[2025] EWHC 1648 (Fam)

Fecha: 30-Jun-2025

The order and judgment below

The order and judgment below

36.

An agreed note of Recorder Pollard’s judgment is contained in the bundle for this appeal.

37.

On 17 October 2024, the Recorder made an order which, at recital 3, set out that the court made the following findings:

[C] has not been sexually abused by her father or by anyone;

The mother has utilised [PT] to maintain her narrative that [C] has been sexually abused;

There are no findings made on the remaining 26 allegations within the mother’s schedule;

The father has engaged in some limited controlling behaviour towards the mother, professionals and lay people which has caused emotional upset to the mother and others.

38.

Recital 4 to the order provided as follows:

“And upon the court asking for the mother to confirm her address to the father for the purposes of indirect contact given no findings were made of domestic abuse and on the basis that the father agrees to provide an undertaking not to attend the address. The mother refused to tell the father her address” (my emphasis)

39.

On their face, recitals 3 and 4 are inconsistent in that the former records a finding of ‘controlling behaviour’, which manifestly is a form of domestic abuse. Moreover, Recital 3(c) is plainly incorrect, in that it is clear from the judgment that findings against the father, including findings of abusive behaviour, were indeed made in respect of some of the mother’s allegations in the schedule. These points are rightly accepted on behalf of the father.

40.

With hindsight, it may have been a mistake to attempt to summarise a lengthy fact-finding judgment into one or two short recitals. A note of the judgment has now been agreed and the content of the judgment largely speaks for itself.

41.

My own summary of the findings made (and not made) is as follows:

(a)

C has not been sexually abused by the father (para 49).

(b)

C has not been sexually abused by any third party (para 49).

(c)

The mother will maintain her view that the father has sexually abused C until someone gives her a view that satisfies her (para 40).

(d)

The mother’s allegations that the father engaged in non-consensual and humiliating sexual intercourse with her were not proved (para 54).

(e)

The sending of sexually suggestive text messages was related to mutual consensual activities and fantasies (paras 57 and 58).

(f)

The father used his belt consensually in sexual activities. There was no excessive force (para 59).

(g)

The stress of a traumatic and perilous pregnancy followed by the peri-natal mood changes in the mother, resulted in the mother’s dramatic change in her attitude towards the father. She did not deliberately fabricate evidence, but allowed herself to reinterpret events which have happened (para 60).

(h)

No findings were made in respect of the allegations that the father perpetrated physical and emotional abuse against C (para 61).

(i)

In 2014, the father was found guilty of racially aggravated assault after punching a bar security guard (for which he had to be restrained) and calling him ‘a Polish cunt’. The father sought inappropriately to justify his actions (para 65).

(j)

On 11 April 2015 the father came home, called the mother ‘a cunt’ and told her to get out of the house. He did not, however, chase her around the house as she had alleged. Despite the fact that his behaviour was ‘appalling’ and that he was ‘drunk and abusive to [the mother]’ he sought inappropriately to justify his actions. His failure to take responsibility illustrated his inability to appreciate the impact of his behaviour on others (para 66), a point made by Dr Bailie.

(k)

On 16 September 2015, during the mother’s pregnancy, the father, as he accepted and no doubt exacerbated by his fear of the mother haemorrhaging, made comments towards ambulance staff which could have been construed as confrontational and oppositional. The mother was concerned by his drinking on this occasion. The father was not ‘abusive’ but this is an example of his inability to deal appropriately with people in authority or to appreciate how he can be construed by others (para 62).

(l)

On 9 October 2015, after being asked to put up stairgates, the father responded in a manner which ‘may have been stubborn or selfish, but that [wasn’t] necessarily abusive’ (para 62).

(m)

No finding of abuse was made in respect of the mother’s allegation (number 14) that on 13 October 2015 she asked to remain at the hospital as she was frightened of the father and worried that his abuse and aggression would cause her to lose the baby (para 63).

