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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> EX v GY [2024] EWFC 432 (B) (19 June 2024) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/432.html Cite as: [2024] EWFC 432 (B)

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IN THE FAMILY COURT AT DERBY

		Derby Combined Court Centre Morledge Derby DE1 2XE
		19 June 2024

1. JUDGE CHATTERJEE: This matter concerns competing applications for a child arrangements order in respect of a little girl, M, date of birth XXXX 2021. M is now two and approaching her third birthday. Her father is EX, date of birth XXX 1994, now aged 29 years of age, and her mother is GY, date of birth XXXX 1994, now also aged 29 years of age.
2. The parties were married and they share parental responsibility for their daughter. Their relationship started in 2016, M was born on XXXX 2021, and they married on XXX 2X022. The relationship came to an end in October 2023, when the father made a number of applications pursuant to the Children Act 1989 on 26 October. The next day, on 27 October, the mother also made an application in respect of M.
3. The matter was heard on an urgent basis on 1 November, and proceeded through a number of case management hearings, including a FHDRA and a DRA before myself on 22 January 2024, at which it was determined that a fact-finding hearing would need to take place. Both parties have made a number of allegations against the other in relation to domestic abuse. Further case management directions were made, including on 12 March of this year and 22 March, which was due to have been the hearing at which the finding of fact matters would be heard. That needed to be adjourned and it started on 3 June before myself.
4. Interim child arrangements have been directed by the court for M, who is residing with her mother to spend time with her father. At present she lives with her mother and spends time with her father on a supervised basis all day on a Sunday and between 3.30 pm and 6.30 pm on a Wednesday. Family members supervise that contact due to the allegations of domestic abuse.
5. The facts which the court is invited to determine were set out by way of allegations contained in the parties' original schedules. These have been refined during the course of case management hearings this hearing and were further refined during the course of the hearing which started on 3 June. That first day, unfortunately, could not be affected due to Ms GY's counsel being unwell, however, we were able to make a successful start on the second day, 4 June, and that included case management and further refining of the parties' schedules. The applicant Mr EX's schedule appears at A11 of the bundle and that is his amended schedule dated 21 March and the mother's further refined schedule appears at A16 of the court bundle, and that is her schedule of the same date. Those schedules contain the parties' responses which is helpful.
6. Following robust indications from the court, the parties considered matters and conceded at the outset of the second day of the hearing, 4 June, that some items should be deleted in the schedule. In relation to the father's schedule, items 1 and 6 were removed and item 8 was amended to delete the reference to December 2022. The court had indicated in particular that allegations preceding 2023 were not going to be relevant and that the allegations which each party has made in relation to financial abuse by the other were not again going to be relevant or determinative of welfare.
7. The court had previously expressed concern in relation to Ms GY's Scott Schedule in particular, and the amended version of that is at A16 of the bundle, which contains a total of twenty-three allegations, which the court had previously directed should be grouped under headings of topics or issues. The following allegations were deleted from the mother's schedule and those were items one, two, six, seven, twelve, thirteen and twenty-three. Some of those were historical in nature and again, did not seem to be determinative of welfare, even if found proved, and some of which the court determined were not proportionate in light of the gravity or otherwise of the allegations, and in consideration oof the overriding objective of the Family Procedure Rules. That left a total of sixteen on the mother's schedule. Throughout the course of this judgment, I will refer to the original numbering used within those schedules, so as to avoid confusion.
8. Essentially, Mr EX's allegations relate to Ms GY's substance misuse, alcohol and cocaine, they relate to her alleged verbal aggression and also her alleged threats to remove M from his care. Inappropriate conversations he says she has had with M, coaching and physical aggression. Ms GY alleges that he has perpetrated coercive and controlling behaviour, including sending messages to her own mother that made her feel threatened, false accusations that she was drinking to excess, threats of violence, actual violence, controlling behaviour and repeated verbal aggression, along with the placing of a tracking device in her vehicle, and her own mother's vehicle, and a number of allegations of serious sexual misconduct and, indeed, amounting to sexual abuse.
9. That, in a nutshell, is what the case is all about, and this was the finding of fact exercise. The starting point in relation to the law is, of course, Practice Direction 12J, which provides key definitions of domestic abuse, including coercive control, and it is well known that there are a number of reasons why people do not leave abusive relationships and remain in such a relationship. The law was further expanded in the significant and important Court of Appeal decision of Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings) [2021] EWCA Civ 448, and the question in such cases where there are allegations of domestic abuse, is whether or not there is a pattern of behaviour which amounts to domestic abuse. The Court of Appeal adopted what Hayden J had said in F v M [2021] EWFC 4 (Fam) and went on to say in Re H-N, that the court should not be too confined to specific allegations set out in Scott Schedules. The Family Court's concern is to determine how the parties behaved, what they did with respect to each other and their children. The parties should be asked about the overall experience of being in a relationship with each other. I am satisfied that I followed this process with both parties who had filed a number of statements and, of course, from whom I heard oral evidence.
10. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined on the balance of probabilities has happened in people's lives, and often about events which have taken place over a significant period of time. Re H-N, also considered the terminology and effect of using criminal concepts such as rape, murder or manslaughter or other serious crimes within the family proceedings. It was reiterated that the Family Court should be concerned to determine how the parties behaved and what they did, rather than whether that behaviour does or does not come within the strict definition of such crimes.
11. The civil standard of the balance of probabilities applies, the binary standard of proof applies. Either the court determines that an incident occurred or it does not. There is no heightened standard of proof, nor is there a sliding scale. In Re BB (Domestic abuse: Fact-finding) [2022] EWHC 108, Cobb J expanded further upon the principles. The burden of proof lies throughout with the person making the allegation. 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 a battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration or fabrication. The standard of proof is the civil standard, 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. Findings of fact 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.
