F v M & Ors

This is my judgment in private law proceedings where the subject children are A, a girl of 8 years and B her brother , some two years younger. Their mother is A. Their father is F. The children have a 16.4 guardian who has been represented at the hearing by counsel, and all parties have been represented by counsel.

At the start of the proceedings, the mother was seeking findings against the father on a schedule comprising of the following allegations:

The father’s schedule of allegations lists the following:

When the hearing was adjourned on 29 August 2025, all the evidence that the mother relied on to prove the allegations of sexual abuse concerning A had been heard. The court explained to the parties that it was always open to the parties to consider whether they wished to continue to pursue certain findings. When the case resumed on 23 September 2025, the court was informed that the mother had filed a statement dated 19 September which stated the following. At paragraph 5, it states:

“I recognise that the court proceeds on the basis of evidence and having now heard the evidence of K, J, and Q, which I am not in a position to contradict as to what happened in the home on the relevant weekend in August 2023, save in respect of what A said to me, I have decided not to continue to seek findings against K and J in respect of A’s allegations.”

Paragraph 6 states:

“I would therefore ask the court to consider discharging them as intervenors in the proceedings although I recognise that they will be entitled to receive a redacted copy of the judgment transcript in due course in respect of the parts that relate to them.”

Paragraph 7 says:

“I remain very concerned about the actions of the applicant in being misleading about the issue of A mislaying her glasses on the relevant weekend in August 2023 but as I am not pursuing findings against K or J in respect of A’s allegations, I confirm that I am also withdrawing the allegations against the applicant in respect of failure to protect A.”

Consequent on this statement, the court, with the agreement of all parties, discharged both the intervenors. In view of the change in the mother’s position, the court expected not to have to consider the findings with regard to A’s allegations. However, when the mother gave evidence on 25 September 2025, she stated that she still believed that Awas telling the truth about the sexual allegations. The mother stated, in terms, that for the sake of A, she felt she had to believe A.

The court, having heard extensive evidence from the mother and the father, is very concerned that there should be absolute clarity concerning all the allegations, including the allegation that she made concerning A’s allegations and the court therefore accedes to the submissions of the father and of the guardian for the need for the court to make a decision on the A allegations.

The hearing of this fact-finding was initially listed on 19 May for seven days, including reading time. In the event, it was not possible to complete the hearing within those dates. The first date was a reading day and on the second day, the court was made aware that counsel for the mother was not feeling very well but felt well enough to continue. The mother gave part of her evidence on that day. On the third day, the court was informed that mother’s counsel was feeling worse and therefore would not be able to continue to attend.

The case was adjourned to the following week when there were already days listed. However, on Tuesday 27 May, when the case was intended to resume, mother’s counsel sent a message that she was still too ill to attend. Therefore, on 27 May, the case was adjourned part-heard for a further five days to a date to be fixed. As it was anticipated that there would be a delay until the balance of the case could be relisted, a transcript of the evidence that the mother gave on 20 May was ordered and that has been available to the court in considering this case.

At the time of that adjournment the parents did not agree the ongoing contact and so the court heard short evidence on that issue and made an order concerning contact. In the event , the actual further listing of the case provided for a total of a further six days - three days in August (the 27^th, 28^th, and 29^th), plus a further three days in September (the 23^rd, 24^th, and 26^th).

When the matter came back on 27 August for the three days, the mother was represented by different counsel. The court was aware that that counsel had not, at this stage, spoken to the mother as she was in the middle of her evidence. However, counsel was offered an opportunity to speak to the mother to take specific instructions but preferred to wait until the mother had completed her evidence. The court then heard the balance of the mother’s evidence as well as that of her husband L and her sister-in-law. The court also heard evidence from both intervenors.

It is never ideal for there to be a change of counsel within a hearing but I am satisfied for the following reasons that the mother has had every opportunity to put her case:

At a previous hearing before Recorder Davey, which was listed on 11, 12, and 13 March, which was intended as a fact-finding hearing, the matter was relisted pending further directions. At paragraph 18 of his order, it was stated that the court concluded that K was vulnerable and his participation might be affected. At that hearing, the court proceeded to make directions for the father’s team to make enquiries of Communicourt. Further, an order made a direction that K should be assisted by a QLR ( a qualified legal representative). That assessment, however, did not take place and no QLR was available.

When the matter came before this court on 9 March, this court arranged for K to be assisted by CASS+, which stands for the Community Advice and Support Service charity. That was for the preparation of any document and in order to support him when giving his evidence at the listing of this hearing in May 2025. When the May hearing was adjourned part-heard on 27 May, K had not, at that time, given evidence. The court was made aware that CASS+ would no longer be available to assist in court.

The court had been made aware by K that he had problems with reading and writing and having addressed him directly, and the court was satisfied that he was vulnerable. The court therefore made a further attempt during the lengthy adjournment to have K assessed for assistance through an intermediary.

By the time that the case was back before the court on 27 August, the court office had arranged for K to be assessed. K did not choose to engage with a request to contact the court about such an assessment. In the absence of such an assessment, the court directed that, in any event, the court should make an intermediary available for K for the remaining dates of this hearing. The court is satisfied, having heard the evidence of K, that he has significant challenges in reading and writing but is satisfied that with the support of the intermediary, he has been able to engage fully in this hearing concerning the allegations affecting him.

When the case came back on 26th September, the court heard the father’s evidence, as well as further evidence from the mother. It had been hoped that 26th September would be used for judgment preparation and handing down of judgment. In the event, when it was apparent that more time would be required for the preparation of this judgment. 26th September was therefore vacated as a court day and today, 8th October, was listed as the day when judgment would be handed down orally at a remote hearing. Permission was given for trial counsel to be replaced by other advocates for the purpose of this hearing.

First, the burden of proof lies with the party that seeks the findings. Therefore, both the mother and the father have the burden of proving the allegations that they seek. The standard of proof that each has to reach is the balance of probability. If findings are made, the court will treat the fact as established and all future decisions concerning the future of the children will be based on those findings. Equally, if any finding is not made, the court will disregard the allegation completely.

As Lord Hoffman observed in B (Children) [2008] UKHL 35:

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1...”

Further, it is open to the court to make a positive finding that a respondent to an allegation is innocent as against a simple finding that the applicant’s allegations are not proved (D v B [2006] EWHC 2987 (Fam) at [19]).

Further, in principle, the approach to fact-finding in private family proceedings between parents should be the same as the approach in care proceedings. However, as Baroness Hale cautioned in Re W (Children) (Rev 2) [2010] UKSC 12 at [29]:

“...there are specific risks to which the court must be alive. Allegations of abuse are not being 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...”

Further, the burden of disproving a reasonable explanation put forward by anyone falls on the party trying to prove it. Further, the inability of a parent or carer to explain an event cannot be relied on to find an event proved.

Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. Findings must be based on all of the evidence and should have regard to the wide context of emotional, ethical, and moral factors. When considering cases of suspected child abuse, the court must take into account all the evidence and further consider each piece of evidence in the context of all the other evidence.

Further, the court is not bound by the cases put forward by the parties but they can adopt an alternative solution .

Further, the core central factual question which requires determination in a finding of fact was articulated by Jackson LJ in Re A (No. 2) (Children: Findings of Fact) [2019] EWCA Civ 1947:

“The questions for every fact-finder are What, When, Where, Who, How and Why? Their significance and difficulty varies from case to case. Some answers will be obvious while other questions can be extremely hard or even unanswerable. Sometimes a question may not need answering at all. At all events the questions come in no set order and each inquiry will suggest its own starting point. It will no doubt find apparently solid ground and progress from there, but conclusions can only ever be provisional until they have been checked against each other so as to arrive at a coherent outcome. At each stage, regard is had to the inherent probabilities and improbabilities surrounding what are inevitably abnormal circumstances.”

Further, a fact-finding must be conducted in accordance with the Practice Direction 12J. The practice direction defines domestic abuse, which includes controlling, coercive, and threatening behaviour. Coercive and controlling behaviour are both separately defined and the practice direction also makes reference to domestic abuse being harmful to children.

Coercive behaviour means an act, or pattern of acts, of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

Controlling behaviour means an act, or pattern of acts, designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance, and escape, and regulating their everyday behaviour.

Further, the inherent improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Common sense, not law, requires that in deciding this question regard should be had to what extent appropriate to inherent probabilities.

Further, the evidence of the parents and any other carers is of utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part and the court is likely to place considerable weight on the evidence and the impression it forms of them.

In considering the issue of any lies to be told by a witness, the court has taken into account the fact that a person lying about one issue does not inexorably lead to the conclusion that they were also lying about other issues. There are many reasons where people may lie about a particular matter, for example, out of shame, humiliation, misplaced loyalty panic, fear, distress, and emotional pressure (this is the Lucas direction).

