LKM v NPM

I am concerned with twins LL and LLA who were born on the 23^rd of October 2014 and who are thus now seven years old. The father is LKM who is represented by Ms Chaudhry and Payne Hicks Beach. Their mother is NPM who is represented by Mr Verdan QC, Mr Shama and Penningtons Manches Cooper. The principal application before me is the father’s C100 for a child arrangements order dated 21 October 2021.

That application was case managed by justices and DJ Hammond to a fact-finding hearing which is what I have been undertaking over the last 4 days.

The mother’s original C1A contained 71 allegations. During case management hearings the court had addressed the issue with the parties so that the allegations could be managed. This resulted in a further C1A containing 57 odd allegations. At the hearing on 3 May District Judge Hammond recorded that guidance required only those allegations to be determined which were necessary and proportionate and in particular which were capable of being determined within the four-day fact finding hearing which had already been listed. He identified 19 allegations under four heads; namely physical/verbal abuse against the children; physical/verbal abuse against the mother; financial abuse; and the father’s obsessional behaviour. By the time the matter came before me a document in the nature of a Scott schedule entitled ‘comparison document of mother’s allegations and father’s responses’ had been prepared which contained 24 allegations divided into the followingcategories (broadly similar to those identified by DJ Hammond [225]:

Although in his C100 the father did not identify any category in the ‘Concerns about risk of harm’ section (including the general other safety or welfare concerns) following the mother filing her C1A the father filed his own. The father’s allegations set out in his C1A fall into the following categories:

At the commencement of the hearing the issue of how the allegations were to be explored and determined was considered. I had been provided with a reading list of some 700 odd pages which included a 47-page narrative statement of the mother (the exhibits were a further 150 odd pages) and a 62-page narrative statement by the father (his exhibits were a further 100 odd pages). I was also provided with lengthy Position Statements, Chronologies and Case Summary, a Comparison (Scott Schedule) document which amounted to a further 100 odd pages of material. The Core Bundle amounted to 920 pages and the Supplementary Bundle amounted to 1050 pages. Later the ABE interviews of the boys and the report of Dr X were added so the total documentation in the case well exceeded 2000 pages. I had the benefit of e-Bundles, but the witness bundle comprised 5 lever arch files. PD27A provides a limit to the length of witness statements of 25 pages and to Bundles of 350 pages. The President’s memorandum relating to witness statements issued on 10 November 2021 specifies 15 pages as best practice with the PD27A limit of 25 pages being a maximum. Paragraph 7 of the Memorandum provides that:

In addition to vastly exceeding the permitted maximum length of statements the parties’ statements breach the memorandum in almost every other way including quoting at length from other documents, arguing the case and use of rhetoric.

The recent Guidance of Macur LJ Fact-finding hearings on domestic abuse and private law children proceedings guidance for Judges and Magistrates dated 5 May 2022, is self-evidently of relevance, in particular paragraphs 13-15. These paragraphs highlight the principles of relevance, purpose and proportionality and in particular guidance that the court “only needs to determine allegations of such behaviour to the extent that it is relevant and necessary to determine issues as to a child’s future welfare. Even then, the court is only required to assess the overarching issue, rather than every single subsidiary factual allegation which may be raised.”

I made clear to the parties that the 2 ½ hours reading time provided for within the time estimate had not been in any way sufficient to enable me to complete what the parties had identified as essential reading. I had not even been able to read the parties’ primary statements in full they amounting to a minimum of 2 hours reading alone still less all of the other documents identified as essential reading which together with the other documents filed were double the permitted maximum number of pages in a bundle. Given that I’m not in possession of Hermione Granger’s ‘Time Turner’ and with a full trial template with no further time allocated to judicial reading this inevitably meant that the hearing would take place and the adjudication be given in circumstances where I had not been able to read in full even the parties’ statements, let alone the other material they considered essential reading. As I made clear at the point of submissions, I had still not been able to read those statements in full and was unlikely to before I gave judgment. I have not been able to do so but I am satisfied from the evidence I heard that it was not necessary to adjourn the case to another hearing sometime in the autumn to do so.

As a High Court judge with a full-time clerk with a great degree of control over my diary and with a four-day time estimate the non-compliance with the Practice Directions, Guidance and Memorandum have not presented me with a significant difficulty in hearing and determining this case although it is counterintuitive and frustrating to any judge to proceed to determine a case feeling that they have been unable to undertake the preparation and reading that they would wish to have done. However, the vast majority of these cases are determined by justices, district judges, deputy district judges, Recorders or Circuit Judges who do not have the advantages of time, support and control that I do. It is deeply unhelpful in the vast majority of cases to have cases prepared in the way this has been and it risks delaying the determination of the proceedings and injustice to parties and most importantly the children because the court is overwhelmed with paper and is hampered in identifying and grappling with the essential issues. The FPR, Practice Directions, Guidance and Memorandum are there to be complied with because compliance promotes the better delivery of justice. Whilst it may satisfy the parties’ individual needs to speak at length in a statement, to vent their feelings and to argue their cases, in doing so they risk undermining the delivery of justice in their own case, simply because the court’s evaluation of the issues and evidence is obscured or potentially overwhelmed by the sheer volume of issues and material they are confronted with. As it happens in this case, as in many others (but certainly not in all) as the parties gave their oral evidence a relatively clear picture emerged which dispelled the fog of obscurity by volume.

