F (Children; Contact, Name, Parental Responsibility)

THE JUDGE: This is a further instalment in long-running private law proceedings concerning the welfare of children. It is, in fact, my first involvement. Previously, the case was allocated to Her Honour Judge Singleton but it was reallocated to me by the Designated Family Judge when it was perceived to be impossible for Judge Singleton to continue with the case. I refer to page B266 of the bundle.

The children with whom I am concerned are A and J, twin boys born in 2011. The mother acts in person. The father also acts in person, although assisted by a McKenzie Friend Mr Thompson. The father resides in South Africa but has travelled to the UK for this hearing. The children are represented by a CAFCASS guardian Mr Moray and counsel Miss Gregg.

The background is a marriage of this couple in 2008 and a separation in April 2013. Following the separation, the children remained with their mother but there was limited contact for the father in the months of May and September 2013. His last contact took place under CAFCASS observation on 28^th November 2013.

The Children Act proceedings have produced a number of orders. On 29^th November 2013, there was an order which is to be found in the bundle at page B50 which was intended to be a final order. The father had chosen not to attend court on that occasion. The court’s order provided for the exercise of professionally supervised contact. Father had in fact indicated that he would not take up supervised contact and he sent a message to the court requesting that his parental responsibility be removed in its entirety. Next the father requested and was allowed to apply to set aside that order of 29^th November 2013. The result was a hearing in front of Judge Singleton which produced the current order dated 28^th February 2014. That was intended to be a final order and is to be found in the bundle at page B231. In essence, that current order provides that there shall be no direct contact with the father except under professional supervision. The father had made it clear that the supervision of contact was not acceptable to him but he was given liberty to apply for the definition of the supervised contact in the event that he changed his mind and wanted to take it up. The order also made provision for indirect contact and contained injunction orders.

After that order of 28^th February 2014, no contact took place. The father did not send any indirect contact. He requested direct contact to take place on four specific separate occasions but his request was not compatible with the terms of the order that Judge Singleton had made and so no contact took place. By way of example, there is an email from the father dated 12^th February 2014 indicating that he was not prepared to accept the supervision of contact on the occasion he proposed.

This latest phase of the litigation has been triggered by applications made by the mother to which I will return in detail in a moment. However, inevitably and quite properly, the issue of father’s contact arises for consideration once more. In fact, on analysis, not very much has changed. At the outset of this hearing, father indicated that he was not prepared to tolerate the supervision of contact. On mature reflection and with advice, he adjusted his position. He said that he would participate in supervised contact but only if it was laid down that it should take place every six weeks or so and that every six weeks there should be three or four consecutive part days for contact with the twins. The mother should pay for these supervised sessions and father would meet his own transport costs. He proposed that this arrangement endure for a fixed period of perhaps nine months, after which progress should be reviewed.

I am not persuaded that I should proceed in the way that the father proposes. He has, in the course of the hearing, made it clear that if I am not persuaded to his viewpoint, he will walk away, he will reject indirect contact and he has expressed the hope that his parental responsibility will be removed. In fact, the hearing has been marred on a number of occasions by the father threatening to withdraw but he has been persuaded by the helpful intervention of his McKenzie Friend to return and to participate in the hearing on a proper basis.

There is a long history to this case and, of course, the written material has been very extensive. I have concentrated on the material prepared in and since February 2014 but I have been referred by all parties to earlier material which is at my fingertips. I have heard oral evidence from the mother, from the father and from the children’s guardian.

The law that I have to apply is clear. The welfare of the children is my paramount concern and I have in the forefront of my mind the welfare checklist under the 1989 Act. In reality, it almost always will be in the best interests of a child to have contact with a parent from whom he is separated. The Article 8 rights of the parents and of the children are engaged. In that context, there is a parental right for a process towards a reunification with separated children but that is not an absolute right. It seems to me that some if not all of the orders that I am being asked to make are at the most extreme end of the spectrum of Children Act orders and I, therefore, need to find an exceptional justification before accepting the contention that these orders should be granted. I have to be persuaded that these orders are not only necessary but are proportionate to the circumstances of the case. I have to be persuaded that orders of this extreme kind are demanded by the welfare requirements of the children and that there is no alternative.