Further, the fact that a witness has lied about some matters does not mean that he or she has lied about everything.

Further, if the court determines that the Lucas direction is called for, or is invited to proceed on that basis, submissions must be made to identify the deliberate lies relied upon, the significant issue to which they relate, and on what basis it can be determined that the only explanation is guilt (Re ABC (Children) [2021] EWCA Civ 451, Macur LJ).

Further, any judge appraising witnesses in the emotionally charged atmosphere of contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so (Re M (Children) [2013] EWCA Civ 1147).

Further, the need for caution in how the court evaluates the credibility of a witness and the reliability of their evidence by reference to demeanour and the need for caution in the weight to be given to that, and also the importance of reference for documentary support.

Further, in Re R (Children) [2018] EWCA Civ 198, McFarlane LJ stated:

“The purpose of the family tribunal is not to establish guilt or innocence but to establish the facts in as far as they are relevant to inform welfare decisions regarding the children...

The focus is very different to the process in the criminal court which is concerned:

“...with the culpability and, if guilty, punishment for a specific criminal offence, whereas the family court considers determination of facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare.”

The main court bundle is a digital bundle of 2,658 pages. There is a further supplementary bundle of over 220 pages. Hard copies were made available for the parties in the court. The bundle included the applications; the orders; statements; child assessments; Cafcass reports; section 7 reports; single assessments; police logs; police statements; transcripts of ABE interviews; and also previous proceedings.

I have also heard the audio tape that the mother took of Aon Wednesday 30 August 2023. I have read each page that I have taken been taken to in this bundle and more.

Although not evidence, I have read the case note, the analysis of law, the written submissions, and the chronology. I have invited both counsel representing the mother to file a chronology. The resulting document was more of a submissions document. The mother’s counsel made amendments to the father’s chronology document and I have read everything that has been placed before me. This has included the written submissions that were submitted by each of the parties including those on behalf of the mother even though they were submitted four hours late. No point is taken.

Oral evidence was heard from the mother; the mother’s husband; K, an intervenor; the mother’s sister-in-law; J the father’s partner who is also an intervenor ; and the father. I remind myself of the need to assess the credibility of the parents and reliability of their evidence and will do so later in this judgment

The court has heard and read a vast amount of evidence in this case. Part of the reason for that, in fact, was that both parties seek findings and initially, the mother was seeking findings on the A allegations in addition to the sexual allegations against the father. This court is aware of the expectations that these judgments in fact-finding hearings should be as focused and concise as possible. However, it considers that, in this case, it is only by trawling through the extensive evidence and noting the action of the parties that it is possible to identify the truth behind all these allegations and the real dynamic between these parties.

The parties met in summer 2015. It was a time when the father’s mother had sadly died and the father was in receipt of an inheritance. The parties were together until October 2020. It is accepted by the father that whilst the parents lived together, there were two occasions when he was physically abusive. One is in July 2020 when he grabbed the house keys from the mother’s hand, which resulted in some bleeding of her hand. His account is that the mother was refusing to give him the keys so that he could enter the house to retrieve his own keys. He accepts that A, aged 3½ at the time, was in the car and would have been witness to the event.

The second event was in October 2020 when the parties, on the father’s account were shouting at each other. Even on the mother’s account, there was an incident. She does not accept any blame. The father’s account is that he pushed the mother into A’s room which resulted in the mother falling over a wardrobe. Both parties informed a social worker that A was not an eyewitness to this but that she was a witness to the attendance of the police on father, and father’s removal from the home. This event prompted the separation of the parties and it is within this relationship that the mother claims that the father sexually abused her by, in her terms, raping her on a number of occasions.

For the purpose of this background, I will be noting what the father’s attitude was towards contact after they separated.

Initially, from 8 October when they separated, it was agreed that the children would live most of their time with the mother but they would stay with their father five nights out of every fourteen. However, within the month, the mother was seeking an ex parte non-molestation order. The ex parte order was made but on the return date, on the basis of the father accepting that there was one occasion when he pushed the mother and that there was one occasion when he had snatched the car keys, he gave an undertaking.

In July 2021, the nursery where the father had delivered B, was not able to contact the father to ask him to collect B and so they contacted the mother who now raised the fact that the father was neglecting the children. The mother, within this hearing, has continued to maintain the fact that B had sepsis around this time and later but I am satisfied from a medical report that he was not suffering from sepsis but that he was suffering from RSV. The court accepts that he was very poorly.

The father states that in the morning, having called paramedics the night before, he had believed that B was much better and that is why he had taken him to nursery. The court notes from the social work assessments that the father at the time was staying with his parents. Both were retired NHS nurses and the social worker was satisfied with regard to their approach with regard to the care given at the time.

It is at this point when the parents had been separated for less than six months that the mother stops contact for the first time. She maintains that outside agencies are suggesting that contact should be suspended. In this case, she claims that MASH advised her to suspend contact when, in fact, all that MASH did was to advise her that she could exercise her parental responsibility if she had concerns. In other words, the decision was hers. No one else was directing it.

In August of that year, she makes a C1 application and within the safeguarding letter that was a consequence of that, it was noted that the father reported that he recalled that the mother would say when B was breastfeeding, that it felt as if B was raping her. It is the mother’s evidence that this entry prompted her to do a word search for the word “rape” on her devices and led to the messages that have been filed with the court.

The first time that the court had to consider whether there needed to be a fact-finding was on 6 October 2021 and the recital the court notes indicated that neither mother nor father wished to have a fact-finding hearing.

However, the mother soon considered that further orders needed to be made about the father and she therefore pursued her application for a non-molestation order, an occupation order, and also sought an order for his committal as she believed that the father has breached his promise to the court.

That hearing eventually took place before Deputy District Judge Deacon but not before the mother has gone to the police about her sexual allegations about the father, those allegations being that he has sexually abused her by non-consensual sex. The mother points out about this hearing before Deputy District Judge Deacon on 1 February 2022 that she was not legally represented and therefore did not have the ability to ask questions via a third person and her case is that that would have impacted on her case.

Having heard the mother give evidence over three days, I observe that the mother is very articulate. It is apparent why the mother wishes in some way to qualify the conclusions of the Deputy District Judge because they are not supportive of her at all. Within his judgment, the Deputy District Judge observed that the father made two admissions re the two incidents. The Deputy District Judge stated in his judgment:

“...it certainly does not, in my view, lead to a pattern of a man who is violent that could cause physical harm.”

Further:

“Has the respondent embarked upon a campaign of abuse and coercion? The answer is a clear ‘no’ not on the evidence that has been produced to me. Not at all.”

Further, he writes:

“I am disturbed by M’s statement which is as follows, ‘Well, I am going to have to put up with him forever and a day on handovers with the children. I don’t want that. I don’t want that’.”

He continues:

“I do not think she wants actually any interim contact if truth be known.”

I also refer to the comment in the judgment:

“I question the motivation, as I say, about these applications. By any stretch of the imagination, the evidence does not back it up and that is why I have reached the decision I have.”

The court having noted that the mother is very articulate, also notes that it would be the mother’s evidence that would be key in persuading the court concerning the applications that were before the Deputy District Judge, because the burden of proving them would have been on her. It is difficult to see how the Deputy District Judge’s conclusions were less relevant just because she had no representation.

On the same date that the Deputy District Judge gives this judgment, it is noted that the mother speaks to the police again regarding her so called rape allegations. She has now found a number of the messages between the parties. The submission made about this timing by the father is that the mother, realising that her general concerns about the father had been dismissed, she now focuses on the other limb.

On 11 February 2022, the first section 7 report is filed. The author is Gemma Garrity. Dealing with the issue about B being ill, it was noted that there was evidence that the father had failed to respond to the nursery’s request to collect B when he was unwell and that the father accepts this but disputes that they made him aware of the level of illness. The view of Ms Garrity within the section 7 report was that Awas “not frightened of her father” even though it is noted by the court that A wrote a letter for Ms Garrity. That letter stated:

“I don’t want to see daddy because he pushed my mummy into a wardrobe and hurt her shoulder.”

It was noted that A told Ms Garrity in that report:

“Mummy doesn’t cry but she knows that she is sad when she goes to see her daddy.”

Further, it is noted that when A speaks of missing her father over Christmas, she gives Ms Garrity the impression that the mother had not told her that the only reason that the father had not turned up was because there was some confusion over where they were to meet. The court notes that, in her view, the relationship between the parties had become toxic, and the father had become controlling in his endeavours to maintain the relationship. Ms Garrity also stated that, in her view, there was no evidence that the father presents a risk or poses a risk to the children.

