FA-2025-000024 - [2025] EWHC 1500 (Fam)

The fact-finding hearing came before Mr Recorder Stables. At that hearing the Appellant father had the services of Direct Access Counsel and the mother, who was in receipt of legal aid, was represented by Counsel. Over two days, namely 2 and 3 December 2024, the learned Recorder heard oral evidence from the father and the mother as well as four other witnesses. At its conclusion, he adjourned the hearing to enable both parties to prepare and file written submissions which they did by 16 December 2024. Mr Recorder Stables handed down his judgment in writing and gave directions based on the findings he had made on 14 January 2025. The judgment is 46 pages long.

Recorder Stables began his judgment with an introduction in which he set out the applications before the court and the issues he had to address.; 15 cross allegations of fact as well as the question of A’s paternity. The next section of the judgment set out the relevant background including the basic chronology, namely that the mother stopped the father’s contact with the older child on 22 December 2023. The father issued private law proceedings in relation to both children on 9 January 2024 and the mother made an allegation of rape against the father to the police on 19 January 2024 but told the police she did not want the father notified about the allegation. She said she would not provide a witness statement or undertake an interview and would not support a prosecution.

The third section of the judgment set out the legal framework. Within that section the learned Recorder correctly reminded himself that the burden of proof rests on the shoulders of he who asserts and that the standard of proof is the balance of probabilities. He gave himself a basic Lucas direction.

At paragraphs 18-24 in the fourth section of the judgment, Recorder Stables set out his impression of the witnesses whom he had heard. In relation to the parents, he found:

Part five of the judgment simply sets out the allegations made by the mother against the father and the father against the mother before turning to the substance of the judgment at Part six where the Recorder sets out the evidence, the submissions and his findings. The Recorder began that section with considering the issue of A’s paternity. In relation to that issue, the learned Recorder took into account A’s date of birth and counted back 38 weeks i.e. the normal gestation date. That process gave a date after the date upon which the mother asserted, she last had sexual intercourse with the father. However, the Recorder drew on other evidence which proved the mother had referred to the appellant as the father. That evidence included a message from the mother to the father which read:

Having considered the issue of A’s paternity, the Recorder then proceeded to determine the allegations each party made against the other by dealing with the Schedule of Allegations the mother and the father made in turn. Having done so the Recorder found that the father had called the mother a fat mam and that both the mother and father had called each other names during arguments. Recorder Stables did not find that the father had repeatedly refused to return the older child to the mother’s care, as she alleged, and found that M inappropriately threatened F with the police after unreasonably curtailing contact. The Recorder found that the father had not threatened to hurt the older child as the mother had alleged. Recorder Stables found that whilst on occasion the father had expressed suicidal ideation, the father did not threaten to commit suicide in order to control the mother as she alleged. However, the Recorder found that the father had on two occasions sent messages with photographs of himself in which he had made disparaging remarks about himself in an attempt to emotionally control the mother. The Recorder found that:

At paragraph 121 of his judgment that Recorder Stables turned to consider the mother’s allegation that the father had raped her. He began by setting out what the mother had said in relation to this allegation in her written evidence and included a message trail exhibited to one of her statements which reads:

The Recorder then set out the father’s written evidence in response to the allegation of rape followed by a reference to the police disclosure by simply recording:

At paragraph 125 of the Judgment there is then a reference to what the father said about the allegation in cross-examination. That paragraph includes a reference to the father’s denial. In relation to the above message the father’s evidence was that the message was about something else. He could not specifically recall what but he thought it could be a reference to his snoring about which they regularly argued. The Learned Recorder then proceeds within his judgment to set out the evidence he heard and read about this allegation as well as both parties’ submissions on this allegation before at paragraph 135- 139 stating this:

Within paragraph 138 (set out above) Mr Recorder Stables specifically stated that he had considered all the evidence relating to this allegation. However, within the part of the judgment wherein he considers the rape allegation there is no consideration of the other findings that he had made which provide the context for the allegation nor is there any analysis of the interplay between his findings in relation to A’s paternity nor the findings in relation to the steps the mother had taken to restrict contact,

Having considered the rape allegation, the learned recorder simply then proceeded to consider the further allegations made by the mother and those made by the father in turn. In relation to those allegations, he did find that the father had told the older child to go and be unhappy with your fat mam and had said to the child that the mother’s new partner was a bastard. He did not find that the father had failed to provide the older child with an inhaler as the mother had alleged and found that any breathing difficulties the older child had were not caused by the father. The Recorder Stables turned to the father’s allegations against the mother and found that the M’s claim that F is not the father of [A] is malicious, was made to prevent contact and inevitably will have caused both [A] and F emotional and psychological harm. At paragraph 162 he found that the mother had not made a false allegation of rape to prevent contact but at paragraph 173 found that:

At paragraph 179 of the judgment Recorder Stable found that the mother encouraged A to call her new partner Dad but did not do so in relation to the older child. At paragraph 187 the Recorder found that the mother had physically abused the father on one occasion by punching him in the face with her fist causing a spit lip and pushing him down the stairs of their flat but did not find that on another occasion the mother had harmed the older child inadvertently by physical violence. That finding was the last specific finding the Recorder made.

The next section of the judgment is headed – Consequential Issues. It deals with what is to happen to the judgment and when the case is to be listed.