AI v BC [2023] EWFC 347 (B) (27 January 2023)

Neutral Citation Number: [2023] EWFC 347 (B) Case No: SE20P00892 IN THE SHEFFIELD FAMILY COURT Courtroom No. 2 48 West Bar Sheffield S3 8PH Friday, 27th January 2023 B e f o r e : HER HONOUR JUDGE TROTTER-JACKSON ____________________ AI - and - BC ____________________ Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com ____________________ MS F TAI appeared on behalf of the Applicant MR S PONNIAH appeared on behalf of the Respondent MS K BROUGHTON appeared on behalf of the Child through their Guardian ____________________ HTML VERSION OF JUDGMENT (FOR APPROVAL) ____________________ Crown Copyright © HHJ TROTTER-JACKSON: In these proceedings, I am dealing with one subject child, E I, born in July 2013, and so now nine years and six months old. She is the only child of the parties, the applicant father being A I, and the respondent mother being B C. The parties were never married. In September 2022, the applicant father married his partner, D. The acrimony between the parties is such that it was felt necessary for E to be separately represented in these proceedings and her Guardian is Ms Ibrahim. There is a chequered and lengthy history to these proceedings. As I have indicated, E is now nine-and-a-half years old. The parties separated when she was approximately three years old, in May 2016; effectively, there have been proceedings on and off since that point. It is alleged, and I have not made findings relating to that matter, that the contact was suspended in June 2016. A final child arrangements order was made in January of 2017. Contact was suspended in July 2017. Father issued an enforcement application in August 2017. A final child arrangements order was made in April of 2018. Father issued an application for an enforcement order in March 2022, when it is accepted that the mother unilaterally suspended contact on the basis of the Covid lockdown. That was the beginning of the current proceedings. In addition, a psychologist was then instructed on or around 7 September 2021. A final hearing was listed in September of 2022, but that was adjourned after the X Club allegations, which were raised on or around 10 August 2022. The respondent mother now pursues a number of allegations against the applicant father, primarily alleging a number of assaults against E by him; another assault by D, his wife; a forced haircut; and general allegations of neglect by way of food restriction. The applicant father refutes all of the allegations against him and his wife and contends that the respondent mother has been trying to alienate E from him and his wife, D, and, in doing so, has caused her emotional harm. Each parent contends the live with order should made in their favour, and that the other parent should spend time with E. Currently the applicant father, the non-resident parent, spends time with E on alternate weekends and for half of each holiday. Dr Downs, the psychologist, has concluded that E should live with her father and have contact with her mother, on the basis of her conclusions that the mother is parentally alienating E from the applicant father. The Guardian supports that being the applicant father's position and says if the residence is to be transferred there should be a short suspension of contact, effectively, to allow E to be in with the father and, then, contact resume on a supervised basis. The applicant father has been represented by Ms Tai of counsel. The respondent has been represented by Mr Ponniah of counsel, and E has been represented by Ms Broughton of counsel. Before this hearing began, I received and read a bundle of almost 1,000 pages. I watched a number of videos, including a blog produced by E herself, and video footage of E's August 2022 complaint to the police, and Mother's complaints, and her interview to the police, and the father's arrest. I propose to summarise at the outset the legal principles, which will inform my approach to the evidence. The issue that I have to decide is whether the parties have behaved in the way alleged each by the other. In doing so, I assess the evidence in the bundle before me, being the undisputed written evidence from Mrs F, the direct oral evidence of the applicant father and respondent mother, the respondent father's witnesses, G and DI, Dr Downs, the jointly appointed expert, Ms Ibrahim, the Guardian, and I make findings in accordance with the civil standard and burden of proof applicable in line with the Children Act proceedings. The burden of proving the fact pleaded rests with the person making the allegation. The standard to which the party must satisfy the Court is the simple balance of probabilities. The inherent probability, or improbability of an event will be taken into account, on weighing the probabilities in deciding whether, on balance, the alleged occurred. Within this context, there is no room for a finding that something might happen. The Court may decide that it did or did not as per Re B (Children) [2018] UKHL 35. The legal concept of proof on the balance of probabilities must be applied with "common sense" ( The Popi the mother, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948 ). In A County Council v A Mother , A Father and X, Y Z [2005] EWFC 31: "In determining whether the parties have discharged the burden of proof , the Court must look at what is being described as the broad canvas of the evidence before it. The Court takes account of a wide range of matters, including its assessment of credibility of the witnesses, and influences that could properly be drawn from the evidence. The relevant Court must consider the evidence in its totality and to make findings on the balance of probability accordingly. Within this context, the Court must consider each piece of evidence in the text of all of the other evidence": ( Re T [2004] 2 FLR 838 at [33]). The evidence of the parties is of the utmost importance, and it is essential that the Court performs a clear assessment of their credibility and reliability. The Court is likely to place considerable reliability and weight on the evidence and the impression it forms of them: Re Gestmin SGPS SA v Credit Suisse UK Ltd & Anor [2013] EWAC 3560: I remind myself it is not uncommon for witnesses in cases of this sort to lie during the course of a hearing. The Court must be careful to bear in mind that a witness will lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. In addition, the fact that the witnesses lie about some matters does not mean that he or she has lied about everything, and I give myself a revised Lucas direction. I entirely accept that the mere fact of a lie being told does not prove the final case against a party or the witness, should they be found to have lied to the Court. I, also, bear in mind that there is no obligation on a party to prove the truth of an alternative case put forward by their defence, and the failure of either party to establish the alternative does not, of itself, prove the other party's case, Re X(Children) ( No 3) [2015] EWHC 3651 (Fam) . In Lancashire County Council v Children & Ors [2014] EWHC 3 , paragraph nine of his judgment, having directed himself on the relevant law, Jackson J, as he was then, said: "Where repeated accounts are given, the Court must think carefully about the significance, or otherwise, of any reported discrepancies, they