Given the volume of allegations, the volume of evidence and the time estimate I also explored with the parties how best the court and the parties might direct their focus to ensure that the core of the allegations were addressed without going into the details of every particular incident which would have been impossible in the time available. As a result of that process, and bearing in mind the Court of Appeal’s recent guidance in Re H-N and K-v-K on the benefits of focusing on the nature of the relationship between the adults, I indicated that focussing on the following was likely to achieve that goal:

Within each of these categories there appeared to be incidents which were more prominent and although I did not seek to identify specific incidents prior to the commencement of the evidence on which the parties must focus in the event a number of incidents emerged which shed light on the whole and which are adequate examples which enable me to draw general conclusions. The boys had been interviewed by the police and following the commencement of the hearing, transcripts of their ABE interviews were filed. No party suggested they should give evidence.

PD12J applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.

The function of the Family Court in resolving disputes of fact is fundamentally different from the criminal court. The Court of Appeal made clear in Re R [2018] EWCA Civ 198 :

The ‘General principles’ set out in PD12J include:

The main allegations in this case fall within the category of 'domestic abuse' which is defined in §3 of PD12J FPR 2010, namely:

The Court of Appeal's judgment in Re H-N [2021] EWCA Civ 448 contains much important guidance on various aspects of domestic abuse including that:

In Re JK (A child)   [2021] EWHC 1367 (Fam) , Mr Justice Poole said the following:

In K-v-K [2022] EWCA Civ 468 the Court of Appeal gave further guidance on how to manage domestic abuse allegations in particular focussing on how to case manage them but also emphasising the need to (a) focus on the over-arching issue of coercive and controlling behaviour [§63 & 68] and (b) the need for a broad panoramic evaluation of the evidence [§61].

I also note Peter Jackson LJ's comments in Re L (Relocation: Second Appeal)  [2017] EWCA Civ 2121  (§61), cited with approval in Re H-N at §32 to the general effect that:

The burden of proof, of course, lies on the party making the allegation. The allegation must be proved by them on the balance of probabilities. The mother must prove her allegations. The court is not bound to find the mother’s case proved or the father’s case proved but may determine that allegations have not been proved to the requisite standard; see ThePopi M [1985] 1 WLR 948. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred: Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph [15]. The father has to prove nothing in relation to the mother’s allegations.

Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence including bringing into account the credibility of the parties, in order to come to a conclusion.

Self-evidently, the credibility of the parties plays a central role in matters of fact. I bear in mind the principles in relation to Lucas and remind myself that the fact that one party may have lied about one matter does not indicate that they have lied about all matters, still less that they have lied about the allegations made against them. A lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth: Re H-C (Children) [2016] EWCA Civ 136 at paragraphs [97-100].

However, the honesty or dishonesty of a party does not sound only in Lucas terms, where it may positively corroborate an allegation but is of course of more general relevance in determining what weight should be given to a party’s evidence. A witness who has been found to be unreliable or dishonest is likely to find their evidence is given less weight than that of a witness who has been found to be generally reliable and honest. In cases where the court finds itself largely reliant on evidence emanating from only two individuals – as is often the reality in domestic abuse cases – the outcome may be heavily influenced by the fact that the court finds one party to be generally honest and/or reliable and the other dishonest and/or unreliable. Of course, in reaching that conclusion as to credibility the court will be considering a wide canvas including the consistency of the accounts over time, the internal consistency or coherence of the evidence, consistency with other evidence documentary or otherwise, inherent probability as well as demeanour.

I remind myself that in relation to historic matters the memory is a potentially fallible source of evidence. Leggatt J (as he then was in the Gestmin case [2013] EWHC 3560 (Comm) said,

Evidence may be honestly and sincerely given but be false or mistaken. The passage of time and the repeating of allegations in court and discussion outside court can undoubtedly result in memory creep. Inconsistency in accounts separated in time does not necessarily mean the accounts are not honestly given or that the core of the allegation is not true. It is all a question of fact and degree in the individual case.

Reliance on demeanour also requires some care; some witnesses are confident liars; others are hesitant truth tellers. However, demeanour in a broader sense can still be of great assistance to a judge; the evidence of a witness who appears reflective, objective, self-critical, who confines themselves to the facts is likely to be given more weight than that of the witness who is argumentative, subjective, partial, dogmatic. That is not because the former may be easier on the ear to the tribunal and the latter more challenging or frustrating but because those qualities or flaws are relevant to the substantive issue of the likely reliability of the evidence. Applying general assumptions as to how a victim of domestic abuse could be expected to present are inappropriate. I also note what Judd J said in her judgment in M (A Child) [2021] EWHC 3225 (Fam)

An approach which takes account of the content of oral and written evidence, its consistency internally and with other evidence and, in particular, with any contemporary documentary material or other supporting evidence is essential in putting into effect the non-compartmentalised, broad panoramic view which the authorities mandate.

Although the general approach is that any fact which needs to be proved by the evidence of witnesses is generally to be proved by their oral evidence r22.2(1)(a) FPR 2010, facts may also be proved by hearsay evidence. The effect of Children Act 1989 s.96(3), Children (Admissibility of Hearsay Evidence) Order 1993 is to make all evidence given in connection with the welfare of a child admissible notwithstanding its hearsay nature. This would commonly include Local Authority or police records which are very often hearsay, often second- or third-hand hearsay, but also extends to witness statements. The court should give it the weight it considers appropriate: Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703 and where hearsay goes to a central issue, the court may well require the maker of the hearsay statement to attend to give oral evidence.

