Mother argues judge was ‘wrong’ to allow overnight stays following findings of rape and assault

A mother has appealed against a child arrangement order which allows her child to stay overnight with the father, after a fact-finding hearing in 2021 found the father had raped the mother.

The contact order allows the father to see the child on a weekday after school and alternate weekends. The mother argued the order should be reassessed with reduced contact, as recommended at the time by the children’s guardian. The court heard there has been no fact-finding hearing in the Children Act proceedings but the mother had made further allegations against the father. A fact-finding hearing on those allegations is still to be heard.

In proceedings from 2021, in which the mother sought and obtained a non-molestation order and an occupation order, the judge made ‘serious’ findings against the father including anal rape, sexual assault and ‘modest’ coercive control.

Charlotte Proudman, for the mother, told the court the mother ‘was a child’ when, at 15, she and the father, who was 24 at the time, entered into a sexual relationship.

The father, a serving member of the armed forces, had made allegations of hostility against the mother but no allegations of parental alienation had been made, she said.

Proudman added: ‘When findings of abuse are made, allegations of parental alienation will fail. Allegations made by the mother are serious and plainly relevant to the child’s welfare in any risk assessment.

‘You have on the one hand the judge saying these allegations are relevant…then on the other hand when it comes to continuing contact the judge fails to engage with any of the reasons dealing with the fact finding when considering the issue of contact, which in my opinion was wrong.’

Proudman said the previous judgments had a ‘lack of any engagement with the findings of 2021, which are of course extremely serious’.

‘The judgment itself speaks to, in my words, how insidious that form of control [by the father] was particularly at the outset of what can only be described as an illegal relationship.

‘The judge seems to take the approach that there are no significant safeguarding concerns which in my submission cannot possibly be right.

‘The reality is this father is unsafe to have contact with the child as the mother would say.’

Referring to a Ministry of Justice report published in June 2020, Proudman said the court had a ‘pro-contact’ approach. She added: ‘The judge should be found in my submission to have fallen into error.’

Carl Geary, for the father, said: ‘In terms of safeguarding [concerns] of the child when in the care of the father, none are raised. The child is simply happy with him and happy when returned to the mother’s care. The mother is concerned about the father not taking responsibility for his past behaviour and “his behaviour continues to be problematic” – pausing there, [she is] talking about his past behaviour, his behaviour continuing to be problematic prior to the agreement for substantive contact.

‘There were concerns about moving to overnight but not because of a risk of harm to the child but apparently my client’s inability to effectively parent his child when the child is in his care.

‘[The mother’s] concern was around his parenting abilities, it was not around posing some risk or danger to the child.’

Geary added: ‘This is a case where an experienced Recorder has exercised his discretion, he is in a very unique position of having knowledge that any other judge in this case is unlikely to have. It would be wrong to interfere with that.’

Rachel Chapman, for the child’s guardian, said the guardian was ‘relatively neutral’ on the appeal.

Judgment was reserved.