Neither parent wants a fact-finding but Ms Garrity considers that these issues need to be determined. So a fact-finding is ordered. It is listed for one day on the first available day after 18 April but the matter comes back to court on 21 February. By this time, the court reminds itself, the mother has found all these allegations that she has referred to at this hearing. Yet, on that hearing in February 2022, the mother makes it clear that she does not consider that the father is a sexual risk to the children and in the recital, her position is confirmed because it reads as follows:

“And upon the mother confirming that she does not seek a fact-finding hearing in respect of the rape allegations as she feels that the father is not a sexual risk to the children and that a determination of the allegation is not material to her proposals in respect of future contact. Her position is that handovers can take place with the assistance of third parties. However, the court agrees with Ms Garrity that the rape allegations need to be determined and so the fact-finding is ordered.”

The mother gives her first police interview on 28 February 2022 and on April 2022, in her witness statement, she again states that she does not consider the father as a sexual risk and that the rape allegations are not material to the issue of contact. The father then makes an application to discharge the necessity for a fact-finding. The matter comes before District Judge Scott on 26 May but is adjourned so that the court can have a copy of Deputy District Judge Deacon’s judgment.

The matter comes back before District Judge Scott on 24 November 2022 and at this hearing, for the first time the mother considers that fact-finding is necessary. The judge, however, concludes that on the basis of the previous applications and the judgment of Deputy District Judge Deacon that the fact finding is not necessary.

On 27 January 2023, there is an addendum report and A states to the Cafcass officer that she does not want to stay overnight at every contact. It is of note that, at this time, A starts talking again of having seen her mother being pushed with her own eyes. This, the court notes must be a fabrication as both parents have already confirmed to the social worker that she had not seen the mother being pushed as A had been downstairs.

In April 2023, the police informed the mother that the rape allegations are closed and there would be no further action but by the next month, the mother has initiated a victim review of that decision submitting a detailed statement.

There is a further addendum report in April. This time, the author is Melanie Snowden. That report notes that A is heard saying more than once that she cannot stay at daddy’s and wants to.

So here is the child making it plain that she wants to stay overnight for the father but the mother is presenting herself to the Cafcass officer as being anxious about the possibility of the children staying overnight. Ms Snowden is concerned about the way the mother is presenting, in particular the fact that in front of A the mother told her father that if the children were not returned on time that she would be calling the police.

A further concern was that when A is returned safely and A reports that the father has been drinking four big beers at the pub, the mother immediately calls the police. The father is stopped, breathalysed, but the reading is negative. Ms Snowden expressed concerns that if these sorts of instances continue, they will inevitably eventually cause the children emotional distress and confusion.

On 6 June 2023, the final hearing is now heard by District Judge Deacon and he makes a detailed order for the progression of contact. Initially, there will be full days of Saturdays and Sundays at the weekend and then as from 11 and 12 August, the children will sleep over on Saturday nights but this will not be on every occasion. Concerning teatime contact, the recital states:

“This will start as soon as A has recovered from her upcoming tonsillectomy scheduled for 20 June. So it is envisaged that this will start on 4 July 2023.”

The court notes that in anticipation of contact the next day, the father messages the mother. At 5.39 p.m., the mother responds by setting out the words of the recital, then she stresses the word “envisaged”, and then states the two-week recovery from her surgery is Wednesday. By 5.40pm, she says she will not be home by 3.00 p.m. so that the father will have to collect Afrom the barbershop. This is where her husband works. So, at this stage, she is proposing contact on 4 July with a collection at the barbershop.

The father, in his response, states that he has been advised to keep to the terms of the order but will collect on this occasion from the barbershop and that if she wants to change the arrangements, she ought to make an application.

The mother initially takes issue with this, stating that the handover should be at school and she had already told him that A would not be attending school. At this stage, she then says that as the contact should only start at 3.15pm, not 3 o’clock.

The father’s response at 5.46pm is:

“Okay. Great. Looking forward to seeing them at 3.15pm from the barbershop.”

The mother’s response at 5.47pm is, “No worries.

All would appear now amicably agreed but it seems that the mother cannot leave it at that. It is apparent that she starts thinking. It is apparent that she resents the implied criticism because at 6.17pm, she responds, “In fact, if you want to stick to the order so adamantly...” and now she states that as the suggested two weeks for the recovery does not technically finish until 5 July, that the father will now have to wait until 18 July, and that further, if he has any objections, it will be he who can apply to the court.

When asked about this series of messages, the mother claims that she had to delay the Tuesday contact as L would not agree for the handover taking place at the barbers. The mother does not give this explanation in her message and I do not accept that this was her real motive.

This is an extraordinary exchange of messages and the court considers very revealing of how the mother functions. When she feels criticised she reacts and the way she reacts is to punish. The way she punished is that not only will the father but Awill also now have to wait another fortnight for the Tuesday teatime contact to commence. The court is not impressed with the evidence of the mother that she was just sticking to the order. She had already offered contact on the earlier date. She would not have done so if she thought that A was not up to it and the court is satisfied that the only reason she was now delaying the teatime contact was out of spite.

On 17 June 2023, the mother is informed by the police that her victim review request has resulted in a realistic prospect of prosecution and so it will be referred to the CPS to consider. When the father then therefore asked for clarity concerning the dates of future contacts, the mother now responds:

“As you are aware, there are certain decisions and outcomes we need to wait for.”

The court is clear that the mother was referring to the charging decision. The mother disputes that. The court notes that the mother’s position throughout this has been that the father was not a sexual risk to the children and that continues to be her position. What she says now, however, is she is concerned that the father was so coercive and controlling of her that the children are at risk of that. In fact, her schedule of allegations seeks that finding.

Pursuant to the order of 6 June 2023, the children sleep over on 12 and 13 August. A does not settle in her bed and asked to sleep with the father and his partner. The court accepts that this is not ideal and the mother takes issue with it. That staying contact weekend is followed by two consecutive days of visiting contact on Saturday 26 and Sunday 27 August. The court has heard evidence from the mother, L, the father, J, K, and Q about what happened that weekend. The mother and L were obviously not present during that contact but were present at the handovers.

There seemed to be agreement that on the Saturday, A realised that she was going to be returning to her mother without her glasses and that she had left them at the father’s home. The father’s evidence was that A raised that issue in the car before they met with the mother and that A said she was going to lie to the mother that she had had a nap. It is his evidence that he told her not to lie.

L was sitting in the driver’s seat of the car when he picked up A. He says that when he saw A, she did not have her glasses on , that he mentioned that fact, and A said that she had left them when she had had a nap.

He says that he also heard the father say this. The mother’s evidence was that she heard the father and Aspeak simultaneously and say the same thing. The father’s evidence is that he did not say anything to the couple as there had been some very unpleasant interactions between them and also that he was standing at such a distance from them.

It is the view of the court having heard this that it is likely that the father did use the word “nap” which was recognised by the mother and L. However the court is not satisfied that what they heard was the father confirming the lie that Awas stating. The court noting the mother said that the father and A spoke at the same time, and that this suggests that it would have been difficult to work out what he did indeed say.

It is agreed that A had her contact with the father and B on the Sunday. While Q, when initially interviewed about what happened that weekend, claims that his friend K visited him on the Saturday, he later corrected that. Although the police were concerned about the change in evidence, I have no doubts that it was a simple mistake. K would have been working on the Saturday. That is why the relevant visit was on the Sunday.

The court heard from the evidence from J about what happened. The court’s assessment of J was of a warm, motherly figure who adores A. The two of them have a very close connection where they cook, they craft, they play together. She presented as a very child focused carer. The court’s view of J was that she was truly trying to present the truth to the court. The court found her to be a completely reliable witness.

Her evidence was that a picnic was planned for the Sunday but that the weather had stopped play and that later, they had the picnic in their lounge She recalled that her son Q had turned up with his friend K in the afternoon, and that Q had immediately gone out to play with A and B who were outside with the father but that K had stayed in the door of the kitchen talking to her. She said that K and Q had then gone into Q’s room. She said that when Q had come in to say goodbye and was playing with the children, K had remained in the doorway or hall. She was clear that K was never alone with A.

It was of particular interest to the court to hear from J that the issues raised by the mother after each contact were so usual, that after contact J and the father would actually sit at the table with the phone between them waiting for the mother’s latest objection to come through.

Q gave evidence. He was given very little notice. An engaging and likeable young man, he gave very compelling evidence of his distress when he realised that his friend K had been brought into the issues of this case. I found him also to be a completely reliable and credible witness.

The court was concerned that K should be supported when giving evidence. At a previous hearing, he had quietly informed the court that he had difficulties in reading and writing but he had not been professionally assessed. The court assessment of this young man was that he was very brave. He gave evidence about the fact that he had never been alone with A. This was a young man who the court assessed as being very shy. This was not a man who had been pushing himself forward to interact with anyone that he did not know very well.