The evidence of Mr RF the ISW was put before the court. In his statement he identified three questions that he had been asked to address. They were:

Mr RF was not instructed as a part 25 expert but as a contact supervisor. Insofar as his evidence is relevant or indeed admissible to this fact-finding it is in relation to what he saw and heard during sessions he supervised. His opinions on the likely provenance/truth of the children’s allegations, the impact of the maternal family’s views on the children (in general terms) and whether the children are fearful of the father (in general terms) which in relation to provenance or truth are probably inadmissible in any context and are inadmissible expressions of opinion for this hearing. In so far as he may have observed behaviour by the maternal family which he observed to have an impact and insofar as he observed fear or no fear in the children at particular times, although they may be opinion, they have a more direct observational element which is I think admissible although the weight is a different matter.

The parties’ evidence is contained within the 1900 odd page bundle that was lodged. In particular, the mother’s evidence is contained within her first statement and in her 3^rd statement. The father’s evidence is contained within his first statement. Parts of their evidence are incorporated within the chronology attached to this judgment which forms an integral part of this judgment in terms of the evidence and my evaluation and findings. It is drawn from, the Applicant’s Comparison document, the Respondent’s detailed chronology and the oral and documentary evidence. The fact that I have not recited a piece of evidence does not mean I have not read it (although in this case that is certainly a real possibility) or taken it into account but after hearing the oral evidence of the parties which has been central to my evaluation of the case I do not consider any longer or more complete recitation of the documentary and oral evidence to be of assistance in setting the context for my reasoning and conclusions. I have sought to consider the parties submissions on the evidence in my consideration of the evidence and my evaluation; I do not consider it proportionate to set them out separately.

I am of course acutely aware of the fact that for all these parties the issues in play bring with them high-stakes. Neither are familiar with the court environment or processes. However, they have representation by counsel and solicitors of the best that money can buy and insofar as one can prepare for court and insofar as preparing for court can reduce anxiety and promote good evidence-giving this seems to have occurred. Both of the parties were very familiar with the detail of each other’s cases and the documents. However, notwithstanding any preparation, giving evidence with such important issues at stake is likely to have an impact on how an individual presents their evidence and I bear this in mind. For the mother who is focused on protecting the children from the risk that she perceives the father poses, the outcome were it adverse to her would potentially result in the father having extensive unsupervised time with the boys which would inevitably make the mother highly anxious. It might, were the court to conclude that the allegations were deliberately fabricated and that she was inherently hostile to the father have potential consequences for her future care of the children. It would have consequences socially as to her reputation to some degree. For the father, were the court to conclude that the allegations are true it would have significant consequences in terms of his future relationship with his boys, the need for ongoing supervision, the curtailment of the time he could spend with them as a result of that need, consideration of ‘treatment’ as well as significant social or reputational damage. The fact that these proceedings are in private and this judgment when published will be anonymized will only go so far in limiting the consequences socially or reputationally for the mother and father. Both the mother and father’s evidence went part heard overnight; their presentation the following day was broadly speaking consistent with their presentation initially.

The mother gave evidence first. She was composed save for one passage when she recalled speaking to the father’s therapist and her being told that he was never going to change which caused her to break down in tears. She is clearly an intelligent woman. Her recollection of detail is not as reliable as she believes it to be. She referred on a number of occasions to being able to visualise events as if they were a video running in her head. Of course, she has had the benefit of being able to reread near contemporary diary notes as a memory refresher and this may have contributed to her belief that her current recollection is entirely accurate. We know that memory does not work as reliably as the mother believes it to and in fact there are instances in her evidence which Miss Chaudhry was able to identify where her current recollection is clearly inconsistent with even what she recorded in the diary let alone anything else. The mother’s firm conviction that there was a red skin mark following the bath smacking incident is inconsistent with the relevant diary entry. However, although there were other inconsistencies, they were not very significant. Overall, the level of inconsistency was more in line with the unreliability of memory rather than indicative of fabrication or indeed significant exaggeration. However, the mother does have a tendency to hyperbole and to the overdramatic. The use of expressions such as horrific, bawled at, pretty terrifying (being with a SW) describing the paternal grandmother’s face as scary to the children were some examples of this but they were present throughout her evidence. I do not know sufficient about the mother’s life prior to this case to know whether it is a facet having faced little adversity in life prior to her relationship with the father or something else. Her language in the diaries is similarly florid in some of the descriptions and so it is not just a product of this litigation. It does suggest that some discount needs to be applied to the mother’s subjective description of events in order to reach a more objective evaluation but overall, it is not such as to make a very significant difference to the overall picture which she painted. When she happened to be called upon to give details of events she seemed to do so spontaneously, coherently and consistently with written records which suggested that when she did so her account probably was sincere and as accurate as she could make it. The narration of the grass seed event, innocuous on its own, was one example of this, the hallway push of LL and the driving in Javea another. Her account of the father’s attitude to her leaving the post on the side and his feeling compelled to open it being an invasion of her autonomy was also I considered sincerely given.

The mother appeared on occasions to see things in rather absolute terms (the children could not have seen she and her father talking or writing) but a more dominant theme was her ability to reflect and to apply some degree of objectivity to her own actions. She acknowledged that she might be in error in relation to some records and that her behavior at times could be criticized.

