L (a boy born November 2022) (fact-finding hearing), Re

Preliminary

This decision follows a fact-finding hearing (‘FFH’) listed before me between Monday 11 and Wednesday 13 March 2024 in the Family Court sitting at Horsham. The FFH arises from a child arrangements application issued by ‘DAL’ in relation to his child ‘L’ whose date of birth is XX November 2022. The respondent is L’s mother, ‘DAD’.

The applicant applied on 7 September 2023 for a child arrangements order (‘CAO’); prohibited steps order (‘PSO’); and specific issue order (‘SIO’) because contact had been stopped by the respondent. He was concerned the respondent would seek to relocate with L out of the jurisdiction. Further to the proceedings beginning, the respondent has recently made a formal application via form C2 for her application to relocate with L to Poland to be considered as part of the joined proceedings.

As is the usual custom I may refer to the applicant father as F and respondent mother as M, and of course no disrespect is intended by so doing.

This judgment relates to allegations advanced by M and F against the other which appear in hybrid schedules, which I sought to narrow at a prior directions hearing on 8 January 2024.

At that hearing, as well as setting this matter down for a FFH, I departed from the recommendation in the CAFCASS report and made an order for interim contact to be resumed between F and L, to try and build a platform for resolution, compromise, and better co-parenting in L’s interest. I refused an oral application for leave to appeal that decision in the same hearing.

The allegations in issue, per Recital E) of my order of 8 January 2024 were as follows:

At the FFH, F was represented by Mr Miller and M by Ms Geser both of counsel. I commend both counsel for their erudite and balanced approach in adducing the evidence and for their assistance to the court.

I am mindful of the guidance outlined in the case of Re B (A child) (Adequacy of Reasons) [2022] EWCA Civ 407, where a helpful summary of the ingredients which might be present in a “good judgment” were outlined, including the reminder that “a judgement is not a summing up in which every possible relevant piece of evidence must be mentioned” [para 59].

Accordingly, I have attempted to adhere to a structure such that this judgment will first outline the background [section II]; then briefly the sources of evidence [III]; then an analysis of the allegations per the ‘schedules’ [IV]; an analysis of the relevant law [V]; my impression of the primary witnesses [VI]; the secondary witnesses [VII] a consideration of closing submissions [VIII]; then findings on the evidence in regards each allegation [IX-XV] before coming to a conclusion as to the facts I found proven and next steps. For the avoidance of doubt, where I refer to a witness’s ‘evidence’ that may include their written or oral evidence or supporting exhibits, unless specified.

Background

M and F met via a dating website around November 2020 and started a relationship. They moved in together around January 2022, and their son L was born in November 2022.

At the time of the hearing L was one year and four months old, and I discern from the progress reports that he appears to be an inquisitive, mobile and happy toddler. I take the view -whilst it might be axiomatic- that both parents love him dearly and genuinely want the best for him, as do his grandparents.

The parties both agree that the relationship deteriorated in early 2023 and ended that summer. Each made allegations about the others behaviour as above. Those allegations principally relate to early 2023 to July 2023.

Contact between L and F took place on an informal and unsupervised basis until September 2023 when M took the decision to unilaterally stop contact. F therefore applied to court for a CAO, PSO and SIO respectively to allow him to spend time with L; for M to agree not to take him out of the country, and for his passport to be held pending the conclusion of proceedings.

Since that point, M has sought the courts’ permission to take L to Poland, I understand on two occasions, and has returned each time. In the last hearing, I granted permission for her to take him on a further holiday there over this coming Easter.

The Sources of Evidence

At the directions hearing in January 2023, I directed that the parties file and serve composite schedules and an updated bundle to assist the court. On Wednesday 6 March I received the audio evidence and transcripts which I had agreed would be allowed to be relied upon in the hearing. Over the weekend prior to the hearing, I spent several hours reading the 545pp hearing bundle; listening to the various audio evidence [Ex. DD2A-DD7] and the accompanying transcripts of the same; then reading position statements from each party. On Monday morning I was sent an agreed supplemental bundle consisting of 92pp, which I read in part in the limited time remaining.

The court heard evidence over the first two days of the hearing. We heard M first, then on day two, from her mother, and then from F and his mother in turn. I also considered the audio evidence, transcripts, and screenshots of text messages among other evidence in the bundle. Counsel made submissions on the final morning, and I used the rest of the allotted time to consider the evidence and write this judgment.

The Schedules

Within the bundle from page 9 onwards were hybrid schedules of allegations and responses by each party. In live evidence, F and M both gave evidence broadly consistent with their written submissions in those schedules, so it is worth repeating them here as a guide to the evidence the court heard.

From p9 of the bundle F sets out the basis of his allegation that M perpetrated emotional abuse towards him throughout the relationship. Examples relied on included:

In turn M set out her own allegations from p13 of the bundle, including as I have said one overarching allegation of coercive and controlling behaviour, and three specific allegations of physical abuse by F. In terms of the allegation of coercive and controlling behaviour, this was predicated on thirteen strands, including:

All of these examples were denied by F, and in some cases he used his opportunity to respond to the schedule by alleging that they were wholly fabricated to get back at him for issuing proceedings, or that they were behaviours attributable to M, i.e. that they were examples of projection or gaslighting.

It is of note that in regards the final allegation at n) above, F was recorded making a demand for oral sex, though he maintained that this was used out of context and that “submit” meant to apologise rather than removing M’s choice to consent.