12. The court must consider and take into account all the evidence available to survey the evidence on a wide canvas, assessing the credibility of the parties is critical. That brings me onto the case of R v Lucas [1981] QB 720 and I have to bear in mind that individuals can make false allegations. The revised Lucas direction applies in relation to lies. A person can tell lies for all sorts of reasons. Just because a person lies about one thing, does not automatically follow that they are lying about everything. It would be incumbent on the court to demonstrate that it has weighed up the issues to which the lies relate, and what basis it can be determined, that the only explanation for the lie is guilt. Particularly in a scenario where they are lying about peripheral or non-material matters.
13. In summary, there is an increasing recognition that the court must focus on a pattern of behaviour. Domestic abuse is a complex matter, where the abuser can lose perspective of what is objective and reasonable. These matter were reiterated in K v K [2022] EWCA Civ 468, when the Court of Appeal emphasised the need to focus on coercive and controlling behaviour and the need for a broad panoramic evaluation of the evidence. I also bear in mind the teachings of Re M (A Child) [2021] EWHC 3225, where Judd J stressed that a vulnerable person may not act in the same way as someone more independent or confident, if they had been subjected to exploitation or abuse within the relationship.

THE EVIDENCE

14. I have read the documents in the bundle, which run to some 730 pages. That includes statements from the parties, their witnesses, as well as a safeguarding letter from Cafcass and letters from the parties' GPs as well as a voluminous amount of police disclosure. In addition, I was provided shortly before the hearing, with a further statement from Mr EX, exhibiting material from his phone which, until very recently, was in the possession of the police. I have also listened to a number of audio recordings produced by the mother, two of which were played to her in the course of a hearing, and viewed a video recording which is, in fact, audio and not visual material as such, relied upon by the father.
15. I have heard evidence from the following witnesses, counsel having agreed to change the order in which I heard from them when the substantive hearing commenced. First of all, GY on 4 June, and she was recalled the following day on 5 June. I heard from EX that day, and we went into a further day to complete the evidence. On 14 June, MC, who is the paternal grandmother gave evidence, and I am grateful to the parties and counsel for clearing their diaries to accommodate the extra days, including today, which is 19 June.
16. I mention at this stage that during the course of the hearing, counsel for Ms GY offered to tender Mr RW, who is her father, but having considered the schedule as refined, neither party considered it necessary to cross-examine him, and the court did not require him to give oral evidence in the circumstances. I have considered witness statements from two further witnesses in the bundle which the parties were not given permission to call. That is Mr EXP, father's friend relied upon by him, and TMN who is the mother's domestic abuse worker, relied upon by her. I remind myself that it was the court's decision that neither should be called, and that I must attach such weight to their statements as I see fit.
17. Ms GY was the first to give evidence. She had the benefit of a screen in court and special measures. She confirmed her statement in the bundle. C47 was her first statement dated 15 January of this year at C137, the 7 March statement, and she also confirmed her Scott Schedules as well as the C100 application, which appears at B53. She was invited to confirm some of the police documents, in particular the video interview transcript of 5 February this year.
18. Ms GY was asked by counsel for Mr EX about the most serious allegation she had made, which was that Mr EX had raped her. It was pointed out to her that when she emailed the police on 27 September, she had said that it was emotional control and financial abuse, and she was planning to leave, but she had not mentioned to the police at that stage, sexual abuse or matters such as rape. She said she had not raised it with the police at that time, but she had with two other professionals. The reasons she had not mentioned it was because she was scared of him.
19. Ms GY told the court she felt she had lost all control over her life. She was still trying to process what had happened to her, and she was still working with the worker from Derbyshire. She said she loved Mr EX, she kept notes on her phone from July onwards, and she had to enter those notes because so much was happening. It was pointed out to her that on 22 October, when her mother reported the tracker placed on the vehicle for herself and her mother, that when she spoke to PC HW, Ms GY had not mentioned sexual offences to her, and her statement at that time to the police did not mention sexual abuse or rape. Ms GY said it was scary and she was nervous. It took her time to say that such things had happened to her, and even now she could not talk about it easily. She said she told the doctor about matters, and it was put to her that there had been contact with the police, yet the first time she had mentioned sexual abuse was with her C100, but with the Family Court on 27 October.
20. She said it had not been her intention to get Mr EX into trouble. She was asked about who was living where when they had care of M from May onwards. She said she would have care of M at her mother's house, and Mr EX would have care of M at the family home which she and Mr EX had been sharing. She suggested a change as M is always moving about, and then the arrangements were that whoever had care of M should remain at the family home.
21. Ms GY was asked about her consumption of alcohol. She said she probably drank about a bottle of wine a week. She was asked about her use of drugs. She admitted that she had consumed illegal drugs on a few occasions, but it was a small amount. She said that Mr EX had found some purple pills in her handbag, she had been given them at a festival, she did not know by whom, she had not taken them. She said it was not her intention to keep them, and she should have gotten rid of them. However, it was correct that they were in her bag. When asked about a bag of white powder which Mr EX said he had seen, she denied this and said that there was an empty bag and that M had never got a bag of white powder out of a bag belonging to her.
22. At this point, it was observable to the court that Ms GY's demeanour changed, and she seemed to be deflecting. She continued to blame Mr EX, she denied asking her own brother for money to buy drugs. She said that Mr EX had been bombarding her with messages, and she realised he was never going to let her go, she had been manipulated for years. She maintained that Mr EX's own father had been abusive to his family, including Mr EX's mother, who was M's paternal grandmother.
