Court Rules on Cross Allegations of Harmful Behaviour in Custody Dispute

Citation: [2023] EWFC 272 (B)
Judgment on

Introduction

The case [2023] EWFC 272 (B) before the Nottingham Family Court, adjudicated by His Honour Judge Reece, examines cross allegations of harmful behaviour by parents towards their child, D, and towards each other. The legal debate hinged on determining the veracity of allegations made by each parent and deciding on the appropriate custodial and contact arrangements for the child’s welfare.

Key Facts

The young girl, D, is at the centre of a dispute following the separation of her parents, B and C. Videos of the mother, C, physically chastising D led to 18 months of private law proceedings under the Children Act 1989. D currently resides with her father, B, with supervised contact with C. During the hearing, both parents accused each other of harmful behaviour, including physical violence and controlling behaviour.

Counsellors Mr Andrew Duncan (for B) and Mr Gary Peake (for C) represented the conflicting interests of the parents. A schedule of allegations was submitted by each party, with B’s focusing on physical chastisement by C, and C’s encompassing accusations of physical, sexual, and controlling abuse by B.

The court applied several legal principles to this complex case:

  1. Paramountcy of Child’s Welfare: Central to the court’s analysis was the welfare of the child, guided by the Children Act 1989’s welfare checklist. The child’s interests were deemed paramount over any concerns of the parents.

  2. Standard of Proof: The court adopted the civil standard of proof, “the balance of probabilities,” in determining the credibility of the allegations made by each parent.

  3. Credibility of Witnesses: Credibility assessments, based on the guidelines from R v Lucas [1981] QB 720, were essential in mitigating conflicting testimonies. The presence of lies in one aspect does not imply a witness is lying about all aspects.

  4. Section 91(14) Orders: The consideration of a section 91(14) Children Act 1989 order was entertained to potentially restrict further applications by C. However, the court chose not to impose such an order but reserved any future applications concerning D to HHJ Reece.

  5. Consideration of Evidence: The court thoroughly examined a multitude of evidence, including video recordings, witness testimony, schedules of allegations, and closing submissions.

Quotations from relevant caselaw, such as A Local Authority v F and Others [2022] EWFC 127 and Re A (A Child) (Supervised Contact) Section 91(14)) Children Act 1989 Orders) [2021] EWCA Civ 174, provided jurisprudential precedent for the application of legal principles in analogous contexts.

Outcomes

The court found C’s actions, evidenced by video, to constitute inappropriate and harmful physical chastisement of D. B’s allegations against C were therefore upheld. Conversely, C’s allegations against B were not proven to the requisite standard, with HHJ Reece noting inconsistencies, incredibility within the testimony, and an underlying dishonesty in the case presented by C.

Consequently, custody of D remains with her father, B, with the court finding no basis for a change in the existing arrangement. Supervised contact between C and D is to continue, with the prospect of reviewing the level of supervision in the future.

The non-molestation order against B was discharged, and the court declined to continue a prohibited steps order limiting B’s travel with D.

Conclusion

In [2023] EWFC 272 (B), HHJ Reece navigated a complex emotional and evidentiary landscape to protect a young girl’s welfare. Applying the balance of probabilities standard, the judge reconciled conflicting evidence to establish the truth of the parents’ allegations, consistently prioritising the child’s best interests. While considering the need for and type of contact between C and D, the judgment underscores the necessity of the court’s role in fact-finding and child welfare decision-making. The resolution underscored the need for accuracy, restraint, and a forward-looking approach to family disputes within the legal framework of the Children Act 1989.

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