may arise for a number of reasons. One possibility is, of course, that they are lies designed to hide culpability. Another is they are lies told for other reasons. A further possibility includes false recollection or confusion at the time of stress, or the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the recordkeeping, or recollection of a person's hearing in relaying an account. The possible effect of delay, a repeated questioning from memory should be considered, as should the effect of one personal opinion on accounts given by another. As memory fades a desire to iron out wrinkles may not be unnatural. The presence that might inelegantly be designed as story creep may occur without any necessary inferences that they are fake". I have revisited the case of Re D-N [2021] EWA Civ 448, which give wide-ranging guidance on the preparation for and the conduct of fact-finding hearings. I remind myself that a Scott schedule must not be become a barrier to fairness, as opposed to an aid. I remind myself that in a case such as this, it is imperative that I look at the evidence in the round and take a holistic approach to all of the evidence in its wide context. I also remind myself of Practice Direction 12J that the presumption of any incident of domestic violence must be harmful to the child, directly or indirectly, and of the various definitions set out in that Practice Direction. I shall now move to my assessment of the credibility and reliability of the witnesses that I heard from, having heard, as I have said, from the applicant father, the respondent mother, the applicant father's wife, the applicant father's mother, Dr Downs and the Guardian. As the hearing judge, I had the unique opportunity to assess the parties over a period of six days, both in the evidence that they gave and the questions that they asked, or instructed to ask, and in their behaviour generally. That has informed the conclusion that I have drawn below. As indicated, I have read and considered all of the evidence put before the Court. Just because I have not made specific reference to a piece of evidence in this judgment does not mean I have failed to consider it. Of the parties, I heard first from the respondent mother. In his closing submission, Mr Ponniah urged upon me the contention that Mother had been measured in her evidence. However, whilst I accept that her demeanour was steady and measured, I am afraid that I entirely reject the suggestion that the content of her evidence was measured. From the outset, I was struck by the mother's utter inability even to accept that this father loves E. The question was put to her three times, and the exchange proceeded as follows: Q. "Do you accept A loves E? A. He says he does. Q. Do you accept A loves E? A. I think all parents love their children in some way or another. Q. Do you accept A loves E? A. If he states that he loves her, then yes". The respondent mother's palpable reluctance to acknowledge any love on the part of the applicant father for E was striking, and entirely at odds with her contention that she is able to promote and protect the relationship between father and child, were E to remain in her primary care. She was not even able to bring herself to pay lip service to the idea that this father loves E. I was also struck by the respondent mother's inability to identify what risk she asserted the applicant father posed. Her case is primarily built around acts of deliberate physical abuse and, yet, when asked by Ms Tai as to what risk she contended he posed, on a number of occasions, her focus was on E being forced to build a relationship with D, her stepmother, missing out on activities with her friends, and being lonely or hungry whilst at Father's. At no point, in the cross-examination by Ms Tai, did the respondent mother say that the applicant father posed a physical risk. If that were truly her belief, as is her pleaded case, it is utterly inexplicable why she did not raise that belief, front and centre, when given the opportunity in her evidence. Even when challenged by Ms Broughton for the Guardian as to why she had omitted the acts of physical abuse that she now alleges, she was quite unable to explain this omission. She initially said that when she raises concerns she is accused of alienating E. However, when it was pointed out to her that this hearing was listed specifically to deal with those concerns, she could not justify the allegation of physical harm from her view of Father and of those risks in any other way. I further noted the mother's tendency to over-exaggerate aspects of her evidence. This was particularly apparent around the haircut incident, to which I will turn in due course, but can be reflected by mother's repeated selection in her evidence, that, in June 2021, the father took E to have, "all of her hair cut off". This brings to mind an image of a small child with a buzz cut. However, what is apparent in photographs of the June haircut still E's hair on her shoulders and long enough to plait, curl, put in a bun, and so on. It seemed to me that the mother was a witness who lacked any insight of substance into the effect of her behaviour on E. This was apparent in two exchanges in evidence. The first around what she says she does when E was allegedly resisting going to school on the day of Father's handover - and I am quoting directly from the evidence: Q. "You said that, when E is due to go to the father's house, she is lashing out and you are physically making her move. Do you say that that happens every time she goes to the father's? A. The majority of the time, yes. Q. What measures do you implement when that is what you say she is doing? A. It is usually a Friday, so I ensure we get up in plenty of time for school. If she will not immediately get up, and she is acting like that, I will phone school and make them aware. I would ring school and say, 'Having trouble getting E up', so I let them know I would be there as soon as possible. She is usually screaming in the background. She is saying she does not want to go to her dad's, and I will tell the school that, she is usually in the background". The respondent mother is entirely oblivious to the inappropriate nature of that conversation with school happening with E in the background. In these days of mobile phones and so on, there is no excuse for not keeping all that private from children. In addition, for this mother to be reporting to the school that E is reluctant to go to the father's is a clear reinforcement of that related stance. Secondly, the mother's discussion with me as to what she says to E around contact with Father, as noted by Dr Downs, at E117, when asked what happened before E's Friday handover with the father. In the report it says this: "E would be saying, 'I do not want to go, why do I have to? She (the mother) would say, 'it is not me that is forcing you to go, your dad wants to see you. For me, you could stay at home with me". It took several minutes of exploration between the bench and witness before Mother purported to understand that, in saying this, she put E in a position where she was being forced to choose between her parents stated and opposing wishes. Even after that exploration, I was not convinced that the mother had any meaningful understanding of the issue being canvassed with her. I did not take the view that