W (Minors), Re

I heard this case over three days towards the end of November 2017. On the last day, which was a Friday, it was not possible for me to give an ex tempore judgment because there was insufficient time left at the end of the day. I was clear at that stage as to my findings and conclusions in relation to this case, but because of the lack of time I had to reserve this judgment. I prepared a written judgment very shortly afterwards while the facts and evidence and issues in this case were all very clear in my mind, but it has not been possible for me to deliver it before today.

Unfortunately, in the intervening month this case has not progressed in the way that it was hoped and contemplated it would between then and now. First, the father has found it necessary to cease instructing his solicitors and most excellent and helpful counsel, Mr Oliver Thorne, and he now acts in person. He says, and I accept, that he simply cannot afford to pay any more money to lawyers, and he wishes to conserve such funds as he has for the needs of his children. The unfortunate consequence of that is that it was contemplated that the solicitors and/or Mr Thorne would help the father with steps that it was hoped would be taken between then and now, and it may be in part because the lawyers are no longer instructed that those steps have not been effectively taken.

Second, it was contemplated that the father would send appropriate letters and small gifts for each of the children concerned. In the case of the elder child they were to be sent via her school, who had agreed to help. Unfortunately it is only very recently that the father has in fact sent a letter and gifts. The school is now closed for the Christmas holidays. The letter in fact went to CAFCASS. I have just been shown a copy of the letter, and it is obvious that it contains within it inappropriate references to the proceedings and the history of this matter, which the father should not be discussing in his first letter to the children for a very long time. So CAFCASS have not forwarded that letter for the children, although the mother and her legal advisors have seen it. The sad part is that if the father was still instructing his lawyers they might have been able to advise him and assist him in writing a letter that was entirely appropriate and not including inappropriate matters.

The third difficulty is that it was clearly contemplated at the last hearing that there would be proactive contact with a local contact centre called Springbourne in order to ascertain what support and help they could give for this father and the younger child in particular. The father has indeed filled in a pro forma referral form of Springbourne Family Centre, but as of today there is simply no information from that centre in response as to the ways in which they might be able to help in this case. So, regrettably, much less progress has been made between the last hearing and today than I was contemplating and hoping.

When I drafted the written judgment it was somewhat inconclusive at the end, precisely because I was waiting to see how developments did unfold between then and now. What I propose to do is to deliver verbatim the written judgment which I prepared. I will indicate the point at which the written judgment ends and I will then give my conclusions as to the way forward. With that preamble I now commence reading from the written judgment which I prepared several weeks ago.

This is a sensitive and difficult case with regard to contact. I was asked to hear it at very short notice when I happened to become free in Portsmouth due to a case there settling, and the district judge before whom this case had been listed for some months in Bournemouth fell ill with influenza. When I agreed very late one afternoon to hear this case in Bournemouth the following morning, I did not even know the name or nature of the case. I only knew that there was a crisis with which I agreed to help.

I mention all this for the following reason. As I will later explain, this case will inevitably require further hearings, possibly several. I sit primarily in London. It would be totally unrealistic to expect these parents, who both live in the Poole/Bournemouth area, to travel to London for any future hearing in a case of this kind. They have neither the time nor the means to do so. The mother, in particular, is very tied down by the needs of the younger child who has a chromosomal disability. It is also totally unrealistic to contemplate that I can, proportionately, keep taking days out from the overcrowded London diary to travel to Bournemouth to hear this case.

Further, it would be likely to involve unacceptable delays. That is perhaps illustrated by the fact that the present hearing concluded on 24^th November 2017, but today, 20^th December, is the first date upon which it was possible to arrange for me to sit in Bournemouth to deliver this judgment. It may be a weakness in the system, but a High Court Judge (other than perhaps a Family Division Liaison Judge) simply cannot give to a case of this kind the continuing local judicial continuity which it requires.

