M v F (Fact Finding Hearing)

DISTRICT JUDGE DODSWORTH: Introduction and preliminary comments

1. This judgment arises from a fact-finding hearing in Children Act 1989 proceedings. The findings will also inform whether a non-molestation order in favour of the mother against the father should continue.

2. The proceedings concern a young boy, C, who was born in 2022 and who is, therefore, just over 3 years old.

3. The child’s parents are M (“the mother”) and F (“the father”). The parents are and were married at the time of the child’s birth and, therefore, both parents hold parental responsibility for him. The parents have separated, and the child currently lives with his mother.

4. On 6 May 2025, the mother commenced Children Act 1989 proceedings. As I have already noted there are non-molestation order proceedings under Part IV of the Family Law Act 1996 that have run in parallel with the Children Act 1989 proceedings. Insofar as the procedural history to the proceedings is relevant to the judgment, it is as follows. Non-molestation, specific issues and prohibited steps orders were made in favour of the mother on 7 May 2025. On 23 June 2024 DJ Falzon directed a fact finding hearing as both parties were making allegations of domestic abuse against the other which were disputed. The fact finding hearing was listed to commence on 20 October 2025, but this hearing was adjourned on the mother’s application and relisted to commence on 6 January 2026. The mother again applied to adjourn that hearing, but this application was refused by DJ Gribble on 20 November 2025.

5. The fact-finding hearing came before me on 6, 7, 8 and 9 January 2026. I reserved judgment until today.

6. Both parties were represented at the fact finding hearing. The mother was represented by her Solicitor-Advocate Mr Harjot Singh of Twinwood Law Practice Limited. The father was represented by Mr Avaia Williams of counsel instructed by MSD Solicitors. I make clear for reasons that will become apparent later in this judgment that Mr Singh and his firm have been instructed relatively late in the proceedings and were not the mother’s solicitors when her evidence was prepared. All parties attended the hearing in person and special measures in the form of screens and separate entrances and waiting areas were made available to enable the parties to give their best evidence.

7. A bundle was prepared for the hearing. The material before me included the applications and orders made in the case; the composite Scott Schedule of allegations; witness statements from the mother and the father and other witnesses, Cafcass documents and a number of other miscellaneous papers. Two video clips of an incident also formed part of the bundle.

8. The bundle was pre-read prior to the commencement of the hearing. All the material was considered when coming to this judgment. This judgment cannot refer to each piece of evidence and refers to the most important evidence in relation to each allegation. The law relating to fact finding hearings

9. The law applicable to fact finding hearings has been authoritatively stated by Cobb J (as he then was) in the case of BY v BX [2022] EWHC 108 (Fam) at [24] to [28]: “ General principles of law

24. I have considered the allegations of ‘domestic abuse’ in this case by reference to the definition contained in §3 of PD12J FPR 2010 , namely: ‘domestic abuse’ includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse, and transnational marriage abandonment; ‘coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; ‘controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

25. While not concerned with the criminal implications of either parties’ conduct here I observe that controlling and coercive behaviour has been a criminal offence since 2015 ( section 76 of the ) and I have reminded myself that the ingredients of the offence were recently discussed in the judgments following the appeal in the case of Serious Crime Act 2015 R v Chilvers [2001] EWCA Crim 1311 .

26. I distil the principles below on which I determine the issues in the case as follows: i) The burden of proof lies, throughout, with the person making the allegation. In this case, both the mother and the father make allegations (in some respects overlapping) against each other on which they seek adjudications; ii) 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 the battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication; iii) It is not for either parent to prove a negative; there is no ‘pseudo-burden’ on either to establish the probability of explanations for matters which raise suspicion; iv) The standard of proof is the civil standard – the balance of probabilities. The law operates a binary system, so if a fact is shown to be more likely than not to have happened, then it happened, and if it is shown not to cross that threshold, then it is treated as not having happened; this principle must be applied, it is reasonably said, with ‘common sense’; v) Sometimes the burden of proof will come to the judge’s rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lies without needing to rely upon the burden of proof; vi) 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’; vii) Findings of fact in these cases 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”; viii) The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence. I must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the person making the allegation has been made out to the appropriate standard of proof; ix) The evidence of the parties themselves is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability; x) It is, of course, not uncommon for witnesses to tell lies in the course of a fact-finding investigation and a court hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. I am conscious that the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720 ); I have borne firmly in mind what Lord Lane CJ said in Lucas , namely that: “To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.” xi) That my function in resolving disputes of fact in the family court is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal made clear in Re R [2018] EWCA Civ 198 : “The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established” ([62] Re R ). A point which I myself considered in F v M [2019] EWHC 3177 in a judgment which was referenced with approval in Re H-N (see §69/70). xii) At all times, I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010 .