this mother was doing her best to assist the Court. I note that both of these parents has the tendency to paint themselves in as positive a light as possible, and that is, perhaps, entirely understandable in the context of hotly contested court proceedings. However, it was particularly notable in respect of the mother's evidence. Her refusal to acknowledge that, for example, unsolicited contact with the father's then-partner would be unwelcome was stark and showed further lack of insight into the effect of her own behaviour. I also noted her contention, which seemed to stretch the bounds of credibility, that her parents had a neutral view of the father, until their statements were put to her, in which they have expressed robustly negative views about the father, at which point, she was forced to concede the point. I am afraid that I also took the view that, at times, the mother was attempting to mislead the Court. A notable example was in respect of the depth of S the chicken. I will deal with this matter in due course but I note that in the mother's witness statement, at a time when she had had the benefit of legal advice for months, she mentioned nothing about the henhouse commotion, E's odd behaviour, and E's tearful confession that she now alleges took place, in order for her to form the view that E had murdered S, because she was so distressed about her June 2022 haircut. I then turn to the father's evidence, as the second of the two most significant witnesses before the Court. I bore in mind, as I did through the mother's evidence, his tendency to paint himself in a favourable light albeit I note that tendency was not as marked as the mother's – either in Dr Down's view or in the view that I formed. However, it was apparent at times throughout his evidence - most notably in his explanation for why he had put the mother fourth of four on E's school contacts, as being to ensure he was contacted rather an act of pettiness. I can understand his concern as to the mother excluding him but the solution is not to exclude her before she has the chance to do that to him. Similarly, there was an exchange between the Applicant Father and Mr Ponniah about who bears the responsibility for the acrimony between the parties which was of note: Q: Agree you've had your part in that acrimony? A: No, I am not perfect. but a lot of this feels like inspired by the mother punishing me for leaving her. Q: All comes from the mother being a woman scorned? A: Yes that seems to be at the root of it. Q: Being a woman scorned has made its way to E? A: yes I think the mother determined to punish me and more than happy to use E in that vendetta. Q: You maintain that this is one way traffic? A: I am not perfect, but this is consistently one way. (my highlight) With respect to the Applicant Father that is almost never the case in a relationship and co-parenting breakdown and it is certainly not the case in circumstances where the Applicant Father is addressing the Respondent Mother as "dear abuser" in text correspondence and relegating her to last place on the child's emergency contact list. His protestations that the acrimony was one way traffic rang rather hollow. However, I do also note the mother's own use of such phrases as "the Father, having deserted the mother and child…" (C21) and "A chose to walk out of the family home…" (C33) and "Once again abandoning his daughter for several months…" (C33) in witness statements filed as recently as June 2020, some four years after the parties separated. This seems indicative to me of the mother's preoccupation with the ending of the parties' relationship and her ongoing sense of injustice, and I will turn to that in due course. The Applicant Father also, at times, came across as being rather overdramatic – such as the point in his evidence at which he wept thinking of his 9 year old daughter's wedding twenty years in the future. His contention that he had been promoting the mother and E's relationship for 10 years, when E is only 9.5 years old, was similar hyperbolic. But I balance that with the ongoing issues with his contact with E, with which the Applicant Father has grappled for some years, dating back to August 2016 - only three months after the parties had separated. I note, for example the Respondent Mother's unilateral suspension of contact when lockdown was imposed in March 2020; a parent who, in the midst of a pandemic, prevents their child seeing the other parent against Government guidance is, in my view, acting in way which is the opposite of child focused and it is little wonder that, at times the Applicant Father has reached the end of his tether and behaved less than admirably. I took the view that, in the main, the Applicant Father was a witness attempting to assist the Court, having provided full explanations as to allegations against him and having remained largely consistent in the versions of events he adopts. I heard from the Applicant Father's now wife, DI, who seemed to me to be doing her best to assist the Court. I had sympathy for the path that she has to navigate, in circumstances where professionals agree she has a warm and sympathetic relationship with E – who is a young child undoubtedly damaged by her parents' acrimony. As far as the mother is concerned, it seemed to me that D can't do right for doing wrong – on the one hand, the mother complains that E says she is lonely at the father's but on the other, when D and E bake together, the mother says it is staged for the benefit of visiting professionals. Some criticism was advanced of her from Mr Ponniah for inconsistencies in the "jug" incident but it seems to me that this is the very epitome of the "story creep" that I am warned to guard against. It also seems to me that this was, on the father and D's account, such a non-event, a minor domestic accident that, if I accept that, it's unsurprising that finer details have been lost. I heard from the Applicant Father's mother, who came across as being entirely straightforward, and unafraid to be frank in her assessment of the situations that she had been involved in. I took the view that she was a robust and consistent witness, unshaken by cross-examination. In terms of professional witnesses, I heard from Dr Downs, the jointly instructed psychological expert. She made appropriate concessions, around the acrimony between the parents being a two-way street and the father having "some understanding of the importance of the relationship on both sides" , rather than being wholesale in her support of the father and her opposition to the mother's continued care. She conceded that it was easy for the father to say he would do what E required in terms of positively promoting E relationship with the mother but that actions spoke far louder than words. She also conceded that the move from the mother to the father, if ordered, would be undeniably disruptive and upsetting for E and was very much a lesser of two evils situation. But Dr Downs was also resolute in her view that the move to the father's care must happen, because of the damage being done to E by the mother's behaviour. Strikingly, she contended that, were the father incapable of prioritising E's emotional needs by promoting a relationship with the mother, E would be better in foster care than in the care of either parent. That matters have reached this stage is