H v O (Fact-Finding)

Victoria Butler-Cole KC:

1. This is an application by H for contact with his three young children, D, Y and B, made to pursuant to Article 21 of the 1980 Hague Convention.

2. The application was issued following the decision of MacDonald J to refuse H’s application for summary return of the children to the Netherlands where he lives ( H v O & Ors (Art 13(b) and Domestic Abuse) [2025] EWHC 114 (Fam )) . MacDonald J held that O had made out the exception to summary return provided by article 13(b) of the Hague Convention 1980 because there would be a grave risk of physical and psychological harm or an intolerable situation as a result of domestic abuse by H.

3. Both parents, H and O, are from Sudan. They married in 2014, at a point when the father was living in Egypt and the mother in Sudan, and later lived together in Egypt. They moved to the Netherlands in November 2020 under the auspices of the United Nations, the father having made a claim for asylum in a European country, to which the mother was later added. Their two sons were born in Egypt and their daughter was born in the Netherlands in 2021.

4. In the proceedings before MacDonald J, O made allegations of domestic abuse by H. She has repeated those allegations in these proceedings and I am giving this judgment on day five of the Fact Finding Hearing listed by MacDonald J to determine her allegations.

5. I have read two court bundles, an additional witness statement from O, and a draft social services report for the Dutch courts. I have heard oral evidence from both parents through an Arabic interpreter, and from two Dutch witnesses, a social worker, Miss R, and a volunteer refugee support worker, Miss D. Miss R’s evidence was interpreted, but Miss D chose to give her evidence in English.

6. The father was refused a visa to travel to England for the purposes of the hearing, so I heard his evidence remotely. There were various difficulties with the Court interpreters, but I am satisfied that both parents were able to give their evidence properly and fairly.

7. O alleges that her relationship with H was characterised by domestic abuse while they were in the Netherlands, including physical and sexual assault, and that towards the end of her time there, he also beat up the two older children.

8. H denies all the allegations and says that O has made them up to bolster her claim for asylum in England and her position in the proceedings before MacDonald J.

9. There is no dispute about the applicable legal framework. Mr Vine KC, on behalf of the mother, referred me to Re B-B (Domestic Abuse Fact Finding) [2022] EWHC 108 (Fam) , and I have borne in mind the 12 points that Cobb J outlines in that judgment, which apply in a case such as this one: “[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 [7] . 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 [8] ; iii) It is not for either parent to prove a negative; there is no ‘pseudo-burden’ on either [9] 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’ [10] ; 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 [11] ; vi) The Court can have regard to the inherent probabilities of events or occurrences [12] ; the more serious or improbable the allegation the greater the need for evidential ‘cogency’ [13] ; 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 [14] ; 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 .”

10. To this, I would add the further analysis of Macur LJ in Re A, B and C (Children) [2021] EWCA Civ 451 , addressing the importance of identifying whether, where it said that a witness has lied, that lie relates to a significant issue, and whether the only explanation for the lie is guilt, and of being careful not to assume that a general propensity to honesty or dishonesty is determinative in all matters.

11. I have also been referred to two judgments of Peter Jackson LJ. First, Re A (A Child: Findings of Fact) [2022] EWCA Civ 1652 , at paragraph 42, where he says that: “. . . [the] Perpetration of domestic abuse is an expression of an aspect of a person’s character within a relationship, and the fact that a person is capable of being seriously abusive in one way inevitably increases the likelihood of them having been abusive in other ways . . .”

12. Secondly, Re L v F (Relocation: Second Appeal) [2017] EWCA Civ 2121 at paragraph 61, in which he said that: “. . .Few relationships lack instances of bad behaviour on the part of one or both parties at some time, and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to “domestic abuse”, where “coercive behaviour” is defined as behaviour that is “ used to harm, punish or frighten the victim . . . ” and “controlling behaviour” as behaviour “ designed to make a person subordinate . . . ”.”

13. I have also reminded myself of the need not to make assumptions about how a victim of domestic abuse should or should not act, in response to that abuse.

14. Although MacDonald J considered the issue of domestic abuse and the mother’s allegations, that was in the context of the summary return application, in which the Court’s function is very different to the present context. I have considered the evidence afresh and have carefully read every document and listened to the oral evidence and formed a view about the witnesses before reaching my conclusions.

