By Lara Feigel
Lara Feigel is the author of four highly acclaimed works of cultural history and a novel. Professor of Modern Literature and Culture at King’s College London and Fellow of the Royal Society of Literature, she reviews regularly for theGuardianand contributes to a range of BBC radio programmes. Most recently, Feigel appeared as a lead contributor in the landmark BBC 1 cultural history of the interwar years, Art that Made Us, and she wrote and presented a programme about Doris Lessing for the Radio 4 prestigious Archive Hourslot.
Part Three:
‘The arguments between them had at least on one occasion led to some physicality.’
Judgment and child removal
It’s the summer now; it’s a warm, muggy day and Chloe is there at the holiday club, where we saw her arriving. Since the holiday started, she’s had days with her father and days at holiday club and she’s seen her friends, still oblivious of the decisions being argued about in her absence. She thinks her mother is at work today, while she goes to holiday club – on the way there she asks her what she’ll do during her working day. Meanwhile HHJ O’Donovan will have seen another thirty or so families since we last saw him; he’ll have reminded parent after parent that their belligerence is affecting their children – which in most cases, is already their greatest fear. And now he has his judgment written out in front of him, but the parents don’t yet know what it contains.
The judgment begins, as always, with the facts of the case and then moves on to the evidence. Gradually, the judge’s opinions about the parents and their allegations infiltrate the neutral prose. The mother’s position on the sexual abuse allegation was, he says, ‘ambivalent’. She wanted Chloe to see her father unsupervised, and didn’t want her to see herself as an abused child. Yet she was ‘unable in her evidence to categorically state’ that the abuse hadn’t taken place.
He finds that the Guardian’s perspective is a credible one – he was ‘impressed with her evidence’. She is confident that Chloe has been open with her; she sees both parents as having harmed Chloe by failing to protect her from their antagonism towards each other; she is more confident that the father can promote a positive relationship with the mother, than the mother can promote with the father.
He finds that the mother’s evidence was considerably less credible. ‘I have reached the conclusion that there were many, many aspects of the mother’s evidence where she has either sought to exaggerate or indeed be untruthful to the court.’ He believes that the mother minimised the time the Guardian spent with her on a home visit, in order to question the Guardian’s credibility, and that she wrongly accused the Guardian of not doing enough to follow up on the vaccination complaint, when in fact it wasn’t the Guardian’s role to do so. In addition, the mother accused the father of breaching the non-molestation order, but in fact – though ‘ill-judged’ – the father didn’t breach it by posting presents to his daughter. And the mother had said that the father had regularly failed to stick to contact arrangements, when in fact his detailed schedule of handovers showed him not to have done so.
And most seriously, she said in her oral evidence that ‘the father had tried and would continue to try to kill her.’ This in particular has shocked and troubled the judge. ‘For her to tell me on oath that she believed the father has tried and will try to kill her is so serious that I cannot let it slide.’ He has thought long and hard, he says, about whether she genuinely believes this allegation, and has come to the ‘firm conclusion’ that she doesn’t. He can’t accept that she could be content for the father to have unsupervised contact with Chloe while believing that her life is at risk from him. ‘I have reached the conclusion that not only is this allegation extraordinary and quite frankly incredible, it was also a deliberate attempt to mislead me in terms of the risk that the father poses to her and at least indirectly to Chloe.’ This is so serious that he thinks it calls into question the other allegations she has made.
The logic is tortuous. ‘A deliberate attempt to mislead me.’ I feel outraged, hearing this. It’s so hard for a judge, seeing cases day after day, to catch what it’s like for someone like Layla to give testimony: a woman suffering from CPTSD and terrified of losing her daughter to a man who hit her. There’s no serious attempt in this judgment to reckon with her CPTSD and no sense that she’s in an impossible bind. The worst thing you can do in a case of this kind is to say that you don’t want your child to see the other parent; judge after judge has seen Layla as harming Chloe by seeing Sebastian as detrimental to her, or even by suggesting that she gets the occasional tummy ache before going to contact. So of course she said she wanted Chloe to see her father; and indeed, she does seem to have been genuinely happy when the contact order was issued before the sexual abuse allegations, and Chloe was set to spend nights with him every week.
But she can say all this and still be afraid of all this man; she can say all this and say that she feels he’s capable of killing her. I can see how this judge has reached the conclusion that the father isn’t a genuine threat to the mother’s life – and why he might think she’s excessive in her fears. It is indeed highly improbable that this father has ever planned or will ever plan to kill this mother. But I can’t see why it follows that she was wilfully lying to the court. A few years ago, she reported to the Local Authority domestic abuse agency:
“I believe he is capable of killing me. He is an “all or nothing” kind of person… he threatened that if I ever reported him to anyone he will find me and make sure I pay for it.”