In regards the specific allegations of domestic violence, these were said to have occurred in January, February and July 2023 and have been mentioned above:

Frustratingly M then sought to add in an apparently separate ground of dispute at page 23 of the bundle, entitled “emotional abuse” by F toward M. I made it clear in correspondence with the parties following the last hearing and indeed reflected by the final order I made, that the allegations would be confined to those outlined above i.e. the competing overarching allegations of coercive control; emotional abuse and three specific allegations of domestic violence. I did not allow for a further ground to be aired and I am surprised it was included but it has been responded to. I will therefore briefly address the same.

On the proposed basis of emotional abuse, M highlights three grounds:

F’ said in regards shouting that M baited him; that in regards derogatory names, she did this to him and in regards threats of violence he would “never be physical” with her, which is why he believes she did not go to the police.

Because I have specifically not asked for evidence on the theme of emotional abuse by F upon M, I will deal with those three themes as part of M’s overarching allegation of coercive and controlling behaviour. In my view it is self-evident that insulting, shouting at or making threats to a person, depending on the volume and context, could amount to a basis for controlling or coercive behaviour in and of themselves, but because these three themes are already dealt with elsewhere in the evidence and allegations, I do not need to deal with the specific point as to whether the behaviour, if found, constitutes emotional abuse per se. I explained this to the advocates at the start of the hearing and they accepted that approach.

The Law

The law has been set out in several cases and most helpfully in the case of Re B-B [2022] EWHC 108, a case where Cobb J heard a fact find on a cross-allegation basis in one of the cases remitted back for rehearing following the leading case of Re H-N [2021] EWCA Civ 448. B-B in short draws together the important principles enshrined in H-N specifically and from the guidance provided within Practice Direction 12J.

The most important principles therefore in such a case are as follows:

In assessing the evidence of the witnesses, I note the following points in particular:

The court must consider that each of the parents have their own agenda. I remind myself of the caution advised by Baroness Hale in the case of Re B (Children) [2008] UKHL 35. –

I also remind myself that in Re K and K [2022] EWCA Civ 468 it was stated that:

Where I do not mention it specifically, I have actively and throughout hearing the evidence and considering this decision, considered both the ‘Welfare Checklist’ within s1(3) of the Children Act 1989 apropos of L’s needs and welfare, and Practice Direction 12J when considering the allegations and their definitions.

On the latter, PD12J borrows from the Domestic Abuse Act 2021, itself a piece of law codifying and consolidating the myriad of types of domestic abuse which have become commonplace throughout family (and concurrently criminal) law.

At paragraph 3 of the Practice Direction, it helpfully reiterates the definition of different types of ‘abuse’ as outlined in the Act, for instance:

At para 2A of PD12J it outlines specific definitions for domestic abuse, namely:

Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—

For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).

I am conscious also that the Practice Direction states that: the court must [para 5]

Finally, but by no means the least important legal authority to consider in this case, the ‘Welfare Checklist’ at s1(3) of the Children Act 1989 is operative. S.1 of the Act explains that the welfare of the child is the “paramount consideration” when the Court determines any “question with respect to [..] the upbringing of the child”.

The Checklist itself (s1(3)) contains a list of considerations to which the court must have particular regard i.e.:

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

his physical, emotional and educational needs;

the likely effect on him of any change in his circumstances;

his age, sex, background and any characteristics of his which the court considers relevant;

any harm which he has suffered or is at risk of suffering;

how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

the range of powers available to the court under this Act in the proceedings in question.

There is a bearing on L’s welfare flowing from the allegations if proven, and throughout my assessment of the evidence and consideration of this decision, I have had his welfare at the forefront of my mind in respect of the above factors.

I take into account that L is prima facie vulnerable due to his age and not being able to speak yet, and he is entirely reliant on the adults in his life for comfort, food, warmth, shelter and emotional nourishment. He does not have any specific background characteristics which were brought to my attention other than the vulnerability by reason of his age. In this case it is self-evident that the capability of each parent (and grandparent in turn) to care for L per s1(3) f) is inexorably linked to the hurt that each parent feels toward the other.

It is quite clearly an invidious situation that the toxicity which both parents admit the relationship devolved into be allowed to continue to have a deleterious impact on L’s welfare, and I was mindful throughout that my findings today would in turn necessitate a consideration of L in terms of the next and future steps and powers of the court (cf. s.1(3) g) Children Act 1989).

Impression of the primary witnesses

I have already set out the law which I apply. I considered all those matters when assessing the evidence of the parents. I remind myself of the length of time that has expired since the alleged incidents occurred.

In respect of each parent, they clearly hold strong feelings about the other, and these have been intensified by these proceedings. Whilst it is obvious that this part of the litigation is going to increase that animosity, it is imperative that both parties remember that this is L’s case, not theirs. They will need to move forward from this matter no matter what my findings are, and seek to find compromise and solutions with the assistance of CAFCASS to effectively co-parent their son.

M’s views are so strong that she is determined that there should be no contact between L and F. That may affect how she views the incidents. I found her evidence overall to be measured, calm and at times reflective and concessionary when called for. Despite lengthy cross examination, she stayed steadfast as to the key issues in dispute. She appeared to me to be largely frank and attempted to be helpful. She made concessions when she could not remember specifics like a date, but overall, her evidence came across as open and detailed. In cross examination when she was pushed on the core elements of the key allegations, she maintained a coherent account. When Mr Miller chose to play the audio recording of the July incident, she became visibly upset. Despite this, her evidence remained clear in my view.