Concerning his ability to read and write, it had some relevance in the substance of A’s allegation as in her police interview, she said that Q’s friend had offered to read her a bedtime story and had, in fact, read her the story of Rapunzel. At the end of his evidence, the court asked K whether he had ever had any help or been referred for reading problems. He said yes, he had, but that it had not been followed up, he said that there was a suggestion that he had dyslexia. It was very compelling evidence. The court considers him to be a credible witness and the court is satisfied that this is a young man who has significant challenges on reading and writing.

When A returned to the mother that Sunday, it was then that the mother started noting what she would later refer to as the red flags in particular A’s very red private bits when seen after a bath. The court noting, of course, that a bath may have had an impact on their presentation and further noting that the history was that A had often complained of having sore and inflamed private bits before the Wednesday of her allegations.

The second supposed red flag was that the mother believed that she had heard A say to her brother B, “I will rape you.” The mother claims that she was not sure that she had heard this. She told the court that when she had asked A about what she had said, that the 6-year-old had immediately responded by saying that what she, in fact, said was, “I’m going to stingray you.” The court noting the similarity of the sound of the “ray” of “stingray” and the word “rape”.

However, mother in her evidence claimed that whereas she could not be sure that A had said, “I will rape you” that somehow she could be sure that A had not said “stingray you”. The court notes how remarkable it was that the child came up with a word that sounded so similar to the word “rape” when her actions could also be consistent with that of a stingray.

The third so-called red flag was that the mother’s partner noted A lying on top of B in the bath that Sunday, something that he claimed he had not seen before and described her actions as “dry humping”. It was interesting to note that when the partner was asked about whether A’s vagina was anywhere near B’s penis or anus he said:

“No, they had not been touching in any way. In fact, B had been lying on his side and she was lying on the side of his leg.”

He was asked whether this use of the words “dry humping” was his way of wishing to denote a sexual element and he said “no”.

So these were the three red flags that the mother was so concerned about that she considered that she needed to raise them with the police. The court notes, however, that if the mother truly considered that these were red flags, it is interesting as to why she did not bring them to the professionals’ attention at once. One inference, of course, is that mother did not, in all honesty, consider them red flags but armed with what A later agrees with, she has referred to them to bolster her case and to make it more persuasive.

So what happens after the Sunday? There is further contact on the Tuesday.

Concerning the Wednesday, the mother in her oral evidence said she had to collect the dog from the vets where it had had an operation. Her evidence was that in the drive home, the children were horrible to her, saying that they believed she did not want them to live with her. She stated that she was so upset by their behaviour that she contacted L, her partner, and informed him that she was going to need some time on her own when she got home. Her evidence, when later she was putting A to bed, was that she spoke to A. In the police document, she stated that A had been talking of domestic abuse and she herself had undertaken some play therapy with A. In her oral evidence, she accepted that she had never taken part in play therapy and she did not take part in play therapy now.

So what happened? The mother’s case is that A was in bed. She was dressed for bed. She was underneath the bed clothes, underneath the duvet, but was not seeming to settle, so the mother starts asking her questions. The mother accepts that the questions were along the lines of asking what had happened; had anything happened at home or at dad’s? A said at dad’s. The mother asked whether it was about her bits being sore. A agrees and the mother, in terms, asked A, “Did someone touch your bits?” and A agrees.

So what does the mother do? She gives various accounts. On one account she says she settles A down to bed with her bedtime routine. On another, that she is so upset that she leaves A’s room immediately and, in her words “lost her shit”. She speaks to L but she returns to A half an hour later where she asks a series of leading questions which she records, with A now referring to Q’s friend as being the perpetrator.

The police are contacted and the next day A is spoken to in the presence of the mother who, again, has to absent herself because she was so upset. When A is asked if Q’s friend did anything to her and did anything else happen, A shakes her head and says “no”.

However, when the officers ask again whether anything happened and inform her that they they need to keep her safe. The court noting that these are the same words that the mother says that she often uses with A, that is, the need to keep her safe. A responds straightaway at that stage and refers to the fact that Q’s friend touched her private bits.

A undergoes a very distressing SARC medical where there is no helpful evidence either way. She is scheduled for an ABE interview on 28 August and the day before, she says to her mother that she has made it up.

What does mother do? She states that she says to A that it is up to her what she says in interview. So in her oral evidence, she makes it clear that A gets the message that the interview will be going ahead. The mother informs the police prior to the interview of what A has said but further informs the police that A later says that she only said that she had made it up, as she was worried about getting into trouble with the father.

It is of note that in her ABE interview, unusually, even before the officers finish their preliminary explanation to A of the interview, that she blurts out that someone has touched her private bits. It is an extraordinary presentation. It is most unusual. The court has scrutinised the interview and it is apparent that A is calm. She is not upset at all.

Meanwhile, what is happening about contact? Contact is stopped by the mother. It is stopped in the face of the Social Services assessment which recommends that contact resumes with a safety plan that during the children’s contact with the father, no visitors are allowed.

She also stops it in the face of the court order of District Judge Eaton-Hart of May 2024.

Meanwhile, the court notes that there are visits to the mother’s home by the social worker. She visits on 7 September and it is at this visit that she notes the mother saying that she would rather be arrested than let the children go into F’s care. This is something that the mother now disputes she said.

On her later visit, The social worker’s visit on 26 September 2023, it is then that The social worker expresses concern about A and she writes in her child assessment review:

“Since I last saw A, her opinion on dad has become very negative. She talks more in-depth around the things he has said and lied about which are all directed at mum. I am worried about how much A is aware of and what emotional impact this is having on her.”

In further notes of her interview with A, she says, referring to A:

“You said you hadn’t seen real dad in ages and you were happy about this because he’d hurt mum a lot of times and he’d once snatched the car keys out of her hand and made her hand bleed.”

It is the action of the mother stopping contact for 11 months that reveals the strength of the feelings that the mother has about the father.

In July 2024, A’s and B’s contact with F resumes and the court notes that from the evidence of J, that since the contact has taken place, and since A has made her allegations, the contact has been very successful. The children have been enjoying their time.

The mother’s account, however, is that the children’s behaviour was immediately impacted by the resumption of contact and she accepts that in August 2024, she gave B diazepam without prescription. She says it was a one-off and not a whole tablet, and there is nothing to suggest otherwise. However it is of concern that her view expressed in her statement was that she considered that the main concern of the professionals about her giving that diazepam had been why B’s behaviour had got to the point that she had felt the need to resort to giving diazepam. It is clear, however, to this court that the professionals were, in fact, focused on concerns about her judgment in giving the diazepam in the first place.

In August 2024, the mother marries L and the staying contact with father has been resumed. Soon after this, however, mother gives her second interview to the police and in this she gives far more details than in her first interview. She is now suggesting non-consensual sex took place on certain dates, including A and B’s conception. She alleges that it also took place on her wedding night, her honeymoon, and also when breastfeeding.

This court has considered this interview in detail. Almost without exception, the mother’s answers are termed as the father “would have done this”, or “would have done that”, and on certain incidents, she has little memory. The court notes, of course, that by this time she has accessed the messages that had been exchanged between the parties but in real terms, she is recalling instances of over four years previously and more.

In November 2024, the mother now seeks the rape allegations to be part of the fact-finding concerning A’s allegations and the intervenors are joined. The court determined that, in fact, the rape allegations would now be part of the fact-finding hearing. The result, therefore, was that the fact-finding of December was vacated.

On 16 December, the police decide that they would now charge father with a number of rape allegations and the mother’s reaction is to immediately suspend contact again. The matter is back before the court.

Mother’s application is to suspend contact and that is dismissed but the mother suspends contact in any event.

The children, the court notes, have now only seen father for four months before this further suspension. It has the result that the children do not see the father over Christmas and A does not see her father over her birthday. The court reminds itself that the mother has never considered and still does not consider the father to be a sexual risk to the children.

The mother tries to appeal the order and contact is therefore officially stayed from 14 January by the court. There is therefore no contact until it is back before the court on 11 February 2025.

During this time, on 27 January, it is logged in the C-POMS at A’s school that mother had got cross and told A that she may have to see dad again soon as the court had said that dad has to have access and if mum prevents this, the court could award custody to dad.

The mother accepts that she should not have said this to A but the reality is that she did. The damage was done. However, it seems that she needed to make more of a point as on 2nd February, she uploads a post on social media criticising the family court and giving details of the case.

This chronology extends to this hearing and the fact that even during an adjournment of this hearing, the mother contacted MASH asking for contact to be reviewed even though the court had made a court order.