15. Before turning to my assessment of the evidence that I have read and heard, I make the following general observations about the evidence and the witnesses, which sets the context for my findings. There is limited contemporaneous evidence in this case. A request for disclosure of police and social services records from the Netherlands was refused. I have a small number of documents from Dutch social services and, from the parents, a handful of text messages, three transcribed audio messages and a few short videos.

16. In my view, the contemporaneous Dutch records are generally reliable insofar as they detail the interventions made by social services, the reports made by the parents to the social worker, Miss R, and the timeline of events. They do, however, have limitations. As well as being incomplete, they are predominantly based on discussions with the parents which took place in English without interpreters. Information taken from police records and incorporated into the social work records has similarly come from incidents in which the parents gave their accounts in English, not Arabic. The Dutch social worker documents themselves refer to the difficulties in communication due to the language barrier. The records also contain demonstrably incorrect information, for example, that O had alleged sexual assault by H of her daughter.

17. More of the information contained in them appears to have come from the father than from the mother, as the father appears to have had more direct contact. Furthermore, it is apparent that at no stage did the Dutch social worker or it seems the police carry out any detailed investigation into the allegations of domestic abuse by either parent, and so the records are of much less assistance in getting to the truth about the specific incidents alleged by the mother than they might have been.

18. I found Miss R to be an honest witness who was trying to assist the Court. She was a professional social worker or equivalent who had been involved with the family from March 2021 until June 2022 and again in 2023. She was largely reliant on the notes she had taken at the time, and she did not have a clear independent recollection of the details of events involving the parents. She was clear that she had not discussed alleged domestic abuse with either parent in any detail and had proceeded on the basis that since in 2021, O was not making allegations of physical abuse by H against the children, there was no reason why contact between the children and their father should not take place. She had not seemed to think that it was important to establish the truth of the abuse allegations made by the parents.

19. Various of the Dutch social work reports refer to O as being cold or hostile, and of having black and white thinking. It struck me, listening to Miss R, that given her lack of interest in the allegations made by O, even when Miss R had witnessed her distress about them, that O did not have a good relationship with professionals and her black and white views about the father not having contact might have been judged more sympathetically if the basis for those views had been explored.

20. The second Dutch witness was Miss D, a volunteer support worker who had much more limited involvement with the family. I did not find her evidence of assistance. She had clearly formed a very negative view of O early on. She had no real recollection of events, generally saying that she could not remember whenever she was asked a specific question, but she was keen to tell me what a lazy and awful person O was, describing her as “ a bitch ”, and saying how terrible it was that she was hostile to H, who was “ the perfect man ”.

21. She had formed those views without knowing anything about the parents’ relationship beyond occasional visits once or twice a week for a short period of a few months between November 2020 and February 2021. It did not appear to have crossed her mind that there could be a valid reason for O’s hostility to H, and it appears that even when O reported either to her, or someone in her organisation, that the father had raped her, this information was documented but no steps were taken to investigate it or to support O to pursue the matter.

22. As to the parents’ credibility, I find that O was an honest witness. She was doing her best to answer questions that were put to her. Mr Jarman KC on behalf of the father says she was resistant to answering questions and just wanted to get her case across, but that was no more the case for her than it was for the father. They were both anxious to explain their accounts to me in detail.

23. As will become apparent, I consider that her account of events was usually more consistent with the contemporaneous records than the father’s, and that her oral evidence was largely consistent with her written evidence. She was also willing to admit to behaviour which could have been criticised, such as being angry and upset when the father left gifts for the children at their school.

24. Mr Jarman says that the mother’s credibility is fatally undermined by one particular issue, which is that she says that she and the children came across the English Channel in a small boat without making any payment. Mr Jarman says that I can take judicial notice of the fact that people are reported to pay thousands of pounds to be transported to England in this way. While that may be right, there are some obvious reasons why, if the mother had paid for her passage, she would not want to give details about how that occurred and who was involved. I do not consider that even if her testimony is false on this point, that that means I cannot accept her evidence on other matters.