In a moment, I will explain the reasons that have driven me to this conclusion but I have, at the end of the day, concluded that the high level to justify these orders has been met and, in essence, the level has been achieved as a result of what I found to be bizarre conduct on the part of the father. I take a long-term view. If the father’s conduct changes, if he can engage in a satisfactory course of indirect contact, the door very clearly remains open to the father to re-establish contact with his sons and I am sure that would be to their long-term advantage.

(i) The last contact was on 28^th November 2013 and was supervised by the children’s guardian. The father was very emotional on this occasion. Ten minutes or so into the contact session, his emotions got the better of him and he walked out of the contact session, announcing that he was never going to see his children again. This was a particularly tragic turn of events because it is clear from the evidence that earlier contact sessions had been good sessions. The father’s engagement had been appropriate and a good relationship with the boys is described by the guardian. I give great weight to the success of these earlier sessions. It does mean that if the father is not to have direct contact in the future, the children are losing something which has been established by the previous course of contact as being of potential value to them. In mitigation of the father’s reaction, I remind myself that he had just heard that the CAFCASS recommendation was going to be for supervised contact on an ongoing basis but there can be no doubt that the experience of this premature termination of contact must have been confusing for the children.

In fact, the case does have an additional layer of complexity which needs to be reflected in this judgment. I do not know whether this reflects the father’s psychological assessment or not, but he likes to see himself as a victim. The father’s protest blog presents him as a victim. The father’s gestures of actually walking away or threatening to walk away are clearly associated with a perception of martyrdom. I expect the father’s blog will present even the self-imposed outcome of this case as some form of martyrdom on the father’s behalf.

I have to make the children’s welfare my paramount concern. It is not in the children’s best interests to learn that their father has been driven to some inappropriate martyrdom. It follows that I do not propose to act on the father’s gesture of self-sacrifice. Instead, I propose to continue to make a full assessment of the welfare requirements of these children and reach my conclusion on that basis.

An additional argument propounded by the guardian, which I accept, is the need for the father to establish his good intentions through his conduct going forward. I shall next turn to give recent examples of incidents in which the father has, in my judgment, let himself down and which the father needs to establish by his conduct over a period of time will no longer feature in his approach to his family.

I am driven to the conclusion that this activity on the father’s behalf has been severely damaging to the welfare of the children. This activity has affected them directly and has affected them indirectly through its effect upon their carer.

I have heard the father on this subject. It is clear to me that his actions have been badly motivated and it is clearly in the best interests of the children that this kind of activity should stop. In these circumstances, I accept the argument of the guardian that the father must establish through the passage of time that this kind of conduct has stopped before it will be possible to resume direct contact between father and sons. Indirect contact is, for me, a helpful route by which the door can be kept open for the resumption of direct contact. I do hope in the best interests of the children that the father will take up this opportunity. There is now, perhaps for the first time, an appropriate mechanism for the exercise of indirect contact. I refer to the opportunity to submit material for the children’s attention through the agency of the children’s guardian who is to be the holder of a family assistance order for that purpose. The same mechanism is to be used to keep the father informed on a continuing basis as to the well-being of the boys. A quarterly summary was proposed and is a clear part of my plan.

If the father is going to receive information as to the well-being of his sons in that way, it is an important starting point for my consideration of the next application before me. The mother asks me to consider restricting the father’s exercise of parental responsibility for his sons. This is an application which enjoys the support of the children’s guardian and my attention has been drawn to the exceptional case of P v D [2014] EWHC 2355. In that case, the High Court was persuaded to make an order prohibiting the entire exercise of parental responsibility by a father. I am not persuaded that the present case is so very extreme as that case of P v D.