sobering indeed. I took the view that Dr Downs was an expert witness aware of her duties to the Court, giving evidence in an even handed and nuanced fashion and that her sole intention was to assist the Court with the issues before them. Lastly, in terms of professional witnesses, I heard from the Guardian, Ms Ibrahim. Again, I felt that she was even handed and made appropriate concessions, around the fact both parents have had a part to play in the situation that they, and E, have reached and in the harm being done to E. She also conceded that she had not done recent direct work with E but was able to justify that decision, on that basis of the extensive direct work E has undergone with the local authority, the school and, latterly, the police. As is apparent from the papers in this case, E is a child who has had contact with, and been interviewed by, a number of external agencies despite her tender years. I also noted that the Guardian rebutted any suggestion that the mother had not engaged with proceedings or professionals, noting that whilst there were some initial difficulties, those had been quickly surmounted. Again, the Guardian was resolute in her conclusion that E should move to live with her the father and was unshaken by Mr Ponniah's best efforts in cross-examination. I took the view that the Guardian was an even handed, witness of truth. Finally, I remind myself that I read the witness statement of Mrs F from X Club which was not challenged in cross-examination and bear that unchallenged evidence in mind as I move forward. Turning then to the allegations, it seems to me that first I must determine the mother's allegations and then, depending on what findings I make, must consider the father's broader umbrella allegations. I will deal with the mother's allegations in the order that they are pleaded in her Scott Schedule. Mother's allegations: June 2022: Father physically assaulted E by pushing her into a metal chair whilst drunk Although pleaded as 7 July 2022, the parties accept that this incident is alleged to have taken place on the Jubilee weekend (as per the reference in the supporting evidence column and oral concessions) which was Thursday 2 – Sunday 5 June 2022. The mother contends that, when E returned to her care on the 7 th June, having been dropped at school by the Applicant Father that morning, she quickly noticed extensive bruising on E's face. The mother has exhibited three photographs purporting to depict that, at C241. One has a date which the mother has manually inserted and two are attached to a text message dated 9 th June 2022. The Court requested evidence of the properties of those photos but no such evidence was provided – it seemed to the Court that had those properties been provided, there would have been a definitive time stamp rather than the mother's inserted date or text message dates being relied upon. The mother's witness statement outlines that she asked E how she had sustained the bruising and E said the father had got very drunk and was shouting and pushing her about, this resulted in her hitting her head on a metal chair. She says that E told her this upon return from school. The mother contends that the bruising and injury was significant, that "numerous other people " saw the injuries but that she didn't know she could provide supporting evidence to the allegation. She contends that the school confirmed to her that they couldn't say one way or another if they had noticed the injury or if E had hurt herself at school, stating that E's teacher was on maternity leave and this may have interfered with the injury being noted. She raised the injury with her solicitors and was told to beware of the perception that she was making false allegations. I note that no accounts of third parties witnessing the injury have been provided by the mother. I note that no texts attaching the photographs of the alleged bruising have been disclosed. I note that no evidence from the school has been provided by the mother. I note that privilege has not been partially waived on any correspondence between the mother and her solicitors about this issue. I note that no reports were made to the police or to social services. I note that this issue was not raised with the Guardian until July 2022. The father contends that, on the jubilee weekend, there were a number of events taking place, including a BBQ with child centred activities. He has provided a photo from 6 June 2022 which he says shows E did not have injuries to her face and that photo is time stamped 4.56pm. He denies that he struck E as alleged or at all and has provided email evidence from E's school, recording that E did not sustain a head injury on 7 June and nor was she observed to arrive at school with any injuries on 7 – 8 June 2022. DI also gave evidence, both written and oral, about this issue. She has no recollection of anything untoward on the jubilee weekend and no recollection of E showing her any marks of injuries. She was consistent with the father in her estimation of how many drinks the father had had at the BBQ despite not having been present for his evidence, nor that having been in his witness statement. She was unshaken in cross-examination about that. I note that, even at its highest, the evidence that the mother has provided depicts a photo showing E with facial bruising that was texted on 9 June 2022. She has provided no evidence of when that photograph was taken or its properties. She has provided no evidence from any other people who are alleged to have seen that facial bruising – her contention that she didn't know she could do so, as a reason for that lack, must be untrue, because a) the mother has provided the photographs as supporting evidence to this allegation so was aware supporting evidence could be filed b) throughout these proceedings, and as recently as 6 September 2022, she provided a supporting statement from her own father in respect of events at X Club. I also remind myself she has been represented for the majority of these proceedings and no doubt will have been given advice about supporting evidence and so on. I am concerned that, even having heard the Court enquire as to the properties of these photographs, no such clarification was provided by way of a screenshot of the same. I am further concerned that the mother lied to the Court about why she hadn't provided any of the supporting evidence she contends she has in respect of this injury, either from the school or from third party witnesses. It seems to me that, when considering this matter on the balance of probabilities, the mother has not surmounted the hurdle of proving the allegation that she makes. It also seems to me when considering matters in the round, when considering the mother's lack of easily ascertainable evidence and when considering the evidence from the school provided by the father that E did not have visible facial injuries at school on 7 th or 8 th June 2022. I take the view that the photographs that the mother has provided do not date from 7 th June 2022. Why is it then that the mother contends she did? Having considered the broad canvas of the evidence in this case and reminded myself of the authorities around lies, the only reason for the mother to lie about what is depicted by the photographs she has provided is to incriminate the father and shore up her allegation. I not only reject that allegation, I find that the mother has constructed it. I reject her account of E telling her the father got drunk and was shouting and pushing her and note that no such account was given to the police in August 2022. 