(n)

No finding of abuse was made in respect of the mother’s allegations (number 15) that towards the end of October 2015, at a time when the mother was struggling to breastfeed, the father told her that this was because of ‘the state’ of her breasts adding that ‘your nipples aren’t where you think they are, it’s all sagged because you’ve put on so much weight’, and that he also called her ‘fatty’, as he had done during her pregnancy. The judge’s finding in relation to these matters was that ‘[t]he texts which are the best contemporaneous evidence show a loving and supportive relationship, not any derogatory comments’.

(o)

The father’s behaviour towards Dr Bailie’s PA when she refused to allow him to see Dr Bailie, though borne of frustration, is another example of how he sees things only from his perspective and cannot see how his behaviour is perceived by others (para 66).

(p)

On 30 October 2015, the father conducted himself towards a health visitor in a way which, as he accepted, caused her to experience him as aggressive. This is a further example of how he only sees things from his perspective. He did not appreciate the impact of his behaviour on the health visitor or the embarrassment caused to the mother by his behaviour. He does not like to be challenged by those in authority (para 67).

(q)

During supervised contact the father called the supervisor a nasty woman and glared at her, causing her to feel intimidated. He lacked empathy into how his actions were perceived by her. As Dr Bailie opined, he sees himself as right and more able than the people around him (para 68).

I observe that on this occasion, the father’s behaviour occurred in front of the child during a period of contact, and that according to the supervisor’s notes the father’s behaviour was provoked after she informed him that she would have to make a note of an inappropriate comment he had made about the mother.

(r)

Traits of the father’s behaviour and character cause upset to others including the mother. Some (but, I interject, not all) instances fall into the category of ‘directive, stubborn or assertive’ as opposed to ‘abusive’ behaviour (para 69).

(s)

Because of his inability to understand how he is perceived, the father has caused emotional upset to the mother (para 69).

(t)

Some of the father’s comments have caused potential emotional harm to C. These ‘include’ comments about telling her that the mother should die and a comment in the nursery record that it was his human right to question C about the allegations, which Dr Bailie considered would be emotionally harmful for C (para 69).

I add here that it would appear that the reference in the judgment to the comment having been made in a ‘nursery record’ was an error; it was in fact made in a ‘contact book’ which was passing between the parents.

(u)

The father’s behaviour will have caused upset to the mother and will have been seen by her as controlling behaviour to make her feel subordinate in that he is right and she is wrong (para 69). An ‘example’ of this is his behaviour on 11 April 2015 (see above).

(v)

The incidents that are ‘relevant’ (I assume by this, the judge meant relevant as examples of the father’s controlling behaviour) are (para 70):

(i)

The father’s lack of understanding in regard to his assault on the security guard;

(ii)

The father’s behaviour on 11 April 2015;

(iii)

The incident involving the health visitor;

(iv)

The father’s attendance at the GP to obtain C’s medical records.

(w)

There is a ‘limited’ amount of controlling behaviour by the father, limited to those issues raised in the judgment and only those (my emphasis).

I add that the judge’s use of the word ‘limited’ should be seen in the context of his having rejected the mother’s sexual allegations against the father as a form of coercive or controlling behaviour. I consider that in using that word he was not seeking to minimise the findings of abuse which he did in fact make, nor to suggest that the ‘examples’ of the father’s behaviour about which he had made specific findings in the judgment were the only instances of the father’s abusive behaviour; he was using the word emphasise that he had not made other more serious findings sought by the mother.

(x)

There was no financial abuse (para 71).

(y)

The mother has utilised professionals to maintain her narrative in relation to PT.

42.

Apart from the stairgates incident, is not altogether clear from the judgment which instances of the father’s behaviour the judge considered fell into the category of ‘directive, stubborn or assertive’ as opposed to ‘abusive’ behaviour.

43.