By this judgment I propose, therefore, to make and record my findings on the essential disputed facts and to make one interim order. Thereafter, this case must be allocated with maximum judicial continuity to a circuit or district judge who sits regularly in Bournemouth, and he or she must take it forward.

In this case the mother makes allegations of domestic harm and abuse against the father. If the revised Practice Direction 12J issued in October 2017 had been in force in August, the directions given on 11^th August 2017 might have provided for a discrete and freestanding fact-finding hearing. As it is, those directions provided that the present hearing should be a “final hearing” and that “insofar as the allegations may be relevant to any child arrangements order that may be made at a hearing, the truth of them can be determined at that hearing.” This has not turned out to be “a final hearing” and, as already indicated, further hearings will undoubtedly be necessary unless the parents reach some accommodation. So this hearing has been a combination of hearing oral evidence upon the disputed facts, and consideration of the way forward, including hearing in that regard the oral evidence of the CAFCASS officer, Mr Guy Cowmeadow.

In this particular case there are very few facts indeed about which I could, or do, feel sure except those which are patent or agreed, but where I describe or make findings as to any facts I do so on the ordinary civil standard of the balance of probability.

The father is now aged 49 and the mother is 36. They both originate from Afghanistan and are of the Muslim culture and faith. Their marriage was an arranged one in 1998, when the mother was aged 16. Soon afterwards the father moved in 1999 to England, where he has lived ever since. He is now a British citizen. Several years later, in July 2006, the mother also moved to England and she, too, is now a British citizen. Their elder child, M, was born in September 2007. She is now aged 10. At that time the parents were living together.

In about June 2011 the mother moved with M to a refuge in Poole, and from there in December 2011 to a refuge in Shaftesbury. In about January 2012 she moved back to the refuge in Poole and remained there until about December 2012. In December 2012 the mother moved with M into her own rented accommodation in Bournemouth Road, Poole.

Whilst living at the refuge, the mother had visited the father from time to time and became pregnant by him. Their second child, a son, I, was born in March 2013 and is now aged about four and three-quarters. He suffers from a genetic chromosomal abnormality which results in physical and intellectual developmental delay and anticipated learning difficulties. He cannot yet walk well and has limited use of speech and language.

The birth of I was a difficult one for the mother, who had to spend about 10 days in hospital. During that time M was cared for by her father, a point which he understandably now stresses.

In late August 2013 the mother moved with both children from her address in Bournemouth Road to her present rented accommodation in Poole, and she and they have lived there ever since. She receives no regular support from the father, who is a taxi driver, and she has been, and remains, entirely dependent upon state benefits. She has no family in England and little or no support network or back-up for caring for her children and, in particular, I, who is especially dependent upon her due to his disability. Despite these difficulties and burdens, the mother looks after both children well.

It is quite clear that in a period from 2013 to late 2015 both parents and both children did spend time together in local parks and other places such as Longleat Park in Wiltshire. In August 2015 they spent three days at Legoland near Windsor, where they stayed in a hotel together. The parents and children shared one family bedroom, but the parents did not share a bed. The father has produced numerous still photographs and some short video clips of these various outings, which appear to have been happy family events for the children.

The mother says that she was willing to participate for the sake of the children and that the children did indeed have happy times and enjoy them. She stresses, however, that she was always present so as to be reassuring for the children. She says that apart from the 10 days or so when M stayed with the father immediately after the birth if I, the children have only very rarely been alone with their father. On one occasion M spent a short period with the father after he collected her from school. On one occasion both children were cared for by the father for a couple of hours while the mother was treated at hospital after an accident. Apart from that, the mother cannot recall either child being cared for by the father on his own since she left the refuge in December 2012. To all intents and purposes, therefore, the father has never cared for I on his own.

Since about October 2015 the relationship between the parents seems completely to have broken down and the father has not seen either of the children. In late November 2016 he issued his application for a child arrangements order. Unhelpfully and unwisely, the form C100 described the application on page 1 and again in section 5 as being “for the children to live with me and/or for the time I spend with the children”. An application for an order that the children move to live with him must have seemed very threatening to the mother.

