A, Re Child

This judgment concludes a fact-finding hearing in proceedings about arrangements for a child (“the child”), who was born on 11 November 2023. The applicant is his father, (“the father”); the respondent is his mother (“the mother”).

The parties met in 2010 in Sussex and soon lived together. The mother has a daughter Child A from a previous relationship who lived with her. Child A was about 3 years old in 2010. In 2017 the father was convicted of armed robbery and served time in prison, during which the parties remained in contact and resumed their relationship in 2020 once the father was out on day release. He was released on licence in February 2023. Initially he lived with the mother’ mother, Witness A (“Witness A”) before moving into the home of the mother in late October 2023, a few weeks before the child was born. The child’s birth was difficult. The mother was traumatised and took a long time to heal.

In February 2024 the father went to Ireland for dental treatment. Later in February he took the child to Cornwall for the weekend and the mother remained in Sussex. In April 2024 he went to Cornwall and then returned to Sussex. The parties had a confrontation and the father left with the child, going back to Cornwall where he has remained with the child since.

The father issued an application for a child arrangements order a few days after his arrival in Cornwall. He stated that Social Services were involved and had advised that the child should remain in his care because of concerns around “the level of neglect and the mental state of his mother”. The mother also issued an application for a child arrangements order. At an urgent interim hearing on 7 May 2024 the court made an order that the child should live with the father and spend no time with his mother pending further order.

At the First Hearing Dispute Resolution Appointment on 4 June 2024 the court was aware that each party was making serious allegations against the other of domestic abuse and the case was listed for a fact-finding hearing in January 2025. That hearing was adjourned because at short notice the mother’ booked representative was unable to continue to represent her. It has therefore taken over 12 months for this matter to come to a hearing.

In the meantime the child has spent time with the mother in Cornwall at a professionally supervised setting every other weekend. That has required the mother to travel from Sussex and to fund the supervision.

Each party makes allegations against the other. Whilst the court has not limited the number of allegations either party may make, those that each party seeks to prove are usefully summarised in schedules, which provide a helpful structure.

The mother seeks to prove the following allegations:

The father seeks to prove the following allegations

The purpose and nature of a fact-finding hearing has been considered in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448.

The purpose of a fact-finding hearing is to consider whether one party’s behaviour towards the other is abusive to the extent that it has a bearing on what child arrangements orders should be made.

Hayden J in F v M [2021] EWFC 4 identified that 'coercion' will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. 'Controlling behaviour' really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a 'pattern' or 'a series of acts', the impact of which must be assessed cumulatively and rarely in isolation.

Consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined. The principal relevance of conducting a fact-finding hearing and in establishing whether there is, or has been, such a pattern of behaviour, is because of the impact that such a finding may have on the assessment of any risk involved in continuing contact.

When faced with a dispute about allegations of behaviour the principles to be applied are as follows:

What that means in this case is that where the mother makes an allegation and the father disputes it, it is her responsibility to persuade me that it is more likely than not that her version is correct; it is not for the father to disprove it. Likewise where the father makes an allegation and the mother disputes it, it is his responsibility to persuade me that it is more likely than not that his version is correct; it is not for the mother to disprove it.

Once I have determined which allegations (if any) each party has proved, I must take a step back and consider the bigger picture to see whether the proven allegations suggest that there has (or has not) been any pattern of abusive (ie controlling or coercive) behaviour by either party towards the other.

I must make that determination in light of all the evidence.

I have a bundle which runs to 1282 pages. I have read it all. The most significant documents are

Not included in the bundle but referred to are

I heard evidence from the father, the mother, Witness A and Witness B. I will not set out my full note of their evidence, but given the number of allegations will include allegation by allegation various elements of the evidence written and heard where it is relevant. I will however summarise the way the witnesses gave their evidence. To be clear, my impression of the way in which witnesses gave evidence must not of itself form the basis of my assessment of their credibility; but it can add colour to my overall assessment.

The father was relatively straightforward. He came across as slightly detached. He controlled his emotions. He did not make any admissions over and above what he has accepted in his written evidence. He gave the impression that he accepts that in court people must say what they will – for example, telling me that he thinks kindly of Witness A because she opened her up her home to him, but that now in her evidence she is protecting her child and “I respect that”. He accepted that he is not perfect and that “we all say things in anger”. There was a sense in which he sought to justify some of his actions – for example, the armed robberies – which led me to question whether his justifications reflected a sense in which aggressive behaviour (either by him or to him) has become normalised in his life.

The mother was a surprising witness. She gave evidence over 2 days. At the start of the first day she was unexpectedly combative, engaging with and challenging counsel (who, whilst firm, was about as gentle as could be in the way he asked questions). Her emotions rose almost immediately that she perceived that she was being challenged: she raised her voice, held forth and sought to challenge the basis and fairness of counsel’s questions in a way that was quite aggressive at times, leaning forward towards him half out of her chair. After the lunchtime adjournment she was notably calmer, slurring her words and appearing not to focus. On enquiry she told me that she had taken diazepam over the lunchtime adjournment, but had also taken one earlier in the day. I understand from what she told me that even before lunch when she quick to rise to the challenge she was under the dulling influence of tranquilisers. She explained that she was finding the court hearing difficult. There were occasions when she still became animated and raised her voice towards counsel. Her response to challenge gave me some insight into how quickly arguments may have escalated so quickly during the parties’ relationship – something she comments on herself in relation to a number of the reported incidents.