There’s a logic to all this, even if it’s not a logic we’re inside. And surely it’s possible to see how a woman with CPTSD might have extreme and escalating fears of a man who has threatened to destroy her – even if she has threatened to destroy him too. There are stories of children being harmed by their parents in the news every day. It’s not that long since Sara Shariff was found hooded, burned and beaten by the father awarded custody by the court. It may be impossible to believe that Sebastian will decide to kill his ex-wife and daughter, but I don’t think it follows that it’s impossible to believe that Layla fears that he might do so. The judge applies the language of forensic truth and risk assessment to her cri de coeur. And he decides that her fear is necessarily contrived, rather than desperate and confused.
O’Donovan turns to the father, acknowledging that the father’s apparent insight into his past mistakes might be a tactical way of deflecting attention from the more serious allegations. ‘I cannot get away from the really, really abusive language that the father used against the mother,’ he says, adding that it was ‘shocking’, ‘racially charged’ and ‘demeaning’ and that the father didn’t always recognise how unacceptable it was. He says that he can’t, as the mother wants him to, assume that someone who makes threats of physical abuse is also a physical abuser. However, he doesn’t accept the father’s explanation that the ‘there is nothing wrong with attempting to correct a disobedient wife’ comment was a sarcastic remark about Muslim husbands. This, combined with the ‘this is why you get hit’ comment, has led O’Donovan to believe that ‘the arguments between them had at least on one occasion led to some physicality.’ He finds that in the breastfeeding argument, the father did hit the mother in the chest, but not that he choked her, or did anything that put her life in danger. Similarly, in the incident when the mother says she was thrown down on the bed, the judge again finds that the father hit the mother in the chest, but not that he did anything causing ‘significant injury’.
Finally Layla has the confirmation of physical abuse she’s been seeking for two years. It’s taken two fact findings to get to this point, despite all her recorded evidence. But given his difficulty ‘in relying on the mother as an accurate witness’, O’Donovan doesn’t make any other physical abuse findings. And he doesn’t pause to question what it means for the father’s credibility that he’s been lying for all this time about whether he hit her.
O’Donovan doesn’t find evidence of coercive control, finding instead that this was a relationship with a lot of verbal abuse on both sides. He thinks that there were mixed messages on both sides about when and whether the father should leave the marital home. And he thinks that though the father overreacted to Chloe’s scratch, his refusal to return her to her mother that holiday wasn’t indicative of controlling and coercive behaviour. ‘There was poor behaviour, there was at times selfish behaviour, there was at times manipulative behaviour, but it seems to me that it does not go outside the context of what became a toxic relationship.’
So having found that the father has hit the mother twice, in front of the child, the judge goes on to make his decision on where Chloe should live. Chloe is too young for her wishes and feelings to play much of a role, though the judge is sure that ‘while Chloe likes spending time with her dad, if asked she would wish to continue to live with her mother’. He worries, though, that the mother is unable to meet Chloe’s emotional needs – in particular her need for ‘a safe and secure and loving relationship with both of her parents’. She needs a primary caregiver who is able to meet her ‘emotional needs, who has insight into her inner world’. He believes that her father is – though not ‘without some limitations’ – better able to recognise her ‘need to have a positive and loving relationship with the mother’. Her sex is, he thinks, irrelevant, and her dual heritage can be sufficiently sustained through weekend contact with her mother. Frost has asked if a man on record as misogynistic and racist should be given the care of a mixed-race girl. ‘While I have some concerns, as I have said, about some of the racist language used by the father, I have little reason to believe that he will not promote her heritage.’
He finds that both parents have exposed her to harm through their conflict, and the mother has harmed her with the sexual abuse allegations. She’s been spoken to by a lot of people ‘who sought to manipulate her in terms of directing her evidence against the father’. And he worries that if she lives with her mother, it’s ‘more likely than not that matters will arise in the future’ that will lead Layla to try to reduce Chloe’s time with Sebastian. If Layla believes Sebastian has abused his daughter and is capable of killing her, she will surely feel in the future that contact has to be stopped or limited. This mother he thinks has ‘learnt no real lessons’ from the fact-finding hearing or the Guardian’s analysis. He has little confidence she will develop ‘insight’. While he doesn’t want to minimise the seriousness of the father’s abusive behaviour to the mother, this was in the context of ‘a really difficult relationship’ .He urges him to seek therapy to learn to manage his own anger.
