SKN v TZ

Preliminary

This judgment follows a fact-finding hearing (‘FFH’) listed before me on Monday and Tuesday 1 and 2 December 2025 in the Family Court at Barnet, sitting at the Royal Courts of Justice. The FFH arises from a Children Act application issued by the father (‘F’) in relation to the child (‘B’), who is a girl born October 2017 and therefore recently turned eight years old. The respondent is the child’s mother (‘M’). I have anonymised their details to avoid identification and will refer to them as ‘F’ and ‘M’ respectively as is the custom.

The parents began their relationship around May 2014, and B was born three years later. They separated soon after she was born, though F stayed in M’s home in a different room for several months. Contact appears to have taken place on an agreed basis between December 2018 and July 2020 when it was stopped. B lives with M and has done since the break-up, and F does not seek a ‘Lives with Order’ in this case, only that he be allowed to spend time with the child.

I have been tasked with resolving disputed facts between the parties relating to serious allegations and have done so. Further to this, I will direct an addendum section 7 report from CAFCASS and set this case down for a final hearing (‘FH’) at the soonest date thereafter. I will set out the background and procedural history of this case, the nature of the allegations, and the evidence I heard, before setting out the conclusions.

The application

The applicant applied on 22 July 2020 for prohibited steps orders (‘PSO’); and specific issue orders (‘SIO’) after contact had been stopped by the respondent. He said he was concerned the respondent would seek to relocate with B out of the jurisdiction. Further to the proceedings beginning, the applicant was later deemed to have also made an application for a Child Arrangements Order (‘CAO’) under the same application, such was the content, requesting the courts’ intervention into how often he could see his daughter.

The date above is not a typographical error. The child was two years old at the date of issue, in August 2020, and F had been having contact with her, the parties both agree, for at least the prior year on and off. That this case has taken over five years to get to this point, and that it will not conclude today with a final order, is not the best reflection of expediency in the Family Justice system.

The procedural history

Since August 2020 there have been thirteen attended hearings before the family court, involving three different Circuit Judges; four different Recorders; two different District Judges and -including the writer- two different Deputy District Judges in total. It is of note all three of the Circuit Judges who heard this case have now retired. It is axiomatic that judicial continuity is desirable in the Family Court.

Over the last five and a half years, F has not had any unsupervised contact with B and has largely had supervised or indirect contact throughout that period, plus several periods without contact. It is probable that any member of the public reading this judgment would find that the situation is astounding, and in my estimation, it is at least incredibly sad and invidious that these proceedings have gone on this long without resolution.

In my preparation for the case, I earnestly read several versions of bundles prepared by the parties, who are both litigants in person at this stage (though F had some help from a family solicitor in filing the bundle, but was unable to put her in funds to advocate for him at the hearing). Each of the versions of the bundles total in excess of 400-450pp, contrary to the order of DJ Dias who heard the case most recently at Pre Trial Review in October 2025, where she ordered the applicant to keep the bundle under 350pp.

The conclusion that I have reached is that the regrettable combination of a lack of legal representation; a lack of judicial continuity; a lack of adherence to directions; a lack of funds for professionally-supervised contact and drugs tests; and long gaps in between hearings where at times little was accomplished to narrow the issues, has led to the inordinate length of these proceedings.

Whatever the outcome at a Final Hearing (noting that the outcome of this hearing will not be dispositive of final orders in the case), the parents really need to grasp the nettle and prepare to draw this matter to a close, in the interest of B.

They will also need to be mindful that a Judge may well consider whether to make an order preventing any further litigation involving B without judicial gatekeeping, for a period of time, to allow the dust to settle after that final hearing. Simply put: it cannot be in the best interest of a child to have her parents in litigation from the age of two to (at least) eight years old.

The precipitating factors

The breakdown in contact in July 2020 was not some random occurrence. Two days before F applied to the court, M reported him to the police for allegations of rape. The complainant in those allegations is the Maternal Grandmother (‘MGM’). That allegation was investigated and police took ‘no further action’ (‘NFA’) on an evidential basis.

A separate complaint to the police had been made in June of 2020 by F’s then girlfriend (I will refer to her as ‘WD’) including allegations of sexual assault and non-fatal strangulation. That allegation was later withdrawn, with the complainant indicating to the authorities it had been a misunderstanding.