Witness A has some health difficulties. She struggled to remember several details when pressed on the timings of some events and I must take into account the impact of her health. Despite that, for the reasons set out below I was not convinced by some of her evidence.

Witness B gave her evidence remotely by video. The mothers’ daughter Child A was living with her. Her evidence was entirely straightforward and there was nothing remarkable about her presentation.

The court is asked to make findings about events that have happened behind closed doors often far in the past based on partial glimpses of information. It is the equivalent of asking the court the crouch down outside the parties’ home, peer through the letter box and from that narrow view discern the events and emotional dynamics between the parties going back several years. It is not an easy task.

I must consider all the evidence in light of all the other evidence. The best quality evidence is often contemporaneous independent evidence - for example, messages sent at the time, or recordings of incidents. Those give me an insight into what was happening at the time, but may not always tell me much about the context in which those things were happening. There are many text messages exchanged between the parties.

The next best evidence is contemporaneous third party evidence – ie witnesses who observed incidents and made reports at the time. There is no such evidence here.

Next may be the evidence of third parties who have made retrospective statements. The mother’s daughter Child A must have observed many events between the parties, but she has not been called as a witness. Within the Police disclosure is an anonymised statement from someone I understand to be Child A, but she has not been called to give evidence. I cannot attach significant weight to that anonymised statement where the father has not been given the opportunity to challenge it. Witness B and Witness A have both provided retrospective statements.

Finally there is the retrospective evidence of the parties themselves. To a large extent the allegations before the court are evidenced only by one party’s word against the other. In considering all the evidence in light of all the other evidence, I must consider the reliability of each party’s evidence in relation to those allegations for which there exists some contemporaneous or third party evidence, and bear that in mind when considering whether to believe one party’s word over the other’s.

There must be a significant amount of evidence that could have been presented to the court but has not been. There must be further information that could have been obtained from the Police, to which I refer below. For the avoidance of doubt, I can only determine allegations by reference to the evidence that is before this court. I cannot infer from the apparent existence of unseen evidence that it must have some probative value.

I deal with each of the allegations as follows:

Allegation 1 is that in 2011 following an argument, the father lost his temper with her. He gripped her tightly and smashed her head against the wall. This caused her bruising and a burst blood vessel in her eye.

The father denies the allegation.

There is no corroborative evidence regarding this allegation. Whilst there is a reference to it in the anonymous Police statement attributed to Child A, she was aged just 4 at the time of the incident and is apparently remembering something that occurred 13 years ago when she was very young. It would be surprising She has not been called to give evidence. As a result I cannot attach any weight to what is said about it in that statement.

It is surprising that there is no corroborative evidence: both parties tell me that the father was charged with an offence. Criminal proceedings were dropped when the mother withdrew her statement. The fact that he was charged is not significant for the purpose of determining the truth of the allegation: he is innocent until proven guilty. However, it means that there should be in existence extensive Police records. The mother states that she suffered a burst blood vessel in her eye. I would expect the Police records to include photographic evidence of her injuries. None of that information is before me.

The result is that this is an allegation which must be determined on the basis of one party’s word against the other. There is very little detail in the mother’ account: she simply states “the father lost his temper with me and he pushed me and then smacked my head against the wall with significant force.” In live evidence she told me she did not go to hospital, and that she could not understand how she had a bloodshot eye if the father did not hit her; and that the “domestic violence lady” told her that force of her head hitting the wall could have caused it. She told me that she was upset and annoyed because the father had chosen not to go bowling with her to celebrate Child A’s birthday. She said “I can’t recall how I reacted and things got a bit heated”.

He says in his written statement “the mother and I had an argument in front of Child A which led to the mother assaulting me. I pushed the mother away from me, but I do not know if she ended up hitting her head as a consequence of that. I deny smacking the mother’s head against the wall with significant force, as the mother alleges”. He says he suffered lumps on his head because the mother assaulted him. He does not deny that the mother also suffered injury. In live evidence he told me that he did not tell the Police he was acting in self defence because in those days he “went no comment”, and that the mother was in touch with him whilst he was on bail asking to get back together with him.

It is common ground that there was a heated argument which included a physical confrontation. On the basis of the evidence before me I cannot be confident that the mother’ version is to be preferred. In other words, I am not persuaded that this was an example of the father being domestically abusive towards her any more than she was towards him. As a result in so far as the mother seeks to prove that this is an example of domestic abuse as part of a pattern of controlling and coercive behaviour, it is not proven.

Allegation 2 is that in April 2017 the father physically assaulted her by;-

The father denies the allegation. He is currently charged with offences relating to this incident and I am told a trial will take place towards the end of this year. Again, it is therefore surprising that the Police disclosure makes no reference to this incident: there must be a current file containing the information that forms the basis of the decision to prosecute, but that evidence is not before the court.