25. I also reject Mr Jarman’s attacks on the mother’s credibility generally. It is not the case, for example, that she only made allegations once she arrived in England. Miss R knew of the rape allegation having been made before March 2021. She knew of the allegation about shaving the mother’s hair and in oral evidence she said she could not recall whether physical assault had been alleged. But given that the police were called to three incidents at the parents’ home shortly before she was involved, and the very reason for her involvement was concern for the children as a result of those incidents, I think it much more likely that those allegations of physical assault were raised by the mother at the time. I also note that the mother tried to show Miss D swelling on her face which she said had been caused by the father injuring her, but Miss D did not believe her.

26. As regards H, he was reluctant to accept propositions that he knew painted him in a bad light, even where there was objective evidence to support them. His wholesale denial of any possible poor conduct was not convincing. There were a number of important points on which his oral evidence was undermined by his own text messages, audio messages, and by the Dutch social work records.

27. He was resistant to accepting that he had ever been cross or frustrated, even though on his own account, the mother was behaving in ways that would have been extremely difficult for him. He suggested that there was other evidence that would support his case, but he had not supplied it, for example, the fake messages, he says, were sent by the mother to his family. I accept the submission made on behalf of the mother that the father was attempting to obscure the truth in his evidence, in particular, where it concerned incidents of physical violence.

28. Where there is a dispute between the parents, therefore, I have tended to prefer the mother’s evidence to the father’s, but I have not assumed that in light of her greater credibility, all of her allegations can be proved to the required standard, nor that the father has lied about everything.

29. At one stage in her oral evidence, the mother said something to the effect that “ only I can know what happened and what I suffered ”. That is no doubt true, but I have done the best I can with the evidence before me to reach properly reasoned and consistent conclusions about the key events in the parents’ relationship.

30. Both parents agreed that their relationship ran into difficulties in the Netherlands, it was volatile and was characterised by arguments and periods where they did not have any contact. Those problems were no doubt exacerbated by their circumstances, arriving in a new country in the Covid pandemic and having to settle into an entirely new way of life.

31. By February 2021, there were incidents which resulted in the police being called and the police summary contained in the Dutch social work document prepared for court proceedings in the Netherlands in 2023, records three police call outs in a short space of time in late February and early March 2021. This accords with the mother’s evidence of there being three incidents. The father said there were only two and that they were both in February, but she is wrong about that.

32. After these incidents, the father moved out of the house the family had been allocated in a village and was given temporary housing in another location. He was later given a temporary flat in a town in September 2022. After the father moved out, there was a period of time when he did not have contact with the children and by the summer of 2021, social services were raising concerns that the parents were only receiving one set of benefits as though they were a family living together, but they needed separate finances so that there would be enough money for two households. The father said they were not put under pressure or given a deadline to make a decision about whether they were staying together, but this conflicts with the social services records.

33. Around this time, their daughter, B, was born and their relationship improved, with the father spending some time at the house and having contact with the children, but they remained living separately, and by May 2022, it seems they were in receipt of two sets of benefits and their finances had been separated.

34. There was a sustained period of time in mid-2022 when the father did not see the children and decided that he did not want to continue in a relationship with the mother. He took steps towards obtaining a divorce, but then in the autumn of 2022, social services became concerned that the parents were getting back together as they had heard that the children were going to be moved from the school to one near the father’s home.

35. The Dutch social work documents record that there was a court hearing in November 2022 to deal with the father’s application for contact with the children, which had not taken place for some months, and that the question of the new school was also discussed at this time. They also report that the father denied involvement in this plan to change the children’s school, but his honesty was questioned by the professionals involved. The parents were advised not to change the children’s school because the father’s accommodation was precarious, but they went ahead. The father says he was tricked into signing the form so the children could be registered at the new school, but the Dutch social work documents record that he was in agreement with the plan and that he wanted the children to go to school near his house.

36. In January 2023, the parents are recorded as having said they were giving their relationship another chance, and the father withdrew his request for a divorce. The father’s account now is that the mother forcibly moved in with him for seven months, that he did not want her to be there, and he tried to get her to leave, and that this was a very bad time for him, although his written statement said that she was only living there intermittently. He did not supply any evidence that he had, for example, contacted the mother’s brother to ask him to assist him in getting the mother to move out, even though in 2021 and again in 2024, he did contact the brother for assistance on the basis that he was the oldest male in the mother’s family and was in a position of authority over her.