Further, it is alleged that F drinks alcohol to chronic levels and uses cocaine. He has three convictions for driving whilst over the prescribed limit (‘OPL’) and has admitted to cocaine use when asked in several prior hearings. A Hair Strand Test (‘HST’) in 2023 revealed indications of chronic alcohol abuse at that time, but was negative for cocaine, notwithstanding prior admissions by F during that period. Theses allegations have never been settled one way or the other, either in the family or criminal courts, and have hung over the parties like a cloud for those years.

A CAFCASS addendum report in September 2024 highlighted these allegations of “unresolved sexual violence” as the primary issue between the parties, along with allegations of substance misuse by F which had been raised at the outset. It is however contradictory that as far back as May 2021, the parties had agreed before the court that “the relationship was not violent” and that they would not pursue a FFH.

I am asked to consider whether the two rapes, alleged to have taken place in 2018 and 2020, occurred, and also, if I am able, to determine facts about F’s relationship with substances.

The allegations

The parties were ordered to prepare and respond to a Scott Schedule by way of witness statements. There have been prior Scott Schedules prepared in the case by M many years ago, and responded to by F. For the purpose of this hearing, I made it clear to the parties, further to my understanding of the Order of DJ Dias in October 2025, that I would only deal with the following allegations:

That on 27 April 2018 F raped MGM

That on 14 March 2020 F raped MGM again

That F sexually assaulted and strangled his partner

That F has a problem with drink and/or drugs

The applicant father does not pursue any allegations himself. The parties agree that F was not physically violent to M throughout their relationship, but they both accept it was volatile, including verbal insults, shouting and other poor behaviour. The court is not asked to make findings about this, and for the avoidance of doubt, the court does not believe that such allegations, even if proven, would make a dispositive impact on the final order in this case, noting each parent has given undertakings not to disparage the other.

Though the allegations are not brought in the criminal court, three of them relate to specified offences under the criminal law which are triable on indictment, and for completeness I will detail the ingredients herewith for reference:

The evidence

The court heard evidence from M, then MGM and then F. MGM had the benefit of an interpreter as she does not speak English.

M explained the background to the relationship, her pregnancy and difficult labour, and what she alleges was immediate disinterest and lack of help from F on B’s birth. She said that F had gone home to drink on the day B was born and had not come back to help or spend time with her and the baby, though they had to stay in hospital for two or three days. She said that this sort of behaviour led to the relationship breaking down, though she accepted that she was not informed about the sexual allegations until later on and these did not form part of the breakup.

MGM did not report the alleged rape in 2018 to the police or any other person at the time. In July 2020 she told M about both that earlier allegation and a more recent allegation of rape by F which she believed took place in March 2020.

There is no direct evidence of the allegations of rape by M, nor could there be, as she accepts, she was not present but was sleeping in a different bedroom on her account, at the time of each (at two different addresses).

In regards the allegations of sexual assault upon WD, the court did not hear from her and had no direct evidence on this point, only scant disclosure from the police reports, indicating that a complaint had been made and then withdrawn. This accords with correspondence provided by the ex-partner, who said that the complaint had been a “misunderstanding”.

Around March 2020, M said that she got into contact with WD, who was the on and off girlfriend of F, and that WD disclosed abuse by F to her, including verbal insults and punching walls.

Around June 2020, M said she became aware via F’s sister that F had been arrested for allegations of sexual misconduct against WD. M could only rely on second or third hand knowledge of the detail of the allegations via the CAFCASS reports.

M accepted that she had never had any physical or sexual abuse personally from F, but that she was getting information from third parties and was shocked. She was not sure if the allegations were true and thought that if they were they might be related to WD and F taking drugs and drinking together, but she had no evidence of this, and this was merely an assumption.

M said that she was never given any information from the third parties about the specifics of the sexual allegations against WD. She suggested that “a person may have 10 relationships of which only two are bad”. She accepted that she had sent a message to the sister of F and said that the allegations “didn’t sound right” – by which she said she was shocked - but accepted that they may be possible. This was the height of the positive evidence about the allegations of sexual violence against WD.