27. Counsel rightly pointed me to the relevant sections of the Court of Appeal’s decision in Re H-N , in particular that: “… there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J)” (§25). They further referred me to the decision of Poole J in Re JK (A child) [2021] EWHC 1367 (Fam ) , and the decision of Hayden J in F v M [2021] EWFC 4 . While those judgments are of real interest, I see no benefit to the parties here in reproducing large sections of those judgments herein.

28. I was further reminded of Peter Jackson LJ’s comments in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121(§61), cited with approval in Re H-N at §32 to the general effect that: “… not all directive, assertive, stubborn, or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.”

10. I agree with and adopt that statement of the law and would add only one further point. I must bear in mind the observations of Macur LJ in the case of Re M (Children) [2013] EWCA Civ 1147 , where she said: “12. ... It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

11. I make clear that my assessment of the parents has not been based solely upon their performance in the witness box, nor their behaviour within the courtroom. The nature of the allegations

12. The mother sought to prove serious allegations which fall under the headings: sexual coercion, conditional consent rape, physical abuse, coercive and controlling behaviour. The father’s allegations are in effect a mirror of the mother’s allegations as he accuses the mother of making false allegations of domestic abuse. The witnesses

13. The mother gave evidence and called a number of witnesses to support her case: her brother, her sister, her mother and AS who was a neighbour and principally gave evidence about an incident that took place in the street and was said to demonstrate the father’s propensity for violent behaviour. The father gave evidence and did not call any supporting witnesses. As the trial judge I have the opportunity to observe all the witnesses giving their evidence and, just as importantly, to observe the parents as the other gave evidence. I do however repeat that my assessment of the parents is not simply based on their demeanour. The Mother

14. The mother adopted her written statements and schedule of allegations at the start of her evidence.

15. The mother accepted that she had suffered from mental health difficulties in the past including depression, post-natal depression and anxiety. She did not accept that she had issues with emotional dysregulation but considered her reactions to things that had happened in her relationship with the father were normal reactions after a build up of things rather than her lashing out at him. (1) Sexual coercion

16. In relation to her allegation that she had been sexually coerced, the mother accepted that the parties had a long distance relationship for some time as they were living in different countries for periods of time. The relationship was conducted primarily by video calls which both parties would initiate and which included sexual communication and involved the parties displaying themselves in various states of undress and engaging in masturbation.

17. The mother explained that in Islam it was important to maintain intimacy in a marriage and she was trying to do that. She explained that sexting was fine and so was appearing in lingerie but that she had objected to what she described as video sex – nudity, thrusting and masturbating on camera – and was uncomfortable with that.

18. The mother was taken by Mr Williams to a considerable number of text exchanges in which she appeared to be engaging willingly and enthusiastically in these sexual communications. The mother repeated that she had boundaries that she felt coerced into crossing. The mother was also taken to a number of text exchanges from which it is clear she had some doubts as to whether what they were doing was compatible with her Islamic beliefs. (2) Conditional consent rape

19. The mother’s allegation of conditional consent rape was that on one occasion the father had ejaculated inside the mother without her consent during otherwise consensual sexual intercourse. The mother explained that the parties had used the withdrawal method of conception but had also used condoms on occasions. She accepted that she preferred if the father ejaculated inside her if he was wearing a condom.

20. The mother denied that the couple were planning to have a child at the time and that she had lied about being raped. She maintained that she had reported this to the police although accepted that there was no police material in the bundle. (3) Physical abuse

21. The mother alleges that the father was physically abusive towards her on two occasions. She stated that he punched her in either January or February 2019 but was unable to be certain when or to give any context to the allegation other than to be certain she had flown across the room. She also alleged that in March 2019 he held her up against a wall after a dispute about him spending too much time on his mobile phone. She demonstrated being lifted up by the father’s left [non dominant] arm from the witness box.

