the father was a perpetrator of domestic abuse in the form of sexual abuse, and of coercive and controlling behaviour both before and since their separation. Since separation the father has threatened the mother in order to get his own way through intimidation by making false claims against her and her family, including her mental health and threatening to damage her professionally. He intimidated her by threats to seek her out and take [C] away from her and to gain custody. This behaviour extends to his interaction with professionals.

2.

Abuse of [C]

The mother seeks findings that [C] was physically and sexually abused by the father as well as subjecting her to emotional abuse by his coercive and threatening behaviour towards the mother by seeking to undermine [C]’s positive relationship with both her mother and her maternal grandmother.”

The schedule then proceeds to list a total of 26 ‘additional specific findings which the mother seeks’. Of these ‘additional’ allegations:

I was informed by Ms Cawthray Stern, who acted on behalf of NYAS at the hearing below, that the hearing, as envisaged, lasted for a total of seven days. Despite the four bundles before the court exceeding 5,000 pages, there was no reading day. The first four days of the hearing were taken up with hearing oral evidence from the parents, the social worker, Dr Bailie, the paternal aunt and the mother’s niece. PT had been expected to give evidence, but did not do so, a matter that was the subject of adverse comment by the Recorder. The mother gave evidence for approximately 6 ½ hours spread across two days; the father for approximately 4 hours. At the conclusion of the evidence (on Friday 11 October 2024), the Recorder directed the parties to file written submissions by 12 noon on the Monday, which was done.

The mother informed me that, although she had direct access counsel acting for her pro bono at the hearing, she prepared the closing submissions herself. Although she may have had some input into the submissions, her counsel put his name to them which he would not have been able to do professionally unless he endorsed their content.

After considering the written submissions, Recorder Pollard delivered an oral judgment on Wednesday 16 October 2024.