In regards the allegations of rape upon MGM, M said that on 19 July 2020, MGM made disclosures to her. This occurred after M revealed a present from F to B, and showed it to MGM who became very upset and broke down, revealing the allegations by saying “do you know what he did to me? … He raped me!”. M struggled to process this information. She said she froze and was shocked. MGM then said to M that “when he stayed here in March, he raped me” – referring to the allegation of rape in March 2020. M asked MGM why she had not told her sooner and was told this is because MGM thought she would not be believed. MGM said that she had “got rid of the evidence” by washing pyjamas and throwing away the bed sheets.

M said she called F’s sister first, and then the police. She said to the sister “my mum said that your brother raped her” but said to the court that she could not remember what the sister had responded. Later on, she received a message from the sister saying that “F is fuming and is going to the police!” – M said she did not understand the meaning of this, but the court finds as a matter of inference that this meant that F denied the offence and was going to make a counter complaint to the police.

M said she reported the 2020 rape to the police on 19 July 2020 and then a few days later, MGM disclosed to her about an earlier rape in 2018. M could not remember the sequence of events, as to whether MGM had told the police about the 2018 offence at the time they came to see her about the 2020 allegation, or not. This was important evidence, and the court finds it troubling that the sequence of events is not clear, despite the length of time this has been sub judice and the volume of written evidence.

In regards the 2018 rape, M was told about this “a few days after” when MGM said to her “he did this to me before”. She asked her mum to expand on this and said she could not understand why F would do this. M said that MGM was vulnerable. She was told the prior rape was “in the old house” and that MGM did not remember “how it happened or what happened”. M said that MGM told her that she had woken up on a date in April 2018 feeling sore around her privates and breasts and was vomiting and had a headache. M said that she was shocked that MGM had not told her about the offences. She said that she believed her mother and “she had no reason to lie”. This is in contrast to M’s agnosticism about the allegation involving WD.

In regards the mechanism of the 2018 rape, M could not assist me at all. She suggested that the MGM had woken up feeling unwell but could not specify anything other than MGM felt sore and that her bra was raised but still on. We carefully discussed the mechanics of the offence of rape [cf. paragraph 19], which M understood. Despite being given plenty of time to search her memory, the best she could say is that MGM said “her body felt tired and unwell” and that she “didn’t remember the rape” and M suggested that perhaps MGM had repressed this memory. M suggested that F was the only male in the house and therefore it can only have been him that raped MGM, assuming that she was indeed raped.

The whole evidence of the 2018 rape is unsatisfactory and perhaps intangible. I have no evidence before me at all that MGM told M anything of “evidential value” about the rape in 2018, for instance the time of it, whether F had lay in wait for her, entered her bed after she was asleep, nor the bare mechanism of the rape (i.e. whether by oral, vaginal or anal penetration). In short, the contemporaneous reporting evidence was largely non-existent as to what actually happened.

In regards the 2020 disclosure, M said that she froze and could not process the information. She said that MGM thought that she would be deported if she reported the rape and was not believed. M said that she knew this was nonsensical, and she told MGM that this was the case. M said that she accepted these reasons to not tell the police were incorrect, but that MGM was naïve as to the legal system, and did not have the language facility to explain what happened. M suggested that police in MGM’s home country are corrupt, and that she would be inherently wary of making a complaint like this.

M said that MGM’s recollection of the 2020 rape was that MGM let F into the house late at night after F had been at a wedding. MGM went to bed and F went to the kitchen then went upstairs to the spare bedroom. MGM later went to the toilet then back to her room. MGM told M that she “thought there was something under the duvet” and that she lay in the bed and “doesn’t remember anything after that”. In the morning when MGM woke up she “realised that her bedclothes felt wet and she touched it and from the smell she thought it was semen”. At the same time, she was feeling “very sore inside her vagina, breasts, neck and mouth”. M accepted that MGM’s account was that she did not have evidence of the mechanism of the rape, and that by inference she “must have slept through it”.

M accepted that she would have checked the bed herself in the same circumstances. MGM told M that “it was like a dream” and she “thought she saw F on top of her, but doesn’t remember”. M recalls that F was sat on the corner of her bed after he came in and she asked him what he was doing but cannot recall what he said to her in response. Despite repeated attempts to probe this account and receive firm details of the events, the witness fairly accepted that she “did not know” when asked about what had happened, and whether she thought the allegation was unusual in that context.