37. The mother says that she had to live with the father and do what he said because he had the keys to both houses and he was threatening her that he would have the children taken away from her and would harm her if she did not. Social services were concerned that the parents were getting back together as they were worried about the children’s experience of domestic abuse and an investigation was started.

38. Complaints were made by people in the properties neighbouring the father’s house about altercations, with the mother being shut out of the house and shouting through the letterbox. As late as June 2023, the parents were still telling social services that they wanted to stay together as a family, initially in the father’s house, but then there was a plan to move back to the mother’s house.

39. On 30 June, the father changed his mind and contacted social services to tell them. On 3 July, there was a fight between the parents, and by 7 July, the mother had left the Netherlands with the children.

40. Turning to the specific allegations made by the mother, the first is that “ the father restricted and controlled the mother, including who she could and could not speak to, including limitations being placed on her communication with her family, and did not allow her to work. In April ‘23, the father stopped the mother from attending her language course.”

41. I found it difficult to deal with this rather general allegation, as the parents’ relationship went through ups and downs in the period they were in the Netherlands, and there were times when the mother was having no contact with the father at all. There was also very limited contemporaneous independent evidence of matters such as their finances or the mother’s ability to attend her language course or to have contact with other people.

42. Instead, I make the following specific findings relevant to the father’s attitude and behaviour towards the mother.

43. First, that the father had a conservative and hierarchical attitude to the mother and her role in the family. He said that since he was working, she should have been at home with the children. He said that her brother was the head of her family and had a role in respect of the mother’s behaviour. He did not believe that a husband could rape his wife. These attitudes suggest that the mother is correct when she says that on arrival in the Netherlands, the father did not want her to work.

44. The father’s expectation that the mother’s brother could influence or control her behaviour by virtue of his position in the family is demonstrated in messages he sent to the brother, in which the father says he was just trying to make the brother aware of what his sister was doing, but which were obviously sent in an effort to get the brother to exert influence on her. They include one message sent around the time of the hearing before MacDonald J, which the father said was a prayer to God to destroy anyone who treated him badly. I reject the father’s explanation that this was merely a request to God for help. It was clearly meant to be intimidating or threatening and to influence the brother.

45. Second, I accept the mother’s evidence that the father held her down and shaved her hair against her wishes in late February 2021. The father said that the mother made this up to make him look bad and that she told him she had made it up later on in 2021 when their relationship was better. He said that he would not have been able to do it as the mother was strong enough to have retaliated. I note that later in his evidence, he said “ Logically, if I’d wanted to kill her, I would have killed her a while ago ”, which undermines his suggestion that the mother was his physical equal.

46. The mother’s account is borne out by the account given by Miss R in the draft social services report of 2023, which she confirmed she had read and approved. It states that: “Parents were always distant from each other and reacted angrily to each other in conversation. There was physical violence at the start. Parents had gone through a difficult period and Mother was angry with Father because he allegedly had contact with another woman. During that period, Mother let the social worker see that the father had shaved her hair short. Due to the language barrier, the social worker was not clear what the reason for this was, but from the emotions that Mother showed, the social worker gathered that Mother was angry and felt very humiliated.”

47. Miss R confirmed the accuracy of that passage in her oral evidence, and I therefore accept the mother’s account in preference to the father’s.

48. Third, in 2023, when the mother was living at the father’s house for around seven months, he did not give her a key to that property. He says in his written evidence that she had one in June or July 2023, but only because she had secretly had a copy cut, thereby accepting that she would not otherwise have had one. The mother’s account is further corroborated by the following: a. Reports in the Dutch social work records of neighbours complaining that she had been put out of the house and was climbing over a fence to get back in. The father accepts that he put the mother out of the house because, he said h e had banned her getting into the house, but that she managed to get back in despite his efforts. b. The father’s statement in oral evidence that on an occasion when the children were picked up late from school by the mother and the children were then seen at a bus stop in the rain and taken in by a neighbour, the mother had left the house early and he had therefore given D, the oldest son, a key so that D could give it to the mother later when she picked them up.