I am not satisfied that F’s evidence has been frank in all respects, and he clearly has a dim view of M. Overall, my impression of the evidence from F was that he came across as ebullient, dissembling, and not reflective or empathetic. For instance, in measured cross examination from Ms Geser as to direct quotes attributable to F taken from the July incident and painting a picture of F as domineering, where it was suggested that his own quotes demanded subservience, F failed to take any responsibility for his behaviour.

At times, F tried to talk over and deflect from Ms Geser’s questions, which was not attractive and lent weight to the allegations of M as it was similar to the behaviour of F on the recordings. I felt he failed to appreciate the gravity of his behaviour.

I bear in mind that M has the burden of proof in regards four of the allegations and F the burden in regards the other.

Impression of the supporting witnesses

I attached limited weight to the evidence of the two supporting witnesses, primarily as it became clear they were not direct witnesses to violence or to the worst behaviour per se, but that it was relayed to them by the parties. Whilst I found they both did the best they could to assist the court, their evidence was naturally hampered by their bias toward each party and lack of first-hand experience.

It is probable that the relationship between a parent and child is such that the parent will often be clouded by love and wanting to support that child, even when the child is an adult. However, their evidence was sometimes tainted by a degree of hyperbole, opinion, conjecture and inuendo rendering much of it often unhelpful if not strictly inadmissible.

I raised with the advocates as a preliminary point that the written statement of F’s mother, ‘SL’, was at times unhelpful in the way it was drafted – it was overly long, used a high degree of hearsay and at times appeared vindictive. Both advocates took this indication onboard and adjusted accordingly.

I found that SL would do anything for her son, including minimising some of his more egregious behaviour, even when she had clearly heard the audio recording from July, and it was clear to me also that she now disliked M, though she said she respected her, that did not concord with the “character assassination” as Ms Geser put it, within her statement.

Her observations around things like F’s iPad being packed in a certain way to cause deliberate damage were hard to follow in terms of persuasive fact, and her own message to M within her exhibits where she indicated “I don’t want to hear your criticism of [F]” was indicative of her bias. Because of those features, I attached relatively little weight, noting the bulk of the evidence was as to attitude and feeling about M rather than anything concrete about her behaviour.

My overall impression of SL was that she is a doting and loving mother and grandmother. The text messages and history between M and SL create an impression of deep love for L and that SL wanted the relationship between her son and M to work out.

However, her love for F clouded her ability to remain objective and her direct evidence as to the allegations was limited. She was unable to countenance that F might have ever assaulted M; and despite her earlier good relationship with M, she painted M as “vindictive, manipulative” and maintained that she had staged the incidents she relies on, without sufficient evidence to support that belief.

I find it is likely that owing to M wanting to take L to Poland and having recorded F that SL’s trust has completely gone and that she is very angry at M, albeit she said she still respected her. In evidence she admitted that she had “turned against” M owing to those factors. She said that she had seen a completely different side to M that she had not seen before. I asked her in turn as to her views on the evidence of her son’s behaviour. She used words that he himself had used such as “condone, shell, broken” but did not wholeheartedly condemn his behaviour and said that listening to the recording had not changed her view of him.

I find that it is likely that SL was coached by her son because of the similarities in their evidence and the use of similar language including the term “entrapment”. I find her evidence attaches little weight due to the bias.

The witness statement of ‘IK’, mother of M, was easier to follow in terms of chronology as it related to the allegations under scrutiny. It was helpful mainly as to this witness attending with M after the incidents in February in July 2023, and her account aligned with both the audio recording of the latter and accounts given by M.

In regards the February incident, IK believed she had seen marks or bruising to her daughter, though when she asked her about it, her daughter brushed it off and told her not to worry. She maintained her account in cross examination.

In regards the July incident, IK was cross examined in detail. She remained sure of her account. She heard raised voices on returning to the flat and noted a red mark to her daughter’s neck. She maintained under cross examination that she was telling the truth and seemed very offended when it was suggested otherwise. She asserted that she was a Catholic and had sworn on the bible, and that she would adhere to the Oath.

In live evidence, IK came across as genuine, she did her best to remember things but made concessions when she could not. She explained that she was not aware her daughter wanted to relocate to Poland, as she believed that she was happy in England. She recounted her limited interactions with F prior to the July 2023 holiday to Poland, and in my view she confined her own evidence to that which she was directly aware of and experienced.

She did not display any obvious hostility for F despite the general acrimony of the proceedings. She maintained that she had seen bruises to her daughter but not taken photos of them, and that her daughter had not told her how they had occurred, and that she did not want to interfere.

My overall impression of IK was that she was concerned for her daughter over time but experienced the toxicity in the relationship vicariously and at a distance. She appeared to have been initially kept in the dark about the allegations her daughter made, but she became very emotional when giving evidence about what she later learned.

Her evidence on the July incident was consistent on the key points and importantly on the fact that M contemporaneously reported the assault to her just after it occurred. She maintained her position despite strong cross examination.

Submissions from counsel

I heard first from Ms Geser on behalf of M. She addressed me briefly on the standard of proof (as above in Section V) and the burden upon M as to proving the allegations.

Ms Geser addressed me on Re H-N and PD12J, emphasising that “coercive and controlling behaving” usually involves a pattern of behaviour and the court needs to “stand back and take a look at the whole picture” when dealing with an overarching allegation of this type.