23. She was asked about her allegation number 18 on the schedule, which is an incident on 9 July 2023, when she says that Mr EX had initiated sex with her. She was firm that she did not want to have sex with him, but she agreed in her evidence that she had climaxed during the incident, saying that her body had betrayed her brain. She said that during the relationship, they would both give each other oral sex, however he had performed this upon her when she was asleep, and she was consequently unable to say yes or no. They were sleeping in different rooms by then, that should not have happened, she had not consented to it, they were not together and she had told him that she did not want to be with him anymore.
24. In questioning from Mr EX's counsel, it was pointed out to Ms GY that she had told her support worker at Derbyshire Wish, TMN, something quite different, and that she had woken up from her sleep and he had placed his penis inside her vagina, which is not the same as oral sex. Her account to the police was therefore inconsistent. Ms GY was not sure if she had, indeed, used those words to Ms TMN. She was also asked about allegation number 21 from her Scott Schedule and, in particular, the occasion in August when she alleged that Mr EX had come into the living room of her family home, wearing no clothes and with a note stuck to him which said, "Fuck boundaries", following an incident where she had asked him to respect her boundaries.
25. This is a matter which Mr EX firmly denies, and it was put to Ms GY that she has given differing accounts about this. Within the first documented account within these proceedings, in her C100 form, she had said that he proceeded to repeatedly engage in sexual intercourse. However, later within her original Scott Schedule, she had said that he tried to initiate sex. Ms GY said that it was that account which was correct, and that it was an attempt to have sex, and that is what she had said to the police in her video recorded interview. She said that Mr EX had told her, "It is not possible to rape you, you are my wife", which she had challenged.
26. It was pointed out to Ms GY that she in an intelligent woman, and she would know that she could challenge him about this. You could rape somebody, even if you are married to them. She was asked again about her use of drugs, maintaining firmly that she was not a regular drug user. She thought she had used a very small amount once a month, possibly on three occasions from July to October. She agreed that she had dyed her hair in the course of these proceedings, and that had been declared on the Lextox drugs report.
27. She was asked about their trip to Wales, which was over the course of July 2023. She denied having initiated sexual intercourse with Mr EX. It was put to her that she did not remember taking drugs because she had been drunk. Her reply was that she was never drunk, she was never allowed to be drunk. She was also asked about the circumstances of a trip to Great Yarmouth in September. Their wedding anniversary fell on the 10 September. She agreed it had been a four-hour trip and she had driven there alone, the father having already arrived there. She said this was to see her daughter M, otherwise she would not have seen M on Friday until Monday, and she travelled there on the Sunday of that weekend.
28. She agreed that she had covertly recorded Mr EX and two recordings were played to her in court. The first of these relates to 28 August, when she alleges he threw the remote control of the television at her. She denied having badgered him with the remote control, and maintained what could be heard was him throwing the remote control at her head. The second audio recording played to her was 28 September, which was the parties putting M to bed, in which M can be heard to say "ouchie" and she cries. Ms GY alleged that the father was rough putting M into her bed clothes, and he bent her fingers back in her sleeve, they got caught, which hurt her. She said this was due to him suddenly losing his temper, because he did not care that her fingers got caught.
29. On 5 June, there was an application for Ms GY to be recalled as some further matters needed to be put to her in her evidence. She was asked about the aftermath of a wedding they both attended, and this relates to an allegation twenty-one of her schedule, when she alleged that he had instigated sexual relations and had digitally penetrated her whilst on top of her, saying that she was like a puppet. Ms GY maintained this was one of the most disgusting things that had ever happened to her. She felt it was a bizarre thing to say.
30. She was also asked about 30 October, which was after she and M had left the family home following the parties' separation and the father's arrest. Her stepfather, P, was messaging Mr EX to arrange to collect their belongings. She had entered the property by herself through the back patio door, which was unlocked. She says he came and pushed her out of the door and tried to shut the door on her which was, on her account, an assault. It was pointed out to her that he was on bail conditions to have no contact with her and she was aware of this, but she was adamant she did not have any warm clothes for herself or M and she needed to get her things. She had phoned the police who had told her that her actions placed her at risk, and it was a breach of his bail. The police did not take any action.
31. I observed Ms GY to be a very emotional witness, especially when questioned about the sexual abuse allegations. She found this very upsetting. At times, it was difficult for her to continue. She was distressed when asked to recall other aspects of what happened, including when asked why from the beginning of May onwards, she would allow M to stay with father at the family home, and thereafter allowed him to care for her, for example, in October, why she had returned to and continue to live with the father at the family home. Her answer was to the effect of, "I was made to" or "he controlled me and I couldn't do as I wanted."
32. Of course, I have to weigh up each piece of the evidence against all of the other pieces of evidence, including her deeds and actions, as well as her words. I will return to this later.
33. The next witness to give evidence was EX, M's father. He confirmed his witness statements which are dated 19 December 2023 at C5. His response statement dated 12 February 2024, C107, his updated response statement dated 21 March at C172 and his recent statement, not within the bundle, dated 28 May 2024. Mr EX was asked a number of questions by Ms GY's counsel. He was asked about the current address where he lives, 19 Mount Grace Road, which he said was his father's property, denied being in a new relationship or living with a partner. He was asked a number of searching question about his mental health history. He agreed he had not taken up the offer of work with Talking Therapies.
34. He said that in January 2023, Ms GY was signed off work with severe depression. In contrast, he had anxiety and low mood, which were not as serious in his view, and he felt he could cope. He said she, however, was suicidal, and he wanted to keep her alive. He denied being irritable and unkind to her. He agreed they had discussed her aGYohol and cocaine use. He did not feel that his mental health was at the level where he needed professional help. He had a lot of friends and family support. Mr EX accepted that they would get into arguments and he would raise his voice, but he denied having any anger issues as such. GY, his wife, Ms GY, had told him to go to anger management. He had seen a counsellor for six to eight weeks, but this came to an end.