M said in regards F’s drinking, he had convictions for drink driving and that when they were together F would drink four or five beers every single day. M believes that F’s drinking affects his behaviour, as he doesn’t think about his actions. M was concerned that if F could not give up on drinking, and could not change his lifestyle, then he would never be able to change and this negatively affected how he could look after B.

Direct evidence about the rapes was provided in a witness statement from MGM which appear to have been written in English, a point taken by F, as he has not seen any versions in her native tongue, nor has the court. The MGM gave evidence with the assistance of an interpreter. She accepted that there was no native version of the statement and that M translated her statement from the native tongue but that this was not filed and served. The potential for contamination in an instance like this – where one party to the proceedings takes a statement from a witness, translates it, and does not keep records of any original native language document, is high. It is at least troubling that the evidence was produced in this way, and may lead to an inference of coaching.

MGM accepted that she had not made contemporaneous reports of the rapes. Her evidence as to how she disclosed the (initially 2020 then 2018) rapes accorded with her daughters recollection (i.e. “do you know what he did to me…”). MGM said that “I told her that he raped me”. When asked to expand, she said “I told her that he raped me, but I don’t know how” and “I realised when I woke up in the morning”.

She went on to say that (in regards the 2020 allegation) “I had a pain in my chest and breast and my bones inside were aching, my bra was up to my neck, and my neck was hurting. There was sperm on my left leg of my pyjamas”. When asked to say how she knew this was “sperm” she said “I know how it looks as I was married before” and “first I saw the sperm on my pyjamas and then I saw it in my vagina as well”

When I asked her to expand upon this point that she “saw sperm in her vagina”, (which was not in any of the written statements nor had it been mentioned by M) she said that she saw this when she woke up. I asked why this had not been mentioned in the written evidence prior and the witness said that “I stated that it was a liquid when I reported to the police, it didn’t occur to me to mention it”. This is a vital and highly concerning omission and one which the court followed up with the witness. She accepted that this evidence was different from the evidence in the bundle and attributed this to trauma and said that perhaps she “couldn’t think of the word vagina” and “perhaps I forgot to mention it”. MGM said that since then she has attention deficit and forgetfulness and “everything went upside down after that” by way of explanation for the omission.

MGM said that she told the police about the 2018 rape before she told her daughter. She said that she was fearful of reporting to the police because she believed she would be deported. She thought her daughter could be harmed reputationally or in work.

Regarding the mechanics of the 2020 rape, MGM said she “did not have any memory of being raped”. She “thought she was having a bad dream”. MGM thought that someone might have been in her bed after she went to the toilet, but she did not check and thought maybe this was a dream. After she got into bed she did not remember anything else after that.

When pressed as to what, if anything, other than the feeling on waking, made MGM think she had been raped, she repeated “I had pain in my vagina, breasts and bones…” but that she did not remember actually being raped, or of F being present after she let him in and went to bed. She accepted she must have slept through any rape, if it occurred.

MGM said that she had destroyed her bedclothes and bedsheets as she “felt disgusted”. When asked about why she did this, MGM said she was worried about it being made public. When the court pointed out that victims of rape have lifetime anonymity and that the police use physical evidence in order to investigate such offences, she said “I never knew that”. MGM cited that she had never experienced anything like this before.

MGM reported that she did “not remember about the earlier rape” until the later rape was disclosed. She said that in 2018 one morning she was in massive pain and that she could barely stand up, but accepted that she did not disclose this to anyone. MGM said that she could not look at F, but “felt bad about it” and “my memory was gone” and in regards the 2020 allegation of rape, this only came back to her a few months after the rape. These inconsistencies and difficulties over the memories of the rapes and timing of disclosure were problematic and made piecing together any evidence of substance very challenging.

MGM accepted that she had not told her GP about being raped since 2018, but that she told her GP and is now in therapy, since 2020. MGM has had four or five sessions of therapy since 2020, and it is ongoing.

MGM initially said that she could not remember anything about the mechanism of the rape in 2020 (which again, differs from her written evidence in which she believed she was orally raped but without any great level of detail). In the 2018 rape, she confirmed that she did not remember anything about the rape at all. Then she changed her mind on this and said in regards the 2020 rape that “it was like a dream, I remember something penetrating my mouth…”

MGM then alarmingly suggested that being orally raped had left her with some sort of “thing” (sic) on her tongue which she was told is attributable to oral sex. The court does not have any medical evidence at all about this. The MGM then went on, when being asked to clarify, to say that the doctor also told her that this symptom could occur “if you ate something hard”. MGMs evidence on this point was so confusing and at variance with the written evidence that the logic of her account was seriously undermined.