In her written evidence the mother provides little detail. She says that she cannot remember why the father assaulted her: “I believe this may have had something to do with him trying to annoy me about the fact he was messaging someone I do not like, although I cannot be certain. The matter quickly escalated and the father lost his temper.” As indicated above, from my observation of her giving evidence it is easy to understand how quickly things may have escalated her response to challenge is to challenge back. She says that she suffered injury and there was blood all over the house. There are no photographs of that.

In contrast to her written statement, in live evidence she could remember why it happened: she told me that the father was trying to have sex with her and she did not want to, so he said he would contact her friend Laura instead, and she said that was not fair. She was not asked how she had now come to be sure of that.

There is a photograph of her ear taken some time later which is badly scabbed. She told me that the father himself took that photograph because she asked him to so that she could see the ear herself. In live evidence she accepted that the court has no way to link that photograph to the alleged incident. She also told me that she had been to her GP and told her “everything”, but no GP notes have been produced in evidence and there is therefore no corroborative record from the doctor. Likewise, the mother states that she showed her injuries to a friend, but that friend has not provided a statement. She also says that she told her Mum about it, but Witness A does not refer to it in her statement.

The father told me that the incident simply did not happen and in particular that the hob glass was never broken and that the mother has the same hob now (something she refutes). He did not know how she had injured her ear and he said that he did not ask her. I find his lack of curiosity surprising: it was clearly a nasty injury and he himself was asked to take a photograph of it. One possible explanation for his lack of curiosity would be that he knew exactly how it had happened because he had inflicted it himself.

The photograph of the mother’ ear tells me that she had injured it, but does not tell me when or how. It is consistent with her allegation, but does not prove it.

The result is that again it is her word against that of the father. I am persuaded that the parties had a heated argument and that the father wound the mother up by inferring that he would contact her friend to see if she would sleep with him. However, there is nothing that supports what the mother then says that would lead me to prefer her evidence over that of the father. As a result the allegation that the father was violent towards her on that occasion is not proven.

Allegation 3 is that on 23 December 2023 the father physically assaulted her by;-

The father denies the allegation.

In her statement the mother provides very little detail about the circumstances, saying that she cannot recall what the argument was about and that the incident is “a blur” to her. The total of her evidence is that “the father spat at me, gauged my eyes with his fingers, picked me up and threw me on the floor and either kicked or punched me in the ribs. During the course of this, [the father] also hurt my little finger causing it to swell for weeks”.

In live evidence she agreed that she may be confused about the incident but that “it happened”.

In his written evidence the father states “there was an argument between us on the 23rd of December 2023 as I had wanted to go and visit my dad with the child so that he could see his grandson at Christmas”, but he denies physically assaulting her.

There is some contemporaneous evidence about this incident: just before 1am on 24th December 2023 the mother sent a text message to the father which includes the words “You haven’t even apologised for the despicable things you did earlier”. The curious thing about that text message is that the main complaint the mother makes is that it would be nice if the father did more to help with the child; and then that “I can’t do this anymore. I’m just not happy. You don’t make me feel like I have a good future ahead of me being with you. I am just never going to grow as a person until I realise that I am better off with you out of my life”. The tone and content does not sit easily with the mother’ allegation of a very serious assault: the reason she says she is not happy is the way she feels about the future, not because she has been beaten up. She concludes with the words “It’s a fucking joke and I’ve had enough”. The text message does not reflect any sense that the mother was frightened of the father, which is curious. Of course that may be because violent incidents had become normalised for the mother, but in her evidence she described it as “very traumatic”.

Later there is a message from the mother to the father which reads “the father, you spat in my face. Literally picked me up and threw me on the floor. Tried to gauge my eye out and then punched me in the ribs. I can’t even lift a kettle without it hurting. My baby finger is swollen and you have nothing to apologise for?” That text is the extent of the contemporaneous evidence before me about what happened. There is no message back from the father to deny what she said at the time. Instead he says “I didn’t say I have nothing to apologise to YOU for but I’m just happy that we’re at the same place”

The mother told me that “just because there is no evidence does not make it untrue”. On balance I am persuaded in light of the text message that sets out the mother’ injuries that it is more likely than not that the father did spit in her face, pick her up and throw her on the floor, tried to hurt her eye and punched her in the ribs. The allegation is proven.

Allegation 4 is that in January 2024 the father sexually assaulted the mother by way of penetration. In short, that he raped her. For the avoidance of doubt, the criminal definition of rape is not relevant to this allegation: it is a question of whether the father coerced the mother.

The father denies the allegation.

In her written statement the mother states that “6-8 weeks after the child was born the father tried to initiate sexual intercourse with me. I was still in pain and I told the father no, that I did not want to have sex. I told the father repeatedly that the penetration was too painful and I told him to stop multiple times, I was physically trying to get him off me. Despite this, the father did not listen to me and he continued.”