Although she said much that was negative about the father, she was also positive about the father in various respects and in particular the time the boys spend with him. She did not come across as unremittingly hostile but rather as critical of certain aspects of the father’s behavior. When asked about the way ahead she did not seek to suggest that the father’s contact should terminate rather that there would have to be an assessment of what steps could be taken to ensure the children were safe. Because the nature of the allegations that the mother makes against the father in respect of his behaviour to her are relatively minor in the scheme of things, had she wished to truly blacken the father by fabrication or exaggeration she has done a relatively modest job of it. The only aspect of the mother’s evidence where I thought she was truly being disingenuous if not actively dishonest was in relation to her having identified herself as the sole holder of parental responsibility on the new school registration form. She did not appear particularly bitter about any aspect of the marriage but t, rather sad. This seems to reflect a relatively generous nature in relation to others (the police, social services and others) and an empathetic approach generally. I would assess her as being emotionally intelligent.

She largely appeared to be child-centred in her life. She knows the children well and much of her action was under-pinned by insulating the children from the effects of the father’s behaviour. When she spoke of the children, I thought she was sincere and was genuinely seeking to understand them and their needs.

Thus, the mother emerges from the process of evaluating the reliability, honesty and sincerity of her evidence in a broadly positive way. She appears to be reliable in terms of the consistency of her recollection and how it matches other evidence; I considered that she was broadly doing her best to give an honest account of events over the course of the marriage and after the separation, and she was sincere and child-centred in her thinking and her actions. The picture she painted was one where life for significant tracts of time were dominated by catering for the father’s needs around order, tidiness and cleanliness, and obedience of the children and that a state of wariness prevailed around the father as to whether a seemingly innocuous event would result in him behaving anxiously, or frantically or whether it would lead to raised voices, shouting or physical man-handling.

JP, the maternal grandmother also gave evidence. She was clearly anxious but did her best I thought to give straight answers to the questions that she was asked. I considered her evidence to be sincere. She did not hold an animus against the father and was not vindictive in her evidence, but I thought described events as objectively as is possible for a woman in her position. She did not make snide digs of the father. To the contrary when she spoke about the extensive time, she spent with him supporting contact she did not identify any occasion on which she could criticise his behaviour although she did say that he was rude to the maternal grandfather. When she was asked in cross-examination what the case was about, she appeared perplexed. I got the clear impression that there had not been extensive discussions between her and the mother to prime her for her evidence to give the right answers. I thought her loyalty overall was to her grandchildren first, then to her daughter but her loyalty to her grandchildren also brought with it some commitment to the father. Her evidence of things the children said such as LLA asking her to “speak to dad as he is killing our house”, or her description of the hosepipe incident and the father’s rising anger were sincere and genuinely given. When describing the incident which Mr RF criticises her for she was clearly somewhat irritated but if she is right (and I think she is) that one of the twins arrived some distance and time ahead of the father, Mr RF and the other I’m not surprised she was somewhat cross with Mr RF and the father. It may well have been better for any concerns to have been expressed away from the children, but I do not think that this in any way undermines her general credibility or the fact that she can be trusted to promote the children’s welfare and indeed their relationship with their father. But overall, I accept that Mrs P was essentially an honest witness doing her best to help the court in the interests of her grandchildren.

The father gave evidence last. Almost from the outset when he described LLA and LL his evidence proceeded at a pace and intensity that exceeded that of any other witness I have encountered. As the afternoon progressed a sense of forensic shellshock appeared to pervade the room. The only individual present who seemed relatively unaffected by it was the mother who perhaps has developed a degree of acclimatisation. It was impossible to keep up with the father in his pace but the intensity with which he expressed himself was overpowering. He appeared anxious or agitated throughout most of his evidence and was hard to contain despite the concerted efforts of leading Counsel. He did not become angry although when his father was criticised, he appeared to be on the edge. He appeared simply not to hear what was being said, so focused was he on delivering his answer. His answers though were rarely to the question that had been posed. He gave lengthy narrative answers of unconnected facts, delivered critiques of the flaws in the mothers evidence, made submissions in support of his and regularly failed to answer the question asked at all by the time he had run out of steam. If asked to reflect on some aspect of his behaviour, he almost inevitably reflected on the mother either as well or instead of the question. He declined in the main to engage with hypothetical questions about the impact on the children if what the mother said was true. At times it felt like trying to pick up mercury to get him to engage with the substance of the question; getting him to confirm what was recorded in a message that he had promised not to raise his voice was a very protracted process; similarly with a smack converted to a tap.

Despite a number of interventions by myself to inform him that he was there to give evidence about the facts and despite numerous attempts by leading counsel to focus on the question asked and to give a factual answer the father was unable in any meaningful way to take on board what he was being asked to do but remained firmly in the tramlines of answering exactly how he wanted to answer which for a very significant part, probably the majority of his evidence, was to air his arguments, point out flaws in the mother’s case, to justify his actions, to turn the question into an opportunity to explain how it was the mother’s behaviour which was the issue not his. This seemed to me to be an aspect of his need to do things his way rather than to listen, to reflect and adjust. I had wondered whether in the overnight break in his evidence he might have realised that his evidence was not being given well and have presented differently on the Wednesday morning but it was clear he had not reflected or read the room and he continued in largely the same vein although if anything at times he was even more intent on giving evidence as he wanted and on a significant number of occasions he could not be interrupted by counsel (and occasionally by me) in delivering the torrent of his evidence.