22. The mother also alleges that on one occasion the father hurt the child by holding him very firmly when changing a nappy and then shaking him. The mother accepted that she had taken no safeguarding action as a result of this incident but denied that she was making up the incidents of physical abuse to paint a picture of the father as an abusive man. (4) Controlling and coercive behaviour

23. The main thrust of this allegation was that the father was not allowing the mother to obtain a divorce under English, Pakistani or Islamic law. The mother was cross-examined as to why she had taken no steps to obtain a divorce after the relationship ended but had no clear answer to that question. She denied that she was simply making threats to obtain a divorce to attempt to control the father.

24. The mother accepted that she had let the father take the child to Pakistan after they separated and denied that she had failed to comply with court orders relating to contact for a number of months during the court proceedings in an attempt to alienate the father. Maternal Uncle (MU)

25. MU was a somewhat difficult witness. He clearly wished to joust with Mr Williams when being cross-examined and gave the impression of being more interested in scoring points than answering the questions put to him. He had to be refocused on more than one occasion and appeared to be a partisan witness.

26. MU also made clear that he had used artificial intelligence (AI) to prepare his statement. Despite being asked in detail about this I remain unclear precisely how MU’s statement was prepared. MU was clear that the mother’s solicitor, who he knew as Katie, had played a minimal role in its preparation. But I have real concerns as to whether the statement submitted was MU’s independent recollection of events which means I need to be extremely careful in placing any reliance on it.

27. In any event I did not find MU’s evidence of much assistance in resolving where the truth lies. His evidence was largely relevant to the allegation that the father had used controlling and coercive behaviour against the mother. The thrust of MU’s evidence was that he had discussed the marital problems that the father and mother plainly had with them both. That is not unusual in the culture which they came from as he accepted; he readily accepted that he felt an obligation to provide counselling particularly as the father had no other family in the United Kingdom. Maternal Aunt (MA) & Maternal Grandmother (MGM)

28. MA is the mother’s younger sister. MGM is the mother’s own mother.

29. Both gave statements setting out an account of their experience of the father. Both were asked how they had prepared their statements which refer to a number of common events. MA readily accepted that she had discussed her statement with her mother before preparing whereas her mother flatly denied that any conversation had taken place. Both witnesses plainly cannot be telling the truth about whether there had been a discussion. Again, the solicitor acting for the mother at the time appears to have played very little part in the preparation of the statements.

30. In the event I do not think that much turns on whether or not there was a discussion as both statements are largely impressionistic and do not provide a great deal of detail in relation to the allegations. AS

31. I now turn to AS’s evidence. Her statement principally deals with an incident that took place in mid-2021. The incident involves a heated argument that took place on the street. The catalyst for the argument was that the mother had had a minor collision with AS’s car whilst parking but had not acknowledged this or accepted responsibility for it. AS exhibited a video clip to her statement which was about 20 seconds long and is itself a recording made on a mobile telephone of footage from a CCTV camera.

32. AS’s statement was signed on 18 August 2025 with a statement of truth. Her statement contains a number of detailed quotes setting out what she says the father said during the incident and the short video clip exhibited by her does show the father advance towards her.

33. AS was affirmed in the usual way before giving evidence and confirmed in cross-examination that she understood what a statement of truth meant and the nature of the affirmation.

34. Unfortunately for AS the father exhibited CCTV footage with sound of the incident. His footage ran to around 11 minutes and enables one to get a much fuller picture of the incident.

35. When cross-examined about obvious errors in her account, such as stating the mother was present during the incident when she was not, or that the mother had shaved her hair off when she had not, AS became defensive and continued to maintain her statement was accurate and that she had no reason to lie.

36. AS was shown the full 11 minute video clip of the incident. When faced with this she had no option but to accept in cross-examination that she had lied in her statement. The quotes that she attributed to the father were fictitious. Her only explanation for lying was that she was supporting the “girls’ club”. AS did however maintain when re-examined that she had not lied.

37. AS also gave evidence that she heard the mother and father arguing through the wall on an almost daily basis.

38. AS was asked how her statement had been prepared as during the course of her evidence it became apparent that she had some difficulty reading her statement. She accepted that she did have some difficulty reading and had read the final version of her statement “to the best of [her] ability”. It had not been read to her by the mother’s then solicitor, someone called Katie. Katie had also made changes to the statement from the original version prepared by AS.