In approaching this application, I make the welfare of the children my paramount concern. As can be seen at paragraph 112 of the report in that case, it is an important factor to the advantage of children that their father be involved in their life with an opportunity to exercise parental responsibility. There is, however, a counterbalancing need for the children to have emotional and physical security. My analysis is that the father is, unfortunately, motivated to interfere with their emotional and physical security but my assessment is that it is possible to identify the relevant areas and to restrict the father’s exercise of parental responsibility in these areas alone. My conclusion is that it is only to this extent that it is necessary for the advantages of father being involved in the lives of the children to give way to the more important need to safeguard the children’s security. The areas which I identify which need protection concern activity to trace the children; approaches to health and education agencies; approaches to the welfare agencies; and to the police.

In his martyrdom mode, father suggested it would be better that all parental responsibility was removed. He even suggested that there were areas that he might choose to interfere with relating to religion and to language. I do not propose to remove the father’s right to exercise parental responsibility across the board. In my view, the children’s best interests would be served if the father can change his approach and play a role in their lives. For me, the provision of indirect contact and the provision retaining his residual parental responsibility rights is an important part of keeping the door open for the father assuming a proper role at some point in the future. The bottom line is that it is not necessary or proportionate to remove his opportunity to exercise all his parental responsibility, only necessary and proportionate to restrict some.

Drafting will have to be an exercise to which I turn at the end of this judgment but I do accept the guardian’s argument for the need for some additional supporting clauses. Firstly, a clause indicating that the mother is not under an obligation to inform or consult with the father in her exercise of parental responsibility except in circumstances in which either the children might be suffering serious illness, might be facing death or may be the subject of a plan to emigrate. Secondly, I do give permission for the mother or the children’s team or both to serve the court order on relevant agencies fitting the criteria that I have set down and it is also necessary for there to be an order that any relevant agency within those criteria so served is prohibited from disclosing information about the children to the father or complying with his purported exercise of parental responsibility.

The mother seeks the permission of the court to take steps for the twins to be known by a different surname. In fact, before I became involved in the case, a judge had given the mother permission to take this step as an interim measure. She has changed the surname of the children and today I am concerned with her request to be allowed to maintain that position. This is not a conventional application. The motivation is not that to be seen in the textbook authorities concerning change of name. Instead, the purported justification is to protect the children from the consequences of the father seeking to find them and the consequences of the father publishing detrimental information about them.

The welfare of the children is my paramount concern. The name of a child is an important link to an absent father. The authorities refer to the importance of maintaining the link with the biological father. That is not, of course, an element here but, nonetheless, there is importance in maintaining the link of the children with this important father figure.

Against that, the father’s publication of material has been quite insidious. I refer here to his slandering of the mother and to his premature disclosure of the circumstances of the conception. I refer to the publication of details of the intimate operation on the child and his publication of confidential materials from the proceedings. Generally, the law prohibits some of this publication. A bespoke court injunction could prohibit the publication of most of this information. I have heard the children’s guardian on this topic and the reluctant conclusion that he has reached and the advice that he gives, is that the normal protective steps available to the court insufficiently avail the children in this case. He points out that the harm from publication has been done, in the sense that the material is out there. He points out that the father is determined with his course of publication, perhaps as a result of psychological issues, perhaps not. The guardian points out that only a prolonged series of periods of imprisonment would stop the father from publishing harmful material and this would produce the very martyrdom that the father seeks, martyrdom that the boys do not deserve to suffer.

In this context, I am persuaded that the protection of the children does require me to maintain their so far temporary change of name. I am persuaded that the desirable preservation of a symbol of a paternal link through the preservation of the surname has to give way to the protection of the children from the father’s publication steps. I cannot allow a situation in which the children at an older age and their friends can chance upon web based insults to the mother, descriptions of the penis, or anything else that the father decides to publish from time to time in association with their name. It seems I cannot realistically stop the father’s activities at source but I can stop the harmful consequences, which are, of course, associated with the identification of this material alongside the names of the children. In this context, in the children’s best interests, it is necessary and proportionate to allow their change of name.

The father has threatened to walk away from the children in the event that a name change is permitted. On his blog, he explained in recent days, that he has set up a trust fund for these boys but if the boys are going to benefit from his generosity, it will only be if they come forward sharing his name rather than any other name. I am afraid that step tells us a great deal about the father. The boys’ decision in the future, when they are old enough to make decisions for themselves, will be a decision for them.

The father’s publications, of course, do constitute infringements of the law. The children’s team have been exercised as to whether they should initiate steps to enforce the law against the father. The mother is not represented. She has not taken steps to initiate enforcement steps for herself for understandable reasons. The children’s team have been motivated by the fact that father spends extended periods of time abroad where they suspect his insidious publication steps occur, although, of course, he is currently in the jurisdiction and available for enforcement at the present time. On balance, the children’s team advise me against the instigation of enforcement steps. The guardian’s advice is that the children are better protected by a change of name. They advise that enforcement steps would provide the martyrdom which the father seeks and which the children do not require. The consequence is that there is no application to enforce the law about publication against the father. I have received and given due consideration to this advice from the children’s team and I have reached the conclusion that I should not take steps myself of my own motion contrary to that submission on the children’s behalf.

On 28^th February 2014, the court granted a non-molestation order in precise terms restricting the father. It is necessary for the terms of that order to be reviewed. The date on which the order comes to an end is the subject of a typing error which can now be corrected. I accept the guardian’s argument that the order would be enhanced if the mother’s name appeared on its face, rather than a description of her status. The third point raised is the proposition made by the guardian, which is that the evidence establishes a need for the order to be extended to provide express protection for the children. This is an argument which the father has not sought actively to resist. He has told me, sensibly, that he has no plan to harass the children and, therefore, he has nothing to fear. It does seem to me that the evidence of the father’s activities to which I have referred does clearly establish a need for the injunction to be extended to provide specific protection from harassment for the children, which I propose to do.

The old order in fact contained as a first clause a prohibition on the father contacting the mother at all. This does seem to me an unrealistic provision at a time when divorce, financial and other issues remain for resolution by unrepresented parties. Accordingly, I propose to discharge that clause. It seems to me that the prohibition of harassment meets my intention. Civilised exchanges should not be prohibited. At the same time, the parents have indicated an agreement that they will not contact each other outside of the necessary negotiations and it is proposed that a recording to that effect appear on the face of the order and I agree.

The guardian has made an application under section 91(14) of the Children Act seeking the imposition of a five-year bar on any further applications by either parent without them first obtaining the permission of the court to proceed with an individual application. Again, I must apply the test that the welfare of the children is paramount and I must take into account all the circumstances. Such an order does represent an intrusion in the statutory right to make applications to the court. I remind myself of the guidance that says that such an order should be the exception rather than the rule and should be confined to cases in which it is necessary and proportionate. It is, of course, the case that the mother started this round of litigation herself, although the father’s conduct of the case after the mother fired the starting pistol has, I am afraid, become part of his continuing campaign against her. By way of example, the father’s very attendance and participation at hearings before the court has been a matter of his whim of the moment. Earlier in this year, the father contacted the court and threatened to issue a huge number of applications addressed to all sorts of agencies and parties. Mercifully, he did not carry out that threat, although he did make a fanciful application in September for interim contact, an application which he did not follow up by attending court to pursue it.

My conclusion is that it is necessary to be restrictive. If the parents wish to bring any Children Act application in the next five years, they should first seek the permission of the court before being allowed to proceed. I propose to reserve the case to myself wherever possible. If there is merit in any proposed Children Act application, of course permission will be granted for it to proceed but, for example, in the father’s case, I will be interested to look to see whether he has participated in indirect contact. I will be interested to see whether his conduct has improved and I might perhaps be inclined to enquire what his approach has been to the psychologist’s advice. It is necessary to protect from indiscriminate applications.

My final task, determined by my predecessors, has been to consider the case management of any live applications for breach or under the Human Fertilisation Act. There are no such live applications and, therefore, no case management directions are needed.

I would like to conclude with a word addressed to the father, who will be disappointed and upset by the outcome of this case. My message is that the door to contact with these boys remains open if but only if the father is able to take a different approach. Otherwise, I am afraid, you will be depriving your boys of a relationship with their father which was obviously of value when it was exercised in the past.