The father states that sex was the last thing on his mind following the child’s difficult birth, and that he was focussed on supporting the mother.

It is a further allegation which hinges on the word of the mother against that of the father. There is no corroborative evidence. However, there is other relevant information: when the mother reported the father to the Police in April 2024 following their separation, she carried out an Domestic Abuse DASH assessment. One of the questions was “Does the abuser do or say things of a sexual nature that makes you feel bad or that physically hurt you or someone else?” and the answer is “No”. In her live evidence the mother said that she was still trying to protect the father. That does not make sense: following his removal of the child in April 2024 she made historic allegations of abuse against him including the allegations referred to above that he had hurt her in December 2023 (although she tells the Police it took place in January 2024). The statement she made to the Police does not refer to any allegations of sexual abuse.

It is also the case that when the mother spoke to Cafcass in May 2024 and did not mention sexual abuse.

The result is that there is no reason to believe the mother’ evidence above that of the father in relation to this incident, and some reason not to. The allegation is therefore not proven.

Allegation 5 is that on 24 February 2024 the father punched the mother in the face and took the child to Cornwall for 2 days, without her consent.

The father denies the allegation.

The mother’ written statement adds almost nothing to the summary of the allegation in the schedule. She says, “On the 24 February 2024, the father punched me in the face for a reason I cannot recall. The father then proceeded to take the child, without my permission to Cornwall and stayed for a few days.” In live evidence she told me that the trip had previously been agreed, but that when he hit her in the face she no longer consented to the trip. The father took a brief video of himself denying that he had hit her, which she said was manipulative.

The father’s written statement he denies punching the mother, but that she had falsely alleged that he had done so as a “wild allegation”. In live evidence he told me that he recorded his denials because he is still on licence and is therefore very vulnerable.

There is no dispute that the father did go to Cornwall with the child on 23 February 2024 (it is accepted that the mother has referred to 24 February 2024 in error). He returned on 25 February 2024. The text messages show that the mother was frantic with worry following his departure and said she would call the police; but that once she had seen a photo of the child looking happy the tone of the messages is warm and flexible on both sides. On the father’s return on 25 February 2024 the intimate image was created.

There is no photograph of any injury to the mother. It may be that there was no visible injury.

The video of the father denying hitting the mother is not evidence that he did not hit her. I remind myself that the father does not need to disprove the allegation – the mother needs to prove it. Her position is that the very fact he felt the need to create a staged denial points to what really happened. The video of the father denying hitting the mother is evidence that she had accused him of hitting her, and that the parties were having a heated argument. The fact that the father felt the need to record a video of himself denying hitting her raises more questions than it answers.

There is a message sent by the mother to the father after he had left for Cornwall in which she states “I can’t believe you’re actually taking the child to Cornwall after you hitting me really hard in my face and then to deny it straight after is just messed up.”

The mother does not refer to this incident in her Police statement, but she does refer to other allegations of physical abuse.

The result is that the extent of the corroborative evidence is the message the mother sent to the father about him hitting her really hard in the face, and his need to record a video denying it. On balance, particularly taking into account all the other evidence, this incident seems to reflect a repeat pattern: the parties have violent disagreements which spill into physical violence and the father hurts the mother. I am therefore persuaded that it is more likely than not that the father hit the mother in the face during a heated argument. The allegation is proven.

Allegation 6 is that in April 2024 the father sexually assaulted her by way of digitally penetrating her

The father denies the allegation.

It is not proven for the same reasons as allegation 4 (rape) above.

Allegation 7 is that on 14 April 2024 the father

The father denies the physical assault. He denies that his removal of the child was “wrongful” because he has parental responsibility for him. He accepts that he received a speeding ticket, but denies driving erratically.

I can deal easily with the erratic driving allegation: there is no evidence that the father drove erratically. There is evidence that he drove too fast on the road from Truro to Falmouth through Perranarworthal: it is an average speed zone where the limit is 30mph. He drove at an average speed of 43mph at 12.30am. I know that section of road well and 43mph at that time of day was neither dangerous nor erratic; but it was in excess of the speed limit. It is not in any event an example of domestic abuse for the purposes of Practice Direction 12J.

In her written evidence the mother states that matters had been escalating between the parties and she had told him to leave the house, but he would not. She says that he lunged at her, and he smashed her phone and she smashed his. He threw her to the floor. He then picked the child up and started bending her fingers. In live evidence she told me that the trip was agreed before the father attacked her; that she was not angry with him but was frustrated and upset.

The father states in his written evidence that her version of events is “complete lies”. He sets out in his statement dated 18 July 2024 a very different perspective in which the mother was the aggressor who attacked him. In live evidence he stuck to his version, but could not explain how Witness B came to see injuries on the mother or how she got those injuries. He said “I don’t know – it does not add up”.

There is a contemporaneous photograph of the mother’ ear, which shows some bruising. Witness B states that “she had bruising to the side of her face and ear”.