49. The father said this was his house and he didn’t want the mother living in it during this period, and that explains why she did not have a key, but that account is undermined by the following: a. The father was in agreement with the relationship restarting and the family being based at his house in January 2023, and told the social workers this. b. The father was apparently still of that view as late as June 2023, when the social work records show that the parents were both saying they planned to live together. c. It was not until 30 June that the father contacted the social workers to say that he changed his mind.

50. I therefore find that in the period of January to June 2023, the parents were attempting to live together and to reconcile, but the period was characterised by fighting and disagreement, which the children were exposed to. During this period, the father was the dominant person in the household and was treating the house as his home and was not treating the mother as an equal. The father’s hostility to the mother extended to the children because on 5 or 6 July, when the mother and children came to the house following an argument on 3 July, the father refused to let them in, even though one of the children needed to use the toilet, and rather than letting the child in, the father said he videoed the child defecating in the garden. That, in my view, is an extraordinary thing for a parent to do and shows that the father was not able to prioritise his children’s needs over his anger towards his wife.

51. Fourthly, as regards the mother’s allegations that access to her finances were restricted, I did not have any helpful contemporaneous evidence on this point. Miss R could not recall details beyond saying that there were always problems with money and there were no bank statements or text messages. The witnesses said different things about whether the parents had separate or joint bank accounts. The father’s witness statement says that it was a joint bank account initially, but that they both had cards to access it. I do not have sufficient evidence to make any findings about what happened in detail, other than that given the father’s attitude towards the mother and her status as a woman, it is entirely likely that he sought to control the finances when they were together, but by mid-2021, the parents had separate bank accounts and had access to their finances independently of each other.

52. Drawing the above together in respect of this allegation, I do find that the father has acted, on more than one occasion, in a way that was intended to punish or humiliate the mother and to exercise control over her and I reject his assertion that it was the mother who controlled him.

53. The second allegation is that “ the father raped the mother, which resulted in the mother’s pregnancy with B ”. The mother says that the father raped her in or around December 2020, and that she reported this to both Miss D and Miss R. Miss R agreed that she had seen reference to the allegation of rape in the papers from the organisation that had been working with the family prior to her involvement.

54. That must be a reference to Miss D’s organisation, as no other support services have been identified. I am not troubled by the fact that Miss D denied that she was told this by the mother, as I found Miss R to be a much more reliable witness who was not pursuing an agenda, nor am I willing to accept that I can infer that the mother must be lying about what happened because she did not report this to the police at the time.

55. Rather than simply saying that the mother’s account was false, as set out in his written evidence, in oral evidence, the father elaborated on his recollection, saying that on this particular day, the mother had dressed provocatively and had asked to have sex with him, and that she had a much higher sex drive and that this was not an unusual occurrence. I was puzzled that he now had such a clear recollection of this particular occasion if, as he says, nothing unusual happened and the mother was often requesting sex.

56. I was also concerned by the father saying that he did not believe it was possible for a husband to rape his wife, which suggested that his understanding of the need for consent to sex within the context of a marriage might be questionable. I have given this allegation very anxious consideration as I am conscious that I do not have external or objective evidence from other sources about what is a very serious allegation.

57. I note the following: a. I have accepted the mother’s evidence that the parents’ relationship was in difficulties once they moved to the Netherlands. b. The mother has given a consistent account over time and did report having been raped at an early stage, even though this was not acted on by the Dutch authorities. c. The father’s embellished account of the incident, given for the first time in the witness box, struck me as implausible. d. I have found a wider pattern of controlling and physically abusive behaviour. I cannot just extrapolate from that to a finding of sexual assault, but I do bear in mind the guidance of Peter Jackson LJ that where a pattern of behaviour is identified, that may make the likelihood of other forms of assaultive behaviour more likely. e. The father has a hierarchical attitude towards the mother as a woman and viewed himself as the more important partner in the marriage, and f. I have broadly preferred the mother’s evidence and consider her a more credible witness.

58. Taking all those factors together, my conclusion is that the mother has discharged the burden of proof. and I make the finding sought.