39. Although I accept that the way the statement was prepared was not what I would expect from a solicitor it does not excuse AS’s conduct. She lied to the court in her written statement and maintained those lies until faced with the video evidence which proved she was lying. On any fair viewing of the incident in the street, it is AS who is the aggressor and instigated it. Whatever she felt about having her car bumped by the mother, her behaviour was unacceptable. To the extent that the father moved towards AS and her mother in the short video clip AS exhibits it is not supportive of a finding that the father has a propensity to violence.

40. I am, sadly, forced to conclude that AS is not a witness of truth and that I should place no weight at all on her statement and oral evidence. The Father

41. The father adopted his written statements at the start of his evidence. (1) Sexual coercion

42. The father was very clear that the mother had actively participated in the video calls. He accepted that he and the mother had differing views on what was compatible with their religion, and that at times the mother had been somewhat confused about the boundaries of acceptable behaviour, but that she had never been coerced into any activity including masturbating whilst on calls. (2) Conditional consent rape

43. The father generally agreed with much of the mother’s evidence in relation to this allegation – in particular that they had used the withdrawal method of contraception and had used condoms on occasions.

44. The father did not accept that he had ejaculated inside the mother without her consent. He was clear that the mother had asked to spice things up by him ejaculating inside her as she was on part of her menstrual cycle that meant she could not get pregnant He denied that this had happened when he was lying heavily on top of her: his account was that the mother was in fact sitting on him at that point. (3) Physical abuse

45. The father was clear that he had never assaulted the mother. He accepted they had play fights on occasions.

46. When shown the full video of the incident in the street, the father accepted that his behaviour in shouting and being somewhat aggressive in front of a child had not been acceptable. (4) Controlling and coercive behaviour

47. The father accepted that he had contacted MU on occasions and had discussed cutting the mother off from her family. He considered these to be emotional rants rather than serious suggestions and thought his brother-in-law would also have been clear that was the case. He maintained that his brother-in-law had asked him to contact him if there were problems so that he could assist in calming the mother down.

48. The father was also clear that he had not stopped the mother from seeking a divorce or tried to put religious pressure on her to remain within the marriage. Findings in relation to the allegations

49. My findings are informed by my impressions of the witnesses, particularly the mother and father.

50. The father struck me as a very straightforward witness. He was at pains when giving his evidence not to cause the mother any unnecessary embarrassment and this was reflected in the way that Mr Williams had been instructed to put his case. The father’s evidence was to the point (although he was plainly reluctant to discuss the sexual aspects of his relationship with his wife) and very largely consistent with the documentary evidence (largely text messages) before me. The father comes across as a man who simply wishes to have a relationship with his son.

51. In contrast there are real issues in the way the evidence the mother relies upon has been produced. Whilst the use of AI and inappropriate conversations between witnesses might not be laid at the mother’s door, it remains the case that she called AS as a witness of truth. The mother must have known that AS’s statement was false as she had access to the full video clip of the incident.

52. I was also concerned by the lack of precision in many of the mother’s answers when she was cross-examined. The mother’s position seemed to shift when taken to documents that were inconsistent with her allegations. I have, regrettably, come to the conclusion that she has lied about certain matters including whether she or the child suffered and physical abuse. I have, of course, given myself a Lucas direction in relation to the mother.

53. I turn now to my findings in relation to the four allegations. (1) Sexual coercion

54. In relation to this allegation, I unhesitatingly prefer the father’s evidence that all activity was consensual over the mother’s evidence that she was coerced into it. This is entirely consistent with the text messages exchanged between the parents. Indeed, when one reads the messages in their entirety it is difficult to be in any doubt that the mother was willingly participating in the exchanges and on some occasions telling the father what she wanted him to do and what she found a sexual turn on.

55. I accept that the mother had some doubts as to whether what she was doing was compatible with her faith and where the boundaries of what was permissible within her faith could be found. These doubts, however, fall far short of demonstrating that the mother was coerced in any way into engaging in this behaviour. Similarly, if the mother now regrets or is embarrassed by engaging in this behaviour, that does not demonstrate any element of coercion by the father.