MGM confirmed there were no physical marks from the alleged rapes, but that she was in intense pain for some time after on each occasion.

The court then heard from F who was asked questions by the court taken from a list provided by M and assessed as to relevance. He was asked variously about the two allegations of rape, about the sexual abuse allegation by DW and about his relationship with drink and drugs.

F accepted that in 2018 he sent a WhatsApp message to M’s brother in which he said he was suicidal and that MGM “could not even look” at him. When asked, he said he could not remember the context, he was very depressed at the time. He denied that this was indicative of an admission of guilt. F did not accept that MGM “could not even look at him” because he raped her, he said that it was because his relationship with her daughter (M) was strained and MGM was taking her side.

F was asked questions around the period in 2018 where he was said to have raped MGM. He said that around this time he was in dispute with M around B’s access to a second nationality. He recalls that M gave him a document to try and persuade him that B had to have this second nationality and citizenship (the citizenship of M and MGM) as a matter of law. He said that after speaking to a friend from M’s mother-country, he realised that “the wool was being pulled” over his eyes and the second nationality was not legally required. He believed that M would then try to relocate with B to that country, and he would “never see her again”.

F told me he was very upset about being deceived by M. F said that after this dispute, he left to his friend’s house, then came back around 2 or 3 a.m. and went to bed in the spare bed. F had been drinking and said he had consumed around three or four beers but no drugs. He did not feel particularly drunk. He did not believe that drink would ever affect his memory. F said he had never been so drunk that he had blacked out.

F did not have any recollection of pain or discomfort reported by MGM the day after this and believed she went out shopping. He categorically denied rape. He suggested that M wanted to get back in a relationship with him, he did not reciprocate these feelings, and that she may have persuaded MGM to make up these false allegations to “ruin his life”.

F confirmed that he drove home after his cousins wedding on 13 March 2020, that he had had two beers at the wedding and then went back to his sister’s house, then to M’s house which was about 15 miles. He confirmed that he took a breathalyser test to confirm he was under the limit. He believed he arrived at M’s home around 11:20 p.m. F denied that he had taken any drugs at the wedding nor that he had sought to buy some on the way home, as M suggest. He did not know where this had come from.

F accepted going to M’s bedroom and intended on talking to her about the wedding but she was asleep, so he left. He recalled watching TV and messaging WD before falling asleep around 1-2 a.m.

F was asked to comment on the alleged rape in 2020 and said he “could not see how it could happen”. He stayed around in the morning after the alleged rape, and no one raised anything out of the ordinary with him. He said he was crying due to depression and apologised to the MGM for this the next day. He was not apologising for rape, which he reiterated “didn’t happen”.

F said that M came to a family BBQ in the summer of 2020 and after this, M disclosed to his sister that F had raped MGM. He said he was in disbelief about this. He then contacted WD, who did not answer the phone, as she was on the phone with M, who was asking for information from WD about the allegations made by WD against F.

F explained he had dated WD from about 2019 to about 2025. They remain good friends and talk every day. F said this was an “on and off again” relationship. He accepts that in June 2020, WD made an allegation of sexual assault against him. He said this came about after he called the police about her drink driving. She was pulled over and was “angry” at F for this. This is when WD made the allegations against F.

F said that WD was lying to the police. He accepted this was unusual and serious in the context of the family court matter. He said he has not raised it with WD in the years since, as he wanted to move on with his life.

F was arrested in June 2020, after going round to WD’s house to collect his belongings. He was interviewed under caution and denied the matters. WD said that F had ejaculated over her, against her will. He denied that there was any other element to the allegation, including that he had strangled WD. He does not know if WD told M about this, but denied that he had ever strangled anyone.

F was asked about the allegation of strangulation in the 2020 rape, but suggested this was false, because no one could sleep through being strangled. F could not comment on whether a victim would be likely to sleep through being raped but said that the complaint was false and malicious.

