BY v BX  EWHC 108 (Fam)
On 20 January 2022, the Family Division of the High Court (Cobb J) gave judgment following a five-day fact-finding hearing. In these Children Act proceedings, both parties made cross-allegations of domestic abuse. The proceedings were remitted by the Court of Appeal to the High Court following the conjoined appeals in Re H-N  EWCA Civ 448, where this case was known as B-B.
The parties began their relationship in August 2015 and have one child, Jane. The mother said in her witness statement that this was her first serious relationship and that she had ‘no real understanding of what it was like to be in a relationship, what to expect from a partner and what was normal’. The Parties separated in May/June 2017 and the evidence of both parties reveals they had a volatile relationship from the outset.
Jane lived with her mother and did not see her father for large periods of time. Both parties issued Children Act proceedings in July 2018 and directions were made for a fact-finding hearing in respect of the parties cross-allegations. Between July 2018 and August 2019, the matter was listed for trial and adjourned on approximately five occasions.
This was the seventh time this case had been listed for a fact-finding, following judicial unavailability, legal aid difficulties and additional allegations made by the mother.
“18. The mother alleges that during the relationship the father abused alcohol, cannabis, and cocaine and that, on one or more than one occasion, he forced her to take cocaine; that he controlled her financially, relying on her income to support him; that he was repeatedly verbally, physically and sexually abusive towards her; that he was controlling in a number of ways, that he wanted to know where she was at all times and that he was unsupportive, unfaithful (conducting relationships with other women) and in many respects irresponsible.
- It is the father’s case that the mother was verbally and physically abusive towards him; he alleges that she was mentally unstable in that she often threatened to harm herself with medication and knives. He asserts that she was obsessive about him – repeatedly accusing him of cheating and checking his phone; he maintains that she was violent with Jane; that she drank excessively and had taken cocaine on two occasions, once when pregnant with Jane.”
At the start of his judgment (para 7), Cobb J emphasised the importance of ‘strict adherence to orders’ and ‘efficient management of family hearings’, following what he termed ‘casual adherence’ to the court-ordered directions by the solicitors for the mother. Cobb J referred to the paragraphs 43-47 of the President of the Family Division’s ‘Road Ahead’ guidance, which were reprised in Re H-N at paragraphs 56-57.
It was also noted:
“13. Fact-finding in cases concerning alleged domestic abuse are almost always time-consuming and challenging for judges and magistrates; the responsibility placed on the lay and/or professional judiciary to conduct a fair, thorough and above all a considerate and respectful hearing is indeed “weighty”, particularly where the factual issues are often complex, emotions are invariably raw, and the stakes are so high. The exercise in which I have been engaged, as many judges up and down the country daily are involved, is “neither an easy task nor a precise science”. It is right that these challenges are fully recognised by those who have a responsibility for resourcing the family justice system. I recognise that I have been afforded the indulgence of time (five days) to hear this case, and have been fortunate that both parties have been ably represented. I am more than conscious that many judges, coping with extensive and difficult lists, have much less time for these hearings, and must manage the challenges which arise in dealing with unrepresented parties. For all these reasons I wish to emphasise the imperative for judicial continuity in cases of domestic abuse.”
