Melissa Vaughan is a member of Oriel Chambers family team.

Here Melissa Vaughan provides another useful case law update.

If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at clerks@orielchambers.co.uk

This case involves Mr Justice-Cobb’s fact-finding judgment in respect of cross allegations of domestic abuse in a case remitted by the court of appeal to the high court for re-hearing following the mother’s successful appeal in the case of B-B, one of the conjoined appeals reported as Re H-N [2021] EWCA Civ 448.

Approach to the fact-finding exercise:

Cobb J commented that the hearing and preparation of the judgment highlighted the following:

• It is useful to consider the evidence in relation to each form of domestic abuse in ‘clusters’ which makes it easier to see whether patterns of behaviour emerged.

• Delay in hearing the evidence compromised the quality of the evidence as well as taking its toll on the parties.
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• Flexible arrangements are needed to ensure that participation directions truly meets the needs of the parties and the case.
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• Advocates need to focus on those issues which are necessary to determine; submissions and oral evidence must be cut down to that which the court needs to hear.
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• The evidence of the parties themselves is always likely to be far more valuable than that of third parties; judges must rigorously test what real value additional witnesses will bring.
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• Judicial continuity is important in domestic abuse cases, here it would have enhanced the ‘efficient and sympathetic management of the process’.
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• An abusive relationship is invariably complex in which the abused partner is often ‘caught up in the whirl of abuse, losing objective sense of what was/is acceptable and unacceptable in a relationship’.

The Law

He went one to outline the relevant legal principles:

• The burden of proof lies throughout on the person making the allegation.
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• In private law cases, the court needs to be vigilant to the possibility that a parent may be using their allegations to gain an advantage in the battle between them.
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• It is not for either party to prove a negative.
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• The standard of proof is the balance of probabilities, the law operates a binary system which needs to be applied with common sense.
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• Generally speaking, the judge ought to be able to make up their mind about where the truth lies without needing to rely on the burden of proof.
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• The court can have regard to the inherent probabilities of events occurring.
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• Findings must be based on evidence, including inferences properly drawn from evidence, and not on suspicion or speculation.
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• The court must survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence.
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• The parties’ evidence is of the utmost importance, the court must form a clear assessment of their credibility and reliability.
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• The court must bear in mind that witnesses may lie for many reasons (R v Lucas [1981] QB 720)
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• The family court has a completely different function from that of the criminal courts. The fact-finding exercise is to determine what has happened so as to inform the welfare evaluation in respect of the options for the child or children.
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• At all times the court must follow the principles and guidance contained in PD 12J of the Family Procedure Rules 2010.

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The parents

The court found the mother to have been naïve, unworldly, and vulnerable when she met the father. She was very distressed and genuinely confused about the order of events, possibly because of the intense emotional and possibly psychological turmoil associated with them. Cobb J found many aspects of her evidence credible and made a number of the findings she sought. He also found that she had minimised her use of alcohol and drugs and some aspects of her evidence were motivated by her wish to demonise the father.

In contrast the father was articulate, unemotional, and eager to score points to distract the court from assessing his own evidence. His bare denials were unconvincing. He showed minimal empathy for the mother.

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Findings

Mother's allegations:

• Emotional control/coercion: findings made included father isolating the mother socially and "gaslighting" her by frequent assertions to her and others that she had bi-polar disorder.
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• There was insufficient evidence to make findings of physical abuse. Although no finding was made on mother's allegation that the father and his friends physically falsely imprisoned her, when she was intoxicated and irrational after a barbecue, the father was found to have taken advantage of the mother's vulnerability and manipulated events to his own advantage.
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• Mother claimed father had degraded her by being unfaithful during the relationship. While this allegation was not proved the father was found to be chauvinistic and insensitive in his attitudes to the mother and their relationship; when he had sex with her after they split up, knowing she was desperate to rekindle the relationship, he showed his capacity to prey on the vulnerable.
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• Financial control: father was thoughtless and uncaring about taking money from mother but did not abuse her financially as she alleged. He was however financially irresponsible and lacked moral integrity and empathy for the mother.
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• Sexual abuse: findings made that father forced himself on mother without caring whether she consented, that he initiated rough sex that was probably not consensual and expected to give him oral sex as a treat, knowing that she didn't enjoy it. The judge was not satisfied that mother clearly protested at father's sexual demands at the time.

Father's allegations:

• Verbal abuse: both parents were verbally abusive to each other, and one was not more to blame than the other.
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• Physical abuse: when drunk and in a heightened state of arousal mother was physically abusive and at least once threatened father with a knife. The latter incident was part of an ugly scene and both parents were responsible for their behaviour; it was not illustrative of domestic abuse. Equally father bore some responsibility for the mother's irrational behaviour after the barbecue, having encouraged her to take cocaine.
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• Mother used contact as a form of control, but father did not pursue the remedies available to him.
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• Control: mother became paranoid about the relationship and constantly phoned and texted the father in an increasing state of agitation.

Conclusion

The specific incidents alleged were treated not as free-standing events but as part of a wider pattern of alleged abuse. The court was satisfied that there was a power imbalance in the relationship and that father manipulated the mother, was abusive to her in a number of ways and was selfish, patronising and dismissive of her. The father's conduct caused the mother "severe anxiety, depression and trauma." Her self-esteem was eroded, and she came to believe that the relationship was normal. She "simply sought to cling to what she knew."

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