Although the judge made findings in relation to the majority of the specific incidents set out in the schedule of allegations, the following allegations were not addressed:

(a)

The mother’s allegation (number 10) that in July 2015 when the mother was 21 weeks pregnant, sleeping and unwell, the father shouted in her face at 5am. The father denied the mother’s version of events.

(b)

The mother’s allegation (number 13) that on 10 October 2015 the father was verbally abusive to her in the car when they were on the way to hospital and she was bleeding, shouting ‘you’re obsessed with that bloody dog’. Save that he accepted using those words, the father denied the mother’s allegation.

(c)

An allegation (number 18) that on 28 June 2016 at approximately midnight the mother was woken up to the sound of a lone male voice, which she believed to be the father, shouting repeatedly near her flat ‘You cunt, you fucking cunt’. This was wholly denied by the father.

44.

The schedule of allegations included an allegation (number 16) that on 7 December 2015 the father sent the mother abusive text messages which caused her distress. The father denied that the messages in question were abusive, and asserted that they were ‘a fair reflection of [his] anguish at the time’. Some of the messages sent by the father on 7 December 2015 have been helpfully set out by Dr Proudman within a ‘Schedule of Incontrovertible Evidence’ which she has prepared.

45.

The messages identified by Dr Proudman in her schedule and the ones which preceded them on 6 December 2015 read as follows:

“I will never never accept missing out on all of this because of your paranoia about me being violent toward you or [C]. This thing that has developed in your head seems to me to be based on your previous bad experiences with men, most notably, your father. Unfortunately, your mum having also not experienced a loving relationship with a man is supportive of this rather than encouraging reconciliation. I'm willing to accept that we have issues to sort out before we can live together again but you have to try to get over your fundamental negativity toward men. I love both of you but a life lived as some part time divorcee fills me with dread and foreboding and i would never have considered having a child with you if I believed this would be the outcome. I understand you are not happy but you have to think of [C] and how she will feel.”
“when you go to work I'll have time off work and will look after [C]. I'm her dad as you say. I'm not really happy about your mum looking after her”
“I hope you've slept well because i have not,, oh well off to work for another week, i mean what I say about your mum, i cant believe [C] has to suffer with her, she's awful. Her house also smells damp and of old smoke which i can smell on [C] now it's totally disgusting, i can't believe what you've done, I'm going mental here, you've become evil since she's been born... I'm struggling not to hate you, I hate your mother, I don't want her going near [C], please tell her, as I said when possible [C] should come here, your mum's not got any track record with kids, from what you've said, burning your stuff, knocking the rat man and Christmas at 3 am. I want her as far away from [C] as possible, she's a total loin”
“I need Z to give her key back, I don’t want to see her. If she steps foot in the house or there’s any other people in here without my permission I’ll call the police. If the keys not back in the next few days I’ll be banging on her door for it”
“I am sorry for everything bad that has happened, everytime you’ve been upset all I’ve wanted is to make you love me again but I have no idea how to, sometimes you seem so angry with me and you make it seem impossible that things will be good again and I crumble inside and get devastated and try to make it better by pointing out your faults. I really love you and [C], I’m crying at work now. I really need a hug”(the highlighted emphasis has been added on behalf of the mother for the purposes of this appeal)

The judgment did not address these text messages. I was informed by Ms Whelan that counsel for the mother (not Dr Proudman) made clear at the hearing that the mother did not pursue findings in relation to these messages.

46.

It also appears from the judgment, as submitted by Ms Markham KC, that the Recorder gave express consideration to whether the factual matters alleged by the mother as amounting to rape or other forms of sexual abuse constituted a pattern of coercive or controlling behaviour by the father. He held that:

“At time of behaviour, there was no coercive or controlling behaviour. What has happened has all been consented to. The mother might regret her actions now but at the time, there is no evidence that actions were designed to humiliate. Allegations 1,2, 3, 4, 5, 7 and 8 are not proven – they do not show a pattern of coercive or controlling behaviour towards the mother.”