The court now specifically considers the assessment of the mother and how she gave her evidence. This court has had ample opportunity to assess the mother as she gave evidence over the course of three days. She comes over very articulate and very confident. It became apparent to the court that the mother was determined, however, to be as negative about the father as she possibly could. There was no light and shade in her evidence. No balance. The court notes from the chronology that this was a mother who, on numerous times, had stopped the father’s contact. She was completely confident in her own decisions and had little confidence in anyone else’s unless they agreed with her, the court noting that after A’s allegations came to light, that a third-party had come into the home and abused her, and even after the social worker confirmed that, in their view, there could be a safety plan set up and contact resumed, that the mother persisted in refusing to allow contact. This refusal continued even after District Judge Eaton-Hart made a contact order on 8 May.

The result of mother’s actions was that A did not see her father again for some eleven months. Her efforts to thwart contact orders continued even during this fact-finding. It was not ideal that the listing of this hearing before me in May could not be concluded but at the time that the case was adjourned, the court was asked to consider the issue of contact. Evidence was heard, this court, on 27 May, made detailed orders concerning the contact that should be allowed. However, the court notes that two days later, the mother made a referral to MASH that she was concerned that her concerns were not being listened to by Children’s Services or the court. When this was put to the mother, she seemed surprised that her action was so unusual and hoped that the court could understand that she was just acting as a protective mother.

The mother has an energy in repeatedly giving reasons as to why the court should believe the A allegations. She would refer to the fact that she had been praised by some professionals about the way she, the mother, had handled the matter and that they believed A’s allegations. It was as though she felt that this would almost be determinative for this court.

It seemed to the court that this mother, in her presentation, strove to add an almost professional authority to her evidence in order to persuade the court of the truth of A’s allegations. This included her reference to the fact that she was a qualified nurse and therefore had experience in safeguarding, spotting red flags. She said:

“I am trained to recognise these patterns of behaviour. So, to me, it was a concern.”

That is in relation to what she says she observed on the Sunday.

In her evidence, she referred to the fact that there had been the three red flags. She expanded on the relevance of there being three red flags saying that if only there was one that she had referred to, she would not have been so concerned. It was as though she felt that by describing the incident in such a way, her evidence had more authority. In the event, the so-called red flags were not determinative and of no particular concern.

The mother said two things about the allegations. She said, “I don’t know if these allegations are true. I’m just relaying the information,” but then she also said, “I believe that they are true,” and she confirmed that that was her position even after she no longer pursued the findings. Yet, this is a mother who seems to have forgotten her lengthy email to the father in December 2020. That is in the bundle at PDF 1795 where the mother refers to the number of untruths and lies that A would state.

The mother also, at times, presented herself to be upset, but the court noted that being upset never prevented the mother from quickly correcting any interpretation of her evidence with which she did not agree. An example of this was when she was telling the court that she was so concerned about the three red flags on the Sunday that even before Amade the allegations on the Wednesday she, the mother, had an intention to speak to the police about them. It was put to her that even on the Sunday, therefore, she had enough concerns to go to the police.

The court noted that the relevance of the suggestion was that therefore, by the Sunday; that before Ahad said anything about her private bits being touched, the mother seemed to be concerned that abuse had already happened. When it was put to the mother, therefore, that even by the previous Sunday she had formed an intention to contact the police about her concerns that something had happened to A, she jumped on that suggestion and immediately said she had not stated that she would actively contact the police but what she had actually meant was that she thought that she would mention her concern to the police when she saw them.

The court’s view was that she had suddenly become aware that by expressing how concerned she was by all the red flags on the Sunday, that there could be an argument that she has already, in fact, made up her mind that A had been abused before A had said anything on the Wednesday.

The comments by the mother in her evidence were not just critical of the father but also, at times, facetious of counsel. An example of this was when the mother was asked about Ahad said to her in the car before her ABE and the mother stated to counsel:

“I didn’t realise you were in the car with us.”

The court at times had to remind the mother that it was part of the court’s function that it would have to assess her reliability of her evidence. This was because in her oral evidence, she repeatedly seemed to edit or correct comments that others had recorded that she had made and she claimed that these were errors made by others. For example, in the police documents, the mother described A as having denied saying, “I will rape you” to B. The use of the word “denied” suggested that Awas reminded of the phrase by the mother. The mother in her oral evidence claimed that this was a mistake, that she had not repeated the term but that she had asked a more open question.

The mother was also asked about the comment that she had made, that even if she was arrested, she did not want the children going to F. Such a phrase might characterise the mother as having no concern for the consequence of the law but she claimed that it was a mistake made by the person recording it that she had not used that term.

This court noted the concerns expressed by Deputy District Judge Deacon when he heard the mother’s applications for the non-molestation order, occupation order, and committal proceedings on 1 February. The mother claims that she was not legally represented but the court notes that the views of the Judge have echoed very much the views that this court has with regard to her motivation.

The court has real concerns about the credibility of the mother. She tries to present herself as someone who is a victim, who has done the best for her child to bring sexual allegations to the court; who claims that, on a number of occasions, she was raped. In considering these issues, the court exercises real caution. The court views the mother as someone whose real focus is to paint the father in the worst light.

By the time the father gave the evidence, the issues had been reduced to the so-called” rape allegations”. The main case of the mother that was put to the father was that first, he had had penetrative sex with her on a number of occasions to which she had not consented, and, further, that he had used coercive control over the mother which meant that she was not consenting by her own free will.

The father did not appear confident when giving evidence and it was apparent that he did not find the process of giving evidence an easy thing to do. He appeared at times nervous. At times, he appeared to have laboured breathing and appeared stressed, and the court allowed him breaks for him to compose himself. However, when giving his evidence, he kept to the same account. He did not feel that he had coerced or controlled the mother and that he had only had penetrative sex when the mother was consenting.

Much of the evidence relied upon were the messages that the parents sent to each other during the relationship and the father’s oral evidence was that these messages were a discussion about their issues. He stated that they would only even have sex either when the mother responded to his kissing her, or when she initiated kissing or touching him. He said that on occasion when she indicated that she was not interested before sex, that it would not happen and that he would stop when kissing the mother when she did not respond. His evidence was that the mother’s pattern of behaviour was to tell him after they had had sex that she had not enjoyed it and that that would result in a lengthy exchange of messages.

He said that after a while, the mother would become more affectionate, she would become warmer to him, and that is when sex would happen again. He stated that most of the mother’s oral communications to him about the issues of sex were much warmer in tone than the written messages.

His evidence was consistent. His case during the main part of cross-examination was that he had placed no pressure on the mother to have sex.

However, it was then put to him with regard to what he said to District Judge Scott on 24 November. It was noted at recital 7 of that order,” that the father accepts that the parties had a difficult sexual relationship and the mother felt pressured by some of the father’s comments”. When this was put to the father, he seemed to be saying that by looking back on the time, he does accept that the mother may have felt some pressure. The court needs to decide the impact of this recital when considering the reliability of his evidence.

The court noted that later in his evidence, the father became more relaxed and expensive. Very late in his evidence, he referred to the fact that the mother had made more than one accusation of rape before, once when at a party and once with reference to an ex-boyfriend. This evidence, in the court’s view, is very relevant to the issues before the court and it is perhaps a reflection of the father that he has not been completely focused on painting a negative picture of the mother that this came up so late in his evidence. The court’s view was that, in general, the father was trying to be helpful and that, in general, his evidence was reliable.

It is apparent from the annotated chronology and the assessment of the mother that the court has real concerns about the credibility of the mother and also about her motivation generally in this case. However, just because the mother has a wish to stop the father’s contact at any cost does not mean that her allegations against him having sex with her against her wishes are untrue. The court needs to look at all the evidence.

The evidence that the mother relies upon is her statements and what she says in her first and her second detailed ABE interview, but also the messages that the parties exchanged during the relationship. The court considers the messages as being particularly helpful in giving an insight to the dynamic of the relationship. These messages are often sent without any thought that they will be scrutinised by a court or a third-party, and, as such, often give a truer account of the dynamic of the relationship that exists.

The court notes, for instance, that the first ABE interview was dated on 28 February 2022, some two years after the relationship and some six years after the mother claims that the problems began. Her second interview was given another two years later. It is not perhaps a surprise to the court therefore that when the mother was in that second interview trying to give more information, that most of her terminology was “he would have done this” and “he would have done that”, rather than giving an impression of an immediate recall.

The court reminds itself that their relationship started in summer 2015. The first set of messages was in February 2016 and it is apparent by then there is a problem. There are a number of messages that indicate that the father is now aware that the mother is less keen on having sex. He states at one point:

“But you can control it. You can do something about it. You can say to yourself, ‘I might not want him but I’m going at least to pretend’.”

The mother relies on this message as an example of the father putting pressure on the mother to have sex against her wishes as if she were pretending to want it. It could be inferred, therefore, that she did not want to have sex. However, it is of note that the mother herself takes issue with this and the court reminds itself that it is not enough for the father to say unwise things but the issue is whether the mother herself felt coerced and controlled by what he said. Here, her response is, “You’re kidding, right?”