She emphasised that children can be put at risk vicariously from domestic abuse, even when they are too young to be consciously aware of the behaviour, per PD12J.

Ms Geser submitted that there is a crossover between “coercive” and “controlling” types of behaviour and one act may fit either definition, which I accept. She submitted that the behaviour of F represented, over time, a distinct pattern of escalation, culminating in the most unpleasant behaviour in July 2023.

Ms Geser addressed me on each of her lay client’s strands of allegations per the schedules – she reminded me that I had heard direct evidence from both parties, and that in her submission M’s evidence was clearest and most honest.

In terms of the discrete allegations in January, February and July 2023, Ms Geser submitted, when I asked for clarification, that any of the behaviours in these incidents could arguably also form part of a pattern of behaviour to support a finding of coercive and controlling behaviour. Mr Miller later agreed with this view.

In the January incident, Ms Geser asked me to prefer M’s evidence to F, in that it was unbelievable for anyone to simply drop a phone on the floor if they intended to let someone else read the contents of it. She submitted that M came across as cogent and compelling on this incident.

In the February incident, it was submitted the evidence from M should again be preferred, pointing to the fact that neighbour had to intervene and that M had to seek help from F’s parents.

In the July incident, this was the most serious, and though F accepted his behaviour was “vile” he was still blaming M in that he claims she drove him to it through her abuse, for which there was not a “shred of evidence”.

That July incident encompassed assault, threats and abusive and insulting language which all fit the criteria of the overarching allegation as well as proving the discrete allegation. Ms Geser pointed to M’s reaction to F on the audio, including shouting “stop it!” several times during what she submitted was a terrifying physical assault as well as having her life threatened. It was supported by the translation of what M told her mother shortly afterwards, noting F accepted he passed IK on the stairs. Ms Geser pointed to that contemporaneous report to her mother was strong evidence of the assault having occurred.

On F’s allegation of emotional abuse, Ms Geser said that this was totally unfounded. She noted that M partially admitted some things, in that she was jealous and insecure in the relationship, perhaps with justification, as F was active on dating sites, which is enough to make any partner upset and jealous. It was not indicative of a pattern of behaviour, but indicative of genuine worry on the part of M.

M did accept that she went through F’s phone and did encourage him to download a tracking app, by agreement, but that this was part of her need for reassurance during the relationship. Ms Geser noted that even in the July incident, M was attempting to convince F to engage in relationship counselling, which was indicative that even at that point she was attempting to save the relationship.

M denied that she was the sort of person who sulked, and Ms Geser said that the transcripts bear this out, that M was the sort of person who would confront and try to fix things, whereas F would fly off the handle and refuse to engage.

Ms Geser submitted that any criticism by M of F’s parenting was from a place of genuine concern and was not unfair and denigrating as he had asserted. She said that in terms of allegations that M started arguments, there was no evidence for this, and the supporting evidence from F’s mum was a plain character assassination. The audio bore out that actually it was F who was far more aggressive and argumentative.

In terms of the purported threat to take L out of the jurisdiction, Ms Geser said this was not made out. There was a text message at page 160 where M was trying to reasonably discuss going to Poland for an extended period and F indicated this was reasonable. Ms Geser noted that in the July incident, M simply reacted to F’s barrage of abuse, and her reaction was not a threat to abduct, and that her behaviour in coming back from Poland and then going back twice with the permission of the court was evidence that undermined F’s assertion.

Ms Geser indicated there was nothing specific from F or his mother as to M “belittling” F in front of his family. I was asked to attach limited weight to SL’s evidence as it was tainted by bias to her son, and vague in its aspersions.

In summary, Ms Geser submitted that M was the one trying to make the relationship work, that she loved F, and did her best. F’s obsession with making M submit was the genesis of these proceedings and this was extremely sad as it had split up the family when L needed his parents the most. It appears that L was agreed as being present in the home when all the shouting, threats and violence were going on, which was probably the worst element of the behaviour of F as it might be said to have impacted L already.

Mr Miller in his own submissions said that it was not appropriate to pin the whole of the blame on F. He pointed out that M’s own mother supports the assertion that her daughter used raised voices in the argument she heard, and that both acted poorly at different times.

In relation to the Law, Mr Miller accepted Ms Geser’s overview. He agreed that the court can look at all the evidence and behaviour alleged and come to conclusions from the evidence relied on in the discrete allegations or overarching allegations.

Mr Miller submitted that M sought to underplay her jealously, and that this was the underlying factor in the problems in the relationship.

Mr Miller said that M was trying to bolster her case by allegations of violence or placing L at the scene and this was manufactured.

He pointed to M’s mother being fair and that she accepted her daughter had used raised voices in the July dispute. He said however that her evidence was not believable in terms of red marks she said her daughter had in February or July.

Mr Miller noted that his client had accepted that his behaviour in July was “vile” and showed contrition, and that he should be given credit for this.

Mr Miller said that SL was genuine, earnest and showed respect toward M but was deeply hurt by being covertly recorded and having lost her trust with M.

He pointed out that SL said that the baby was sleeping upstairs in the February incident, which was different from M’s account.

Mr Miller submitted that in regards M’s overarching allegation of Coercive/Controlling Behaviour:

In respect of the January allegation, Mr Miller accepted his client had dropped his phone and that this was “not the right thing to do” but that there was no intent to harm M or hit her with the phone.