6 August 2022: Father physically assaulted E while at her paternal grandparent's house by hitting her on the arm because she was talking about X Club too much. This allegation was first made by E at X Club. Having been at the camp for three days with the mother, she told an adult volunteer that her the father had hit her on 6 th August 2022 (the Saturday before the camp began on Sunday), and the police were called. The mother contends that she knew nothing about this allegation, that E raised it independently of her and that someone other than the mother called the police. However, I note in the mother's witness statement that she states "After receiving her feedback, E became somewhat overwhelmed and upset about the thought of having to go with her father and she ran out… literally screaming. I ran after her and was followed by another child's grandparent. E locked herself in a horsebox and was crying and shaking with her head in her hands saying "I don't want to go with my dad, he hits me and nobody listens." I attempted to console her…" The mother then goes on to detail how E ran off and was then located in a stable by another X Club Mum, Mrs Colver, to whom she said that the father hit her and the police were called. The second account is of that Mrs V. She did not provide a Children Act statement but was interviewed by the police with that statement found at D46 of the bundle. She states about the meeting that it is accepted E attended with her parents: "E went in with her (the mother) and her father shortly followed, I believe uninvited. After the meeting E ran out, some people initially thought she had failed her test and that was why she was upset. I asked someone to go and check up on E and they found her hugging her the mother, both sobbing." Mrs V goes on to say that E told her that "her the father hits her and hit her the Thursday before she came to X Club." along with a number of other allegations. Mrs V then raised the allegations with Mrs F who called the police. Mrs F's Children Act witness statement C360 says that "E was found by another camp mum with her mother who was also crying." She says E said that she was hit on her arm but gives no details as to when before X Club this happened. On the police body cam, E says that her the father hit her on the arm on the Saturday or the Sunday. Later in the conversation she says that the father hit her arm in the kitchen of her Grandparents' house. Mr I denies that he struck E immediately before X Club, as alleged or at all. He has provided a video from 6 August 2022 which E made, showing her happy and playful. He has also filed a witness statement from his mother, confirming that he and D visited a stately home on 6 August 2022 and that E was in her Grandmother care for the day. He says this is further example of the mother making allegations up to try and ensure E stays in her primary care, and takes the view it is no coincidence these allegations arise within weeks of the listed final hearing at which both expert and Guardian opposed the mother's case G I, E's Grandmother, confirmed in both written and oral evidence that, at no stage on 6 August 2022 did the father have sole care of E, that for the majority of the day E was in her sole care, save for a short period post-stately home and pre-collecting paternal Grandfather when the father and D joined Grandmother and E for a BBQ. It is right to note that the Grandmother's witness statement doesn't make this window clear but, in my view, her correction of that in her oral evidence, when no one at Court could have gainsayed the impression given of sole care all day, only reinforced the impression she gave of being a truthful and transparent witness. At no stage did she see the father assault E by hitting her on the arm. She also gave a detailed account of the entire week during which E was in Somerset and there was little opportunity, on her account, between day trips and Granny day care for this assault to be perpetrated and resolved particularly in light of E's contention that she went away and cried after she had been struck. D also gave written evidence, consistent with that of her now mother in law; that was not challenged in her oral evidence. I also heard from Dr Downs who watched E's police body cam footage. She was surprised by E's presentation whilst making those disclosures, contending that for a child to make those allegations about a parent would usually lead to expressions of distress, guilt, shame and so on. None of that was apparent in E's demeanour. However, I remind myself as Mr Ponniah said that demeanour can differ from one person to another and so limited weight should be placed on that. Taking this matter in the round, has the mother surmounted the hurdle of needing to prove the allegation that she makes? In my view, on the balance of probabilities, she has not. I note that the father had extremely limited sole time with E on 6 August 2022 (and, indeed, during that week), that neither of the other adults with whom E and the father were gave evidence of anything untoward happening, of E being upset or there being any conflict on the day in question. To accept the mother's allegation, I would have to find that E's Grandmother who was with E all day on 6 August had deliberately concealed an assault on her granddaughter and I simply do not think that is feasible or likely, having heard her evidence on the day in question. Why then, did E say this? I take the view, on the balance of probabilities that it is no coincidence that the mother spent three days staying in a tent with E before this allegation was made. I note that, on the day of E's allegation, the mother and E were alone together after a meeting with Mrs F, E, the mother and the father. Despite the mother's contention that E became "somewhat overwhelmed and upset at the thought of seeing her the father" and ran out of the room screaming this is not reflected in Mrs F's witness statement, which simply records that "E was disappointed as she was not old enough to take the D+ test although she seemed happy with our comments on her riding and knowledge." Despite the mother's contention that, when she was with E after that meeting there was someone else there, that is not what Mrs V's witness statement records, noting that E and her the mother were seen together, sobbing, hugging each other. This is an extraordinary way for the mother as a grown women to behave and entirely at odds with her contention in her witness statement that she attempted to reassure E. It is apparent from E's police bodycam evidence that she is acutely aware of the conflict between her parents: Female officer: "Does your mum get on with dad"? E: "No, they hate each other" Female officer: "Do they? And why's that?" E: "I don't really know the full on but mummy did tell me when they split up, daddy did take literally all the money so we lived at nanny and pops' and I was left in like an air bed because they had an office which is now my bedroom but I use to sleep on an air bed and I was really young then." It is absolutely clear from that snippet that the mother has been