The application also disclosed that during 2015 the father had made covert recordings in the mother’s home of, he said, the mother slapping M and shouting at the children. I agree with the CAFCASS officer, Mr Guy Cowmeadow, that the making of covert recordings was a deceitful act which only tends further to undermine any trust by the mother in the father.

In her statement dated 15^th September 2017, now at bundle page C63, which supersedes and replaces her earlier statement dated 19^th May 2017, the mother describes in general terms that the father was physically and verbally abusive towards her and controlling of her. She says that she has suffered from physical, emotional and psychological abuse. She says that he was violent towards her in front of the children by hitting her and saying inappropriate words and threatening her. He threatened to kill her or burn her or cut [off] her head. She says that when the father was violent he would sometimes grab objects and throw them at her, or at the walls with the intent of breaking them or hurting her. She says that he displayed controlling behaviour by checking her possessions, such as her ‘phone or handbag. He would question M as to who the mother had been with or what she had been doing. She says, too, that he would make derogatory remarks to M about the mother, such as: “Your mother is a dirty/bad woman.”

These are, of course, very generalised allegations or assertions about a persistent pattern of abuse and controlling behaviour. The father resolutely denies them and says they are all untrue.

The mother prepared a “Scott schedule” in which she particularised five allegations or matters. Of these, allegations 4 and 5 pertain to stalking or following her in 2015 after they were separated. Allegations 1, 2 and 3 pertain to the period when they were still living together. The first allegation, 1, dates from December 2008, now nine years ago. It is not disputed by the father that there was an altercation that day and the police were called. The mother said in her oral evidence that she was sitting on the sofa. The father picked her up and manhandled her to the bedroom and onto the bed. In her oral evidence the mother said that, as she tried to pull herself up to a sitting position on the bed, the father punched her in the chest. He pushed her to lie down and slapped her. He hit her on the shoulder and on the side of her leg. In cross-examination she said that she put her hand on his chest and asked him to stop and that was when he punched her.

It is true, as Mr Oliver Thorne, counsel on behalf of the father, stressed, that the contemporary police log or note, now at bundle page F10, does not use the word “punch” but does record the mother saying that he slapped her with an open hand on her left hip and right shoulder. The father’s contemporary account as recorded by the police, now at bundle page F11, was that he “pushed” the side of her face with his open right hand, and he indicated a slapping movement, although he said to the police that he did not actually slap her face.

In assessing this incident, which undoubtedly occurred, I have to bear in mind the long period of time, nine years, since it occurred. There is no contemporary witness statement made and signed by either party. I do not know when the police log was written relative to when each party gave their accounts. I need to bear in mind also that English is not the first language of either party and that even now, nine years further on, the mother does not always express herself in English with clarity. I do not doubt the integrity of her oral evidence to me that she recalls the father punch her. I am unable positively to conclude (on a balance of probability) that he did actually punch her in the sense of using a clenched fist, but I am quite satisfied that there was a physical assault. The father was the aggressor and perpetrator, and he was abusive towards the mother by manhandling her onto the bed and hitting her (even if only with an open hand as a slap) while she was upon the bed.

Allegation 2 relates to an incident in a park in 2009. As summarised in the Scott schedule, the mother alleged that “He left me in the park and asked me to go away in front of M and took M with her [sic, but means him]. He was very angry and told me that he will cut my head. So I called his friend Andrew and Sheila to get help.”

In her written statement, now at bundle page C65, paragraph 14, the mother wrote “...[the father] left me in the park by myself and asked me to go away. He was very angry and told me he will cut [off] my head and kill me without anyone find out and took M with him... Andrew and Sheila came and took me to their home. I stayed with them overnight and Andrew went to the [father’s] flat to talk to him.”

There clearly was some incident in the park which both parents do recall. The father says in the Scott schedule that he went for a jog around the park when the mother started an argument. He denies taking M at all. He says that the mother and M went to Andrew and Sheila and “subsequently they came home”. In his oral evidence the father continued to maintain that he did not take M away, but said that the mother and M stayed overnight with Andrew and Sheila.