The court notes that the conversation goes on with the mother identifying the issue of her loss of interest being strange, in view of their previously good relationship. She says:

“From where I’m sitting, it just seems too much of a coincidence that our sex life was absolutely fine then all of a sudden I have no sex drive.”

She goes on to say:

“And just because I have no sex drive doesn’t mean that I don’t want you.”

Later, he says:

“Don’t worry. We’ll just have a relationship without sex.”

She later says that she understands where he is coming from and she is trying to make it better and so she is having blood tests.

The mother maintains that one of the ways that the father has exercised coercion is by making her feel that she was abnormal, that something was wrong with her if she refused to have sex or did not want to engage in it but in this exchange, it is apparent that the mother herself is identifying the possibility that something is wrong with her. This leads her to mention that she is going to have some blood tests.

There is no doubt that there is a disagreement. He wants her to make more of an effort. She says why should she as he does not make an effort with her. She then accepts that over the last few times, he has made more of an effort to get her stimulated. It is a candid exchange. It gets heated. It is not apparent to the court that one party is more controlling or coercive than the other. They are dismissive of each other at times. The mother says that she will fix it, that she is going to go to the doctor, and at this point the mother mentions the father’s daughter R.

The father’s case is that the mother makes no effort with R, father’s older child and that many of the rows between them is because of her attitude towards R. This section of messages reflects that, and it seems that the mother, having mentioned R, triggers a response in the father and the father makes it clear that he does not accept her accusations that he excludes her when his daughter is around. He accuses her of not being around.

When he later says that if she continues to accuse him of excluding her when R is down, he does threaten to leave but this is solely due to the issue of R and he is in a bad mood.

However, it is apparent from the messages that there are times when they have enjoyable sex. As he states later on 1 February 2016, father says, “Sex was good today, wasn’t it? Well, it was for me, LOL,” and the mother replies, “Ha ha, yes, the sex was good.”

On 24 March 2016, there are hundreds of messages. Those are disclosed in these proceedings and cover a lot of topics. At 1.22 a.m., it is apparent that there is a discussion about the father possibly proposing marriage. The father mentions that he will have to wait as he cannot afford the ring and the mother seems of the view that the ring is not important, that she wants progress. At about 2.00 a.m., the discussion reverts to expenses. By 2.30am, the argument is about who earns more and has grown to the point of the mother saying that the relationship is not working and she is moving out. By 3.30am, the argument is still moving on with the mother now saying that she is not threatening to move out and there then follows a whole lot of recriminations on both sides.

It is within this tranche of messages that the mother states that before she met him, she would be able to see her friends at weekends and the father makes it plain that he does not stop her. It was put to the father that if the mother wanted to go out at weekends that he would get in a mood but he clarifies this and he says that any disagreement was because she did not want to spend time with his daughter R when the latter was visiting. It was put to the father, in terms, that he isolated the mother but he gave evidence that this was not the case because he maintained that they had two sets of close friends who had, in fact, come to their Italian wedding.

There are more messages within this tranche when their mother says:

“And I know I’m making you miserable and you don’t think I’m sexually attracted to you and it’s not that.”

She later says:

“And I do find you attractive. I know how it’s probably making you feel and I feel awful about it.”

But later in the message, when the mother says, “We do have sex, F,” the father responds, “When I force you.”

His oral evidence was that the use of the word “force” meant when he instigated it, not physical force, that he used blunt words, and it was put to him that the mother refers to forcing when she puts “instead of forcing your dick in anyway”. She later says, “I do love you and want you physically,” and the court notes that the mother, in her first reference to the police, disputes that the father was ever forceful or used force or aggression.

When the following ,message is put to the mother, “I do love you and want you physically,” she makes it plain that whatever she messaged , it is her actions and what she says at the time each time they have sex that is relevant rather than what she puts in her messages. That is correct but it certainly informs the father with regard to her general view about him.

Her oral evidence is that she never engaged when the father was penetrating her during sex, that she would cry, that she would make a fist, and that there were marks on her palms. The father does not accept this. He does accept that there were occasions when she did not want sex and they did not have it, and when he started with regard to kissing they desisted.

The mother’s own evidence was that she would be worried if they had not had sex for a while as the father would not be happy. That there would be a blazing row. The latter, of course, infers why there would be a blazing row is that there would be no sex

The father disputes the fact that their interactions, their face-to-face interactions, were as difficult or as cold as the messages. He claims that they were much warmer.

What the mother does accept when she says it in her police interview is that, on occasion, she would move her hips in order to make the father climax quicker. She also accepted that sometimes she would ask him to ejaculate over her breasts in order to stop the penetrative sex. The father said that he had viewed both actions as part of her entering into the sexual experience rather than an indication that she wished to get him to ejaculate and therefore finish more quickly.

These messages go on for hours and hours until well after 6.00 a.m. and it is correct that, at times, the mother says she needs to sleep but she is not dragged into these messages. She continues with her own lengthy messages herself, and what is extraordinary is that by the end, both the mother and the father seem to have calmed down and within these messages they say they love each other.

On 17 April 2016, there are more messages. The father’s oral evidence is that when he has sex with the mother, it is mutually consented to, but that after sex has taken place , that the mother informs him how much she did not want it and he considers this as her being cruel.

The issue of the mother telling him that she is not interested in sex continues, and the father messages:

“But I’m not going to keep forcing you when it makes you feel so bad and sad.”

He later says:

“I would rather stop and not have any of that. I can get used to it rather than this feeling and this feeling like it’s almost rape.”

The father goes on to say:

“I don’t want to feel like a fucking rapist.”

This appears to be the first mention of the word “rape” in the context of these messages about their sexual relationship. The mother relies on this entry and later ones to indicate that father himself accepts that he was acting as a rapist in the context of her lack of interest but it is of interest that the mother’s reply is, “You’re not a rapist.” The father, however, continues to use this description:

“But I’m not going to keep feeling like I’m raping you and forcing you.”

In later messages, the mother starts adopting the terminology of rape. However, the father absolutely disputes that he does rape her. In November 2019, he sends a message:

“Cos what I mean is I’ve never been near raping you or forcing you. Same as I’ve never been near cheating you. So I just have to sit here and not have a say and put up with it cos my wife feels like I’m going to rape her.”

In these earlier messages of April 2016, he explains how he feels about sex. He says:

“I’m a very sexual person but when I stop having it, I can go without and I will have to, won’t I?”

It appears to the court that here is an example of the frank discussion about their differing needs about sex and if the mother is dead against a continuing sexual relationship, this is the offer that she has been waiting for but the mother’s response is, “But you shouldn’t though.” He is saying that he is concerned she will meet someone else and she is saying that she is going to sort out the issue. Reading these messages, it is not apparent that anyone has the upper hand. No one is trying to force anyone to do anything. In fact, the father, if anything, is offering to be abstinent.

In 2017, Ais born. The father’s evidence is that when the mother is pregnant with A, for almost a year, the parties do not have sex and on 22 February 2017, the messages cover a number of hours from midnight until 4.29 a.m. The context of those messages is that Ais a newborn.

The messages start civil enough. It is apparent that the mother has done some research on child maintenance concerning R and this develops into an argument that the father wants the mother to take an interest in R. This develops into an argument of her accusing him of not doing enough for A, the discussion about R, the costs, and the tax consequences of R.

It develops into an argument between them as to whom does most work and whom does most work in the house. The father is critical of the mother and complains that she does not even cuddle R, and surprisingly, the mother replies, “I don’t cuddle anyone.” He criticises her for not helping R to dress and she responds:

“She’s a drapey, leaney, child and I am not. I hate people touching me and leaning on me.”

These are unattractive things for a partner to say. She would know that they would upset the father but she seems to have no fear of provoking him. It is difficult to view what she says here as coming from someone who is being controlled by the father.

The father’s statement and the father’s evidence is that sometimes after a period of time, she would warm up and she would kiss him or touch his face, and this would start the process of having sex. The mother disputes that she would ever encourage him to have sex.

However, this up and down characteristic of their relationship is borne out, as even after the extensive mutual criticism that the court notes that the parties exchanged in February 2017, by 18 June 2017, things were much improved as the mother herself is proposing marriage to the father. The very fact that she does the proposing suggests that she has agency over her decision. However, was she coerced into it by the father? It seems not, as it is she who posts a picture of her engagement finger with ring on Instagram and a few days later posts a picture to share the fact that the wedding venue is abroad and has been booked. The court also notes in her later messages that the mother states that things were much improved before the wedding .

B is born in 2019 and it is the mother’s case that his conception was now the result of non-consensual sex and that he would have been conceived by about July 2018.

It is noted that the mother’s health was of concern in November 2018 with admissions to hospital for particularly bad migraines and reference to her having had seizures.