F did not accept that M did not know about the allegation by WD of sexual assault, as he told M at the time and said it wasn’t true. F said that M believed him. F said that WD pushed him on one occasion when they were breaking up during an argument, but he did not get arrested for this.

In regards F’s relationship with drink and drugs, he was asked about M’s view that he “drank every day they were together”. F accepted that during the entirety of the relationship with M, he would drink most days, four to five beers from 2014 to 2018, due to what he said was severe depression. He accepts that alcohol is a depressant and that his approach was “silly”.

F is now on anti-depressants. He says he only drinks with a meal during the week and maybe three beers of a night on a weekend. He says he does not do any illegal drugs. He is usually abstinent during the week, and if he does go out for a meal, he will only have one beer. He has had a “couple of weeks off here and there” since 2018 of complete abstinence from alcohol.

F accepts that when the HST toxicology report was done in 2023 he was a chronic alcoholic, consuming upwards of five beers per day in that period, and usually drinking alone. He was drinking every day.

F said he has been “reborn” about three or four months ago, after losing his father in March. He said that he was spiralling into depression and drinking a lot but was managing to go to work he accepted this is functional alcoholism. He went into a Baptist Church on the advice of a close friend who was worried about his grieving process. Since then, F has gone every Sunday and has helped out with painting and decorating at the church as a volunteer. He said that this makes him feel “brilliant, amazing, I love it”. The people at the church have been welcoming and kind. He has not told everyone about his struggles, but sees the church as a new family and wants to be around them as much as possible.

F accepted that he had struggled with alcohol on his own though he did speak to his GP after panic attacks after losing his father. He was told to cut down on drinking but not given any direct help to do this. He said that he does not need any help. He said he has cut down but has not stopped completely, and he finds drinking as a comfort. He does not believe drinking “four beers” is a problem. It was put to F that drinking as a comfort is indicative of addictive and depressive behaviour which he accepted.

F said that total abstinence from alcohol would not be difficult. He believes he could be completely abstinent from alcohol for the interest of seeing his daughter. F has been to Alcoholics Anonymous “a few years ago” for a few weeks. He listened to other people and “did not think he was as bad as that”. It was put to F that comparing ones own alcoholism favourably against those who have reached rock bottom and embraced AA was counterproductive, and he accepted this.

F said the last time he took cocaine was after his dad died, he said he was depressed and regretted this. Again, F accepted under questioning that he is aware taking class A drugs like cocaine can have an impact on the body and brain during a ‘comedown’ phase which is likely to have a deleterious impact on depression. He accepted this. F suggested he would take steps to address these issues and issues around housing in advance of a final hearing. In regards all the allegations, F denied them.

I gave each party the opportunity to make submissions, F decided not to make any, and M submitted that it was not true that she became aware of the DW allegation via him when she was living with him. She also pointed out that her report to the police predated F’s application to court.

Each party was unrepresented. M has previously had the protection of a Non-Molestation Order (‘NMO’) against F in 2021. Owing to the animus, my clerk enquired with the parties whether they would like a screen, and the court then put this in place to maintain dignity and civility.

On the second day of the case, before I handed down this judgment, a note was passed to me by F indicating that M and MGM had lunged at him and shouted at him in the street whilst leaving the court building last night. Without any judgment as to who was at fault in such a melee, I decided to invite a security officer to attend the handing down to underline the need for decorum. I reiterate to the parties that they must behave in court.

As is customary in cases of this nature, a prior order prohibiting direct cross examination of the parties was made. I therefore had a list of questions from each party of the other, and determined which questions would be probative from those documents. I thank the parties for their time and efforts on those documents.

Where the court does not allow a question, it is not because the court thinks it is a bad point, but often either because the court does not believe the answer will narrow the issues, or because the question is belligerent, or not probative, or potentially cannot be answered. Where the court has asked questions on behalf of the parties, it is because the court feels the question is probative or goes to that parties’ case, but that does not automatically mean that such questions disclose a brilliant legal point. It is human nature to assume that an LIP believes they can indulge in legal questioning to a high standard akin to a lawyer, but it is rarely borne out. Often, less is more.

The court also considered and took account of a bundle in excess of 470pp including various reports by CAFCASS, Hair Strand Testing, Police disclosure and written witness statements made by these parties in the currency of the proceedings.