On this disputed evidence I am unable to conclude that the father did actually drive off with M. But even if he did not do so and the mother is misremembering an event from eight or so years ago, I am satisfied that the father said or did something in the park such that (on his own case) the mother felt impelled to stay away for the night and seek refuge with friends. As Mr Thorne correctly submitted, the mother did not say in her oral evidence that the father threatened to cut off her head and kill her. I am satisfied that he did in fact so often utter cruel threats that she simply failed during her oral evidence to attach that particular threat to that particular incident. I cannot safely conclude what exactly the father said or threatened in the park, but I am satisfied that he said something cruel and frightening such that she and M did not return home until the next day.

Allegation 3 relates to 2011 and was, the mother says, the trigger to her going to the refuge in Poole that year, probably during June. As described in the Scott schedule “he hit me again and M tries to stop him and begging him not to hit me. He asked me to leave. I left with some help from college and went to refuge.” During cross-examination the mother said in relation to this incident that the father picked up a teapot full of hot tea as if to hit her with it, although it did not actually hit her. As Mr Thorne submitted, there had been no previous reference to the teapot in either the mother’s written statement or the Scott schedule. So he submitted it was a recent fabrication.

The father denies that there was any incident between them and says that the mother fabricated a story or stories so as to gain access to the refuge merely because she wished to leave him. He himself said that in the period 2006 to 2011 they were happy with no problems, then she started arguments. Once she could remain in the UK she did not need him anymore. There was no teapot and no hitting. But, unaccountably so far as he was concerned, she slept one night in M’s bedroom. He woke up in the morning to find that she and M had gone.

On this evidence I cannot be satisfied on the balance of probability that a teapot was brandished during the incident to which allegation 3 is intended to refer. But I am satisfied on a balance of probability that there was a yet further incident of physical abuse which precipitated the mother seeking help from a refuge, and she did not do so simply in order to leave a husband who was no longer any use to her.

More generally, the oral evidence of the mother was not wholly consistent in its detail with contemporary police records or her own earlier written statement. As I have already noted, she was describing events between about five and nine years ago. Her use of English is not always clear and reliable. I listened at some length to the evidence of the mother, including under sustained and skilled cross-examination by Mr Thorne. I listened also to the evidence and denials of the father. I have to record that in general terms I found the evidence and affect of the mother to be convincing, and the almost total denials of the father to be unconvincing. I am quite satisfied to the civil standard that the essential account of the mother of control reinforced by threats and physical assaults upon her is a true one, which she gave with obvious sadness and appropriate affect. She may not now be always reliable, but she is not deliberately fabricating, and her account has a core of truth even if some of the detail is not reliable or confuses aspects of one event with another. I conclude that during their relationship the father was controlling of the mother and frequently physically and verbally abusive towards her.

After the parents separated there were initially periods of contact between the father and the children with the mother present. These included picnics and outings in the locality and more extended trips, such as to Longleat and Legoland, as I have mentioned. These do appear to have been happy and enjoyable events for the children, during which the father did not behave inappropriately towards either them or their mother; but there has been no contact since 2015.

The father, who issued his application a year ago, wishes to resume a relationship with his children and seeks direct contact, but accepts that at any rate initially it will be supervised. The mother now resists any contact other than forms of indirect contact. The CAFCASS officer, Mr Guy Cowmeadow, supports the position of the mother and seemed unwilling to countenance even any attempt at even closely supervised direct contact.

There is a considerable age difference between these two children, about six years. Their life experiences have been very different. M lived with both her parents together and undoubtedly witnessed, and still recalls, some of the abuse within their relationship. I did not. Both children have, different, problems or disabilities. It is thus even more than usually important in this case to consider the needs and welfare of each child separately. However, some factors and considerations are common to the position of both children.