35. He was asked about the remote control incident of 28 August. He said he had entered the room and asked for the TV to be switched off, because he was working. The living room was the only place where he would work, and he would generally work from home. He had passed the remote control to her in the end, it landed on the cushion next to her, he had not directed it towards her head. There was no reason for her to flinch, it landed next to her lap. He was not showing her the middle finger. It was a petty argument. He had not thrown the remote control at her, and he denied being violent.
36. It was put to Mr EX that he told the police in his police interview following arrest on 23 October, that Ms GY was drinking a bottle of wine and a bottle of vodka per day. He pointed out that he had been interviewed at 3.30 am. He had never been arrested before. He had called CAFCASS to correct what they put in the safeguarding letter. He said she would drink daily. It could be wine or vodka, he was not saying, it was a bottle every day.
37. He was asked about the photographs recovered from his phone showing bottles of alcohol. In relation to the hair strand testing, he said that Ms GY had dyed her hair brown, and at first she had denied drug use. He had never personally seen Ms GY use cocaine, but people had told her he was using it. He did not accept her explanation that she had had a bag of ecstasy pills, which he said they were from a festival, and he did not accept her explanation that she would keep them in her bag and then not use them at all for two months. It was put to him Ms GY's drug usage did not impact on her day to day ability to care for M, her daughter, but Mr EX denied being an unpleasant coercive partner. In his view, both of them had said things in arguments they should not have said. He did not agree the reason he wanted GY back as his wife was because he wanted to be in control. He said she had her own life, she saw her friends, she saw her family, she had her own income and her own car. Both cars were, in fact, in GY's name and M's bank account was in GY's name.
38. Mr EX was asked about a message which appears at C64 of the bundle, or rather a series of messages. He said that they had had an argument that night, this was around 1 May 2023. He said she had been drinking heavily and she had been at her mother's house. She came back the next day, her mother was worried about her, he was worried about her. They had both initiated sex with each other, he would never force her to have sex with him. If he said no to her, she would climb on top of him. He would almost have to push her off, even when they were temporarily separated, they would have consensual sex.
39. He was asked about her account in the witness box of awakening to find him performing oral sex upon her, and how emotionally she had presented in the witness box. Mr EX said this allegation was very, very disturbing to him. He had lost two stone in weight worrying about it and about the police involvement. He said she was a very deep sleeper, and he said she had given differing accounts. For example, telling her domestic abuse worker that he put his penis inside her vagina, whereas she told the police it was his tongue. He had categorically never, ever woken her up doing that. When asked (in counsel's words) if they were crocodile tears from Ms GY in the witness box, he said "Yes, they must have been". When asked why she would text him to say "Don't come into the top bedroom" where she was sleeping, he pointed out that this was sent at 2am and he was asleep, so he would not have replied, and did not. Sometimes he would sleep in that bed on the top floor.
40. He was asked about other messages, and Mr EX denied behaving in a sexually dominant way. On his birthday, on 20 July in Wales, they had had unprotected sex of GY's own accord, as he put it. She had dressed up in her bridal lingerie, she had initiated the unprotected sex, and she suggested that he pulled her. He agreed that by now, he had found the drugs in her handbag, but he said that did not mean he was not still sexually attracted to her. He said he was scared about speaking to her about the drugs whilst on holiday at that point, because she can get very aggressive, so he spoke to her later on. When he did confront her about this back at home, she accused him of putting the drugs in her bag himself and that he must have planted it.
41. He was asked about the incident following the wedding they had attended, when she alleges he put his fingers in her vagina without her consent. He vehemently denied this, and denied ever saying she was his puppet. He had been physically sick when he read this, it was disgusting to him. He denied firmly ever having stuck a post it note saying "Fuck boundaries" on himself, and he said she had changed the date about this. He pointed out that inside September, she had driven to Great Yarmouth, a long way, for four hours with condoms in her bag, and she told him no matter what happens, they would always have great sex. They barely made it to their first wedding anniversary, he wanted to make the marriage work as much as possible. For her to come up on their wedding anniversary with condoms, wanting sex, was inconsistent with her saying she had previously been raped. They had both accused each other of sleeping with other people on occasion.
42. Mr EX was asked about his own father having been abusive, a matter he firmly denied, and which was very upsetting to have been accused of. He was asked about pushing her when she was drinking a bottle of cider. He had confronted her, but had never pushed her in his life. He was worried about how much she was drinking.
43. He was asked about the recording when M had said "ouchie" before bedtime. He thought that GY was trying to goad him, knowing she was covertly recording him. He had never assaulted his daughter. He had not hurt her, like any other toddler getting dressed at night, she was being a bit difficult. He walked away and had heard a bang, he had absolutely not lost his temper. He denied ever having pinned her arms down in a car, and in his view the mechanism of this was impossible. M had slept the whole way home in any event.
44. Mr EX was asked about 27 October, when the mother said he had banged M into the stairgate. He said GY was in the living room. He was carrying M in his left arm and hit it against the bottom stair, his right knee went into the stairgate. GY did not actually see what had happened. She had heard the noise and was agitated. She was trying to pull M from him. He had fallen against the stairgate, not M, he had gone up and M had given him a kiss. He did accept telling GY to "fuck off". It was put that he had told the police that M's foot went into the stairgate, but he said in evidence that it was not her foot, it was his knee. At the time of the interview, he had not slept, he had been in a cell, he was tired and very scared.
45. Mr EX said he was not an angry person, there had not been any pushing nor restraining, nor rough handling. If there had, he would not have been left on his own with M for 90% of the time.