denigrating the father to E – there is no innocent explanation for E recounting what she has been told about Daddy taking "literally all the money". I take the view that, on the balance of probabilities, the mother manipulated E into making the allegation about the father hitting her on the arm. I take the view, on the balance of probabilities that by X Club, the mother knew of the professional support for the father 's position and was desperate to try and divert the outcome that the father was pursuing. Arranging for this allegation to made at X Club was a cynical attempt at avoiding criticism; the mother would be well aware that if E said that her the father had hit her, the other adults were likely to arrange police involvement, particularly Mrs V who, from her own witness statement with knowledge of the acrimony between the parties, had clearly been filled in by the mother as to her version of events well in advance of X Club. I reject the mother's allegation that the father struck E on 6 August 2022 and find that the mother coached or manipulated E into making that allegation, 28 October 2020: D, the father's wife, physically assaulted E by throwing a jug into her mouth: This is an allegation based on an accepted event: that when the father and D were moving into their new home and were unpacking kitchen equipment, E was hit in the mouth by a jug. The question is how that came about – whether by accident or design. The mother says that E told her upon her return home from the weekend, sat on the sofa at her parents' house. She said that E had a split lip, was not distressed but described that she had been struck with a jug and the mother then reported that to the police the next day. No photos were taken and no interview with E took place. The police report describes the father's partner "hitting her in the face purposely." A child protection medical is carried out which does not record that E has a split lip: it records an abrasion to the inner lip. The mother contends to KF that D hit E in the face purposely with a jug and "nearly knocked her teeth out." These allegations from the mother lead to a cessation of contact between E and the father and yet, when E speaks to KF, she doesn't know why she isn't seeing the father. She is recorded as showing no signs of concern about seeing the father or D. E touches upon this in her August 22 police interview: she is prompted by Mrs F: Mrs F: Do you want to say what D did with the jug that you told me earlier? E: Yeah so about a year ago erm the police came, to south Yorkshire to nanny and pops'. They, she literally went like with a jug and cut my lip, it was literally bleeding for about an hour." When E speaks to Dr Downs she comments " D took half my bottom lip off with the jug." A number of things are apparent from these accounts. From the outset the mother contends that this injury was a deliberate act by D. the mother's initial account of E's lip injury is far worse than that recorded at the CPM. the mother's account to KF is exaggerated still further, with the suggestion D " nearly knocked her teeth out. " when no dental damage is recorded at the medical. E herself continues that course of exaggeration when telling the police that her lip was bleeding for an hour. It is also notable that, when KF speaks to E in a neutral place ie her school, as opposed to the mother home or X Club, no allegations are made against the father and E displays no concern about seeing the father or knowledge of why contact has been suspended. In their evidence, the father and D gave broadly consistent accounts of what happened with the jug; E was dancing round with a plastic jug in her mouth, and D accidentally collided with her, causing the abrasion. I accept that there is some limited inconsistency in whether D had her back to E when they collided or whether she was turning around but it seems to me that is very much the story creep that Jackson J warns me to be on guard against. What the father and D have been absolutely consistent about is the fact this was an accidental collision which caused minimal damage to E. On the balance of probabilities, and considering the evidence in the round, I reject the mother's contention that D deliberately struck E in the face with a jug. I accept the father and D contention that this was an accident. I find that the mother has deliberately imbued this mundane domestic accident with a sinister significance it should never have had. This was a deliberate attempt on her part to paint the father and D in as negative a light as possible and an excuse for her to disrupt E's time with the father, hence suspension of contact. 21 June 2021: Father took E to have her hair cut against her will. E was so distressed she killed her pet chicken 13 Jan 2021: the father cut E hair as a punishment The primary allegation here is around the forced haircut alleged in June, however the precursor to it is an allegation by the mother that, in January 2021, the father cut two clumps from E hair, including one at the forehead leaving a patch of hair an inch long. In her witness statement of 12 July 2021, the mother says that E came back from Christmas 2020 contact with two chunks of hair missing, E was "hugely upset" and "clearly said: "my daddy did it ." . In solicitors' correspondence dated 21 January 2021 contends that " this caused her a great deal of distress." In her oral evidence, the mother alleged that E told her the father did this as a punishment. I note that the allegation that this was an act of punishment is not referenced in that correspondence or her witness statement. I have seen photographs of the hair which had been cut: two distinct chunks are missing. the mother took those photographs of E upon her arrival home from the father (which, as an aside, must have alerted E to the fact the mother took issue with the state of her hair.) I take the view, as KF did, that, on the balance of probabilities, E has cut her own hair and lied about doing so to her the mother. This is a child acutely aware of the acrimony and loathing between her parents' and I think it unsurprising when trying to evade the consequences of her own actions, she blamed the father to the mother I reject the mother's allegation that E said the father cut her hair as a punishment: it is not an allegation made contemporaneously or in her July 21 witness statement. I take the view the mother on the balance of probabilities has deliberately embroidered what E said, in an attempt to incriminate the father in these proceedings. The second limb of this allegation is that the father forced E to have her hair cut in June 2021 and that E was so distressed by this, she killed her pet chicken, S, by wringing its neck. It is accepted that, on the weekend before 21 June 2021, the father took E to have her hair cut. He says it was in poor condition and E and D went to a salon, with E's agreement, to have their hair cut. It is accepted that the father had not informed the mother he was intending to have E's hair cut nor had he agreed this course of action with her. The father says that E enjoyed the haircut, showed no signs of distress and up to and including her arrival at school was happy and content with her hair. He says that it was left long, still to her shoulders, and she was still able to style it, plait it and so on. The mother contends that