Allowing all the leeway that I can to reflect the fact that he was giving evidence in a high-stakes case it seems highly likely that this level of intensity, anxiety, f would also be present in his communications at home. Of course, one might have expected them to be moderated in a court environment in front of a judge compared to how he might express himself at home. One can well imagine the mother feeling overwhelmed by the father and needing to write things down in order to gain some perspective on them

He clearly feels incredibly powerfully about the situation he finds himself in. I have no doubt that he loves his boys and that that is a part of the intensity of his feeling, but he also clearly feels bitter towards the mother and feels driven to seek to secure his position as their father and to equalise his position alongside the mother as a joint parent. On many occasions he would promote his qualities as a father when unconnected with the question he had been asked. His evidence was littered by snide criticisms of the mother (i.e they bounced off the sofa when under her watch- although he was present; as usual she didn’t get round to doing it). As his evidence progressed, he became more critical of the mother to the extent that he appeared to be suggesting that they were being harmed in her care and being neglected by her actions. He said she was responsible for his anxiety. He said the children were disturbed, traumatised by the current situation and I couldn’t help but feel that he was talking more about his own feelings than the children’s; there is little evidence to support his assertion that they are disturbed and traumatised.

Throughout his evidence he demonstrated an almost entire avoidance of responsibility for any significant event. Mostly problems were NPM’s fault, Dr Oppedijk had misquoted him, the boys, the accountant. Rarely was he able to accept responsibility for anything himself. Although he claimed to be insightful and to have been able to reflect on himself and what had happened, this was almost entirely missing from his evidence. He found it almost impossible to engage with how the mother might have felt, going so far at one stage as to say he couldn’t take account of her feelings. His limited concessions of poor behaviour in writing were subject to moderation in oral evidence. A smack became a tap. He had never hurt the children.

There were examples in his evidence where he appeared to be making things up as he went along; the pathetic little man incident being one of them. He was prepared to contemplate being entirely dishonest with Dr Oppedijk and I have concluded that he has been dishonest to me in his current version of why he said what he said to that psychiatrist. Much of his evidence demonstrated a sense of self-pity and much of it was self-centred rather than child-centred. When he did engage with the subject matter of the fact-finding his accounts inadvertently confirmed how obsessed he was with things like the dog leaving bald patches on the grass.

Ultimately the father emerged from the process of giving evidence as a poor witness. He was wholly subjective, evasive, dogmatic, inconsistent and dishonest at times. I’m afraid I find it very hard to rely on his evidence unless it is corroborated by other material. In any head-to-head with the mother, I would, subject to some discount to reflect her subjectivity, prefer her evidence unless there was evidence to corroborate the father in a way which outweighed the mother’s account.

Kevin RF was ultimately not called to give evidence: F says what the children said about events was consistent with mother coaching them and that Mr RF’s opinion on them not being scared of him and their demeanour when speaking of incidents was not congruent with it being the narration of a lived experience. It is now trite that care must be taken in evaluating whether demeanour is consistent with lived experience for victims of abuse. Mr RF of course did not have the full picture, was not instructed to evaluate the consistency of their behaviour with their experiences and permission was never sought or granted for him to give opinion evidence. Given that the children had had a period of several months of positive contact with the father in the presence of the maternal grandmother it is not surprising that they did not demonstrate any obvious signs of fear. Many children of that age may be capable of accommodating the fear or wariness when it is balanced by subsequent positive experience. Aside from the fact that I do not consider his opinion evidence admissible, I do not consider that his observation evidence is of much if any help when it comes to determining what the children’s experiences of the father were when they lived with him. His observations are of assistance in evaluating the father’s current relationship with the boys and the mother’s attitude to contact and the attitude of the maternal family. Although Mr RF does make some criticism of the mother interpreting events or suggestions in a negative way and appearing to have a degree of hostility to the father and that the maternal grandmother also behaved in a hostile way in front of the children, I do not think Mr RF is able to contextualise that as I can. On any view the relationship was a bad one before the parties separated, on the father’s own admissions (in contemporaneous messages) he had got things wrong and behaved in ways that needed to improve. On the mother’s case he had behaved dreadfully at times over a period of years and so the mother would have some objective basis for being critical, suspicious, cautious. She had been told in 2018/19 that the father had accepted his problems and addressed them, and the reality was he had not so it is understandable that she would be sceptical about whether he had changed and his interactions with the children had improved. In fact, the mother says and I accept, that she is pleased the contact has gone well and the boys enjoy it. They go consistently, they have a good time, they interact well with the father. Whilst he must take credit for this the mother can also say the success of contact shows she also has been supportive of it. Her family bent over backwards to promote it, she has not cancelled it or been obstructive. The court has experience of many cases where a parent undermines the other parent to the extent that children refuse to go, they cancel contact on spurious reasons, they are so negative about the other parent that the child demonstrates overt hostility to the other parent or constantly makes reference to their flaws. This is not the picture that emerges from the father’s contact with the boys and more than anything the success of the contact demonstrates that the mother is not alienating the father or the children but rather is broadly promoting what she sees as safe contact; a regime which has been endorsed by the social worker, Cafcass and the court.

The children’s interviews with the police have been transcribed. I have also been provided with the videos. I’ve not been able to watch them in full as the format of some was not accessible and time ran out. Given the children were only six at the time they seemed to cope with the process reasonably well.