From his use of the words ‘designed to humiliate’ it is clear that the Recorder had in mind the definition of coercive behaviour in PD12J (see below).

47.

As will be apparent from my summary of the findings above, the Recorder did not limit his consideration of the father’s behaviour to the specific matters set out in the schedule. The findings about his conduct towards third parties such as the contact supervisor, the GP’s receptionist and Dr Bailie’s PA fell outside the scope of the 26 allegations in schedule, although they were within the ambit of the first overarching allegation set out by the mother at the start of the schedule. The three individuals in question did not give evidence (they had not been called to do so and had not filed statements) and the findings, permissibly, were based upon hearsay evidence such as documentary records and, in the case of his PA, the evidence of Dr Bailie.

48.

One witness who had been expected to attend court to give evidence was PT, the therapist whom the child had been seeing. She had formed the view that the father had perpetrated sexual abuse against the child. The judge was critical of her failure to attend court and her evidence more generally. He held at paragraphs 32 and 33:

“I was supposed to be hearing evidence from PT. I must deal with that carefully. PT has played a prominent part in these proceedings. M was no longer intending to call PT to give evidence, and F wanted her to be called. PT refused to attend the hearing and give evidence, ostensibly on the grounds of her ill health. She supplied evidence that she was admitted to the hospital in May 2024 due to a flare-up of her ulcerative colitis. It appears she was discharged for follow-up by the community team on or about 17 May 2024. Other than that there is no evidence that she is unfit to attend court. PT wrote to the solicitors for NYAS on 18 September that she could not attend. On 1 October, she was asked if she would attend remotely. They chased on 4 October. On the same date, she said it was not possible to attend remotely – no reason was given why and there was no request for any special measures. It was a curt reply. It is clear PT does not want to attend court. She provided no supporting evidence that she is too ill and she dismissed attending remotely without giving reasons. PT’s evidence is of crucial importance as she was adamant that C was sexually abused by F. She has also taken what AC described as an unusually high involvement in the case but attending CP meetings and sending emails. She wrote to the CP conference on 14.04.22 and has written to the LA, GP and nursery. AC also confirmed that PT was of the view that F sexually assaulted C. The court-appointed expert Dr B did not agree that F had sexually abused C. He does not share PT’s conclusions.”
“PT has treated C from 2018-2020, she did so believing C had been sexually abused by F and C had made disclosures through play and C was a traumatized child – these were not AC’s views. The court was denied the chance to hear from her. The lack of medical evidence supplied by PT and the curt and dismissive way she declined to attend the hearing – it is a reasonable inference that she does not wish to appear and be subject to questioning about her diagnoses and actions. I have taken judicial note of this and considered what weight to place on PT’s evidence. I am not merely going to dismiss her evidence as it is of crucial importance, but I will pay little or no weight to her evidence as to the allegations that M seeks the court to make. As MW submits and I accept, C has never made an allegation to PT. PT has not reported to the police that C has made any allegation of abuse by F. I fully accept that PT is of no utility to the veracity of M’s allegations.”

49.

It is also material for me to record that the Recorder made findings about the evidence of the parents which was relevant to their overall credibility as witnesses. At paragraphs 51 and 52 he said the following:

“M writes a letter to F’s solicitors on 14 Jan 2015 which post-dates allegations other than allegation 8 which M described as violent. She describes him as gentle and not violent in any way. M knew or ought to have known that the letter would be used in a court of law. She stressed her honesty in that letter. Despite giving myself a Lucas direction, this goes to M’s credibility over her evidence. If the allegations she seeks for me to make, then M is willing to write a letter which will be used in a court of law which is in total opposition and contravention to what she is now asking the court to make findings on. It’s a letter which was going to be used in a court of law.”
“What struck me in this case was when F gave his evidence he was a good historian, recalling details and facts precisely. It contrasted with M’s evidence which was vague and sometimes evasive.”