59. The third allegation is that “ on 17 February 2021, the father pulled a knife on the mother and she thought he was going to stab her. This was witnessed by the eldest child. The mother tried to call the police, but instead the father took the phone, called the police and said that it was the mother who had the knife” . As I have already said, I accept the mother’s evidence that there was an incident on this date and that the police were called, as confirmed in the police summary.

60. The Dutch social work records and the evidence of the Dutch witnesses is not of assistance as regards what happened, as there is no detail of an account from either parent or any other investigation. Miss R said she “ never really knew who did what, as there were accusations going back and forth .” The records make repeated reference to both parents chasing each other with a knife, which reflects what they were each saying, but does not assist in evaluating who was giving an accurate account.

61. The father accepts that from February 2021, the relationship had broken down to the extent that they were not sleeping in the same room. His written statement says that the mother knocked on the bedroom door and when he opened it, she was standing there with a knife, which she held to his chest and stomach and she demanded a divorce. He says that prior to this, she was continuously saying she wanted a divorce.

62. In oral evidence, he gave a slightly different account, saying he was asleep and was woken up by the mother pressing a knife to his chest and demanding a divorce, not by her knocking on the door. When asked how he responded to what must have been a terrifying experience, he didn’t say he pushed her away or shouted or tried to get away from her, but that he simply said “ OK, let’s wait until the morning because a divorce needs witnesses.”

63. His account was that he was relaxed about getting a divorce and had no objection to it, although I note that he did not start the process to obtain a divorce until May 2022 or later, and then subsequently withdrew from the process.

64. The mother says it was the father who threatened her with the knife and that this followed a period of time in which he was drinking and behaving in a way that was disrespectful of her. She agrees with the father that at some point the police were called on the phone and that she spoke to them. By the time they arrived, the parents agree that the father was downstairs and the mother was upstairs. She says she had locked herself in one of the children’s bedrooms. The father told me the police said he should remain downstairs until the next day.

65. I find the mother’s account that it was the father who threatened her with a knife more plausible on its own terms and having regard to my other findings about incidents of physical violence towards the mother, including the hair shaving and the incident on 1 March, which I will come to later. Her account has been broadly consistent over time and fits with the general picture of the father resorting to physical violence.

66. I do not accept that references in the Dutch reports to the mother being cold or uncaring towards the children assist me in deciding what happened in these particular incidents between the parents, and I note that since moving to England, no similar criticisms have been made of the mother by professionals.

67. The fourth allegation is that “ on 26 February 2021, when the mother was pregnant with B, the father banged the mother’s head, kicked and punched her. The mother escaped to the neighbour’s house to call the police. and that prior to this, the father had shaved the mother’s head as a punishment ”. I have already addressed the hair shaving incident.

68. Again, on this allegation, I prefer the mother’s evidence and find the allegation proved. The father did not accept there were two incidents in February 2021 and did not provide any proper alternative account of this altercation. The mother’s account in her written and oral evidence fits with the other findings, but it is also corroborated by the written statement from the mother’s neighbour, E. I did not hear oral evidence from the neighbour.

69. Mr Vine explained that the messages sent to the neighbour on WhatsApp have not been responded to and may not have been received, but the neighbour’s statement does contain information that fits with the contemporaneous objective evidence and it does not all align with the mother’s case. For example, the neighbour says that the father was not aware in February 2021 that the mother was pregnant, which is what the father contends but the mother disputes. I have therefore given it some weight in reaching my finding.

70. The fifth allegation is that “ on 1 March, while pregnant with B, there was an incident at the neighbour’s house and the neighbour’s daughter came round to the family home, the mother’s brother on speakerphone. The father had taken the mother’s phone and was refusing to give it back. The mother followed the daughter to the house and there was an incident in relation to the party’s phones and the father hit the mother and threw her phone on the floor. He punched her repeatedly, including her back and stomach”. The father appears to have accepted that he struck the mother on her back in an audio recording. The mother saw a doctor for antenatal care as she was in pain and was prescribed ointment rather than painkillers due to being pregnant.

71. This incident is particularly significant in my overall assessment of the evidence as it is one where there is additional evidence beyond the accounts given by the parents. First, I have the witness statement of the neighbour who says that the father beat the mother in her presence and only stopped when the neighbour’s husband intervened. Second, I have the transcript of the voice message in which the father makes submissions about the incident. The relevant extracts from the voice message transcripts include the father saying: “There were times when I was firm with her, but only because I had treated her with far more kindness than was necessary from the beginning of our marital or family life.”