On any basis there was a violent incident in which each party smashed the other’s mobile phone; the child was physically pulled between the parties for a time (which means that the parties were in physical contact) and the mother was injured. It is more likely than not that she was injured because the father hurt her. The mother was at her most emotional, assertive (and on occasion combative) in evidence when talking about the way in which the father removed the child from her care. The April incident was the very time when he did so. It is likely that emotions during that incident were running very high indeed.

On balance it is more likely than not that the mother’ bruising to her ear and side of her face was caused by the father’s violence. That is not to say that she did not also have a part to play in that incident, which included smashing the father’s phone (in the same way that he smashed hers). I am unable to find that the bruising was caused by the father picking her up and throwing her on the floor, or that he bent her fingers. The mechanism of the injury is not proven, but the fact that the father injured her is.

Part of this allegation is that the father’s removal of the child was “wrongful”. The father states that he had parental responsibility and was as entitled to have the child in his care as was the mother. He is right about that, but in asserting his legal right he misses the point. For the purposes of PD12J the question is not whether he was entitled to remove the child, but whether his doing so was an example of coercion and control. In my judgment it was: he was literally taking control of the child and asserting his will upon the mother, who was desperate for the child to remain in her care. The father seeks to justify the child’s removal because he was concerned about the mother’ mental health, her behaviour towards him and the state of her property. As set out above, he behaved in a violent manner towards her; and her mental state and the state of her home had not preventing him leaving the child in her care when he went to Cornwall in April initially a few days before.

In my judgment his decision to remove the child against the mother’ wishes to live with him 7 hours away, take her car and lock the door behind him was wrong: It denied her any say in the matter and it has coloured everything that has followed.

The allegation is proven.

Allegation 8 is that at various times the father was verbally abusive towards the mother and her daughter, throughout the parties relationship.

The father denies the allegation, but in his written evidence says “I accept that I do use swear words in general conversation and there was one occasion, that I swore at Child A. I had called her a “cunt” after Child A had thrown a dining room chair at my head.” He later says that was the first time he called Child A a cunt. He also says “there was an occasion after my release from prison when I was using swear words in conversation generally, as had become the habit in prison and the mother’s mum had asked me to stop”.

In live evidence the father accepted that he had called the mother warped. He would not accept that it is abusive, but said “it’s not nice”.

There are text messages between the parties that give me some insight into the language they used. They both swear routinely using the word “fucking” to emphasise points. In one of those messages the mother writes “Little cunt of a daughter. You really are just as bad. Please don’t come back. You can literally all fuck off now. Disgrace”. In live evidence she told me that “Little cunt of a daughter” is not her describing Child A in that way, but repeating what the father had just called her. In context it is more likely than not that she is right about that: the next part “You really are just as bad” only makes proper sense if in the first part she is repeating what the father has said. It is unlikely she would use the words “you really are just as bad” if she was not reflecting back to the father something he himself had said.

In both her written and live evidence Witness A recalls hearing the father call the mother a “dumb fucking cunt” and Child A a “cunt”. I believed her on that point.

I find it more likely than not that the father was verbally abusive towards Child A and the mother. That is not to say that he did so in isolation: it is likely to reflect the way that the parties’ spoke to in other in what they both describe as a “toxic” relationship. It is abusive, but not necessarily part of a pattern of controlling and coercive behaviour.

The allegation is proven.

Allegation 9 is that at various times the father was coercively controlling towards the mother.

The father denies the allegation.

In her statement the mother say that he would be in a mood and that she would never know what was going to trigger him; that he isolated her from friends and family; and that Child A considered that she was “hypnotised” by him. She also says that he manipulated her into thinking she was mentally unwell.

It is common ground that the mother was unwell with post natal depression following the child’s difficult birth.

There is no corroborative evidence to support this allegation and in her live evidence the mother accepted that she cannot prove it. I agree – there is no evidence to support the allegation and is it therefore not proven.

Allegation 10 is that at various times the father was financially abusive towards the mother.

The father denies the allegation. He accepts that he sold a mobile phone that was on contract in the name of the mother.

The height of the evidence in relation to financial abuse is that

The allegation of financial abuse is therefore not proven. To some extent it tells me that the mother is now seeking to reinterpret elements of the parties’ relationship to look for evidence of domestic abuse. It leads me to question slightly whether there may be an element of exaggeration of some of the other things she says.

Allegation 11 is that the father frequently consumed cocaine during the party’s relationship. He accepts that he did so 4 times.

Cocaine use tends to lead to an increase in abusive behaviour. The mother states that the father “would become very aggressive for no reason”. However, the consumption of cocaine is not of itself an example of domestic abuse. I note that in none of her allegations of physical abuse does the mother suggest that the father was under the influence of cocaine.

I suspect that the father is minimising his use of cocaine, but there is not enough evidence to make a finding that he “frequently” consumed it; and it would not be a finding of domestic abuse in any event.

The allegation is not proven.

I deal with each of the allegations as follows:

Allegation 1(a) is that the mother pursued a pattern of behaviour which was psychologically and emotionally abusive, controlling, coercive and verbally abusive towards him by being verbally abusive towards him, calling him names such “skank”, “ugly” “crackhead”, “lazy”, “pathetic” and “narcissistic” in front of the child

The mother denies the allegation.

