S (Private Law: Fact Finding) (No.1), Re
[2024] EWFC 156 (B)
Enitan, Re
1 August 2024
[2024] EWFC 208 (B)
Family Court
Mom accused Dad of abusing her and their son. The judge listened to everyone and decided most of the accusations weren't true. The judge said one time Dad was a little rough with Mom, and that he spanked their son but not too hard. The judge also learned that Mom knew about a secret marriage they had in another country.
Key Facts
- •Father applied for contact with his five-year-old son, Enitan.
- •Allegations of domestic abuse, including physical and sexual abuse of the mother, physical abuse of Enitan, controlling and coercive behavior, emotional abuse, and financial abuse, were made by the mother.
- •A findings of fact hearing was held.
- •The father appeared in person with a Qualified Legal Representative; the mother was represented by counsel.
- •The court heard evidence from the mother, father, mother's mother, mother's eldest daughter, a close friend of the mother, and a friend/colleague of the father.
- •Allegations included failure to administer medication to Enitan, physical assault of Enitan with a slipper, rape and other sexual abuse of the mother, controlling behavior, emotional abuse, and financial abuse through non-payment of maintenance.
- •A purported proxy marriage in Nigeria was a key aspect of the case, impacting the credibility of both parties.
Legal Principles
The burden of proof lies on the person alleging a fact (here, the mother).
English family law
Facts are determined on the balance of probabilities.
English family law
Reasonable chastisement is lawful, but it cannot be immoderate or excessive and must not inflict grievous bodily harm, actual bodily harm, or constitute cruelty.
R v Hopley (1860), Children Act 2004, Offences Against the Person Act 1861, Children and Young Persons Act 1933, Serious Crime Act 2015
In Children Act 1989 cases, the welfare of the child is paramount.
Children Act 1989
Criminal law concepts are not always directly relevant in family law cases.
Re H-N [2021] EWCA Civ 448
Consensual sex can, depending on the facts, be abusive.
M v F [2024] EWHC 723 (Fam)
Definition of economic abuse under the Domestic Abuse Act 2021.
Domestic Abuse Act 2021, section 1(4)
English law recognizes the validity of proxy marriages if the local law does.
Dicey, Morris & Collins on the Conflict of Laws (16th Ed, 2023)
Outcomes
Allegations of failure to protect/care for Enitan: Not proven.
Insufficient evidence to prove father failed to administer medication or that absences from nursery were his fault. Car seat issue was deemed minor.
Allegations of physical abuse of Enitan: Not proven (reasonable chastisement).
Three instances of smacking Enitan with a slipper constituted reasonable chastisement under English law.
Allegations of physical abuse of mother: Proven (one incident).
Father pulled mother's hair and she hit her head, but the court found it to be low-level abuse with shared responsibility.
Allegations of sexual abuse of mother: Not proven.
Court did not accept the mother's evidence of rape, finding her initial statements to the police and a friend inconsistent with her later claim.
Allegations of controlling and coercive behavior: Not proven.
Evidence did not support the allegations beyond typical relationship breakdown issues.
Allegations of emotional abuse: Not proven.
Court found insufficient evidence to support the allegations beyond the context of a deteriorating relationship.
Allegations of financial abuse: Not proven.
Non-payment of maintenance did not meet the definition of economic abuse under the Domestic Abuse Act 2021.
Proxy marriage: Proven (mother knowingly consented).
Court found the evidence sufficient to prove the mother knew about and consented to the proxy marriage.