In respect of the February allegation, Mr Miller pointed out an apparent inconsistency in the account of M, in that she said after being assaulted she ran upstairs to the bathroom, and if L had just been on the sofa watching an assault, he would not be in bed asleep upstairs seven minutes later, and that there was no evidence as to who put him to bed. Mr Miller submitted it was far more credible that L had been upstairs asleep the whole time.

In regards the substantive assault said to have occurred, Mr Miller said this was untrue, and asked me to prefer his clients evidence, i.e. that there had been an argument about perceived affairs, M had attacked F, he had “restrained her”. Mr Miller pointed to the absence of a police report or contemporaneous evidence of bruising.

Turning to the July allegation, Mr Miller did an admirable job of painting his client as contrite and ashamed of his behaviour. In my view this contrasted with the evidence from F himself, which I found to be lacking genuine empathy or an understanding as to the impact of his actions. I asked Mr Miller to clarify why, for instance, F had sought to engage in a technical argument about whether his “threats to kill” would have amounted to a criminal offence under domestic law, because he did not genuinely intend to carry the threats out and he did not believe that M believed he would carry them out. Mr Miller indicted that there was a nuance between the shame F felt for the “threats to kill” and the point he was anxious to demonstrate, that they were “empty threats”.

Mr Miller asked the court to consider whether the recording would be more damaging to L in the future if he ever heard it, and I indicated for the benefit of the parents that I agreed L’s welfare needed to come first, and it was a matter for M as to whether she would destroy the recording, but also clearly a matter for F as to evaluating his own behaviour as a parent going forward.

Mr Miller asked me to listen to and consider the audio recording of the July incident a number of times, which I have done. He asked me to anxiously consider at the point where M is shouting “stop” as to whether it sounds like a physical assault, as his client would deny, or just shouting and threats by F.

Mr Miller said that the text message at p160 was from June and that at that point, F did not appreciate that M would seek to stay until October, and thus when M indicated she would stay he did not know the end point and was filled with a legitimate fear which explained his response.

Mr Miller said that the evidence from M’s mother that she saw red marks was not supported by the evidence from the transcript. He said it was inconceivable that M would not have been pushed to take photographs of such injuries, especially as M’s rationale for recording the incident was to gather evidence of F’s behaviour.

Mr Miller noted that the Polish police report does not refer to any physical abuse, only to threats, and the absence of this indicates that M did not report any physical assault to the police. I indicated when hearing that evidence that this requires knowledge and an inquiry into Polish criminal law, which we are not in a position to do. It was asserted by M’s mother, for instance, that perhaps the charge the Polish police are investigating includes violence. It could also be the case, as in the UK, that there may be some equivalent to the statutory time limit on summary offences – a point raised by M in her evidence as to the UK police telling her she was too late to report one of the earlier allegations from February.

Mr Miller addressed me then on F’s overarching allegation in turn:

In all the circumstances, Mr Miller asked me to prefer the evidence of his client.

Findings on the evidence

The January allegation

The evidence I heard about the incident in January firstly showed that both parties accept an argument occurred. Where they differ is as to the cause of it and whether M (as F alleges) walked in on him using the toilet and attempted to film him, to which he reacted angrily as it was an invasion of his privacy; whereas M says that F was acting suspiciously and when she asked him about it he lost his temper and threw the phone toward her in an act of violence.

I found the evidence of M to be coherent in this matter. Under cross examination on the incident, M maintained that she had not been shouting -that she had felt jealous and self-conscious but that she did not demand to see F’s phone. She said that F did not drop the phone at her feet as but threw it and it broke into several pieces.

In response, F maintained that he had dropped the phone at his own feet, the back of it came off and the battery came out, but he was able to fix it and use it for another five months. It was put to him that he was angry about being accused of being secretive. He said he dropped it on the floor due to frustration at being accused of being unfaithful. It was put to him that this response was not reasonable, in response he said this was a repeated point of contention and he accepted he had lost his temper. I find it was not the last time he would do so.

I found F’s evidence on this issue to be an attempt to minimise his actions. I found it illogical that a person would ever drop their mobile phone onto a hard floor for whatever purpose, and indicative of someone who has lost control of their temper. In conclusion, it tended to support M’s allegation and was an example of the common result of F losing his temper because of frustration during the relationship. I conclude on balance that the incident in January 2023 occurred as alleged by M.

The February Allegation

In regards the allegation dating to February 2023, M said that during an argument, F forcefully grabbed L from F’s arms, then when she tried to take L back to feed him, F threw M and then started shaking and shoving her, she ended up on the floor and alleged F attempted to drag her out of the flat. F denied this and seemed incredulous when it was put to him.

In cross examination it was put to M that she did not record this, which she accepted, and that L was asleep upstairs. M denied this, maintaining that F was holding the baby with one hand and pushing her with the other as she was trying to reach L. She also said in live evidence that F was using his leg to push her away. It was put to her that she did not mention “kicking” in her statement and she accepted this. She said that F put L on the sofa and then continued to roughly handle her including dragging her towards the door as alleged in the written statement. She denied that she was manufacturing the allegation to provide a basis to relocate with L. It was put to her that she did not go to the police or take photos of the bruising she said took place. She said that on reflection she did not go to the police or a GP because she wanted the family to work out.

After the incident, M confirmed that she messaged F’s mother, to outline that F had “lost it” and that his parents soon came round. She maintained under repeated cross examination that L had been present on the sofa at the time of the assault and not upstairs as put to her. She denied that she was making the incident up to cover for her own bad behaviour. When it was put to her that she had attempted to scratch F, she noted that she was a new mother at that point and kept her nails short. She denied any scratch or attempt to scratch.

