BY v BX

When determining allegations of domestic abuse, the family court should assess the evidence holistically. Incidents should be considered in clusters reflecting different forms of alleged abuse, with attention to their cumulative effect and any wider pattern of coercive or controlling behaviour.

Directive, assertive, stubborn or selfish behaviour is not necessarily abuse. Its intention and harmful impact are material. A vulnerable person’s continued attachment to a relationship, later consensual intimacy or delayed complaint may be consistent with abuse and should not, without more, undermine the allegation.

Findings must rest on evidence and proper inferences, applying the balance of probabilities. A witness’s lie on one matter does not justify rejecting the whole of that witness’s evidence.

Following the conjoined appeals reported as Re H-N [2021] EWCA Civ 448, private-law children proceedings concerning one child were remitted to the High Court. Keehan J subsequently directed that the welfare decisions required under the Children Act 1989 should be underpinned by findings of fact.

At a five-day hearing, each parent alleged that the other had engaged in domestic abuse, including coercive and controlling behaviour. The mother additionally alleged emotional, physical, financial and sexual abuse. The father alleged verbal and physical abuse and the use of child contact as a means of control.

The central issue was whether the evidence, viewed holistically rather than as isolated allegations, established patterns of domestic abuse on the balance of probabilities.

1. Findings of domestic abuse were made against the father. The evidence established a substantial power imbalance. He exploited the mother’s youth, naivety and vulnerability, manipulated her, isolated her, used her property and money, and caused her to experience fear, anxiety and confusion. His conduct went beyond behaviour that was merely directive, assertive, stubborn or selfish. It caused severe anxiety, depression and trauma.

2. The father’s repeated assertion that the mother had bipolar disorder, despite the absence of clear medical support, was an insidious form of emotional abuse. It was designed to undermine her confidence in her mental health and to portray her to others as unstable and unreliable.

3. On occasions the father forced sexual intercourse upon the mother without caring whether she consented. He initiated physically abusive sexual activity for his own gratification, which was probably non-consensual, and expected oral sex despite knowing that she did not enjoy it. Her vulnerability, desire to preserve the relationship, delayed complaint, inaccurate chronology and continued intimacy did not negate those findings.

4. The mother had also behaved badly. When intoxicated, she had been physically abusive towards the father and had once threatened him with a knife. She had used the father’s relationship with the child as a means of control. The court nevertheless rejected the contention that these matters disproved the father’s abuse. The incident involving the knife was a mutually abusive and chaotic episode rather than domestic abuse committed by the mother alone.

5. The court assessed the incidents as parts of wider clusters and patterns, rather than as free-standing allegations. The father’s workplace disciplinary findings were not determinative, but supported the conclusion that he had a history of inappropriate attitudes towards vulnerable females and of crossing personal boundaries.

6. Further evidence and submissions were required concerning the effect of the established abuse upon the mother and child and the orders needed for their future protection and welfare.

1. High Court (Family Division): Following remittal, determined the parents’ cross-allegations of domestic abuse and directed that further evidence and submissions would be required before welfare and protective orders were made.
2. Court of Appeal: In the conjoined appeals reported as Re H-N [2021] EWCA Civ 448, remitted this case to the High Court for a fact-finding hearing.
3. High Court case management: Keehan J directed that the welfare decisions required in the applications under the Children Act 1989 should be underpinned by clear findings of fact.