In his written evidence the father states specifically on 23 February 2024 the mother called him “ugly boy” and that he looked like a “crackhead”; and that on 28 February 2024 she repeatedly called him “skank”; and that in April 2024 she accused him of being “lazy”, “pathetic” and “narcissistic”.

In her written evidence the mother accepts that there have been times when she has said unkind words to the father, but she denies being verbally abusive towards him in front of the child. She says that there is a context to the unkind words used. In her live evidence she said that she has reflected on how it would have been damaging to how the father was feeling for her to call him lazy, but she herself was exhausted at the time and needed more support from him.

There is a contemporaneous video of her calling the father a “skank” repeatedly on 28 February 2024. Whilst neither party has commented on it, I am aware that it is reminiscent of a scene from one of the early episodes of Breaking Bad where exactly that same word is said repeatedly by a mother to a father. What is striking is that the repetition of that word was clearly an attempt by her to goad the father. It cannot be anything else. It shows the part that the mother had to play on that occasion in raising the emotional temperature and that, whilst in her evidence she says that she was frightened of his unexpected reactions, it is evidence that on that occasion she seemed to be deliberately provoking him.

I am persuaded that the mother did use the words that the father alleges. To that extent the allegation is proven. Whether the use of those words forms part of a pattern of controlling behaviour by degrading his self worth to the point where he would do as she said is far less clear to me.

The allegation is proven.

Allegation 1(b) is that is that the mother pursued a pattern of behaviour which was psychologically and emotionally abusive, controlling, coercive and verbally abusive towards him by threatening him that she would get him beaten up by her family members and recalled back to prison.

The mother denies the allegation.

In his written evidence the father states that the mother “threatened to arrange for her father and brothers to physically assault me and to have me recalled to prison”. That is the sum total of his evidence.

In her written evidence the mother denies the allegation, and in her live evidence and said that he is simply making it up.

There is no corroborative evidence that she made such a threat. There is one text message on 23 February 2024 in which she wants him to bring the child home from Cornwall and says “It he doesn’t come home by this evening then I’m reporting it all”. When he does not reply she says “I’m reporting it then. Fuck it.” Nowhere does she threaten to involve her family, or have the father recalled to prison. It would have been known to both parties that any report to the Police would run the risk that the father would be recalled. In fact, rather than indicating an ability by the mother to control the father by threatening to have him recalled to prison, the message tends to suggest the opposite: that the mother felt hampered in her ability to report “it all” – ie the alleged assault that had just taken place – to the police because the of the potential consequences for the father.

All that message tells me is that she was desperate for the father to return the child to her care. The allegation is not proven.

Allegation 1(c) is that the mother pursued a pattern of behaviour which was psychologically and emotionally abusive, controlling, coercive and verbally abusive towards the father by throwing his mobile phone onto the floor and smashing it in front of the child

The mother accepts this allegation, but as set out above, it forms part of a broader set of circumstances in which the child was subject to something of a tug of war, and the mother herself was injured. The fact that the mother threw the father’s phone (and that he threw hers) tells me that each party demonstrated aggression to the other.

Allegation 2(a) is that the mother was physically abusive to the father by way of punching him in the face splitting his eyebrow and bruising his eye

The mother denies the allegation.

In his written evidence the father states that he was watching TV lying on his bed when the mother “stood up and started an argument with me”. He made a comment back to her and as a result without warning she punched him in the face, that he immediately left the house and sent a text to Witness A. In his live evidence he said that she probably used her right fist because she is right handed; that she was heavily pregnant and that he did not defend himself . He denies the suggestion that he hurt his eye by walking into a kitchen cupboard door - “the truth is the truth”.

The mother states in her written evidence that the parties had an argument, and that she left the house and was not present when he hurt his eye. She records what her mother told her but has no first hand knowledge of it. In live evidence she was referred to the contemporaneous text messages but did not accept that they conflict with her position. She told me that she has never been physically abusive, but might have been verbally and that the father is “being an arsehole”. She told me that “I was not even there. I was out walking the dogs and when I came back I was in my Mum’s room”.

Witness A’s written evidence states that she had gone out to the shops and when she returned the mother had gone out and the father was present “in a horrible mood”; that he was in the kitchen doing his washing; that she opened a cupboard door above the washing machine and he hit his eyebrow on it when he stood up. In her live evidence she repeated her written evidence, and did not accept that the timings of the text messages were inconsistent with what she now says. When put under pressure she told me that she is on medication which causes confusion.

The best evidence is the contemporaneous evidence: the text messages. They show as follows:

An analysis of those messages indicates that it is more likely than not that the injury was certainly caused before 19:09; that the father left the house before 16:03; Witness A did not return until 18:06 and the father was not then present. If Witness A is correct that the father banged his eye on a cupboard door then he must have returned home after 18:06 and injured it between his return and 19:09. There are three difficulties with that

It is common ground that the parties had an argument. There appears to be a pattern where arguments build to physical confrontation. My conclusion is that the mother and Witness A have not been honest about what happened. More than that, it is difficult to understand how if he had stood up into a cupboard the father would have been hurt below his (protruding) eyebrow; or how he would appear to have bruising to his cheekbone. Nor if the injury were accidental would it explain why the father documented it in selfies that day and the next. Were Witness A and the mother correct it would mean that the father having hurt himself accidentally in front of Witness A has simply made up a story about her hitting him.