I have borne in mind 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”

The Law – FFH

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 Mr Justice Cobb 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. –

“There are specific risks to which the court must be alive. Allegations of abuse are not…. made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false, but it does increase the risk of misinterpretation, exaggeration, or downright fabrication”.

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

“In Re H-N the court explained the importance of focusing on whether or not there had been coercive and controlling behaviour, as opposed to specific allegations of abuse. This case… provides a clear example of the need identified in that case for the court a) to focus on the overarching issue of coercive and controlling behaviour when it is raised and b) to do so in the context only that it is relevant and necessary to determine issues as to the child’s welfare”.

Where I do not mention it specifically, I have actively and throughout hearing the evidence and considering this decision, considered the ‘Welfare Checklist’ within s1(3) of the Children Act 1989 apropos B’s needs and welfare.

Practice Direction 12J deals with allegations of domestic abuse and the approach the family court must take. It applies where [para 1(2)A]:

Section 2 defines “personally connected” on the following criteria, (a-f do not apply to the relationship between MGM and F):

they are relatives.

The term “relative” is defined per s.63(1) of the Family Law Act 1996. It does not include the relationship between MGM and F, as they are neither related by blood or marriage, or by any former marriage or civil partnership. F and M were only partners and did not enter into marriage. Had they done so, then PD12J would have direct applicability here.

However, as a preliminary finding, and it may be helpful for CAFCASS on this point, I find that PD12J does not have direct applicability to any of the sexual allegations in this case, and accordingly, albeit they are serious, they cannot amount to abuse per se pursuant to that Practice Direction in direct respect of F’s contact with B.

Impression of the witnesses

The court heard from M first, and then from MGM and F in turn. M’s evidence (as stated above) was not direct on the issue of the sexual violence allegations. M came across as earnest, genuine and concerned. However, on many occasions she conceded that she did not have direct evidence on these central allegations of sexual violence: in regards the rapes, this is as told to her by MGM in July 2020; and in regards the allegation involving WD, this was all gained by reading the CAFCASS reports or third hand information from F’s sister.

I found it troubling and potentially indicative of the difficulty in which M and MGM found their case, that M was wary of accepting any allegation of sexual violence by F against WD, even in the face of a detailed police report, whereas she immediately accepted her mother’s account in July 2020 of the March 2020 rape and then later learned of the 2018 allegation and accepted that.

The evidence of both rapes is highly tenuous and even on MGM’s account she cannot tell me what actually happened on those occasions – her sole evidence is as to how she felt after each morning. No other explanation for her feeling has ever been considered, which has led to a blinkered approach to these allegations by M in turn. I therefore found that M’s evidence was not persuasive in proving the allegations.

Next, the court heard evidence from MGM with the assistance of an interpreter in her native language. The court heard that MGM has undergone therapy for PTSD which she avers is linked to the allegations against F. My impression of her evidence was that she may indeed be vulnerable, other than by virtue of the allegations, but I had no medical or independent evidence as to the nature of that vulnerability in regards her mental health.

MGM said that around 26 or 27 April 2018 she woke up with excruciating pain in her privates. She did not tell anyone as she had no memory of it. She could not accuse F of rape on that basis. It was not until 2020 that she disclosed this to M. She could not account to me for the lack of memory or any recollection of the mechanism of the rape. She said today (for the first time) that she felt there was semen in her vagina, but this was new evidence which has not been part of the case in several years of information about those allegations being known between the parties. I therefore give it little weight, and it is at such variance as to tend against the coherence and clarity of MGMs case.

Questions were put to MGM in turn via the court on the topic of the surrounding circumstances of the rapes, the mechanism, and what F avers is a lack of coherent timeline or factual matrix.

I found her answers to be problematic, contradictory and thin. These are serious allegations. In the criminal court, they are the sort of allegations which would be explored (in great detail but with great tact) by specialist advocates and ticketed judges to adduce the mechanism of what happened, where -as here- sexual contact is completely denied. I could not conduct such enquiry, because of the complete lack of memory or of detail by MGM on what actually happened. It appears in total that the feelings of physical discomfort she reported in July 2020 are the only source of indication that she had been raped, and that is why the police were unable to progress the matter.