By October 2019, it seems that the mother is not just reluctant with regard to sex on occasion but is cold toward him. He messages:

“I get you don’t want any sexual contact and I get that I am not going to be able to change that but it’s a fact that you don’t want to hug, kiss, or any contact at all.”

Indeed, the mother says that if the father has a problem with that fact that she is not a cuddly person with R, that is his problem and she is not going to change.

So here, she is absolutely asserting her own wishes and views. This is not a happy conversation and the father makes it plain that if the mother is not going to make an effort with R, he will be gone, to which she replies:

“If you don’t start treating us equally, then A and I will be gone.”

So here they are both threatening each other. This argument goes on and on and covers issues of sex and the fact that the father masturbates every day because there is no sex and the fact that the mother finds his sweat offensive in bed. It becomes a repeat of what has been said before.

The evidence of the father is that a pattern seems to develop within the relationship. He accepts that there were times when the mother was cold towards him. He further accepts that this would usually be prompted by the mother’s comments to him after they had had what he understood to be consensual sex,. He states that there would then be periods when the mother was cold to him which could last for months, and that they would abstain from sex. Indeed, the mother accepts that when she became pregnant with Athat there was a period of nearly a year when they abstained.

However, the evidence was also that after a time, the pattern would be that the mother would show warmth towards him. The court notes that when he later says, “I don’t think you understand how being rejected constantly by the one you love feels,” this is to which the mother replies:

“I do find you attractive. I think you’re gorgeous. I’m interested in making this work.”

However, by November 2019, the father is now saying that he asks her not to push him away and leave it too late. She says:

“I get that it’s not fair but the solution is for me like I feel I’m being raped. So I just don’t really know what you’re asking me to do. I’ve started counselling cos you’ve asked me and that still doesn’t feel good enough cos what I mean...

This is when the father responds saying that he has never been raping her. She, however, says:

“Every single time we have sex, I feel like I’m being raped because I don’t want to do it or only do it or have done it because you want to.”

It is the court’s view that this is a key exchange. Here is the mother saying that she feels as if she is being raped and only does have sex because he wants it. She is not saying that she has refused to have sex. She is not saying that she has been forced to agree to have sex. By the end of the messages on this date, the father is saying:

“I wish I could do little things to help your anxiousness. I wish you would let me.”

Her response is, “It’s the situation, not you.”

In January 2020, there are further messages and the father, by now, is freely using the word “rape”. He says:

“You don’t even like me being around. Should have realised when I rape you having sex.”

However, the father is asked whether he uses the word “rape” literally or sarcastically and I accept the father’s term that, in fact, he is using it because it is the mother that is using it. He himself does not believe that this was rape.

The mother’s response is:

“No, I think we were horrible to each other and we don’t work at all anymore.”

So here, the focus is off the sexual issues, off any issues about rape, but the fact that the relationship itself is not working.

On 26 February, there is a last attempt to get things back on course and there is a holiday t abroad. There is a discussion about the mother taking female Viagra. The mother states that she is forced or coerced into taking it but this is not how the messages come across. It is apparent that the relationship between the parties deteriorates and the incidents in July 2020 and October 2020 results in the parties’ separation.

The court notes that it is not just in the messages that there is a suggestion that the mother uses the word “rape”. Further, mother has always been interested and accepted that she used the word “rape” for certain searches. She claims that it was a long-standing joke with friends and has no relevance, in her view, to this case.

Secondly, the father informs the Cafcass officer that the mother would use the term “rape” in describing how she felt when she was breastfeeding B. The court accepts that evidence.

There are further messages from 17 April 2016 and it is almost a gentle part of the conversation on that day. The mother is expressing concern that the father may lose interest and, for some reason, they start talking about a man called S, who is an ex-partner of the mother. In that exchange, mother says:

“And I felt nothing with S. It wasn’t like this. I was so depressed and I was completely numb.”

The father, however, responds as follows:

“No, you said you went to the doctors beforehand and then when you stopped him rapping[sic] you he cheated.”

The father’s evidence, which I accept, is that this is a typo and what he meant was the word “raping”. So here is the father recalling and bringing to the mother’s attention a time when he refers to the fact that he understood that she had referred to S raping her. The mother does not correct the father and say, “No, that never happened. You have got that wrong,” which, in the view of the court, is surprising because she has been very keen to correct anything that was incorrect with regard to the evidence.

The father says, when asked, that, in fact, the mother claimed that there were two occasions when she was raped. One when she went to a party and was raped under a table and the other was in relation to S.

The mother was asked about both of those. With regard to the party incident she said that when she was 18 or 19, she had gone back to the house of a band and that they had been sitting in a hot tub, that she was left there with one adult person who had tried to kiss her forcibly. She stated that she had got out of the hot tub and ended up sitting under a table and had eventually been picked up by her boyfriend.

Concerning the S incident, she said that he was a friend. He had attended her most recent wedding with L that had taken place, and she disputed that she had ever said he had raped her, or that he was ever coercive in his behaviour. She told the court that during her relationship with him , he had had an affair with one of the girls in a tattoo studio, that she was broken hearted, and that she tried to make it work. She said that in those two weeks afterwards, they had gone through the motions of sex but it had made her uncomfortable. She said that she did not say it as coercive or controlling. She said that he had made comments towards her about her asking for money which she took exception to. She then said when she talked about the sex being uncomfortable, it was because she did not enjoy the sex.

Having considered that all sources of the evidence that the mother relies on - the messages; her oral evidence; her statements; the police logs; her interviews - it is the view of the court that the messages provide a truer impression of what was going on in this relationship. There can be no doubt that for the first few months, both mother and father considered that the sexual relationship was fine and there were no concerns but it seems certainly that by 2016, the mother felt differently.

It is not clear to the court whether there was a medical cause or not. The mother in her first ABE refers to the fact that she was diagnosed with an underactive thyroid and that she had pain through a coil being fitted. The mother also mentions that the father had talked with a colleague about having a sexual interest with someone at work. It is unsure as to what prompted this different view of the mother.

In that first interview she gives with regard to the sexual allegations, she said that she was made to feel that if she did not have sex, it was not fair on the father and she also stated later in that interview:

“I would know that if it had been a couple of weeks, if I pushed him away we would have had a blazing argument about it and the pressure would increase.”

What is apparent in these messages is his view that sex was important to F. He appears keen not only to find a solution to her feelings but also to point out that it was the issue of her lack of affection and tenderness to him that was also an issue. The court notes that the mother herself describes herself as someone who does not cuddle. She was critical of R leaning into her. One can see how, in many ways, this couple were not compatible.

The father is saying that the messages were discussions and were a frank discussion of how they both felt and that it was recognised as an issue in the marriage, which is why it was being discussed. The mother says that the father, on many occasions, accepted that he was raping her. She has relied on that and has repeated it a number of times in this hearing. However, the court is concerned about the use of the word “rape” and how it is used.

The first mention of the word comes from the father and the mother immediately responds that he is not raping her. She says at other times it is not the fault of the father but the situation.

This is an intelligent mother who would know the seriousness of the word. Why would she respond at that stage saying he had not raped her? The only logical conclusion is that he had not.

So if he says this has been discussed and at the time he feels he has raped her, why does he say that? His evidence was that when they would have sex, that he would instigate it and that, on some occasions, he would stop before penetration when she signalled to him that she did not want it but when sex and penetration did take place, he was always aware that she was engaging.

It is apparent from the chronology that they were many times when the parties did abstain for significant periods. Indeed, there were occasions when the father said that they should effectively give up on a sexual relationship altogether and the mother does not agree.

She says she still finds him attractive. When asked about these, the mother says it did not matter what she said then but that it would matter what she was saying as at the actual time of the sexual intercourse. However if the mother is saying that then, does it not also suggest that it is quite possible that there were times when she was certainly indicating that she was interested and that she was consenting?

The mother says he would have known that she was not consenting. Why? She says because of the fact that there had been these discussions about her lack of libido but also because of how she acted during sex taking place. She said she would put her head to one side, that her hands were at her side, she would clench her fists and her nails made impressions in her hands, and that she had often been crying. The father was asked did he see her crying and his response was “no”. Did he notice that her head was to one side and that her hands were to her side? His evidence was that when they were having sex in different positions, sometimes her head would be away from him but that during the actual act of sex and penetration, he considered that she was taking part.

The mother has used the word “rape” a lot in this hearing. She wants the court to consider that this is what happened, that the father has had sex with her without her free consent but it is interesting to know how the word has been used. Initially, she does not agree with the word and does not agree that he is a rapist but later uses it a lot. The father is asked why he uses the word and I am satisfied that he used it because she was using that vocabulary. I am not satisfied that the father truly believed that that is what was happening.