The documents called “the diaries” are potentially of significance. If they are contemporaneous (or broadly so) and a broadly accurate record of what the mother observed and felt, they would potentially be powerful corroboration of much of her account. On the other hand, if they are not contemporaneous and were created after the event to support possible future litigation, they would have the potential to significantly undermine the mother’s case. She said that she started to make entries following a conversation with her sister because she was unable to make sense of some of her experiences and could not see the wood for the trees. She said she created them in random order to make them less accessible to the father if he were to find them, that they were hidden, that they were made sometimes on the day sometimes a while afterwards but broadly speaking within a short period of time. She said that she transposed some of the handwritten entries into an Apple notes document but stopped because it became too taxing, and she became concerned that the father would be able to access them through IT. Of course, the father cannot know how they came into being. Overall, his final resting position seems to be that for the diaries which predate 2019 they may be contemporaneous, but they are inaccurate and represent fabrication, elaboration or exaggeration arising from the mother’s distorted and highly critical perception of him. Those which postdate about 2019 he believes to be the product of creation after the event perhaps building on some recollection of events but largely the creation of the mother’s and the grandfather’s imaginations. In support of the submission that they do not present an accurate picture, Miss Chaudhry suggests that they were created at around the same time the mother got legal advice, that they were ramped up in 2018 at the time of the separation, that they are very formal and contain references to going back to add to them, the mother’s purpose in creating them was not adequately explained, they show only criticism of the father, had no empathy or reflection, they were delayed in being provided to the police and so might have been embellished or altered and they are clearly entirely subjective criticising the father for apparently mundane events such as over seeding the lawn. Ms Chaudhry also observed that they illustrate an entirely hostile attitude to the father, that the mother must have been affected by their keeping (she herself described it as gruelling and depressing making them) this is how she was feeling and inevitably her hostility to the father must have been passed on to the children.

It does not seem to me that there is a symmetry in the timing of their creation. She appears to have sought legal advice in late 2017 and the early entries in the diaries are early in 2017 and in any event, I accept that they were commenced as she said after a conversation with her sister. I also accept her evidence as to the reason for their creation. At times in the torrent of the father’s evidence it became very difficult to maintain focus on the issue at hand and my interpretation of the mother’s evidence was that she needed to keep a note so that she could go back to them to know what had happened put it in a context. The phrasing, language and content as between the handwritten and typed notes does not appear to me to be materially different which would support a conclusion of part of them being an after the event fabrication. The level of detail contained within all of the notes is such that it is more probable that they were created broadly around the time of the events they describe. To have created that level of detail long after the event would have required a very considerable effort in time and creativity which seems far less probable. The explanation provided by the mother for delivering the documents to the police seems to me to stack up and I do not think that one comment by the boys that “mummy and grampa have been spending a lot of time writing” is sufficient to displace all of the other material that suggests that these are broadly speaking contemporaneously created. It is true that they only record negative matters relating to the father and make fairly grim reading. I have not undertaken an exercise of how frequently events occurred which appear in the diaries, but it is not daily and so although they may have taken a certain amount of time to write up I do not think that this process would have been sufficient to impact on the mother’s daily functioning or indeed her attitudes to the father. They do not profess to be a journal which might expectedly balance with the good and the bad but were created for the purpose of enabling the mother to contextualise what she regarded as concerning behaviour by the father towards the boys. That in itself suggests that they were not created for litigation advantage; if that were her intention it probably would have focused as much on her as on the boys and if they were a work of fabrication would likely have included some more serious allegations. The reality is that the documents record events in the main which individually might cause a judicial raised eyebrow, with some more significant incidents of concern but it is the overall pattern which emerges from the diaries which creates the real concern about the father’s behaviour. I do not believe it is probable that this could be created by fabrication. Inevitably they are the mother’s subjective record of how she saw things and how she was feeling and to that extent they are imbalanced and to the extent that I consider she has a tendency to hyperbole or to see things as more dramatic than they might appear to a entirely objective outsider, they are not an entirely reliable record. When relationships deteriorate of course otherwise innocuous events can spiral into something more significant, tolerance and compassion wane. Thus, allowing for a degree of discount to reflect the subjectivity of the diaries might reduce some of the more florid descriptions to some degree but ultimately a core truth is recorded within them. They are not discounted to a record of the mundane which are recorded as they are because they are wholly distorted through the mother’s subjective prism of hostility to the father. As it happens of course they have a degree of consistency with another important piece of evidence.

In 2018 following the separation the father sought help. In particular he saw a consultant psychiatrist, Dr Paul Oppedijk. The report is based on what the father reported to him. It clearly contains a section in which the father relates the mother’s perception of him. That amounts to 4 lines of the report. The rest is what the father told Dr Oppedijk. The mother had no interaction with him. The material parts of his report are contained within the chronology. It is manifestly obvious from what the father told him that his account of the relationship was profoundly different to that which he gave Dr X and that which he gives now to this court; that he did not enjoy the role of being a parent while the boys were (are) at a young age and delegated most of the parenting to NPM contrasted with in his evidence being a very hands-on parent sharing the care of the children and being very engaged developing a strong bond. He said he felt resentful at coming home to an untidy house and would frantically clean, he told me in effect he was unconcerned, and his priority was to spend time with the boys, and he might do some hoovering later. He described NPM leaving him as a wake-up call; he now denies that there was anything that he needed to change. He said he was feeling anxious and stressed which exacerbated his obsessive traits. He now denies feeling anxious (although himself says he suffers from long-standing anxiety in a letter to solicitors). Dr Oppedijk found him to be candid, showing insight into the dynamics, he was subjectively anxious with nervous effect, and he was motivated to accept accountability for having to change his personality. The diagnosis was obsessional character traits, demonstrating anal retentive character traits manifested by obsession with time management and efficiency. He lacks emotional intelligence. He was advised to undertake individual psychotherapy and marital counselling.