I appreciate that victims of rape must have the right to be heard, listened to by the police, taken seriously and their accounts pieced together rather than being poured over and dissected. I also take note that all victims of serious sexual offences may present differently – victimhood is a fascinating and complex area of criminological science, and victims do not have one “template” for what they must do after an offence like this, nor how they will recall it, when, or how they will report it.

However, the lack of contemporaneous reporting to her daughter, the lack of any timely police report, the destruction of potential evidence and the lack of any memory as to what actually happened all tend against the court being assisted.

F gave evidence in turn and was similarly asked questions by me from those provided by M. He was asked about the dates of the alleged rapes, his whereabouts, activities before hand, how much he had drunk and what he had done. It was put to him that he had raped MGM on each date. He denied this.

I found F’s evidence to be largely coherent and forthright. He could not explain why the (in his view false) allegations had been made, other than out of malice. He accepted presence on the 2018 and 2020 dates but strongly denied rape. Because the evidence of the allegations was so tenuous, it was difficult to put probing questions to gainsay his bare denials, and I do not criticise him for that reality.

F was asked about his ex-partner, WD, and the allegation which is not in evidence in the form of a witness statement, but that was reported to the police in June 2020 involving allegations of sexual violence by him upon her. He explained the context of this in full, noting that it arose after WD was upset with him for calling the police on her, in a tit-for-tat scenario. I do not have any direct evidence to contradict that account.

I found F’s evidence as to his struggles with alcohol and drugs to be dissembling, minimising and contrary to the reality. He accepts that he has suffered from depression, that he has drunk to excess and chronically, and that he drinks alone and does not discuss his intake with many people. These are all signs which are hard to ignore, but he seems unwilling to join the dots.

The court considered evidence within the bundle as to F’s print from the Police National Computer (‘PNC’) which shows relevant entries, including:

That PNC print is taken to be conclusive evidence of antecedent character by the court, where a conviction or caution has been entered -as they cannot occur without a finding or admittance of guilt. The court attaches no weight to the two allegations which were NFA’d from the PNC print itself, as they have not been tested, and would lead to a circular argument.

Conclusions on the allegations

Having heard the evidence and considered it against the above legal tests, and mindful that the burden is upon M and MGM, I conclude that the evidence of purported rapes by F of MGM in 2018 and 2020 are not made out.

Whilst there is no reciprocal burden on F, it is a binary test, and the court needs to therefore find as a fact whether those rapes occurred. The evidence of MGM was at such variance between her written evidence and answers to questions; impermissibly vague; unreliable as to times and sequence of events; and unsupported by any other element of direct, physical or circumstantial piece of evidence.

In regards the allegation involving the former partner of F, I am concerned about this. I take judicial note of the fact that it is a significant step for a complainant to make a complaint of this nature, gravity and apparent detail to the police, and to withdraw it is not uncommon in these offences (either upon reconciliation or deciding not to risk the ordeal of court). It is possible where a complaint is made with sufficient vigour and detail for the police and CPS to determine to compel that complainant to give evidence, or have a “victim-less” prosecution on a res gestae basis, as has happened in a number of high profile cases over the years including involving people in the public eye (cf. DPP v Barton [2024] EWHC 1350 (Admin).

However, I am wary of speculation, and draw myself back to the key questions as enshrined in the caselaw: what direct evidence is there, over and above concern? I do not have any direct evidence from the “complainant” if she can be called that at this stage. For that reason, I cannot be satisfied that the burden is discharged by M on that allegation.

In regards the overarching allegations as to F’s drink and drug use, I note with caution that this was not a specific allegation within the Scott Schedule, albeit it was ventilated at length between the parties in their witness statements, in evidence before me, and via documentary evidence in the bundle, including the Hair Strand Test.

F has also gone to some lengths to comment on this issue in his own documents, so I feel able to reach conclusions on this matter with the help and candour of the parties.

I would reiterate what Recorder Pepper said to F in a hearing in January 2024, and strongly suggest he ought to seek immediate professional intervention, via his GP at the outset, for his substance issues. It is arguably the biggest issue now facing F at a final hearing and how he approaches it – by seeking to admit his problems and seek help or by minimising them as he has done prior – will likely have a significant impact on the final order in this case. It may be prosaic to state – but his sobriety is directly linked to his relationship with his daughter. He needs to decide on which is the priority.

Conclusion - Findings and Directions

The court finds the following facts:

The court therefore makes the following order: