Family Court Files: mother’s ordeal after judge dismisses rape allegation in error

Work by TBIJ allows reporting of a case in which the controversial concept of parental alienation was used to counter domestic abuse allegations

Content warning: this story contains ableist language and descriptions of domestic, sexual, physical and emotional abuse

A mother who was raped by her ex-partner says her protracted fight for justice in the family courts has left her traumatised.

The woman, who cannot legally be named, first put the allegation of rape to the court in 2021 after her child’s father made an application to see more of his son. She feared he was an unsafe parent and did not want him to be alone with their child.

The allegations were initially dismissed by Judge Christopher Dodd but the mother won an appeal to have her case reheard on the basis that he had made errors – including failing to arrange “special measures” designed to help victims of domestic abuse give evidence.

Last month a different judge found the mother had been raped. But the finding only came after she had been forced to give evidence all over again during a week-long trial – and after her ex-partner accused her of exaggerating her claims to damage his relationship with their son.

“When I took to the stand I was having a panic attack, triggered by the memory of the last proceedings,” the mother said. “At times I couldn’t breathe, it was horrendous. I ended up being signed off work.”

The Bureau of Investigative Journalism (TBIJ) has been following her case since April. It is one of the first private law cases – those between individuals as opposed to proceedings that involve local authorities – to be brought under a reporting pilot designed to improve transparency in the family courts.

The new hearing was overseen by Judge Clive Baker at the family court in Carlisle, one of three courts in England and Wales taking part in the pilot.

Baker issued a transparency order outlining the conditions under which the case could be reported by the media but it was immediately placed under an embargo due to a parallel criminal investigation into the rape. TBIJ overturned this restriction at a hearing in early October and is now able to report the findings.

In and out of court

At the heart of the dispute is an “inquisitive and kind” boy who loves telling jokes and swimming in the sea, the court heard. He has a “cracking sense of humour” but is also sensitive and can struggle in situations outside his comfort zone.

The boy lives with his mother and has had intermittent contact with his father, but at times with the supervision of another adult. He said he wanted to see his dad but feared being alone with him.

The case has a complex history and both parties have been in and out of the family court for much of their son’s life. The mother became pregnant not long after the couple began dating, having met online and not yet had a chance to get to know each other properly.

At the first day of proceedings in April, the court sat through videos of both parents’ police interviews about the rape allegation. By the time the mother was due to give evidence the next day, it was clear the process was taking its toll.

She trembled and choked back tears as she stood in the witness box – this time behind a screen, brought in as a “special measure”, that allowed her to be seen by the judge but not by her ex-partner.

“How are you feeling about giving evidence?” her barrister, Charlotte Proudman, asked her.

“Terrified,” she replied. “We were in here last time, it was really traumatic. The faith I had in the system failed me. The evidence I gave wasn’t listened to. I could see and hear [the father]. He was sniggering during the evidence. I appreciate there are screens but this is really traumatising.”

The woman told the court that her child’s father was coercive and controlling from the outset of their relationship. During her pregnancy, she said, he made her hide in his room when his friends came over, shouted at her when she fell asleep watching a film and smacked her on the behind so hard it left a handprint.

She said his behaviour was “domineering” and that, after a previous set of court proceedings in 2014, he had used the threat of litigation to control her.

The mother said that while they continued an on-off physical relationship after splitting up, their sexual relations had ended before the occasion in 2017 when she said he raped her during a visit to see his son.

Asked why it took her until 2021 to report the allegation to the police, she told the judge: “I’m utterly ashamed at what I’ve allowed him to do to me. I’m quite successful in everything else I’ve done. I wasn’t successful in stopping him from mistreating me or [the child] and I find it really hard to understand why I would let that happen.”

The father’s cruel tendencies became apparent when their son was newborn, she said. Once he bit the baby’s finger, causing him to scream in pain, before claiming he was “just being friendly”, she told the court.

Asked by Proudman about the nature of the father’s “horseplay”, the mother responded: “I wouldn’t say it’s horseplay, I would say it’s physical abuse. He has always pushed him over and laughed. If he was playing on the floor with toys, he’d stand on his finger. He’d punch him in the stomach, he’d have him in headlocks.”

Parental alienation

TBIJ has been attending family court hearings for more than six months as part of an investigation into how the courts respond to domestic abuse allegations. In this case, the ex-partner argued the allegations amounted to “parental alienation” – a term for when a child rejects one parent because they have been manipulated by the other. To qualify as alienation in the eyes of the court, the hostility from the child must be unjustified.

There are wider concerns about the use of parental alienation as a tactic to counteract or silence genuine claims of abuse. The Family Justice Council, an advisory body to the judiciary, is currently consulting on how the courts should respond to allegations of alienating behaviour.

In this case, the mother had asked the court to examine a list of more than 60 allegations, including that the boy does not like his father pulling his leg hairs or pushing him during “horseplay” – a phrase used repeatedly by the father when he gave his evidence. Also among them was the allegation of rape, as well as incidents she claimed amounted to a prolonged pattern of coercive control.

The father, representing himself, framed her allegations as parental alienation, arguing they were exaggerated attempts to paint him in a bad light and hamper his relationship with his son.

Due to current debate about parental alienation, TBIJ was able to put forward a public interest argument to have the embargo on reporting the case lifted.

A woman standing in the woods with her back to the camera

‘He’s a gentle boy’

In family court cases, a social worker is often appointed to act as a “children’s guardian”, a role assigned to represent the best interests of the child. Children’s guardians are generally drawn from Cafcass, the agency set up to promote the welfare of children involved in the family court.

They can be influential in family court proceedings. During the first hearing in this case, Judge Dodd had relied heavily on the guardian’s evidence to assess whether the father’s contact with his son should continue to be supervised.

“The father’s case, supported by the children’s guardian,” he wrote in his judgment, “is firstly that there are no safeguarding concerns.”

But last year, an appeal judge found Dodd had been wrong in refusing to examine the mother’s allegations of abuse, and criticised how Cafcass had handled the rape allegation.

In April 2021, the mother had told the guardian over the phone that her ex-partner had raped her, but felt the allegation wasn’t taken seriously. In a Cafcass report, seen by TBIJ, completed after that phone call, the guardian appears to allude to the rape but downplays the allegation.

She wrote: “The information as presented is largely historical, the last incident dating back to 2017 and disputed by [the father]. [The mother] states there was harassment, unwanted and inappropriate sexual approaches.”

In her judgment published last August, the appeal judge Mrs Justice Morgan said: “When I look back at the Cafcass report and its characterisation of the allegations as ‘historic’ and the learned judge’s reliance on that … I am driven to the conclusion that [Dodd] has fallen into error.” She also said the court had failed to assess the mother’s request for special measures made “well in advance of the final hearing”.

After that judgment, and worried that her allegations were being minimised, the mother successfully applied for her son’s guardian to be replaced. In the new hearing, during her evidence to Baker, the mother raised concerns again that the social worker had not taken her allegation of rape seriously.

She also said the guardian advised her not to go to the police. According to written submissions to the court, the guardian said this was “absolutely untrue” and claimed that, while the mother disclosed the rape to her in 2021, she had “ then indicated that it was a consensual act”.

At the fresh hearing, the new children’s guardian had a barrister in court, Patrick Gilmore, who questioned the mother and brought up parental alienation.

When he asked the mother to describe her son, she welled up. “I’ve got very lucky because he’s no bother,” she said. “He knows his own mind and he’s very kind … He’s a gentle boy with many passions.”

“Your case is that he is frightened of his dad, that’s why he doesn’t want to have contact,” Gilmore said. “[The father’s] case is that that is incorrect. He isn’t afraid of having contact but actually this is parental alienation behaviour.”

“There has never been discouragement from me,” said the mother. “The conversation was if he wanted to see his dad I will make it happen.”

Initially the mother made sure she was present during the father-son contact time because of her child’s concerns, she said. But when it became too difficult for her, a neutral party was found to accompany the pair.

A woman with her back to the camera look out over a lake

No middle ground

When it was the father’s turn to give evidence, he initially seemed relaxed and confident but became more agitated as the day wore on. He said stress could make him act inappropriately, and there were moments when he laughed despite the serious questions being put to him.

The court heard that he had stopped paying child maintenance in 2014 after the couple split up and because he was unhappy with the contact arrangements. Proudman also questioned him over an alleged undeclared inheritance as well as court costs in the region of £5,000 owed to the mother, which he is contesting.

He denied having deliberately hurt his son and reframed the accusations as harmless games. He said he had pulled his son’s leg hairs when “play fighting” but added: “I’m not a heartless, uncaring parent.”

Proudman reminded the father he had called her client a “retard” and “fat”, and written posts on Facebook intended to humiliate her.

Asked by Gilmore why in the course of sexual intimacy he would exert pressure on his ex-partner’s neck despite having been told it made her panic, he said: “I certainly would not have put both hands around her neck. At the very most I may have put fingers just above her collar bone.”

He firmly denied raping her at her home in 2017. He said he could not recall the incident in question but insisted sex had always been consensual.

During cross-examination, a barrister took the father through a sequence of text messages from 2016 that showed him repeatedly rebuffing the mother’s assertion that they would not have sex when he visited, refusing to take no for an answer.

Weighing up the arguments, Judge Baker said: “It’s impossible for there to be a middle ground. If [the mother] has made an allegation which isn’t true, then that will have serious consequences. If [the father] is lying about the allegations, that will have serious consequences.”

He ordered the father’s contact with his son to be suspended until the facts could be determined.

The findings

Baker laid out his findings – which in the family court are based on the balance of probabilities – in a published judgment handed down at a hearing in September.

The judge formed the view that the father’s behaviour “pushed the boundaries of acceptable parenting” and some of his actions towards his son could be considered abusive, albeit at the “lower end of the spectrum”.

On the allegation of alienation, Baker wrote: “I’m acutely conscious that the term parental alienation is controversial and debates around the issue often speak of it being a ‘theory’ or a ‘science’.

“As the higher courts have made clear, it refers to something that is neither of those things and in fact is not a particularly helpful short-hand for the necessity in some cases to examine the factual matrix that underpins a child’s wishes and feelings.”

Baker found that some of the child’s wishes and feelings were rational, rooted in his direct experience of his father. Others were the result of the negative views of his mother.

In terms of the mother’s extensive allegations, Baker said there were times she was “simply unable to be objective” about the father’s past behaviour. He added that her complaints were seen through “the lens of retrospective negativity” because of events that had happened since.

Those events included, the judge found, that the mother was raped by the father in 2017. Baker found that “at no point” did she consent to intercourse and that the father’s pursuit of sex “was coercive in that it was exploitative of the mother’s vulnerabilities”.

A further court order in December will determine what kind of contact the child has with his father.

Following the judgment, Proudman said: “The trajectory of this case shows the importance of family courts establishing the facts early on when there are serious cross allegations of rape and parental alienation – or the courts can get it badly wrong, leaving survivors and children at risk of harm.”

A woman standing in the woods with her back to the camera

‘There is no accountability’

Speaking to TBIJ, the mother said the judge’s findings brought her relief but that the process – initiated in 2019 – had made a profound impact on her wellbeing.

“Being back in court triggered memories of the other hearing. Even though Judge Baker was sympathetic to my situation, the atmosphere felt hostile and my ex was jovial throughout – it was sickening. I ended up being signed off work.

“Since the point of the appeal I’ve spent more than £100,000 on legal fees. I will be working to pay back my family for years to come.”

Under current rules, which protect the privacy of the children involved, parents can find themselves in contempt of court if they speak out about their cases. But under the pilot, parties can speak anonymously to journalists as part of the drive for greater transparency.

In this instance, the mother levelled her criticism at both the original judge and Cafcass.

Cafcass told TBIJ it had undertaken a review of the case and shared the concerns raised by Morgan. It said that since 2021, in response to new guidance around domestic abuse, it had established mandatory training for all its guardians.

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The mother, however, said she struggled to put into words her “anger and disappointment” with Cafcass. “I found the guardian to be unprofessional in her approach and inaccurate in her reporting,” she said. “She couldn’t bring herself to write the word ‘rape’ in her report. She was dismissive.”

The implications of the judge’s errors have been far reaching, she said. “There is no accountability. If it hadn’t been for his mistakes, I would not be out of pocket.

“My story has not changed but what did change was that I had decent representation the second time. It’s clear you can’t get justice for your children unless you can afford a decent lawyer. It doesn’t matter how smart you are.”

If you have been affected by the issues in this article and want to share your experiences, please contact [email protected] and put Family Court Files in the subject line

Help is available

Refuge supports women and children against domestic violence. You can access help online, including a live chat, or call the free 24-hour national domestic abuse helpline on 0808 2000 247

Women’s Aid
Women’s Aid offers information and support on domestic abuse. Contact a support worker or a survivor online here

Rape Crisis
Whether rape or sexual abuse happened recently or a long time ago – or you’re not sure what happened – Rape Crisis has information and support that might help. Call free on 0808 500 2222 or visit the website to start a free online chat. If you are in danger or need urgent medical help, call 999

Reporter: Hannah Summers
Bureau Local editor: Gareth Davies
Deputy editor: Chrissie Giles
Editor: Franz Wild
Production editors: Alex Hess and Emily Goddard
Fact checker: Natalie Bloomer
Photography: Molly Matcham

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