The judge seems to have come down on the side of believing that Layla believed the sexual abuse allegations when she made them, rather than setting out maliciously to destroy Sebastian’s life. In Frost’s submission, this makes it less likely problems like this will recur. Assuming the father is in fact a safe father, Chloe is now articulate enough not to confuse her mother with ambiguous statements about her time with her father. The judge follows the Guardian, though, in thinking that Layla will go to the authorities with little provocation, if Layla comes back from her father with anything even slightly amiss.
Given all this, he weighs up his options. The Guardian recommended in her report and position statement, before the hearing, that ‘if the court finds that the father has been a perpetrator of physical abuse of the mother, or of coercive and controlling behaviour… and that Chloe was at significant risk of emotional and physical harm’, Chloe should stay with her mother and the father’s contact remain limited while he completes a perpetrator’s course. But in her submissions, the Guardian’s barrister has emphasised the mother’s lack of credibility, insisting that she’s undermined contact, falsely accused the father of rape, misled the court on the father’s apparent breach of the non-molestation order, and harmfully contrived the case on sexual abuse. She still says that the recommendation for a change in residence is contingent on the court ‘not making serious findings of assault’ against the father. But the word ‘serious’ is crucial here. And it’s looking like two hits on the chest aren’t going to be seen as constituting ‘serious findings’, even though they were committed in front of Chloe.
O’Donovan says that he could leave Chloe with her mother, with stringent orders about contact, including orders with penal notices. But he can’t see how this would stop her finding ways to avoid contact. He can’t see a future in which Chloe lives with her mother and has a strong relationship with her father. And so, ‘with a heavy heart’, he rules that Chloe should move immediately to live with her father. It’s essential, he says, that she should have frequent (for the most part, weekly) contact with her mother, though initially this will be supervised. For at least a year, Layla won’t be able to take Chloe abroad.
Two sources of harm have been weighed up and it’s been found that the mother’s harm to her daughter with the abuse allegations exceeds the father’s harm to the mother in hitting her. There’s something else going on here too. The courtroom becomes a microcosm for the world, like the psychoanalyst’s consulting room, and everything is measured in terms of the parents’ presentation on the witness stand. The father has seemed the more stable parent here; his professionalism in handling the case has to be indicative of his competence as a father. So the judge makes the massive leap of assuming that if the father’s put in the driving seat, he’ll bring the same calm and wisdom to fatherhood and coparenting that he’s displayed in the courtroom.
‘You’ve learnt nothing from Sara Shariff,’ the mother shouts, fearless now that it seems she has nothing more to lose.
They act swiftly. The Guardian has recommended that the transfer of residence should be immediate, given the concerns about flight risk. I find this extraordinary. The mother doesn’t have Chloe’s passport; no one has explained what possible means she is meant to find to take Chloe out of the country.
The lawyers talk to the holiday club, who tell them they’ll need to provide a court order if they’re going to authorise the father to collect the child. It’s all so abstract: authorisation, phone calls. But at the heart of this is a girl, coming to the end of a long day at holiday club, looking forward to seeing her mother.
The judge doesn’t have to justify why he thinks that the best way to manage the transition is to give Chloe no preparation at all. It’s not as though the mother could or should have prepared her in the morning, given the outcome was still unclear. It would only have confused her to tell her that it was possible her life was about to be transformed. No one seems to think that it’s more harmful to Chloe to be plunged from one life to another with no warning, than to be exposed for another day to her mother’s dangerous ideas about her father.
Court cases are forensic. Minute by minute, the judge analyses the harm a child may have suffered. But when it comes to the child’s imagined future, everything is left to vague speculation. The child’s future relationships will be damaged if her relationship with her father is imperfect now, judges are told by psychologists and Guardians again and again. But how is that harm to be measured against the immediate harm of the separation – here, now – from the person she is closest to? Feeling himself torn between two far from perfect solutions, the judge has made the decision to try out a scenario that might just work, trusting in the vague hope that children are adaptable and somehow move on; that anguish heals.
I think of Chloe in that recording made when she was two, shouting ‘I don’t want her to say I love you,’ only to take the phone to bed with her that night because she was missing the mother and was seeking her comfort in the only way she could. The awful push and pull of separated love – it’s being inflicted on her again on a more extreme scale.
Published 3rd March 2026
Lara Feigel’s Custody: The Secret History of Mothers is published by William Collins on 26 Feb. Preorder it here:
https://www.waterstones.com/
See Lara Feigel in conversation with Charlotte Proudman at Hatchards on 17 February
https://www.hatchards.co.uk/