At a very late stage in the proceedings, the father gave evidence that the mother had used the word “rape” on two previous occasions, once at the party and once in relation to the ex-boyfriend. The court notes the similarity between what she says about the sex that she had with S and the sex that she had with the father. She did not enjoy it. It is in this context the court finds it very probable that she did refer to S having raped her. It is something now obviously she regrets and something she is pretending that she has not said. The court heard from the mother that S was, in fact, invited to her wedding, the inference being that whatever she said, he did not rape her.

The court notes that the evidence with regard to the party incident is that someone unknown to her tried to kiss her forcibly. I consider when considering the mother’s presentation in this case and the mother’s complaints about the fact that she has not wanted sexual interaction with the father that it is very likely that the mother would have used this word in relation, even to this incident at the party, and I accept the father’s evidence. I also accept it on the basis that the father has not promoted this. The father has not said right from the start that this is a woman who calls rape all the time but it has effectively had to be drawn out from the father. The way that this evidence has been provided to the court has a compellability to it.

It is of note that where the father considers that he is made to feel like a rapist it is because she says it after they have had sex. His evidence was that there was quite the pattern, that the mother would go through phases of being cold and warm to him. When she was cold, he would not approach her, there would be no sex, and the court is satisfied that there were long periods of time to support this when there was no sex between the parties.

The father’s evidence, which the court does accept, is that the mother was still keen to keep this relationship going and, as such, she was at times more affectionate to him. During those warmer times, the father said she would touch him and kiss him. There are times when the mother accepts the sex was good, such as, for instance, February 2016 and also when she says that things were much better between them before the holiday abroad much later in their relationship. Her evidence and this chronology supports the suggestion of the ebb and flow of this relationship. The court reminds itself that it was the mother who proposed marriage to the father in 2017 and that was after a full year of the mother expressing concerns about her libido.

The court needs to consider whether, on the balance of probabilities, the mother was consenting or not when the parties had sex during the relationship and whether that consent was, in fact, only apparent consent and that, in reality, the mother was only consenting because she had been coerced or controlled by the father. The issue for the court to decide in this, first, is whether the mother was consenting and if she was doing so, was it of her own free will.

The court is satisfied that the mother often did not want sex and made that clear to the father. The court is also satisfied that there were times when the mother was warmer to the father and sex took place. The court is satisfied that penetrative sex only took place when the father believed that the mother was indeed consenting to him.

The court is satisfied that the mother was not particularly keen on having sex with the father even when she had sex. However, the clear of view of the court is that although there were many discussions about how the mother felt about having sex, that this was a relationship where the mother presented herself as keener at some times than others, and that when she was affectionate and warm, sex would take place.

The court accepts the evidence of both parties that the mother was known to gyrate her hips and also asked the father to ejaculate on her breasts, and the conclusion of the court is that she did not particularly enjoy sex but would agree to it.

She did not agree to it because she was being controlled or as the result of the father’s coercive behaviour but because she chose to agree to it.

After such sessions of sex, she would indulge herself by using the same words that she has used for S which was that she had not particularly enjoyed the sex with him and that she considered that it was rape, as in her later messages.

The court notes that as at 24 November 2022, the father stated in the recital that he accepted the parties had a difficult sexual relationship and the mother felt pressured. He accepts that the mother felt pressured by some of the his comments during, although this was not his intention at the time. That is effectively the recital.

Does that change the view of the court? The court thinks not. Even if the father, on looking back at the relationship at that time, accepts that his requests made the mother feel some pressure from him, does that pressure amount to coercion? The view of this court is that it does not.

The overwhelming view of this court is that this mother, in view not only of the evidence of the sexual allegations against the father but her evidence generally, was a mother who would not have done anything that she was not freely deciding to do. This is why when he suggests that he was raping her she makes it clear it was not rape.

She may not enjoy the sex but this court is satisfied that this mother has only taken part in what she herself wanted to do. She may not have enjoyed it. She may have been influenced by the fact that the father wanted to have sex but the court is clear that this was her free decision.

The court is aware that if there had been coercive control that would negate consent. It is the decision of the court that this mother was not a victim of such coercion nor such control. The father may, at times, have made stupid suggestions such as the mother should pretend to enjoy sex but the mother was not persuaded by this.

The clear conclusion is that the mother uses the word “rape” more freely than most and that when the father described himself, he described himself that he was raping her. She was clear that he was not.

That is the main judgment in regard to the rape allegations.

I will now deal with the A allegations. The concern of this court is that this is a mother who, from her every act, has indicated that she does not wish contact to take place. Further, there is evidence that Cafcass, in particular, was aware of the impact of the mother’s views on the children. It was remarked on in the September 2023 report by the social worker that A was now far more negative about the father. It is also clear from the mother’s evidence that even before she got A to say anything, the mother was on a route wanting to raise the possibility of there being red flags with a finger pointing at the father.

Concerning the evidence that the mother was aware of, she knew that she was the one who had suggested the touching private bits to A. She knew that A had told her that she had made it up and once the mother had read the ABE interview, she would know that A never actually saw who she was describing as all the descriptions of her observations of the hair and the clothes of Q’s friend could not be have taken place as her eyes were closed.

By the time that the case started, M was aware that Awas claiming that a young man who had difficulty reading and writing was supposed to have read a bedtime story for her.

Last but not least, the mother was fully aware that poor A tells lies. She always has. She has an issue with it and she has a history of telling untruths.

So I now deal with the mother’s schedule. Concerning allegation 1 of the mother’s schedule, I find that Awas not sexually abused by a third-party whilst in the care of her father. I find that the father was innocent of any suggestion that he failed to protect her.

Allegation 2, I find that A did not tell the father or his partner about any alleged sexual assault and they did not believe her. Therefore, they are innocent of any findings.

Allegation 3, I do not find the father encouraged A not to tell anyone about an alleged sexual assault or to keep it to herself so as not to get himself in trouble.

Allegation 4, I do not find that the father forced the mother to have sexual intercourse with him when he was aware that she did not wish to do so by putting her under emotional pressure and therefore through any form of coercion so that she felt unable to refuse his sexual advances

Allegation 5, the court does not find that the father had acted in a controlling and coercive way which had caused harm to the mother and the children indirectly given that they were in the mother’s primary care.

Allegation 6, the court does not find that the father has acted in a controlling or coercive way towards A or at all.

Concerning the father’s allegations, the court does find that the mother has asked A leading questions in an attempt to obtain evidence that she has been sexually abused.

The court is satisfied that over time, the mother has emotionally manipulated the children in order to influence them against the father and I confirm that the examples referred to are proved

Allegation 3, I find that the mother has encouraged and influenced A to make false allegations of sexual abuse against a third-party and I find that the mother has relied on the false allegations of sexual abuse against A by a third-party to suspend contact despite social services confirming that contact should resume.

Allegation 5, the mother accepts that she gave diazepam to B without it being prescribed for him and without being instructed to do so by a qualified professional.

The court, in conclusion, says the following. Another judge will have to consider the further hearings that are necessary in this case. The court, however, wishes to make plain that it has real concerns about the ability of this mother to promote a positive relationship between the children and their father. This chronology is littered with examples of the mother taking every opportunity to thwart contact arrangements.

The court is aware that the father will be seeking a costs order. That will be a matter for another court but it is clear that in view of the overwhelming evidence of the adults and in view of the evidence of A at its highest, that A never saw Q’s friend because her eyes were shut, that the mother was never going to succeed in obtaining findings of fact.

The mother has variously said that she was just relaying the facts to the court to consider and yet also saying that she believes A. It is of a real concern to this court that even when not pursuing the findings, the mother cannot seem to accept the common sense of the evidence that it never happened. It is of concern that if the mother remains with the same mindset, that A is at risk of serious emotional harm of being brought up with a false version of the father.

It is also of concern to the court that as recently is two weeks ago, when A told her father that she did not want to see him on contact, that she proceeded to inform the school that she wished she was 12 years old as she could then decide when she saw the father, the inference being that she would then have agency when she did not want to see him. This inferred reluctance is a view which, of course, is never borne out when A actually sees her father.

In view of the length of this judgment and in view of another judge will be dealing with this matter in the future, I do order, and it is recorded on this transcript, that there will be a transcript of this judgment at public expense.

I ask father’s counsel in this case to prepare this order and also, if possible, to provide a findings document which will be part of the order. So, in other words, there is a single document setting out the schedule of those findings made and those findings not made.

I direct that the case should be listed for a further case management listing before a Circuit Judge as an attended hearing for two hours. I have not had the opportunity of liaising with court staff to find out how soon a transcript can be made available but it seems to me that there is a little point in it coming back before the court until a transcript is made available. So I am therefore going to say first available date after three weeks. I will certainly myself liaise with the court staff to ensure that this transcript is made available as soon as possible.

That is the judgment.