46. In the week before his arrest, he said GY went out three times, leaving him with M on his own. Counsel for the mother played to the court the recording of the 13 October, in which he says repeatedly that "Mummy does cocaine", as well as other things in front of their daughter. Mr EX said he regrets saying that, he should never have said it in front of M, but he did fully regret saying those things in front of her.
47. It was put to Mr EX that at E62 of his police interview, his first explanation about placing a tracker in the cars was for the safety of the car. He said in evidence that the duty solicitor had advised him to say that. He said he totally regretted putting trackers on the cars and should not have done so. However, he wanted to know where his daughter was, and whether she was safe.
48. He was asked about the events of 30 October, when Ms GY had come to the family home alone, at a time when he was on bail conditions. He said his car was on the drive, a major indicator that he was at home, and he said for her to come after 5.30 pm. He had not said that she should not come at all. It was his belief that she was coming to get something from the house, that she did not want him to find, not just clothes for her and their daughter. He thought she had come to set him up, they were both on the phone to their respective mothers. He put his left arm on the patio door to stop her coming in, and he denied that she had ever actually entered the living room. She had never gone around the back of the house before, he did not believe that she had been in fear. He was going to call the police because of his bail conditions, which he did not want to breach. It had been her choice to come face to face with him. He had not pushed her. There had been times when she had pushed and slapped him, he had at times restraint her to stop her hurting him.
49. On 14 June, I heard evidence from MC, who was M's paternal grandmother and Mr EX's mother. She confirmed her family court statement dated 18 December and her police statement dated 6 March. There is more detail in the latter. Mrs C's oral evidence was, on the whole, very much consistent with her written statements. She had been told by her son about LW's drinking, but she said she had not herself seen her daughter-in-law fall over drunk for example. Likewise, she had been told about LW's use of drugs, and had not directly seen her consume them, but thought it was odd that on two occasions, she had been frantically applying makeup to her nose.
50. Mrs C had wanted her son and daughter-in-law's relationship to work, and she spoke of the occasion in her statement where she had taken LW to a café for a long chat for about two hours. Also about an occasion on 12 July, an emotional day for Mrs C, as she had gone to register her late mother's death, sadly, when her son Jordan called her up and he was, she said, virtually crying on the phone saying he did not know what to do, he did not know what to do, as he was so concerned about LW, her drinking, her antidepressants and being off work.
51. It is plain to me that both parties' parents were supportive to them and trying to do their best. The paternal grandmother, Mrs C, said that she was worried that GY was planning something, but she denied that her husband had been abusive to her or any of their children, and she gave an example of his kindness and thoughtfulness towards Ms GY. It seemed to me that the paternal grandmother was a mature and insightful woman, who wanted to help her son and daughter-in-law's marriage work. She was, understandably, supportive of her son. She gave credible evidence, with a good recall of events and, overall, it was consistent with her written evidence.
52. That was the close of the oral evidence, and I then had helpful closing submissions from each party. The broad outline of the chronology of events was largely agreed, and each counsel took me to the relevant allegations. I was also presented with an agreed summary of the legal principles, and I have already set out the relevant law at the start of this judgment. In particular, it was pointed out to me by counsel for Mr EX that in the authority of Re L [2017], a court may need to distinguish between abusive behaviour and poor behaviour, which falls short of being domestically abusive. Not ever act of unkindness, rudeness or misconduct would be such as to justify the label and, indeed, which label. The court needs to delineate between those findings which have a material impact on child arrangements and those which do not. It is not for the court to resolve all disputes between adults, and it is positively unhelpful for the court to allow the proceedings to become another battleground for adult conflict. That overall factual evaluation will look at a holistic picture of the relationship, and whether there are findings which materially alter the welfare decision to be undertaken, bearing in mind the definitions and the case law.
53. Over the course of three days or so of live evidence, I have listened very carefully and taken careful notes, which run to over forty pages of typed notes. I have considered what all the witnesses, in particular, what Ms GY and Mr EX have had to tell me, as well as the written and other material within the bundle. I have already indicated that Ms GY was an emotional witness who, at times, demonstrates a good deal of distress in the witness box, particularly when being asked about her recall and account of the sexual abuse allegations. She was keen to paint Mr EX as an abusive, controlling partner. In relation to her account about the use of drugs, she was reticent and far from upfront with the court about the items Mr EX had found in her handbag. The purple pills which she believes are ecstasy, and the bag which he indicated was empty, but which she said contained cocaine or white powder.
54. Her account of being given the pills by somebody at a festival and then keeping them for about two months, despite not knowing what they were, seemed to me to be inherently implausible. Ms GY is, of course, a registered nurse, a job which carries significant responsibility, a PHD candidate, intelligent and a professionally qualified woman. Having considered her account, I find her to have been evasive and untruthful with the court about the circumstances of her drug use. For the reasons I have already laid out, it seemed to me to stretch credulity for her to have accepted a bag of pills from a complete stranger at a festival, and not only for her to have kept them in her bag for several weeks, but to have brought them on a family trip away with her two-year-old daughter.
55. As for the extent of her drug use, I note the results of the hair strand testing on 5 March of this year, but it is agreed that Ms GY dyed her hair. I am unable to accept her account that she only misused illegal drugs once a month on three occasions. Overall, I find her to have been untruthful with the court about her use of such substances, and it seems to me that Mr EX was fully justified in being concerned about her use of cocaine. He cannot be blamed for being worried about M in the mother's care when the mother was staying at the maternal grandmother's house, although I accept there is no evidence that M's care was affected nor that the maternal grandmother would have condoned or known about this sort of thing.