Approach to fact findings
In paragraph 6 of his judgment, Cobb J states that the hearing and preparation of his judgment highlighted the following [emphasis added]:
“i) The benefit of considering the evidence relevant to each different form of alleged domestic abuse in ‘clusters’: thus, it was useful to ‘cluster’ the evidence which went to the issue of alleged physical abuse; separately I considered the evidence of the allegations relevant to sexual abuse, separately emotional abuse, separately financial abuse and so on. Inevitably, the evidence relevant to each form of abuse overlapped in places, but in looking at the evidence by reference to the different forms of alleged abuse, a picture was built up of the nature of the relationship under scrutiny, and it was easier to see whether patterns of behaviour emerged. This may not have been so apparent had the matters been looked at by reference to individual / free-standing items on a Scott Schedule. I accept the Court of Appeal’s view that it is the cumulative effect of individual incidents within each of those clusters of abuse-type, and of each type of abuse on the other, which give the clearest indication of the experience of abuse;
- ii) The importance of resolving these issues close in time to the events in question; this hearing took place between three and five years after the key events. The delay in resolving the issues has compromised the quality of the evidence itself, and the delay has inevitably taken a toll on the litigants who have not been able emotionally to get on with their lives;
iii) The need for flexible arrangements to ensure that participation directions (rule 3AA FPR 2010) truly meet the needs of the parties and the case; the increased use of ‘hybrid’ hearings over the last 18 months (for all types of hearing in the family court) provides a useful template which worked well in this case;
- iv) The need for advocates to focus on those issues which it is necessary to determine to dispose of the case, and for oral evidence and/or oral submissions to be cut down only to that which it is necessary for the court to hear;
- v) The evidence of the principal parties is always likely to be far more valuable than the evidence of supporting witnesses; at the case management stage, judges should rigorously test with the parties and/or their advocates (and review for themselves) what (if any) real value is likely to be brought to the enquiry by the evidence of third parties;
- vi) The importance of judicial continuity in domestic abuse cases; unsurprisingly, I had no prior connection with this case before it was remitted for hearing by the Court of Appeal. But it struck me as I considered the case management of this case prior to the hearing, and indeed as I listened to the evidence itself, that continuity of judicial involvement would have enhanced the efficient and sympathetic management of the process;
vii) That an abusive relationship is invariably a complex one in which the abused partner often becomes caught up in the whorl of abuse, losing objective sense of what was/is acceptable and unacceptable in a relationship. Like many abused partners, the mother in this case became immunised to the emotional volatility of the damaging relationship which she saw as normal and acceptable; like many abused partners, she clung to what she knew.”
General principles of law (paras 24-30)
Cobb J provided a summary of the general principles of law surrounding allegations of domestic abuse in paragraph 26 of his judgment [emphasis added]:
“i) The burden of proof lies, throughout, with the person making the allegation. In this case, both the mother and the father make allegations (in some respects overlapping) against each other on which they seek adjudications.
- ii) In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication;
iii) It is not for either parent to prove a negative; there is no ‘pseudo-burden’ on either to establish the probability of explanations for matters which raise suspicion;
- iv) The standard of proof is the civil standard – the balance of probabilities. The law operates a binary system, so if a fact is shown to be more likely than not to have happened, then it happened, and if it is shown not to cross that threshold, then it is treated as not having happened; this principle must be applied, it is reasonably said, with ‘common sense’
- v) Sometimes the burden of proof will come to the judge’s rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lies without needing to rely upon the burden of proof;
- vi) The court can have regard to the inherent probabilities of events or occurrences; the more serious or improbable the allegation the greater the need for evidential ‘cogency’;
vii) Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation; it is for the party seeking to prove the allegation to “adduce proper evidence of what it seeks to prove”;
viii) The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence. I 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 in order to come to the conclusion whether the case put forward by the person making the allegation has been made out to the appropriate standard of proof;
- ix) The evidence of the parties themselves is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability;
- x) It is, of course, not uncommon for witnesses to tell lies in the course of a fact-finding investigation and a court hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. I am conscious that the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720); I have borne firmly in mind what Lord Lane CJ said in Lucas, namely that:
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”
- xi) That my function in resolving disputes of fact in the family court is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal made clear in Re R  EWCA Civ 198:
“The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established” ( Re R).
A point which I myself considered in F v M  EWHC 3177, in a judgment which was referenced with approval in Re H-N (see §69/70).
xii) At all times, I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010.”
The court found the mother to have been ‘naïve, unworldly, and in the circumstances a vulnerable young woman’. Cobb J noted that when giving evidence, the mother was ‘very confused over the dates, and the sequence, of certain events’. Cobb J did not share the view of the father that this was because the mother was lying but believed this could be attributed to genuine confusion, ‘possibly because of the passage of time since the events occurred, and possibly because of the intense emotional and possibly psychological turmoil associated with them’.
“38. Although her distress was and is almost certainly rooted for the main part in the fact that she has been required in this fact-finding hearing to relive her experiences in her relationship with the father, its breakdown and its aftermath, her distress was not in my finding all attributable to the father. I am satisfied that she was truly intimidated by the family court process, and in all likelihood carried with her considerable distress from her earlier experience of a family court hearing (August 2019) in which the judge threatened the removal of her child, and whose utterances essentially founded her successful appeal to the Court of Appeal”
Nonetheless, Cobb J did not accept the mother’s evidence in entirety, for example he found that the mother minimised her use of drugs and alcohol. However, he stated:
“43. Having indicated in the previous four paragraphs the features of the mother’s evidence which I have found less than satisfactory, I confirm that it is not of course at all uncommon for witnesses to tell lies, and I know that I must look at each aspect of the evidence carefully; lies told on some but not all issues should not cause the rejection of their entire testimony (see what I said above at §26(x)). I find that the mother’s minimisation of her drinking and drug-taking was probably caused by embarrassment. It may be that she realised the hypocrisy of criticising her own mother for excess drinking. Further, it seems likely that she thought that it would serve materially to discredit her in the eyes of the court; perhaps she did not wish to acknowledge that conduct to her own family who she knew were to take part in this hearing. I find that other aspects of her false testimony were motivated by a wish to demonise the father before the court, to bolster her case.”
The court found the father to be ‘an articulate and ostensibly self-disciplined man, whose evidence was polished and clear.‘
“51. During his evidence, he was anxious to score forensic points about the mother’s lack of credibility, and I was increasingly convinced that he did so in part to distract the court from assessing his own evidence and his account of himself. While the ‘defence’ of asserting and maintaining bald denials to matters raised against him is not always easy, I found him to be unconvincing in this exercise. Moreover, he showed minimal empathy in his evidence, for the mother who, on any view, was obviously very distressed; he was brazenly self-justificatory in his explanations of his own behaviour. He showed little insight or contrition in relation to the incidents which had led to the disciplinary process in his prior employment which I consider below.”
The mother’s allegations
The mother invited the court to consider the father’s disciplinary history at work as probative evidence of the allegations, however the court declined to find this evidence as determinative of the issues in the case. Although it was noted that they ‘lend support for the contention that the father is a man who has a history of inappropriate attitudes towards vulnerable females, and of crossing personal boundaries with such vulnerable people.’
The court considered the mother’s allegations under five subject headings: emotional control/coercion, physical abuse, infidelity, financial control, and sexual abuse.
“66. I am satisfied on the evidence that the father did indeed repeatedly allege that the mother suffered from bipolar disorder; I further and significantly find that there was no clear medical evidence that she did suffer such a condition…I find that the father made this purported diagnosis in an attempt to characterise her to third parties as mentally unstable and/or unreliable; I find that it was immensely disparaging and undermining of the mother, damaging to the mother’s self-confidence and self-esteem, and caused her to doubt her own mental health (“he made me believe that I was mentally unwell …Dr. Proudman’s use of the term ‘gaslighting’ in the hearing to describe this conduct was in my judgment apposite; the father’s conduct represented a form of insidious abuse designed to cause the mother to question her own mental well-being, indeed her sanity.”
There was insufficient material to make findings of physical abuse, although the father was found to have taken advantage of the mother’s vulnerability and manipulated the events when she was intoxicated at a barbecue.
The mother alleged that the father had degraded her by being unfaithful. Although this was not proved, Cobb J stated that the father had ‘a chauvinistic attitude to the mother and to their relationship’ which he found ‘underpinned much of his attitude, and his lack of sensitivity, towards her.’
Further it was found,
“72. It seems likely, on the evidence that I have seen and heard, that the father had sexual relations with the mother in 2018 after he had commenced a relationship with a woman who is now his fiancée; this was at a time when the mother was still craving a resumption in her relationship with the father (and she had no relationship with anyone else). I find that the father knew that the mother wished to rekindle the relationship, and by having sexual intercourse with her at this time he wrongly led her to believe that he still had feelings for her. This also illustrates the father’s lack of moral code and his capacity to prey on those who he sees as vulnerable.”
“76. I am satisfied that the father was thoughtless and uncaring about taking money from the mother but am not satisfied that he abused her financially to the extent that she claims. However, I do note that during a period in which the father was making no financial contribution for the upbringing of Jane and indeed was in arrears, he made at least two trips to Uganda, ostensibly for family events. Contemporaneous social media messaging suggests that the father was planning to enjoy, while in Uganda, “a few weeks of absolute degeneracy… breaking the laws of decency one party at a time…”. Though he claims that his family funded the trips, this provides a very strong clue about the father’s financial irresponsibility, his lack of empathy for the mother, and his general absence of moral integrity.”
“82. Although the mother’s account of sexual abuse is in some respects lacking in detail, is in some respects inconsistent with what she told the police, and is plainly inaccurate on dates, I am satisfied on the evidence which I have received that:
- i) On occasions the father forced himself on the mother for sexual intercourse, uncaring whether she was consenting or not; this sometimes happened after arguments, as a false display from the father that ‘all was forgotten’;
- ii) The father initiated ‘rough sex’ with the mother; I reject the father’s account that the mother had initiated this. I am satisfied that it was for his own gratification. The mother was a vulnerable and naïve woman who was inexperienced in relationships and inexperienced sexually. Both parties told me (and I accept) that the mother was self-conscious about her body. All these factors lead to me to the conclusion that sexual intimacy which involved physical abuse of the mother (‘rough sex’) was initiated by the father and was probably not consensual;
iii) The father at times expected the mother to give him oral sex; materially, he told me that he knew that she did not enjoy this experience, but he regarded it as a ‘treat’ for himself;
- iv) I am not satisfied that the mother overtly or clearly protested at the father’s sexual demands at the time. She was desperate for the relationship to succeed and did not question his conduct in this regard until much later. The delay in voicing her unhappiness, and reporting it to the police, is likely in my judgement to be attributable to a combination of her lack of appreciation that her experience was not ‘the norm’, coupled with shame and embarrassment.”
The Father’s allegations
The father’s allegations involved verbal abuse, physical abuse and controlling behaviour of the mother, in particular that the mother used contact as a form as control.
“84. Verbal abuse: It is of note that the mother does not deny that she has at times been verbally abusive to the father during arguments, but asserts that she was only ever acting in a retaliatory way; she accepted that she had shouted at him so as “to defend myself”. I am not persuaded that the mother ‘abused’ the father verbally any more than he ‘abused’ her in this regard. Both parents were verbally abusive to each other at times, and it would be wrong for me to ascribe blame to one rather than another.
- Physical abuse: I am satisfied on the evidence that, when drunk or under the influence of drugs, the mother was physically abusive towards the father, and on at least one occasion (May 2017) threatened him with violence using a knife. I am satisfied that she threw water over the father in July 2017, and punched and kicked the father in the following year when he told her that he would not reconcile with her. I emphasise that these incidents occurred when the mother was drunk, and in a heightened state of arousal.
- 1 May 2017 specific incident: The father referenced the events of 1 May 2017 to illustrate his case that the mother had been abusive towards him. On 1 May 2017, the mother and father had a night out to celebrate the father’s birthday; I find that the father was (as the mother alleges) inattentive to the mother, and flirted with other women. The evidence reveals that the mother became drunk (she was later described by the police as “highly intoxicated” and incoherent), and on return home, she was angry, and they argued; she behaved irrationally and aggressively and threatened the father. I am satisfied that the parents were verbally abusive to each other; I am satisfied that the mother pushed over a television in the argument; I am satisfied that the mother threatened the father with a knife. The father called the police and quite wrongly told them that the mother suffered from a bipolar condition. I do not regard this incident as illustrative of “domestic abuse” of the father by the mother; I find both were responsible for the ugly scene and their behaviour towards each other.”
“93. Control: The father complained that the mother would constantly monitor his whereabouts and be demanding of him; I have seen the phone records which shows that she often tried repeatedly to phone him while he was at work; she texted him often in increasing state of agitation requiring his attention. The mother was forced to accept this, and further accepted that on occasion she threatened to harm herself; she described this as a Cri de Coeur. I find that the mother did indeed become paranoid about the relationship. She was desperate to cling onto the relationship, albeit that it was – as she now sees in hindsight – a thoroughly dysfunctional and unhealthy one.”
The court was clear that each incident alleged was treated as a part of a wider pattern of alleged domestic abuse:
“94. I have been careful to consider the evidence relevant to each specific incident to which my attention was brought; but I have treated the incidents not as ‘free-standing’ events but as part of a wider pattern of alleged abuse or controlling or coercive behaviour. In this judgment, I have not sought to deal with every argument or detail of the case; it has not been possible to do so. I proceed, as the Court of Appeal contemplated I should, on the basis that the court should consider whether a pattern of coercive and/or controlling behaviour can be demonstrated on the evidence, and have not merely focused on any singular particular factual incident (see Re H-N §31).”
Cobb J concluded that the evidence clearly revealed a ‘power imbalance’ in their relationship and that the father was manipulative of the mother, which tapped into her vulnerability, causing her severe anxiety, depression and trauma.
Further, Cobb J noted that in light of his findings, he must consider the impact the abuse has had on the mother and Jane. Following this, the court should then determine what orders should be made for the protection and welfare of the mother and Jane, keeping in mind paragraph 4 of PD12J.