72. And then specifically in relation to 1 March: “Let me be clear. From the day in 2021, when the problems began, I remained patient with her, even as she engaged in increasingly provocative behaviour. Those provocations were extreme and (inaudible) to push me to my limits. The situation escalated to the point where I asked her to allow me to enter the house to retrieve my belongings, and she refused. Even here, her refusal was not legally acceptable, but she believed that the law would support her actions, no matter how unreasonable. At that moment in time, I tried to speak with you to explain the situation, but she grabbed the phone from me and attempted to break it. In that heated moment, I struck her on the back. That was the only time I ever laid a hand on her. Apart from that incident, I have never hit her.”

73. Father denied that he had struck the mother, in his written evidence and oral evidence, and instead said that in self-defence, he had pushed her on the back to get her away from him. If the mother was facing away from him so that her back was towards him, it does not make sense that he would have needed to push her away in self-defence. I accept the mother’s account, reinforced by the neighbour’s written evidence and the message that the father left, that the father was the aggressor and that he was physically abusive to the mother on this occasion.

74. The father would have been very angry at this point because he had left the family home after the two previous incidents and had returned to try and retrieve his belongings that the mother had refused to let him in. It was clearly a fraught situation and the father had phoned O’s brother in an effort to enlist his assistance because the mother was understandably unwilling to engage with him.

75. The mother admits that she took his phone and it is entirely plausible that this would have annoyed the father to the extent that he resorted to physical violence even though there were other people present, and I find this allegation proved.

76. The sixth allegation is that “ the father threatened the mother that he would poison her, plant drugs in the house to make her look like a criminal, with the aim of her having jailed, not caring if the children ended up in care ”. This allegation is primarily concerned with the period of 2023 when the parents were living together in the father’s house. The mother says that she had to stay living with him, even though she had her own property separately, because she had no key to that house and the father was threatening her.

77. As I have previously said, my finding is that in this period it was the father who was in control of the situation, and it was a volatile period with arguments and the mother being thrown out of the house. I accept the mother’s evidence that the father threatened her during this period, which I find to be consistent with my other findings about the nature of their relationship and the evidence that he sent an intimidating message to her brother. I do not accept that the mother could have simply left at any time. Even if that was literally true, she was facing a situation where she was attempting to continue her relationship with the father and keep the family together, and where she had experienced physical violence from the father in the past on more than one occasion.

78. Her previous complaints against the father had not been taken seriously or investigated, and the Dutch court had ordered that the children should have contact with their father. The children were at school near the father’s house, and she may well have been anxious that her contact with them would be stopped if she left the relationship knowing that the authorities had previously been sympathetic to the father and had not taken forward her complaints. It is difficult to know why someone who has been subject to an abusive relationship would want to remain in it, but I refuse to accept a submission that the mother’s failure to leave in this period shows that she is not telling the truth about what was happening.

79. The seventh allegation is that “ in early 2023, the father started to beat the children, hitting them with shoes and belts. D would try and intervene when the father was hitting the mother, and the aggression would then be directed at him. He became severely affected by this, lost urine control and would wet himself at school” . It does not appear that the mother ever raised this allegation with social services, and so the only external evidence I have comes from an account of conversations with the two older children as part of the Dutch social services investigations in the summer of 2023. They record the older child, D, saying that his parents were often angry when they lived and that “ Father was especially angry with Mother. When Father is angry, he shouts at Mother, but Mother never shouts back .”

80. He said that the parents were sometimes angry in the new house and that the father hurt the mother once in the old house and his mother cried. He said that the father did not shout at the children, but could just act angry, and the younger boy is recorded as having said that Father is always angry with Mother. Father does not shout at the children or spank them if they have done something naughty. Neither child said in Holland that their father had hit them, although when they spoke to the Guardian in the proceedings before MacDonald J, they did say, when in the presence of their mother, that their father had beaten and kicked them.