56. My conclusion in relation to this allegation is that the mother has lied about this allegation and it is not just not proven, but false. (2) Conditional consent rape

57. In relation to this allegation, I again prefer the father’s evidence that all sexual activity was consensual and that in particular the mother had consented to the father ejaculating insider her: indeed, that she had asked for this to happen. I reject the mother’s account of the incident and note that when she became pregnant, she prepared an elaborate video message to her family telling them that she and the father were having a child. Regrettably I have concluded that the mother has also lied about this incident.

58. Again, my conclusion in relation to this allegation is that it is not just not proven, but false. (3) Physical abuse

59. Again, in relation to this allegation, I prefer the father’s evidence that he has never assaulted the mother or the child over the mother’s evidence.

60. The mother’s evidence in relation to being pushed up against the wall in March 2019 was not credible. She clearly demonstrated being lifted by the father’s non dominant hand but was unable to recall many other details of the incident.

61. The mother’s account of being flung across the room was also implausible.

62. Neither allegation of assault appears to have been made to any independent party such as the police, the mother’s General Practitioner or to social services.

63. Similarly, the allegation in relation to the child was not reported to any independent party. The mother’s failure to report the incident, if it was true, would itself raise safeguarding concerns about her.

64. I am driven to the conclusion that the mother has lied about being a victim of physical abuse and about the child suffering any physical abuse.

65. For the reasons I have already set out AS’s evidence does not demonstrate any general propensity to violent behaviour by the father.

66. My conclusion is that these allegations are also false. (4) Controlling and coercive behaviour

67. The mother’s allegations that she suffered controlling and coercive behaviour were founded to a large degree in her complaints about the father’s refusal to grant her a divorce. But the mother accepts that she has taken no steps to obtain a divorce even after the relationship ended. This undermines her claims of control and coercion and support the father’s account that the mother simply used the threat of a divorce to control him.

68. Other matters that the mother complained about, such as the father not calling her on time, would not of themselves, even if true amount controlling or coercive behaviour.

69. I do not find this allegation proved. Prohibited steps order

70. The prohibited steps order made on 7 May 2025 which prohibits the father from removing the child from the mother’s care save for agreed or ordered contact and from the United Kingdom was made without an end date. In the light of my findings, it will be discharged with immediate effect. There is no basis to continue it when I have not found any behaviour by the father which would justify its retention in place. Specific issue order

71. There is an order in place that the father’s solicitors should hold the child’s passport until further order. That order will be discharged as there is no proper basis to continue it. The solicitors may return the child’s passport to the father. I do not consider that it is necessary to make any other order in relation to the passport. Non-molestation order

72. The non-molestation order made on 7 May 2025 is due to expire on 7 May 2026. In the light of my findings, it will be discharged with immediate effect. There is no basis to continue it when I have not found any behaviour by the father which would constitute molestation. Next steps

73. I do not doubt that both parents love the child and want what is best for him. The court can now move on to the welfare aspect of this case as there is a factual basis from which to make decisions even if that is not one with which the mother may agree or find easy to accept. To be clear, the factual basis which I have determined is the one which Cafcass will work from and from which further decisions about the child’s welfare will be made.

74. It is clear from the findings that I have made that there is no safeguarding reason why the child should not be spending unsupervised time with his father.

75. I anticipate that the next step in the case will be for Cafcass to prepare a report under section 7 of the Children Act 1989 making recommendations as to: 75.1. whether the child should be joined as a party to the proceedings; 75.2. what time should he spend with his father; 75.3. how the child’s relationship with his father may be strengthened; 75.4. how capable each parent is of meeting the child's needs, particularly his emotional needs; 75.5. how capable each parent is of promoting the child’s relationship with the other parent and wider maternal/paternal family; and 75.6. whether an order under section 91(14) of the Children Act 1989 should be made to restrict further applications by the mother for orders as to with whom the child should live or to what time he should spend with his mother.

76. The list of issues for Cafcass to address may not be exhaustive. Both parents may have additional issues that they would wish to have addressed in a report. They can address me on that.

77. I also intend to list a dispute resolution appointment after receipt of the Cafcass report and a final hearing. Listing the final hearing today will enable the earliest possible conclusion of these proceedings. If, after receipt of the Cafcass report, the parties are able to agree arrangements for the child then the final hearing can be vacated. Matters such as the date for filing statements for the final hearing can be addressed at the dispute resolution appointment.

78. That is the judgment of the court.