The contents of the report self-evidently provide powerful corroboration for the mother’s narrative of the relationship and the father’s behaviour up to 2018. In his evidence the father’s explanation for the report was relatively unclear. At times he seemed to deny saying what was recorded in the report, at times he said he had never used the words reported but he might have said something similar which had been translated by the doctor into expressions in the report. In the latter part of his cross examination in respect of the contents and when I sought clarification, he said in effect that he had told Dr Oppedijk what he thought NPM would want to hear because he was desperate to get back to his boys and to the marriage and that when the report came through he immediately printed it out and took it to NPM to demonstrate to her that he acknowledged the problems and was going to take steps to change. Thus, he did not accept that what he told Dr Oppedijk was a true account but rather what he thought the mother wanted to hear. It seemed entirely lost on him that was a gross deception of the fellow medical professional (who would work on the basis that what they are told by a patient will be true particularly if self-critical) but more importantly was a gross deception of the mother who would receive the report assuming that it indeed had been a wake-up call for the father who was now acknowledging his problems and prepared to tackle them when in fact the father’s true position was that he did not acknowledge any underlying problem and thus any attempt to address it would be likely to founder from the start. To do this to your wife seems to me to be the most gross breach of trust, wholly manipulative, selfish indeed perhaps narcissistic. To seek to win back your wife by such a gross deception would be unforgivable. As I say the father seemed not to recognise this. Of course, the alternative explanation is that the father at that point in time indeed was being candid, had woken up and was genuinely seeking to seek help and to win his wife back by addressing the fundamental problems which under-pinned the separation. I asked Ms Chaudhry in submissions whether there was any alternative possibility, but none was identified. She urged me not to judge the father’s actions too harshly given he was desperate to resume the marriage and to resume family life with the wife and children. I entirely accept that the father was desperate to resume the marriage and to resume family life. However, his desperation could never be a justification for undertaking such a gross deception of a psychiatrist and the mother. My initial inclination was towards a conclusion that the father was at that time being sincere and that he had genuinely attempted to confront his problems and that he had genuinely intended to do so in order to create a better life for the family and that he has resiled from that openness because the reconciliation ultimately ended in failure and has led to the imposition of restrictions on his life in the form of supervision of his contact with the children. What weighs against this though is that following the reconciliation in 2019 the father did not pursue CBT and that the problems which the mother had identified and complained about, and which led to the separation emerged very rapidly. In October 2019 the mother sent the father a message stating that his demons are reappearing and expressing a fear that things would fall back to how they used to be. The pattern thereafter until separation in 2021 appears to have been of the mother raising concerns on a regular basis about the father’s behaviour and the father occasionally acknowledging them but taking no steps to address them until the mother left again. On fairly fine balance I conclude that the father was genuine in what he said to Dr Oppedijk in 2018 and that for a period of time the shock of the separation did result in him identifying and accepting his psychological problems and taking some initial steps to address them. However, once the reconciliation seemed to be on track he relaxed, perhaps the psychological sessions were too challenging and he was unable to see them through, or perhaps his motivation diminished once he had mother’s agreement to reconciliation. In any event the net result was that the underlying personality traits which had proved so damaging until 2018 remained substantially unaddressed and inevitably re-emerged creating further and deeper problems. That finding of course provides powerful corroboration to the mother’s pre-2018 account of family life which is largely mirrored in her post-2018 account of family life.

Dr X is an experienced psychiatrist who was instructed to provide a report on the father’s mental health. It was not obtained pursuant to the court having granted permission pursuant to FPR part 25 and nor have I granted permission for it to be relied on as an expert report. The parties agreed that it should be before me on the basis, it seems, that it amounted to a clinical record of Dr X’s evaluation of the father’s mental health at that point. I have not delved further into the status that a medical report has when obtained purportedly as an expert report but admitted not as an expert report. It is based on consideration of the documents including the father’s GP notes, contact notes, court documents and ‘Psychiatric Assessment of the father from 2018’ which I assume refers to Dr Oppedijk’s report. The contrast between the account given by the father to Dr Oppedijk and to Dr X about the domestic situation and the marriage is strikingly different. The absence of any reference by Dr X to what Dr Oppedijk was told by the father, to Dr Oppedijk’s evaluation and his conclusions represent a gaping hole in the reliability of Dr X’s conclusion. In effect he has ignored evidence/a report of fundamental importance in evaluating the account given by the father and this of itself renders his opinion almost valueless. The fact that the father gave such an account also of course has consequences for the father’s credibility generally.

Given that this is a case where the evidence is to a large extent reliant on the accounts of the mother and the father the outcome to a considerable degree depends upon my evaluation of their evidence and of them as witnesses. However, their evidence is not all the pieces of the jigsaw; there are some contemporaneous documents, there are other witnesses and there are the reports of Dr Oppedijk and the children’s interviews. Not only is there other evidence from the documents and the children but there is inherent probability or improbability and inferences that one can draw from other facts.

Included within the Chronology are aspects of my reasoning and findings and that should be read together with this. Ultimately the court is not undertaking a compartmentalised assessment of individual facts, but the court is standing back and undertaking a broad panoramic survey of the totality of the landscape before it. Some of that landscape may be in shadow, some may be clearly and abundantly lit, some may be obscured by the mist of forensic uncertainty, but can the court discern a clear picture on the balance of probabilities of the relationship between the parties informing and informed by individual incidents? In this case the answer is unhesitatingly yes.

My evaluation of their evidence and of them as witnesses of course, brings into account the content of their evidence and how that marries up with other aspects of the evidence that is available to the court.