E was "dragged" into the hairdresser by D, against her wishes, was distraught by her haircut, was sobbing at the child minders and that any upset on the mother's part was because of E's distress. She says that her parents reassured E about her haircut and none of her family showed any upset to E. Dr Downs deals with this issue in her report, and records what E says herself about it, beginning at E96. E says that D took her to the hairdressers and had E's hair cut because D thought it was too long (there is no mention of E being dragged into the salon or being distressed a the time.) At the bottom of E96, E says " she chopped all my hair off" – a mirror of the phrase the mother used on a number of occasions during her oral evidence. E goes onto say " her mother gave her "hair food to make it grow because it wasn't just me that was upset, Mummy was upset." I wondered what Nanny and Pops thought about it, to which E replied "They didn't like it either. They were upset, and [redacted] was upset." It's quite clear from E's own disclosures about this that the entire maternal family made their upset and distress about E's hair known to her – the mother, the grandparents and even her aunt. It is disgraceful that the maternal family are so emotionally incontinent as to be unable to conceal their ire about an action of the father 's to the extent that their 9 year old charge is so acutely aware of those feelings. I note that the mother has provided no evidence from anyone as to E's distress, despite saying it was witnessed by multiple third parties. I note that no evidence has been provided of distress at school and it is only once E is with her maternal family that she allegedly shows her distress. I note that E herself does not describe being dragged into the salon but is quite clear about the upset that the haircut caused the entire maternal family with the mother giving her " hair food" to encourage growth. It must have been absolutely apparent to E that the haircut her the father and D had arranged was unwelcome. It is little surprise that this traumatised and damaged child has now adopted the narrative perpetuated by the maternal family that the haircut was unwelcome. On the balance of probabilities, I find that that is only E's view because of the maternal families' manipulation of this incident. As to S the dead chicken: I confess that my knowledge of poultry husbandry is limited. However, what was striking was that the mother having recounted the killing of S by E as an extreme trauma reaction gave none of the detail around the hen house commotion, E's odd behaviour, E's tearful confession and so on in the correspondence at the time, nor in her witness statement. Without all of that detail, the mother's allegation at its highest is that E was cuddling her chicken and that later, that chicken died. I reject the mother's contention that E killed S as a trauma reaction to her haircut. I find that she has cynically capitalised on the natural death of E's hen in an effort to bolster her case, resisting transfer of residence to the father. I reject entirely the evidence given in cross-examination, and do not believe that E confessed to S's murder. Father deprives E of food often, especially when E talks about ponies The last allegation made by the mother is that the father deprives E of food Despite saying that this was a concern she had held for years, the mother conceded in cross-examination that she had never raised it until November 2022. There is no evidence to support this allegation save for E's rather vague assertions in police interview. the mother may disagree with the contents of the pack up the father gives E but that does not mean he deprives her of food. I reject this allegation and find that the mother has sought to use it to her advantage in these proceedings. I turn then the father 's allegations, both umbrella allegations if I can term them thus. Taking the second of those first, the father alleges that The Respondent Mother has made various false allegations to the police, either directly or via third parties, as well as coaching the child to make allegations of harm against the Applicant. This often has the impact of stopping contact and prohibiting the child's relationship with the Applicant. Self-evidently in light of the findings I have made above, this allegation is made out. I accept that the mother has either made up allegations or has exaggerated innocent events with the aim of undermining and prohibiting the father's relationship with E. The first of the father's allegations is that The Respondent Mother has sought to alienate the Applicant father from the child's life since separation. This has caused and is causing great emotional harm to the child It seems to me that I cannot make the finding for the breadth of time sought, because I have not determined events dating back to the point of separation. But it seems to me that I am able to determine whether the mother has sought to alienate E from the father from October 2020 onwards in light of the allegations that the mother has raised, and the findings that I have made from that date. In light of the findings I have made, I accept that the mother has deliberately sought to alienate E from the father by making the false allegations that I have found. Am I able to go further than that, on what is said in Dr Downs report as to E's attitude towards the mother, towards the father and towards D. It seems to me that I can. It is absolutely apparent that, on a number of occasions, E is parroting what the mother has said to her: notably, about the father leaving and taking all the money on separation, at E98 about "my mum and dad never got married so D and my dad are getting married… I told my Mum and she's feeling even angrier than I am cos I don't want a second Mum." There is reference to E saying "I don't want a Mum who's 29" – a 8-9 year old would have such limited knowledge of the significance of calendar ages. Anyone over early teens will seem like a grown up to her – I take the view this is clearly parroting of the mother's own views. She comments at E99 when asked what her grandparents thought about the father and D marrying: "she said they didn't want her to have another Mum because she'll be more bossy and more evil" It is right that the children of separated parents can feel conflicted when one parent gets a new partner, can struggle with their divided loyalties and have a complex relationship with their stepparent. But all of that is surmountable with good, child centred parenting and encouragement. Unfortunately, in this case, I see no evidence that the maternal family has done any such thing and, in respect of D, clear evidence that they have made their negativity about the father's marriage and wife absolutely apparent to E. Dr Downs report was clear that E is being harmed by the situation as it currently is. Neither parent challenged that aspect of her reporting -it was simply that each parent blamed the other. I accept Dr Down's conclusions that E is being harmed by the acrimony between her parents and the events of the last few years. In light of my findings about the mother falsifying and exaggerating allegations, I find that the mother is the primary cause of the harm to E – albeit I also that both parents have had a part to play in their acrimonious relationship, as set out, and both need to do better going forward. Welfare findings: Having made those findings, I turn to the parties positions: do I leave E in the mother's care or do I transfer her to the father? Section 1(3) of the Children Act 1989 is, as always, my guide in these matters and E's welfare my paramount consideration. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); If I asked E at the moment what she wanted, I think she would say she wanted to live with the mother. However, in line with my findings, I think that would be because of the harm the maternal family have done to her, in manipulating her and undermining her relationship with her the father. What I know E deserves, as all children do, is safe, happy contact with both of her parents. (b)his physical, emotional and educational needs; I am not told that E has any specific physical or educational needs above any average 9 year old girl. I do take the view that E's emotional needs are heightened as a result of the years of acrimony between her parents. E's primary carer will need to openly and consistently promote a relationship with the other parent and will need to give her emotional permission to love both of her parents and enjoy her time with them. (c)the likely effect on her of any change in her circumstances; I take the view that of the two proposals before me, the father's is undoubtedly the more disruptive in the short term. By transferring residence to the father, E will be uprooted from her established home with her the mother, her weekly contact with her maternal grandparents, the horses and animals that she loves so much. I do not consider imposing any of that lightly. However, my concern is that if that short term disruption is not endured, the longer term impact upon E's mental and emotional health of the current situation continuing will be catastrophic for E and would lead to lifelong problems. (d)her age, sex, background and any characteristics of hers which the court considers relevant; I am not told that E has any characteristics of particular note. (e)any harm which he has suffered or is at risk of suffering ; E has suffered grave and enduring emotional harm because of acrimony between her parents. I have made finding which lead me to the conclusion that the mother has actively sought to alienate E from her the father and has fabricated and exaggerated allegations to try and bring that about. However, I also note that the father has made, at times, his own contribution to that acrimony. Both of these parents need to do better and parent in a way that is child focused, as opposed to settling adult scores. The risk of the current harm continuing is, in my view, far greater if E remains with the mother than if she moves to live with the father and D. Whilst the father has not always covered himself in glory, there is evidence of he, and particularly D, allowing E the emotional freedom to talk openly and happily about the mother and I am persuaded that should the Court order it in due course, they will support and promote contact between E and the mother. I am afraid, in light of the findings I have made and the mother's clear lack of insight into the importance of a relationship between the father and child that I have no confidence whatsoever she can promote the non resident relationship. (f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; both parents, in my view, can meet E's basic care needs. In terms of her emotional needs, I do not think that the mother is currently capable of meeting E's need for a safe and promoted relationship with her the father. I do think that the father is capable of meeting E's need for a safe and promoted relationship with her the mother. (g)the range of powers available to the court under this Act in the proceedings in question. This is a case in which orders need to be made. So stepping back, considering all of the evidence in the round, the findings that I have made and applying the welfare checklist to the same, I accept the recommendations of Dr Downs and Ms Ibrahim E's Guardian. Accordingly, I am forced to the conclusion that E must move from the mother's primary care to the father's, in her best interests and to limit the effect of the harm that has been done to her, and would be in the future, if the current situation endured. I transfer E's residence with some sorrow – there will be inevitable distress to E in the short term and I regret that these parents have led the Court to such a pass. But I tell them both now that the onus is on them going forward to act in a child centred way around E and this transfer of residence. The Court will have little patience with Whatsapp spats and petty arguments going forward. Their focus must be on assisting E with this transition even if they don't agree with it and promoting E's relationship with the other parent. I would be grateful if the parties would now address their minds to the practicalities of matters going forward, and of the interim contact between E and her mother, and will give them some time to consider that. As promised, I have written a letter to E, to be shared with her by her Guardian. That letter reads as follows: Dear E, My name is Helen Trotter-Jackson and I am a Judge at Sheffield County Court. My job is to sort things out when adults can't agree on what is best for their children. Your Mum and Dad asked me to help them to do the best thing for you and so I have been talking to them for the last week about where you should live. They couldn't agree about that, sadly, and so I have now taken that decision for them, and for you. I have decided that you should live with your Dad and D. I know that you will be upset not to live with Mum and you will miss M the chicken, N the horse and all of your other animals. But I was just a bit worried that you weren't going to be allowed to spend enough time with Dad because of him and Mum's squabbling and so that is why you are moving to live with him. I have spoken to your parents about the arguing and told them that it needs to stop now and they have both promised me that it will. Whilst they are not currently very good friends, it was clear to me that they both love you very much and I hope that, in time, they will be better friends with each other. I can see that you are an excellent horse rider and Dad has told me that he has found stables for you near his house so that you can keep riding ponies. You mustn't worry about Mum – she is a grown up, and I have no doubt she will be OK. She will keep busy with the ponies at the yard and, once things have settled down, I am going to make some arrangements for you and her to meet up so that neither you or Mum spend too long apart. Don't forget she has lots of friends among her horsey friends and she has your Nanny and Pops nearby too. Dad has promised me that you will be able to speak to Mum on the phone over the next few weeks, before you see her in person. If you are worried about anything, talk to your teachers at your new school or talk to your Guardian, Nadira – she can then come and talk to me about things at the next Court hearing. Best of luck, Helen Trotter-Jackson I will send that to the advocates, so that the Guardian can then take that and explain it to E, when you see her and take her through that, with my thanks. End of Judgment BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII