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Stop Press : Sara Chalk reported in Re S (A Child) & L (A Child) [2024] EWFC 108 (B) – The Importance of Substantiating Evidence and Patterns of Controlling and Coercive Behaviour

No.18 Chamber’s Sara Chalk represented the Children via their 16.4 Guardian in HHJ Levey’s reported Family Court Fact-Finding Judgment from the hearing taking place on 9, 10 and 11 January 2024.

HHJ Levey’s judgment finds that both parents exposed the children to harmful conflict and failed to shield the children from their acrimony. The father (F) was found to be controlling, coercive, emotionally abusive including during the course of the proceedings, and focused on proving the mother's (M) alleged harm rather than considering the children's welfare.

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This case highlights 3 important factors:

  1. That family practitioners are regularly required to assist Litigants in Person and undertake case management in order for proceedings to function effectively;
  1. Without evidence parties are unlikely to prove any or any substantial allegations in a Fact-Finding Hearing (FFH) and instead run the risk of findings that they did not act protectively, general findings they were also involved in arguments, and that they have lost sight of the children’s best interest; and
  1. That parents frequently, as in this case, fail to comprehend “the effect of the toxic nature of their relationship upon the children and to protect the children from that”. The children’s welfare is the court’s paramount concern yet all too often parents are instead distracted by defending themselves or proving their truth.

Relationship Background

The F and the M met in 2013, started their relationship in 2014, and the F then moved in with the M and her 2 older children. The F was a local church pastor. The M took her sister, H, to the F’s bible study group wherein the H told the M she had feelings for the F. The F later asked the M if he could have a relationship with them both. The M ended their relationship. The parties had an on-again off-again relationship which produced 2 children, S and L, born roughly a year apart.

Throughout their relationship several allegations were made. The mother alleged the F assaulted her in 2015 and 2018 but only reported the 2015 assault whilst reporting the 2018 assault to the police. Neither were prosecuted.

The F moved back in with the M during March 2020. He was purportedly very concerned over the Pandemic. He left again in April 2020, making numerous unevidenced reports to Social Services and the Police in June 2020 that the M was abusing the children. No further action was taken.

Procedural Background

The F brought proceedings in July 2021 for a Child Arrangements Order Spends Time With regarding the parties two children, S and L, who lived with the M. The F subsequently sought a Lives With Order but never made a formal application. The Court deemed an Oral application to have been made. The FHDRA took place on 25 August 2021. DJ Britton ordered a s37 assessment at the subsequent hearing on 5 January 2022 which resulted in no intervention from Hampshire County Council as there were no concerns regarding the care being afforded to the children to the M and none of F’s allegations had been substantiated. The Section 37 report raised significant concerns as to emotional harm from the F due to him exposing the children to his negative views of the M, questioning the children inappropriately and exposing the children to conflict. A recommendation was made for there to be supervised contact between the F and children.

The FFH listed on 9 March 2022 was vacated as neither party had filed the evidence they had been ordered to. Due to the acrimony between the parents, the court joined the children to the proceedings and appointed a 16.4 Guardian, Ms Georgia Mills, to represent them. Sara Chalk was instructed to represent the Children at the FFH. The F was in person, and the M was represented by Ms Matthews.

Following Sara’s assistance, the Schedules of Allegations were approved by the Court on 3 November 2023. HHJ Levey praised Sara for the level of assistance she provided to the court in ensuring that the FFH on 9, 10, and 11 January 2024 could be effective following three previous adjournments. HHJ Levey stated:

“I am grateful to the solicitor and counsel instructed on behalf of the children who have assisted the court and indeed the parties since that appointment. Almost all of the preparation has been undertaken by the children's representatives, without whom, I suspect, the court would have been in difficulty in conducting the fact-finding hearing…

…The parties required assistance from the children's representatives in order to formulate their allegations against each other.”

“…I directed the father to provide a list of written questions to the court and to the solicitors for the children…with the assistance of Ms Chalk on behalf of the children…she put the questions to the mother at the hearing.”

“the father produced a large number of video and audio recordings which were chaotic in form and were not clearly identified or numbered…I was grateful for assistance from Ms Chalk who had indicated in her opening note information and a summary of the material in the videos which were before the court.”

This significant assistance, including galvanising the inquisitorial process by helping the parties coherently set out their allegations, ensured the factual side of proceedings could conclude. HHJ described this delay and the previous evidential position as an “unacceptable state of affairs”.

The process of preparing for the FFH was repeatedly frustrated by the F frequently, including during the FFH, producing extensive and incoherently organised documents and audio and video recordings without the court’s permission. This emphasises how barristers can meet their duty to the court by assisting struggling Litigants in Person. Counsel can help Litigants in Person express themselves so they provide the requisite information for the court to make welfare determinations. These are, after all, inquisitorial not adversarial proceedings.

HHJ’s Levey’s Conclusions

HHJ Levey took a holistic approach to the findings, considering not just the specific allegations but the wider picture of the parties’ relationship. HHJ found that the M in her evidence showed some insight into her view of proceedings as defending herself against the F rather than acting in the Children’s best interests. HHJ found that the F had no such insight on the impact of proceedings on the C.

“he intended to prove the truth as he saw it, which took the form of his various allegations against the mother…His focus was entirely on the pursuit of his allegations against the mother, seeking to prove that she was, as he put it, evil or crazy, using his words”

The F “spent the whole of the proceedings being abusive towards the M” including writing in court documents that she was “evil” and “an abuser” and could not admit that she loved the children but instead considered that she tortured them. HHJ “pointed out to him that he was using the proceedings as a way of abusing her, calling her names whenever he can, both in hearings and in his written material”. The J found that the F had pursued a campaign of coercive & controlling behaviour against the M.

The F, in his own covert recordings, could be heard on videocalls to the children repeatedly commenting either to abuse the M or persuade the children that the M had hurt them such as repeating ‘is Mummy hurting you’ until S agreed. HHJ considered that the F had acted in a manner that was “emotionally abusive and calculated to alienate the children”. His behaviour was “controlling towards the mother and emotionally abusive towards the children”. The F appeared to be more focused on proving the M’s alleged harm than the children's welfare.

Regarding the specific allegations, HHJ’s findings largely reflected the agreed ground between the parties as there was no, or little, independent corroborating evidence. For example, both the F and the M alleged abuse towards a different 3rd party by the other yet no 3rd parties were called as witnesses, no statements were provided, no medical evidence seen and many incidents were not reported to the police. One man the M only knew by first name and when pressed could not recount his surname. Regarding one incident the F produced a photograph of a man with no identifying information. HHJ therefore had insufficient evidence to make these findings.

Similarly, regarding the assaults alleged by the M in December 2015 and December 2018 there was insufficient evidence to go beyond what was accepted. In the 2015 incident it was found that both parents engaged in a physical struggle leading to the M being pushed to the floor but there was insufficient evidence to substantiate the M’s claim she was punched unconscious. There was no medical report. The M had only reported this incident in 2018 and told the police it occurred in 2016.  Again, an argument was found to have occurred in December 2018, with inappropriate shouting in front of the children, but there was no evidence to suggest the F had grabbed the M by the shoulders and shaken her.

Concerningly, what was evident was that neither parent expressed concern or appreciation of the impact either incident had on the children. Neither parent was alert to the emotional impact their regular arguments had on the children.

Regarding the F’s allegations against the M (including assault, deliberately giving S COVID-19, and using heroin) these too lacked any supporting evidence and no positive findings were made save for the M accepting that she had thrown bread at the F in front of the children which was emotionally harmful. So spurious were the nature of the F’s allegations that HHJ instead found in relation to an allegation that the M had burned S’s eye that F “appears to have made no real effort to investigate this allegation (as with others) but has simply made the allegation in an effort to weaken the mother's position and cause her distress.”

Conclusion

This case emphasises that where there is already substantial acrimony between parents the adversarial nature of a FFH can underscore that and regresses their ability to rebuild their co-parenting relationship. In such cases, as here, Fact-Finding instead appears to demonstrate that when trying to prove their case the parties lose sight of the children’s welfare.

For the full case report  go to https://www.bailii.org/ew/cases/EWFC/OJ/2024/108.html