56. I accept his account that the drugs in her bag, which he found in July, were potentially accessible to M, who was aged about two, and this is really worrying. Although the hair strand tests do not show chronic excessive alcohol consumption, I accept the father's allegation that she was drinking more than she should have until their separation in October 2023, both in the family home and when going out with her friends. Again, I find that he was justified and he was worried about it, and he raised it with her directly. That said, I find the two of them, whilst unhappy as husband and wife, were both deeply committed to their young daughter. It is plain to me that they both love her very dearly, and each of them in general provides and is capable of providing good care. Ms GY's resort to drug use may have been a symptom of the unhappy state of the marriage last year, however, in my view, one of the things the parties and Cafcass will need to consider, is whether there should be any repeat testing, and mother should undertake not to misuse illicit substances or to dye her hair, until that has been bottomed out.
57. Applying the revised Lucas direction it is not of course enough for me to conclude that because the mother has been untruthful about her use of class A drugs that she has been untruthful about everything, and therefore, I go on to consider other matters. Mr EX, it seemed to me, was less demonstrably emotional in the witness box, and he was less heightened than Ms GY. Although there were times when he did display emotion and it seemed to me that that was genuine on his part. Clearly the proceedings, including the allegations of rape and sexual abuse have taken their toll upon him. He too is a professional and intelligent man. Like the mother, he is fortunate to have a supportive family, and it is clear that he trusts his own mother, confides in her and has had the benefit of her support and guidance, in particular.
58. I will now go on to consider Ms GY's allegations of sexual abuse. I have already set out the context of them having got married following being in a committed relationship on 22 October 2022. Both parties encountered some difficulties with their mental health. By the beginning of January 2023, it is agreed that the mother's mental health was very low and she was unable to work, and was signed off sick for a period of six weeks. The father says he was trying to support her whilst working, and they had the care of M, which he assumed key responsibility for. By the end of April 2023, their relationship was in the doldrums, and Ms GY decided to go and stay with her own mother, Mrs KW. M would spend some nights in the care of her mother at the maternal grandmother's and some nights in the care of Mr EX at the family home.
59. In July, the parties decided to give the relationship another go, and Ms GY moved back into the family home, so M was there with both parents. It is clear to me from the evidence I have seen and read and heard, that Ms GY was free to come and go. For example, by staying at her mother's house for a period of some months. She spoke of going to a festival and she would see friends socially, as of course she is entitled to do. I find this continued and it was the case when she was living at the family home, both in the period up to the end of April and afterwards, when she moved back in July. There was a family holiday to Wales when he found drugs in the mother's bag to which I have already referred, and it is plain from the written and oral evidence before me, that both parties accepted they had consensual sexual intercourse with each other from time to time in 2023. Although the mother gives a very different account from the father, and says a lot of the time when they had sexual relations, it was non-consensual and abhorrent to her.
60. The first of Ms GY's specific sexual abuse allegations in time, as on the refined schedule, relates to 9 July 2023, allegation 18, using the original numbering. She says he repeatedly tried to kiss her in front of M, and she said she did not want this, but he persisted. I heard detailed evidence from both parties about their sexual relationship. In relation to this allegation, it seems to me that there were times when each initiated sexual touching and the other did not want it. I do not find that a kiss from the other who was not in the mood to receive it, was necessarily indicative of sexual abuse or control. Also contained within allegation 18, Ms GY says that in July, there were two more occasions when she woke up to find him performing sexual acts upon her, namely oral sex.
61. She told the police in her interview on 5 February 2024, that she had awoken to find him giving her oral sex, but without her consent. It has been pointed out that she has said inconsistent things about this. She accepted she physically climaxed, but was clear that she was asleep and it should not have happened. The father says that it was not non-consensual, that she was persuaded to have sexual relations with him.
62. I turn to mother's C100 form, and I note that the mother did not tell the police about sexual abuse allegations when she contacted them on 27 September. I accept that it can take victims time to process and then raise such matters. She had already sought out and obtained a counsellor from Derbyshire Wish, and Ms TMN said in her police statement dated 28 April, that on 30 August Ms GY had told her that she would wake up to find that his penis was inside her.
63. I am concerned the mother now says in her oral evidence that her counsel must have recorded this incorrectly and in fact, she had awoke to find him digitally penetrating her. I have not heard direct oral evidence from Ms McNally, but I remind myself that she is a sexual abuse counsellor, and was making a section 9 statement to the police, which is a significant matter. It is a detailed statement, and it contains reference to specific conversations. I have also referred to what is said to be a very important discrepancy within the C100 form of Ms GY, dated 27 October at B54, and I am troubled about this. It raises quite detailed allegations, not just confined to sexual abuse matters, with reference to dates and specific dates and, of course, the mother had the benefit of solicitors. She said he had proceeded to repeatedly engage in sexual intercourse, and it has effectively been described as rape.
64. In her oral evidence and in her schedule, Ms GY said that he had attempted to engage in sexual intercourse without her consent. There is, of course, a significant difference. It is not one of mere semantics, and the court has to consider this alongside Ms GY's other evidence, as well as that of Mr EX. It is a very serious allegation by Ms GY. The burden lies on her to prove it, and the standard is the balance of probabilities. Whilst it is the case that she displayed a lot of emotion in the witness box about these matters, I do not decide the case solely on demeanour. I have to consider each piece of evidence against the other pieces, and evaluate the issues within that context. It seems to me that on that basis, considering her conduct as well as the inconsistencies in her account, the accounts she has given and what the sexual abuse counsellor has stated in her statement, I am unable to make a finding regarding digital penetration without her consent.
65. In relation to allegation 18, I therefore do not find any attempt to kiss with sexual control or abuse, nor that the allegation of waking to find Mr EX performing sexual acts on her is made out.