Page 69 of the supplementary bundle was put to M where she accepted she had not raised the February allegation at the hearing before DJ Owen. She explained this had not specifically been asked and she did not know she needed to mention it then.

In response on this allegation, F maintained that the incident did not happen as alleged. He completely denied assaulting M and in fact maintained that M had attacked him and he had to defend himself.

F asserted that on the date in question, M had been recording him and had gone through his phone, and they had an argument about the cross-suspicions. He said that M said she wanted to go and would take L with her, at which point he blocked her from leaving and she “went for his face”. He then said a neighbour came round owing to the sound of commotion and F told the neighbour they were a “white knight” – it was put to him in cross examination that he in fact told the neighbour to “fuck off” as he did not want anyone else involved. F pointed to the fact that M then went on holiday with him to Poland a few days after as evidence that the assault had not happened.

I am reminded that the burden of proving the allegation lies with the person who raises it. I am concerned that there were material differences between M’s initial account and the live evidence, including:

F’s evidence was not entirely coherent either. He did not provide much detail as to the mechanism of the alleged assault upon him when M “went for his face” and though he relies on the fact M did not report this or other incidents to the police, he is silent as to why he did not do so himself if he was assaulted.

I conclude that the evidence is confusing on this allegation and far from clear cut. There was undoubtedly an argument, and a heated one at that for the neighbour to come and intercede and for M to text SL. What I cannot be satisfied is as to the mechanism of any assault, i.e. did M attack F first or did F take the baby from her resulting in her trying to get him back and then F assaulting her. I note that the burden is upon M making this allegation, but on balance I cannot be satisfied she has discharged that burden. There is no burden upon F. I therefore conclude that the incident in February 2023 is not proven.

The July Allegation

In regards the incident which was said to have occurred in Poland in July, I had the benefit of live evidence on this from both F and M and from M’s mother and an audio recording [DD7] with a transcript including of the conversation in Polish which occurred after the incident itself. That incident, to borrow from the criminal law, could be characterised at its height as an allegation of assault and battery by F upon M coupled with repeated threats to end her life, i.e. threats to kill.

M gave evidence on this and was cross examined. She maintained that F was sat on top of her at times during the incident. It was put to her that she threatened to keep L in Poland during the argument (which, for the avoidance of doubt, is a nuanced point but incorrect on my reading of the transcript at p258 of the bundle approximately 12 lines from the bottom). M maintained that in fact this was a misunderstanding by F and that it related to a prior conversation in text messages where F had seemingly agreed in principle to allow M to stay in Poland for the rest of her maternity leave.

M reiterated that she had been thrown on the sofa with threats to end her life and throw her out of the window being made. She maintained she could still breathe but was struggling under the weight of someone much bigger than her. She was visibly distressed on the prospect of the audio recording being played back to her, which was clearly a triggering and onerous prospect. M maintained that she had not listened to the recording more than once and did not wish to do so again. I viewed with interest her reaction to this part of the evidence and found her reaction to be visceral, and genuine. I also took care to consider F’s reaction. He did not make eye contact with me and instead looked down.

Under cross examination as to the mechanism of the assault vis a vis the parts of the audio, M maintained that when the volume of F’s voice gets louder this is because he rushed towards her and that is when he threw her and sat on her. Her account was plausible. I do not accept that for instance M’s voice would necessarily change whilst being assaulted, or that the noise of her being thrown onto the sofa would necessarily be discernible in the way Mr Miller looked to frame it. M maintained that F sat mainly on her legs and she could not move, F was pushing her head into the sofa. She maintained it happened very quickly and this concords with the audio recording in my view. It was put to her that on the recording M did not say “get off” or words to that effect; but it is noticeable that one can clearly hear her shouting “stop” several times in begging F to calm down. She sounded very scared.

For the avoidance of doubt, whilst M has only had to endure the playing of the audio once in court, I take the view that playing it to her was not necessarily a good idea on behalf of F but it crystalised in my mind how I considered her evidence. I appreciate Mr Miller can only do as instructed, but it is plain in my view that the playing of the audio (and indeed F’s repeated requests in cross examination to hear it again) amounted to a form of re-victimisation of M.

I can confirm for completeness, per F’s request in cross examination, that I have listened to that recording several times. I strived to listen to the changes in cadence, volume, and the reactions of each party. Around 05:15 on the recording F clearly gets much louder, indicative that he has rushed toward the microphone and thus toward M. This is the point at which he shouts, “So I’m actually now just going to end your miserable fucking life!” I conclude there is the sound of a momentary scuffle and M’s voice becomes audibly more terrified. On my view it was indicative of threatening and abusive behaviour sufficient to satisfy the definition of coercive behaviour per PD12J, separately from the alleged physical assault.

It was put to M that she did not immediately call the police, she maintained that if she did call the police she did not know what else might happen as it would trigger F. She said she called the police the following day when she had calmed down. This was confirmed by her mother, and evidence within the bundle that the matter is now with the Polish Regional Prosecutors Office [Prokuratura Rejonowa].

I concluded that the live evidence from M was highly compelling. Whilst I attach relatively less weight to her mother’s evidence, as she was not directly present when the alleged assault and threats to kill were made, and would in any event naturally tend to supporting her daughter, I do find it supportive of M’s account that she immediately told her mother what happened in Polish and that the account was very close in nature to her own evidence of the event. I also note that the incident was reported to the Police in Poland a few days after the allegation.

