Fact finding Hearing on domestic abuse within children proceedings
Date posted: 14 February 2022
This is the re-heard fact finding of one of the conjoined appeals reported as Re H-N  EWCA Civ 448, heard by Mr Justice Cobb.
Cobb J set out his approach in domestic abuse cases such as these, which can be summarised as follows:
- There is a benefit in considering evidence in relation to each form of domestic abuse in “clusters”, to ascertain if patterns of behaviour emerged.
2. It’s very important to avoid delay, as it compromises the quality of the evidence, and takes a toll on the parties.
3. There is a need for flexibility in arrangements to meet the needs of the parties, including the use of hybrid hearings.
4. Submissions and oral evidence should be cut down to that which the court needs to hear.
5. The evidence of the parties will always be far more valuable than that of third parties.
6. Judicial continuity is important in domestic abuse cases;
7. ‘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.’
The relevant legal principles were:
- the burden of proof (balance of probabilities) lies with the person making the allegation;
- the court needs to be alive to the possibility allegations may be used to gain an advantage;
- findings must be based on evidence and not on suspicion or speculation;
- the court must consider the evidence on a wide canvass in the context of all other evidence;
- the court must form a clear assessment of parties credibility and reliability;
- the court must be aware that witness may lie for many reasons;
- the fact finding is to determine what has happened to inform the welfare evaluation when considering options for the children, it is not a criminal hearing;
- The court must follow practice direction 12J of the Family Procedure Rules 2010.
The court found the mother to have been naïve, unworldly and vulnerable when she met the father. She was distressed and genuinely confused during her evidence. Cobb J found much of her evidence credible and made a number of the findings she sought. He also found she had minimised her use of alcohol and drugs and that some of her evidence was motivated by her wish to demonise the father and times she deliberately misled the court.
The father was found to be `an articulate and ostensibly self-disciplined man, whose evidence was polished and clear’. He was eager to score points against the mother to distract the court from assessing his own evidence. The judge was not convinced by his bare denials. He showed minimal empathy for the mother.
In respect of the Mother’s allegations, the Judge made findings of emotional control and coercion by the father, including by him isolating the mother and gas lighting her by repeatedly falsely telling her and others she had bi-polar disorder, using his occupation in mental health to do so.
None of her allegations of physical abuse were found on the evidence, but the father was found to have taken advantage of the mother’s vulnerability and manipulated events for his own advantage. The father was found to be chauvinistic and insensitive to the mother.
Findings of financial abuse were not made out, but he was said to be thoughtless and uncaring about taking money from the mother, and lacked moral integrity.
Findings were made that the father forced himself on the mother sexually, without caring if she consented, and initiated rough sex that was probably not consensual.
In respect of the father’s allegations it was found both parents were verbally abusive towards each other. When drunk the mother was physically abusive and once threatened the father with a knife. Both parents were equally responsible for that particular incident.
The mother did use contact to control the father, and she became paranoid about the relationship and constantly phoned and text the father in an agitated state.
The specific incidents were viewed as part of a wider pattern of alleged abuse. The court was satisfied that there was an imbalance of power in the relationship and that the father manipulated the mother, was abusive to her in several ways and was selfish, patronising and dismissive of her. His behaviour caused the mother “severe anxiety, depression and trauma.” The Judge found her `self-esteem and sense of worth has been eroded to the point where she could not look beyond the relationship with the father’
The next steps in that case are to consider further evidence now that findings of domestic abuse have been made, in the context of considering the impact upon, and the way forward, regarding the children.
We specialise in providing advice and representation in Children Act & domestic abuse proceedings. Please contact our Patricia Beckett at email@example.com for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986