I am more than persuaded that the injury was caused earlier that after as the father alleges: the mother punched him in the eye; Mr H went out and did not come back until later that night. As a result I find that the mother lied in her evidence in relation to that issue. The allegation is proven.

Allegation 2(b) is that on 4 January 2024 the mother was physically abusive to the father by stabbing him in the arm whilst he was holding the child in his arms.

The mother denies the allegation.

In his written evidence the father states that the mother was in a bad mood, and that he was cuddling the child when “I suddenly felt something bump in the underside of my upper right arm, before the mother made a grab at the child to snatch him out of my arms. The child started crying hysterically. I then suddenly felt a really sharp pain in my arm and I thought to myself “what, what was that?”. As 1 moved my arm, I could see there was blood dripping off my arm and realised the mother had stabbed me. I didn’t see what object the mother had used.” In his live evidence he told me that the mother could be in a bad mood for any reason; that when she stabbed him nothing fell to the floor so whatever she used must still have been in her hand but he does not know what it was; and that blood was going everywhere. He did not deny that he had broken a Pyrex jug, but that Pyrex is made of tempered glass and could not cause the cut he received.

The mother in her written evidence states that the injury was caused by the smashing of a Pyrex jug and “a piece of glass when into the father’s arm”. In her live evidence she told me that she “cannot explain the cut on his arm”, and “I don’t know how he got that injury” and “I don’t know how it happened”. She told me she has no memory of what happened immediately afterwards. There is a clear contradiction in her positive assertion in written evidence that a piece of glass caused the injury, and her assertion in live evidence that she did not know how it had been caused.

In in terms of contemporaneous evidence there is a photograph of the injury. That shows a deep, straight cut to the rear of the father’s upper right arm. It is a clean cut with no jagged edges. It follows that it is most likely to have been caused by something sharp and straight with no jagged edges. The centre is deep. I am not an expert in flesh wounds. However, I can apply some judicial common sense: It is the sort of cut that is most likely caused by something like a sharp knife. It could doubtless have been caused by a sharp piece of glass if it were clean and straight.

I am equally not an expert in glass or Pyrex and what happens to it when it breaks. The father tells me that Pyrex is tempered so breaks into small pieces, not large sharp pieces. I do not know whether he is correct about that, and I do not know whether (if there was a jug) it was Pyrex or a different make non-tempered version. Again, however, I can apply some judicial common sense: a glass jug (described by the mother in a message immediately afterwards as a “thick glass jug”) is all curves. It is not a sheet of - for example - thin window glass. It is inherently unlikely that there is any part of a glass jug that could produce a thin, straight, non-jagged shard.

It follows that it is inherently unlikely perhaps that a glass jar would shatter to produce a shard capable of causing the injury, but perhaps not impossible.

As to the mechanics of the injury, the mother’ originally stated that the father smashed a glass jug and “glass went everywhere and a piece of glass went into [Mr H’s] arm”. If the father smashed a jug then he must have thrown it away from himself (albeit with the child in his arms), and done so with such force that it smashed in such a way that a shard bounced off a surface back up towards the rear of his arm. He was holding the child, so his upper arm must have broadly perpendicular to the floor. It follows that he must have smashed the jug in such a way that a shard flew sideways towards the top of his arm. That shard must have travelled with such force that it embedded itself in his arm to a significant depth. The hospital notes state that the cut was 4.5 cm to the “sub cut fat”, ie the sub cutaneous fat. Again, I am not an expert but applying judicial common sense it would have taken real force for a piece of glass (or anything) to cut to that depth. It is inherently unlikely, but perhaps not impossible.

At this point I remind myself that it is not for the mother to disprove this allegation, but for the father to prove it. The father states that she stabbed him. He does not know what with. There are only two potential explanations: the mother did it, or a piece of glass did it. Neither party suggests that, for example, something sharp and knife-like was sticking out of the wall at the level of the father’s upper arm and that he pushed his arm onto it. Had that happened the cause would have been obvious to both parties.

Neither party suggests that after the incident the father had a shard of glass sticking out of his arm. If the mother is correct and the injury was caused by a shard of glass resulting from the force with which the father smashed a glass jug, what she has not explained is how that shard of glass having embedded itself as far as the sub cutaneous fat of the father’s upper arm, then pulled itself back out again. If her version is correct, the father would have had a piece of glass sticking out of his arm; but he did not. Any suggestion that a piece of glass would cut him and then effectively bounce back out of his arm is not just inherently unlikely; it is impossible.

I then look at the other contemporaneous evidence: first, the father believed the mother had caused it. There is no other reason for him to have photographed it. On 4 January 2024 he sent the photograph to the mother with the words “your actions”.