81. I do not find this allegation established on the balanced probabilities. The children did not say they had been hit by their father when they were spoken to in Holland, and although I have found that he is someone who used physical violence against the mother, I cannot infer from this that this means he also assaulted his children.

82. I have considered whether or not making this finding should cause me to doubt the veracity of the mother’s other allegations, but for the reasons that I have set out, I consider that I do have sufficient evidence on which to make the other findings, and I have borne in mind that an exaggeration of a party’s case on a particular point, or even a lie, does not inevitably mean that the rest of their evidence cannot be trusted. The mother may have exaggerated her case because of her wish to protect the children from further exposure to domestic abuse between the parents, but that would not mean that her evidence on those other instances is false or exaggerated, particularly where there is corroborating evidence in respect of those incidents.

83. The final allegation is that “ on 3 July ‘23, the father assaulted the mother following her objection to B being subjected to FGM. He threw shoes at her, threw the TV at her, which broke into pieces, and then put his hands around her neck to strangle her ”. The father disputes this and says that it was the mother who was violent. He relies on a short video clip which shows the mother near the kitchen in the house, holding both her mobile phone and a knife in the same hand. He says this is evidence of her threatening him, but the video does not appear to me to show any threat with a knife.

84. The context of this incident is important. Having previously been planning that the family would stay together and move back to the larger house, the father had recently changed his mind. If he passed that information on to the mother, it is easy to see how that would have led to an argument. The mother would have been worried about her access to the children and her ability to fend for herself to the Netherlands and even though the past six months living with the father had been marked with arguments and conflict and the feeling that she had to do what he wanted, the thought of the family breaking up would have been worrying for her.

85. The boys told social services about this incident in Holland and said that the father was angry with the mother. Y said that the argument was because the father does not like the mother. D said the argument was because the father did not want to stay with the mother, but the mother did want that. Both boys said that the father broke the television, but gave slightly different versions of how that happened. When D was told by the person interviewing him that the mother was the person who had broken the television, he paused and then said he was not sure anymore. I do not take that as an indication that he had not previously been telling the truth. It would have been confusing for him to have an authority figure tell him that the account he had just given was wrong, and a reasonable response in that situation for a young child could well be to say that they could not recall rather than to have an argument with the interviewer.

86. My finding is that there was an altercation and it was the father who was violent and broke the television. This fits with both the boys’ accounts and the pattern of the father’s behaviour towards the mother. I do not need to make specific findings about exactly what occurred, but I can say, having regard to the full picture of the parents’ relationship, that on the balance of probabilities, the father was violent towards the mother.

87. The mother said the cause of the altercation was that the father had proposed that in addition to the boys being circumcised, B should undergo FGM and that she was completely opposed to this. She said she had heard the father discussing it with his sister and he told her he had found someone in Holland who would undertake the procedure. The father was adamant this was not the case and said it was an insult to him and his tribe to suggest such a thing. His account in his written evidence is that the mother was annoyed with his family and it was this that triggered the altercation on 3 July.

88. I do not consider that the cause of the fight is hugely relevant to the future welfare issues in this case, which concern contact between the father and the children in circumstances where he is living abroad. Given that I do not have any expert evidence to confirm whether what the mother says is true, that the father’s tribe in Sudan practice FGM and that this would be a cultural expectation for them, and although I have made a finding that the father was violent, I cannot say on the balance of probabilities that the reason for that fight was that he had been proposing FGM for B. I think it is very likely that one cause of the fight was the father’s change of heart about living together as a family.

89. It is relevant that this final incident appears to have been the trigger for the mother leaving the Netherlands. I have accepted her account that she was in an abusive relationship where she suffered physical assaults and where the father was the person in control. If the father was right that she was in control, she would have been able to obtain a divorce in 2021 or 2022 when she said she wanted one.

90. I do not accept the father’s assertion that all the mother’s allegations have been made up to support her case, either in the proceedings before MacDonald J, or to support her claim for asylum in England.

91. As I have set out, I consider that a number of the key allegations made by the mother are proved. I have carefully looked at each allegation separately and stood back to consider the wider narrative accounts of each parent and the internal consistency of those accounts, and I am satisfied that the conclusions I have reached are justified on the balance of probabilities and on the totality of the evidence that I have considered. That is my judgment. This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: [email protected]