66. The next allegation under this heading is allegation number 19, which is 20 July, when she says he pressurised her to have unprotected sex on his birthday. I will take that and the next items in a cluster. There was also allegation 20, when she says on an occasion in July, she was lying down with M on her lap, and he pulled down his trousers and underwear and tried to sit on her face, and then there is allegation 21, which deals with two occasions. The boundaries note, when he says he entered the lounge wearing no clothes, and also another occasion when he digitally penetrated her, commenting that she was like a puppet.
67. In her oral evidence in relation to the post it note, she says that was the middle of the day, and M was most probably having a nap. She agreed his parents were probably coming around soon. Mr EX completely denies all of these, and refutes that anything of the sort happened. Some of these matters are specific and unusual allegations to make, and he denies non-consensual digital penetration or ever saying that she was like a puppet.
68. I pause at this point to note what happened shortly after these occasions, which is that on 10 September, she drove up for four hours, alone, to join Mr EX and M for what was their wedding anniversary, and she was alone with him and M overnight. She says it was to see M, he said it was as part of their wedding anniversary celebrations and she brought condoms. He says they were sexually intimate, with her wearing her bridal lingerie, and that she had instigated sexual relations.
69. I have considered Mr EX's evidence very carefully, as well as that of Ms GY's. On this point, I accept Mr EX's evidence, and I also accept that in the light of the careful scrutiny under cross-examination of how he conducted himself sexually and his understanding of consent in such situations. I find in this respect that Mr EX was an honest witness, and was trying to do his best to be candid and honest with the court, despite the difficulties and sensitivity in discussing his sex life with his ex-wife in front of strangers. He was candid that they would both in moments of anger accuse each other of sleeping with other people, and then the next day things would be different. He questioned why she would turn up with condoms and drive for four hours on their wedding anniversary. He looked very sad when he said that they had barely made it to their first wedding anniversary, and I accept that he had really wanted to make it work, and that was why he had sent some of the messages he was questioned about.
70. The further allegation under this head is item 22 on the mother's schedule, when she says that on 14 September, he pulled his shorts down saying he wanted to see what underwear she was wearing. He smacked her on the bottom twice and then accused her of sleeping with someone else. At this point, Ms GY had continued to reside in the family home following the alleged sexual abuse on the wedding anniversary trip to Great Yarmouth and, indeed, she did so for a further five weeks or thereabouts, until their final separation.
71. I bear in mind that victims of domestic abuse and coercive control can lose perspective of what is right, but Ms GY was a woman who had the benefit of considerable support. From friends, her own mother under whose roof she had resided in for a period of time not long before this, and a domestic abuse counsellor. She knew she could go to the police and, indeed, did so in September, saying there was emotional control, financial abuse and planning to leave. She did not mention sexual abuse at that point.
72. I now consider the bulk of those sexual abuse allegations. The court accepts that Mr EX's account overall is more likely than not to be true about the wedding anniversary trip, and taking the evidence into account I find it is unlikely that Ms GY would have driven up with condoms and brought her bridal lingerie if he had, indeed, been repeatedly sexually abusing her over the last two months, including the time when she alleges that he called her a puppet, as she claims. The text messages and audio recordings, in general, demonstrate that Ms GY can be assertive and that she knows her own mind. If it was her intention just to see their daughter for the Great Yarmouth trip, she could potentially have stayed elsewhere overnight, or just have waited one further day. I have carefully considered her explanation that she had had condoms because she was worried about the risk of unprotected sex in the light of what she said had happened on his birthday on 20 July, but I am unable to accept this explanation.
73. Ms GY was living her own life, she was working, she had family support and a social life. She went to a wedding on her own with M over the summer, and she had sought help from a counsellor and GP, as of course she was fully entitled to do. She was in the process of considering alternative housing and her options. I do not accept her explanation that she was coercively controlled in driving to Great Yarmouth. She may have been in two minds about it, she may have been unsure about continuing a relationship or its likely future success, but she had a choice in the matter.
74. In the light of this and the other inconsistencies and discrepancies, I do not make the findings she seeks about any of the sexual abuse matters, and they must be treated as not having happened. It is a binary system. I accept that the father has been under an enormous pressure as a result of the criminal investigation into those matters in these proceedings, but I do not find he has behaved sexually inappropriately. Indeed, having heard him in the witness box, I consider he has a proper understanding of sexual boundaries with intimate relationships. I accept both he and his mother, Mrs C, were telling the truth when they referred to his confusion as to what Ms GY really wanted.
75. I now turn to the topic of coercive control. Both parties have made allegations of this against the other. Covertly recording somebody, as the mother did, can be construed as coercive behaviour, and I have some concerns about the fact that this was undertaken. I have listened to the audio recordings as well as the video recording of the audio of 30 October. Of course, Mr EX was not, in general, aware that he was being recorded. He does come across as hostile and angry, calling his then wife names, such as a "coke head" in the recording of 21 October. It seems to me that he was close to the end of his tether by then.
76. I have to determine whether these selective covert recordings paint the whole picture, and whether they demonstrate that his behaviour was controlling and coercive. He says she would badger him. For example, the remote control incident. He also brings an allegation, his item four, that she would constantly threaten to leave him and take M and, in fact, did so when his parents were far away, leaving him vulnerable and alone.
77. I have considered all of the evidence in relation to the remote control incident, and I consider that she was, to some degree, badgering him at a time when she knew that she was recording him. I do not find that he intended to fling the remote at her, and I accept that it landed on a nearby cushion.