Ultimately the court must undertake a panoramic survey of all of the evidence in a non-compartmentalised way putting the pieces of the jigsaw together to see what picture emerges on a balance of probabilities. In this case the decision has ultimately not been a difficult one. The combination of:

Ms Chaudhry placed much reliance on the absence of any corroboration of the mother’s case in health visitor, social services, GP, police or school records. It is a legitimate point to make but it does not have much weight in the context of this case. Each of the incidents spoken about alone would be unlikely to generate sufficient impetus to make a report to social services or anyone else. Some of the incidents where the children have banged their heads or otherwise might for some people have led to it being mentioned but far from all. We know that victims of abuse are very reluctant to make reports and in this case the mother’s reluctance to air problems outside the family together with the relatively modest nature of the individual incidents adequately explain why no complaint was made. The fact that the children by and large are reported of positively at school does not in any meaningful way undermine the weight of the other evidence. A red mark may well not be noticed at school and in any event if noticed might not generate enquiry. The father’s behaviour when viewed in the context of the spotlight that a court enquiry generates makes it seem as if domestic life was unremittingly bad but that was not the 24/7 52 weeks a year life that the children led. The overall picture that emerges is of periodic outbursts interspersed with periods of relative calm and some happy times.

The evidence of Mr RF is of only limited assistance in this fact-finding exercise; it is all after the event and can only ever have limited impact in terms of back-calculating. The report of Dr X is of minimal weight, likewise that of the father’s colleague (see below).

On the other side of the coin, I am not satisfied that the father has established his case. To the contrary, given that I accept the mother’s case, the mother has acted entirely properly in relation to the management of contact and the father fails to establish that the mother has alienated the children or allowed hostility to undermine their view of their father.

There are many aspects of the case which support the conclusion that the father is at times driven primarily by his own needs to the exclusion of others and where he is largely unaware of any competing need. Whether that is a deliberate choice to prioritise his needs over others or whether it is driven by an underlying psychological factor is of potentially considerable significance. On balance it seems to me more likely that it is not a deliberate choice but rather the opposite. It is something which is beyond his control without the most positive act of will on his behalf. In the court room he was unable to exercise a degree of self-control so as to give his evidence in a measured, focused or useful manner. It seems though that in the context of time spent with his children and with a spotlight on him, with his mother-in-law or with a professional contact supervisor he has been able to manage his behaviour.

The statement from Mr Eynon-Lewis, the father’s friend and work colleague, is that his experience of the father is that he is calm, reflective, insightful. That regrettably is so far from his appearance in evidence that it suggests either that the father’s presentation in court was entirely out of character in many material ways or that he can present very differently depending on the context. Mr Eynon-Lewis says his impression is that the father appears to put the boys’ needs above his own; my impression was whilst he spoke in forceful terms about the distress, he considered the children had experienced as a result of the separation and the harm they were experiencing (as a result of the care being given by the mother) this was more driven by the harm he felt he was suffering. Mr Eynon-Lewis’s experience leads him to conclude that the father is not manipulative and yet the father’s evidence about Dr Oppedijk’s examination and report (if the father’s final evidence is the truth) would be an act of extreme manipulation of a fellow medical professional and most importantly his wife. That the father appeared to have no realisation that this version represented an extreme form of manipulation seemed neither to have occurred to him or to trouble him. Mr Eynon-Lewis’ view was that the father is incredibly insightful and sensitive (in relation to the boys it is true) whereas in his evidence both written and oral that he is reflective and insightful the content of his evidence suggests quite the opposite with almost a complete absence of reflection on any flaws in his character, a denial of recorded statements and a refusal to contemplate that he might be at fault. It is clear that during the contact sessions between April and September which were supervised by the mother-in-law that they were able to maintain cordial relations and the father dealt with the boys well. Equally over the 400 odd hours that the father has been supervised by Mr RF he has for the significant majority of the time not demonstrated any behaviour that has caused Mr RF concern but has rather focused on the boys and provided a positive parenting experience. But the evidence of the mother including the diary, the father’s own words to Dr Oppedijk, the evidence of Mrs P and that of the boys together with the father’s oral evidence paint a very different picture indeed and if the combination of that evidence is a true depiction of the father, then he clearly has two very different ways in which he can behave and present. What underlies that very different presentation is something which will need exploring. My instinct is that there is some aspect of his psychological functioning that is in play. Perhaps in the domestic environment the anxiety he experiences, his need for things to be done his way or rather more broadly his need for his own needs to be met come to the surface in a way that they do not at work or in the presence of friends or some third parties. Perhaps a component in this is the dynamic between the father and the mother; for some reason the nature of their relationship or the differences between them in the context of an intimate family relationship play a role in bringing to the surface, negative characteristics in the father which in other contexts lie beneath the surface either controlled by the father or not activated by the situation.

Whatever the reasons, which will need exploration by a psychiatrist or psychologist, I am satisfied that the father can behave and present very differently depending on the situation he is in.

Thus overall, the conclusions I reach on the balance of probabilities are that:

The father has much to reflect on. He is clearly capable of providing good parenting to the boys and loves them dearly. However, in my assessment he has a flaw in his character which until it is addressed means he poses a risk of losing his temper with them, of imposing unreasonable rules on them and poses a risk of emotional and physical harm (limited at present) outside the confines of supervised or supported contact. Until he addresses that flaw that risk seems likely to remain. Given he has said he would address it in the past and has not seen it through either because he never really accepted the full nature of the issues, or because he found it too hard or became demotivated, presents a challenge going forwards. How will a psychotherapist truly know if he is engaging or is paying lip-service?

That is my judgment.