F’s evidence was at times minimising of his own actions here. He maintained that what he said were “empty threats” and that he was “not condoning” his behaviour but had not realised until the evidence was played to court that M was made to feel very upset by it, which I found astonishing. He seemed upset when talking about his actions, but in comparison to the degree of hurt caused, his eventual apology was thin at best, and I did not find it to be completely contrite.

He maintained he had not assaulted M in July and absolutely did not put his hands on her but pointed his finger at her aggressively which he said he knew was “very rude” in Polish culture. I found this answer to be unsatisfactory, and that it was absent from his evidence. F described himself as a “broken man” who was being “gaslighted” and that he “stood up for himself admittedly in the worst way”.

F admitted when I asked him to clarify that he was an “aggressor” during the July incident but denied he had been prior. F maintained that his threats were empty but M’s perceived “threat” to keep L in Poland was real and was the motivation behind his anger. This does not come close to excusing his behaviour.

F is contradicted by the audio recording of his behaviour during the argument. It culminated in what I find amounted to an assault by him upon M where he pinned her down, pushed her head into the sofa, and made threats to end her life and throw her out of the window. Such behaviour would clearly warrant arrest and perhaps prosecution had it happened here, though I do not wish to indulge in a forensic inquiry as to the intent behind his threats per s16 of the Offences Against the Person Act 1861, which F indicated he had read in seeking to minimise his behaviour in evidence.

Clearly, the trigger for this rage was the thought that L would be kept away from F but that simply does not excuse his behaviour. I find that his behaviour within the audio recording was reprehensible and unacceptable.

Other low points recorded in the July audio, and which may now cause a significant degree of embarrassment, were when F humiliated M by demanding oral sex and an apology for a prior argument; where F repeatedly demanded that M “submit” and when he dismissed the idea of counselling because he felt he was “exceptional”. For the avoidance of doubt, I do not see any evidence in support of that claim -it appears the sort of self-reflection indicative of someone with a misjudged sense of accomplishment in relation to themselves versus others. I conclude that the incident in July 2023 happened as alleged by M and I also find that this behaviour is strongly supportive of M’s overarching allegation in turn.

The overarching allegations

Turning to the two overarching allegations. Firstly, M alleges that the behaviour of F towards her throughout the relationship amounted to coercive and controlling behaviour. I note the definition of such per the Practice Direction and the wide variety of behaviours which can provide a basis for such findings. I note that there does not need to be a pattern of incidents and that a single incident may suffice, but that the whole of the behaviour taken in conjunction may provide a basis for the finding. I note the need to step back and consider the whole of the evidence, and that the evidence from the discrete allegations may form part of such conduct.

Coercive and Controlling Behaviour

As to Coercive/Controlling behaviour in this case, M was cross examined on the following features of her allegations on this matter per the Schedule:

In response to M’s evidence on her allegation of coercive and controlling behaviour, F responded by denials to everything put to him on M’s behalf by counsel. His evidence tended to not answering the question put but offering a completely different narrative or being at pains to construe the context in a way which excused or minimised his behaviour.

F told the court that the relationship was “toxic and unpleasant” but seemed tone deaf as to the fact that he was one of the two people in the relationship and ignorant as to any degree of accountability on his own part whatsoever.

When questioned about the text message from June where F threatened to “kick [M] to the streets, you ungrateful bitch…” and it being put to him that this was evidence of coercive and bullying behaviour, F again failed to take any responsibility, citing that he had been baited and lost his temper, but offering no apology. It was illustrative that the crux of his allegations are that M never apologises and is controlling, but he refused to apologise or even offer any recognition that his comments would have hurt M.

The tenor of Ms Geser’s questioning was probing at times but by no means rude, yet F seemed at times to take offence to the lines of questioning and completely incredulous as to her point of view. It would have been to his benefit to make concessions where necessary, considering the other evidence against him, primarily the recordings of himself. I accept that being recorded was unpleasant and captured him in a poor light, but at times in live evidence he merely doubled down on that behaviour by not offering any contrition, empathy or understanding.

In respect of saying that he was “exceptional” and that couples therapy was of no benefit because of this, F then explained that he has been undertaking therapy since the breakup. I asked him about this, specifically as to the nature of the therapy and whether he thinks he has an anger management problem considering the “vile” behaviour (in his words) exhibited in the July incident.

F sought to try to dissemble on this point and get into technicalities as to the (domestic offence) of ‘Threats to Kill’ contrary to the Offences Against the Person Act 1861 which were emblematic of his lack of empathy for M. When pressed, he said he did not have an anger management problem and that his behaviour in July was out of character. I do not agree, I find it to be the culmination of increasingly negative and poor behaviour towards M.

I asked him after conclusion of cross examination as to whether F felt women are lesser than men, and he denied this mindset, saying that they were equal but had different roles which would evolve via communication in a relationship. When I asked him if he felt any responsibility for the “toxic and unpleasant” relationship on his part he accepted that he did, and that this in part is subject of the therapy he is seeking now. I was heartened by this realisation, but I found largely that F minimised his role. To put it prosaically, the evidence I have heard paints a picture of a significantly higher degree of blame for the toxicity and unpleasantness being attributable to F than to M, and he did not come close to countenancing this.