78. For chronological ease of reference, I will now deal with Mr EX's allegation number 3, that he caught M with a bag of drugs from the mother's handbag whilst she was asleep upstairs. It is pointed out that he said to CAFCASS that M could easily have come across them, and that is at D3 of the bundle. I agree, there is quite a difference to then allege later on that their young daughter had in fact found and was holding a bag of drugs. I am unable therefore to make the finding sought by the father, given the inconsistency. However, I have already made a finding that the mother kept drugs in the house, and that she chose to take them on holiday to Wales, which is serious and worrying.
79. In relation to the 25 September, the mother says that the father pulled a cider bottle from her, and threatened to smash it. There is a bottle of cider in the photos, and there is a photograph of her with a long scratch to the top of her chest at C81. This is her allegation number 15. I accept there were verbal arguments and recriminations about her drinking. Having considered all of the evidence, I accept she had been drinking, that the father considered her to be intoxicated, and she stormed upstairs when he confronted her about it. She has failed to persuade me on the balance of probabilities that he caused the scratch, whether by pushing her or otherwise, and I do not find this allegation made out.
80. The 28 September is the ouchie incident. I consider it is a case of a reluctant toddler being obstructive when the father was trying to change her into her bed clothes. Children learn words all the time, and there is nothing particularly sinister in the fact that M used the word "ouch" or "ouchie". It is plain that the mother alone knew that she was recording and again, having considered all of the evidence about this, including the parties' oral and written evidence, I am unable to make a finding that the father recklessly or negligently hurt his daughter. Again, it is plain both parents care about M deeply, they would never want to hurt her, and it was plain to me that her second cry in the audio recording is a cry of tiredness.
81. Dealing now and going back in time to the mother's allegation number 14, which relates to M in the car seat on 21 July 2023, again, I have considered all of the evidence and on a simple balance of probabilities, I am unable to make the finding that the mother seeks. I think it is unlikely that the respondent, Mr EX, would have lost control and used force upon his daughter in that way.
82. In relation to the voice recordings, the audio recordings which I have listened to, I accept they do not paint father at his best. He was bitter, angry, even venomous as the mother's counsel puts it, and I find he said things which he now regrets. However, I note that people, even in stable and generally happy relationships, say and do things that they regret in the heat of the moment. I remind myself that not every act of unkindness, rudeness or misconduct will be such as to justify the label of being domestically abusive.
83. On 21 October, she knew she was recording him, he did not, he was blaming her for not being around for M, and he accused her of being a manipulator. It is clear he was angry. In the recording of the same date at F58, he admitted he was angry, and she told him she was going to the police. I agree, the recordings do not paint him in a good light, and it seems to me there are some merits in him saying that they were selective incidents relied upon by the mother.
84. I also find that the mother did say she would leave with M, and it is interesting that this took place when his parents were away. A matter he had mentioned on 21 October, although it was triggered by the maternal grandmother finding the tracker. Overall, I am not persuaded that what I hear in the recordings and those matters were, necessarily, coercive and controlling behaviour within the meaning of Practice Direction 12J and domestic abuse. Although it was poor behaviour on his part, it must be seen in context. He really did dislike Ms GY's use of drink, the drugs and the vaping which he refers to, and both were concerned for their daughter. I also accept his mother's evidence that he had phoned her earlier that year, virtually crying on the phone saying, "I don't know what to do, I don't know what to do". Her evidence was clear and she was an honest witness.
85. I do find that by September, and certainly by October, things were really quite bad. I did condemn Mr EX for placing a tracker on the two cars. It was unacceptable and an example of controlling and underhand behaviour. He was not originally honest with the police about this, and it was coercive and controlling behaviour, a considerable breach of Ms GY and Mrs Wilson's privacy.
86. In relation to the 22 October, which is allegation number 1, this is the incident concerning the stair gate. Again, I have considered all the evidence I have seen, read and heard about this. I find that Mr EX fell against the stair gate whilst holding M on the stairs. He told the police in his interview on 23 October, very soon after, the day after, that M's foot went into the stairgate. I do not find M was hurt and, again, I have made it plain that neither parent would dream of doing anything to hurt their little girl. It is to their credit that both parents were able to calm down to some degree, and that M gave her mum a kiss and a cuddle before she went to bed in the family home. Whilst I therefore find that M's foot did come into contact with the stairgate, it is on the basis of the findings I have just referred to, and it was inadvertent.
87. The 30 October is when the mother went around, placing him in breach of his bail conditions. It seems to me to have been a very unwise decision on her part, even if she genuinely wanted her clothes. It seems to me odd that she went alone and made a decision to go around to the back of the house. It was reasonable of the father to say that he wanted this to happen outside of work hours, giving his working arrangements. She entered through the back door, I accept his car was on the drive. It is odd behaviour for a woman saying he had been violent to her and her daughter and sexually abusive, even if she was desperate for her things. She had, of course, instructed solicitors by then.
88. I accept the father's explanation that he did not push the mother, but that he put his arm across the door, as he did not want her to enter. He was fully aware of his bail conditions, as of course was she, and he had intended to call the police.
89. Overall, I have considered the parties' experiences of what it was like being in a relationship with each other and their conduct. I am satisfied that both parties played an important part in caring for their daughter until the separation took place in October, and I acknowledge that the father, in particular during the first six weeks of 2023, cared for her when the mother was very unwell, and I accept that his role continued thereafter. He was involved and committed.
90. Finally, no findings have been pleaded or specifically sought against the paternal grandfather, Mr EX Senior, and the mother has not pleaded any, despite the numerous allegations within the schedules which she has prepared, and the array of allegations that she has brought. I have considered the evidence about this, and it seems to be important to put it to rest now. I do not find there is any evidence that Mr EX Senior poses a risk to his granddaughter, and I accept the evidence of Mr EX and his mother about this.