Second, he sent her a text message on 5 January 2024 which states “I can’t do fuck all without it hurting or feel like it’s pulling stitches. Barley slept can’t work well done”. The “well done” clearly attributes blame for it on the mother. She replies “I am sorry you’re in so much pain but you take no responsibility for why things got to where they have”. That is a curious response. She does not deny that she caused it, but suggests that the father was also to blame for “why things got to where they have”.

Third, I have the evidence of Witness B, who was in the room with Child A immediately after the time of the incident, when Child A had been on the phone to the mother during the incident. Witness B can confirm that Child A told her that there was an argument and something smashed. Neither Child A or Witness B were present to see what happened and her evidence does not help me at all.

I am more than persuaded that of the possible explanations, the only credible one is that the injury was caused as the father suggests: the mother stabbed him. Her explanation for the injury is inconsistent, and utterly implausible for the reasons set out above. In my judgment she has lied about it. The allegation is proven.

Allegation 2(c) is that the mother was physically abusive to the father by throwing hot and cold drinks at food at him.

The mother denies the allegation.

In his written evidence the father says this happened often, but only gives one specific example of an incident in July 2023. He has provided a photograph showing liquid on the floor, but that photograph does not tell me what the liquid is or how it got there. In live evidence he told me that he cannot put a number on how often it happened and said “I’ve had everything thrown at me”.

The mother in her written evidence simply says that she has “never done this”, and that it is quite possible that the father did it himself.

Aside from a picture of liquid on a floor, it is the father’s word against that of the mother. Is it more likely than not that the father is right about it?

I bear in mind two things: first, that the father took a photo of the liquid on the floor. He has a pattern of taking photos of evidence – eg his eye; the cut to his arm; the cat poo on the floor and so on. If he had spilled the liquid himself or if it had been caused by a simple accident, there is no reason for him to have documented it. Second, the mother also denied punching him and stabbing him, and yet for the reasons set out above I find that she lied about that. Why on this issue in light of the photographic evidence should I believe her word in preference to that of the father?

I am marginally persuaded that it is more likely that not that there have been occasions when the mother has thrown drinks at the father. The allegation is proven.

Allegation 1(a) is that the mother was verbally and physically aggressive towards the child by way of slamming doors around the child causing him distress and shouting and screaming at him and in front of him.

The mother partially accepts the allegation. Specifically she accepts that the parties have argued in front of the child, but she denies that she has acted aggressively towards the child. I note that the father relies on (undated) messages from the mother I which she admits raising her voice in front of the child; but she there is no suggestion that she raised her voice towards the child.

I can be brief in relation to this allegation: there is no evidence that the mother has been aggressive towards the child. The child will inevitably have suffered because he has been present around each party’s behaviour towards the other. However, there is no suggestion that the child has been the focus of the mother’ aggression. The allegation is not proven.

Allegation 3(b) is that the mother was verbally and physically aggressive towards the child by way of aggressively grabbing and holding him.

The mother denies the allegation.

This allegation is simply unevidenced, and is therefore not proven.

Sometimes it is helpful to liken the court’s task to a join-the-dots puzzle: if proven individual allegations are “dots”, what picture starts to emerge when they are joined together?

The parties both tell me that their relationship was “toxic”. That tells me two things: first, to be “toxic”, they must both accept that poisonous things have taken place – ie things that were emotionally or physically damaging.

Second, there is a sense in which neither party really quite accepts responsibility for their actions. By stating that the relationship in which they found themselves was toxic, it effectively seeks to apportion blame on the relationship – the combination of their different personalities – rather than anything they have each done individually. It is a way of saying that the events that occurred could not be avoided; that they were inevitable.

I have found that

The court should not limit its assessment only to those matters set out in the schedules, but by reference to all the evidence. I have also found that even in relation to some of the unproven allegations, whilst the specific allegation is not proven there is no dispute that the context was a heated argument. A consistent thread running through each party’s accounts is that at points of conflict things between them became very heated and escalated very quickly.

The picture that emerges by joining those dots is clear: both parties have been abusive in their own way to the other. They have been caught in something of a vicious cycle: if the mother or the father is upset, they each shout and swear at the other; the other retaliates; it quickly escalates into physical confrontation and in a fight the father is bigger and stronger, with the result that the mother comes off worse. It is not the case that either of them has used that cycle of aggression to control or coerce the other. They have each been at various times both aggressor and victim.

I have not heard anything that leads me to consider that either of them poses a direct risk to the child – although of course he is at risk if he is present together with both parties – or that either party poses a risk to the other now that they are separated.

There is nothing I have heard that would lead me to the view that either party is better (or worse) placed than the other in terms of the risk they present to the other to care for the child; but under no circumstances must they be together with the child at the same time. The way they relate to each other creates an immediate risk of aggression.

The real victim is the child who will have been exposed to a very high level of domestic abuse. Inevitably that will have had an effect on him.

I will leave it to others with expertise in assessing risk to do so in light of my findings.