F did not accept that the quotes, text messages, evidence of M and audio attributed to him amounted to evidence of a coercive or controlling behaviour, but his presentation in live evidence undermined the content of his responses.

He accused M of playing the victim; of being an abuser; of being toxic and vile, and stood by his behaviour throughout the relationship. He repeatedly said he was “baited” and “aggravated” and seemed to place blame for his own poor behaviour on her entirely. He took great offence at being recorded and did not accept that he had shouted at, abused, or physically hurt M.

F took little accountability of his behaviour and suggested that M only remained measured and “mild mannered” in the recordings because she was recording. That seemed to indicate that if he knew he was being recorded he would have acted in a different manner, but his approach to being cross examined bore similarities to his behaviour and tone in the recordings in my view. I found F was argumentative even when clearly defending a losing argument and when being cross examined by someone with a superior grasp of didactic reasoning, logic and rhetoric than him. He seemed at times irked by the line of questioning, which he cannot have found unexpected or been unprepared for. As I have indicated, Ms Geser approached the task with earnest and methodical vigour but was entirely polite, whereas F at times seemed deeply offended and looked to argue instead of simply answering or conceding a point.

The specific allegations in the schedule were put to F in turn. He did not accept any of them and blamed M wholly for each.

Mr Miller attempted to assist F in bolstering his case on re-examination in regards the wearing of the hat by M; and in regards the text message sent in June between the two where F maintained it was conditional that he thought M was only going to stay in Poland for a short time and not until October, and she later extended her maternity leave. Whether or not there was a misunderstanding about M saying “in that case I won’t come back to England with you” being a threat to abduct L (and in language and law I do not consider it can amount to such, I find it more a reaction to a barrage of abuse and belittling by F) it simply does not excuse the reaction.

I find from the evidence of the parties that the following features were present in the behaviour of F toward M:

The above is a non-exhaustive list of the factors I find tend strongly in favour of M’s overarching allegations. I have made those determinations on the evidence before me, and some differ from the sixteen total grounds relied upon by M. In my view, it is sufficient to find the allegation that F used coercive or controlling behaviour against M is proven.

The allegation of emotional abuse

Turning finally to F’s allegation that throughout the relationship, M emotionally abused him, it was variously put to M that:

In turn, F in evidence said that he was “confronting his abuser” during the breakdown of the relationship in July 2023. It was put to him that he has failed to put forward any evidence of abuse by M, including shouting, swearing or anything of that nature.

F did admit that he had been on a dating app when M was six months pregnant, and accepted this would be a basis for suspicion. He accepted that he lied about not seeing CA and felt that he could not be open and honest with M.

It was put to F that the only evidence which he could point to as to his overarching allegation were in fact points conceded by M and based on her mistrust and anxiety in the relationship. He did not accept that even in a relationship with such suspicion, parties would ever allow one another to access their phones.

I have concluded the following from the evidence of this allegation:

In considering the totality of the evidence I have read and heard, I conclude that there was some evidence of jealousy by M toward F, but this was explained by the power imbalance and her vulnerability and mistrust of F using dating apps. In regards the other strands of F’s allegation I do not find persuasive evidence. I am mindful that the burden is upon F making the allegation against M. I find the burden is not discharged and the allegation is not proven in turn.

Summary

Therefore, the findings I make are as follows:

Interim Contact Arrangement

On the last occasion I heard this case I made an order for interim contact in a supervised environment. I did so notwithstanding the advice from CAFCASS that pending FFH, contact should not be resumed. In doing so I considered paragraph 25 of PD12J, namely that:

In coming to that decision to allow interim contact between F and L I took into account the following features:

Having now come to the conclusion that there are findings of domestic abuse against M by F, I must in turn consider paragraph 38 of PD12J. I consider that although I have made findings against F, on balance it is of greater harm to L to now stop contact until the case is resolved, which may be several more months. In coming to this conclusion, I have anxiously assessed whether the findings put L at greater or unmanageable risk, and I have considered the ongoing progress reports of the first ten sessions of supervised contact, in which the conduct of F was said to be “exemplary”.

However, I noted with concern during the hearing that on one occasion F appeared to be discussing the case with a member of staff with L sleeping on his chest. I warned him then and will repeat it now that these are closed proceedings and moreover he must cease any denigration of M to L or others.

I have in summary found that there was abuse by F toward M but thankfully the ending of the relationship has provided much needed distance and respite to M and direct harm is mitigated. If it continues indirectly, i.e. by aggression or manipulation going forward by F, that may well impact the orders the court makes.

Consequent directions

I will order Cafcass to prepare a s.7 report. The court will provide the findings above, inviting CAFCASS to consider to what extent the facts found have a bearing upon the Welfare Checklist and each parents’ ability to co-parent L going forward, and what support might be needed.

M to provide a statement in support of her application to relocate by 3 April and F to respond by 24 April. This to go to CAFCASS.

I will also ask that CAFCASS report on the welfare of L apropos of M’s application to remove him to Poland.

I direct that the progress reports as to supervised contact between F and L be made available to CAFCASS to consider as part of their report, and that CAFCASS be asked to consider the status of contact and whether referral for an ICFA would be appropriate.

Once the S.7 report is available it will be promptly disclosed to the parties, and they are directed to respond within 14 days thereafter with a concise statement dealing with the matters raised per the ‘Welfare Checklist’.

The case will be listed before me for a Dispute Resolution Appointment with a time estimate of 1 hour.

Carriage of an agreed order with counsel.