I do not consider that the control which the father exerted and the abuse to which he subjected the mother, as described above, was of such a degree or gravity that it should necessarily disqualify the father from any direct contact with his children. I do not consider that the father is so unable to control himself that direct contact, even in structured and supervised conditions, would involve any risk of physical harm to either child, nor of exposure to abuse, such as shouting or aggression, during contact. I do not consider that the very fact of supervised contact at an identified contact centre or similar venue would expose the mother to any enhanced risk of physical harm.

The father has in fact known where the mother lives ever since she moved to her present address. At any rate since 2015 there is no evidence that he has gone there or indeed caused any trouble of any kind to the mother. Put crudely, if he was at all inclined to attack or harass the mother he could do so at any time. Provision of contact at an identified contact centre would not, of itself, create for the father an opportunity to attack or harass her which he does not otherwise already have.

I do not agree with paragraph 32 of the report of Mr Cowmeadow dated 19^th April 2017, where he stated that: “I feel that contact would never be safe enough to move from the contact centre environment and therefore it would not be of benefit to the children to remain seeing their father in the contact centre environment indefinitely.” Even if (as to which I have no current view) it would never be safe enough to move contact from a contact centre environment, it does not necessarily follow from that (nor is it the law) that supervised contact at a contact centre should not even be embarked upon. The word “therefore” in the above quote from paragraph 32 is misplaced and, frankly, wrong.

More generally, I consider that Mr Cowmeadow has, with respect to him, over-emphasised the historic control and abuse and under-emphasised the lengths to which the legal system should go before concluding that any direct contact, even supervised, is so contrary to the welfare of a child that it should not even be attempted.

In the present case both counsel agreed that I should take into account the propositions in bullet points in paragraph 47 of the judgment of Munby LJ in In the matter of C (A child) [2011] EWCA Civ 521, with which the other members of the court agreed. After reviewing relevant domestic and Strasbourg jurisprudence, Munby LJ appears to have adopted with approval certain propositions advanced by counsel for the appellant in that case and which I incorporate into this judgment by reference and which I bear in mind.

In even greater summary, but quoting from Munby LJ: “The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact... The court should take a medium term and long-term view.” But: “At the end of the day the welfare of the child is paramount.”

In my view Mr Cowmeadow has come to a premature view that any direct contact is so contrary to the welfare of each of these children that he has prematurely abandoned even the attempt. I must make the welfare of each of these children, considered separately and individually, the paramount consideration. I must and do have regard, in particular, to the matters listed in section 1(3) of the Children Act 1989; but I should also have regard in a general way to the thrust of the propositions in paragraph 47 of Re C above.

M

A particular and important part of M’s background and characteristics is that in 2015 and 2016 she received some fairly limited treatment or therapy from the local Poole CAMHS team for anxieties. This is more fully described in letters from CAMHS dated 22^nd June and 1^st September 2015, now at bundle pages E1 to E5. M appears to have had intrusive anxieties about such matters as fires or even a loud noise such as a door banging. The full aetiology of her anxieties was not perhaps fully explored. They seem in part to have stemmed from a video which she saw at a mosque (see page E3) and problems with noisy neighbours and a “sub-optimal” living situation (see page E4). But the summary in the letter on page E4 does include her having witnessed domestic violence as having “likely contributed to her heightened sense of threat and danger”.

The sessions with CAMHS appear to have ended perhaps rather inconclusively in 2016, but during 2016 and 2017 M also expressed strong worries and anxieties to staff at her school, as described in a letter dated 10^th February 2017, now at bundle pages E6 to E9. These mainly relate to the court case and having to see her father. It is to be noted that on 18^th January 2017, now at bundle page E8, her main worry was that her father might take her to live in another country and she would not see her mother again. That is a perfectly rational fear for a still young child to entertain in the midst of bewildering and protracted court proceedings. It is not objectively well-founded, and should not of itself prevent carefully structured and supervised contact.

It cannot be gainsaid, however, that M does have this history of pronounced fears and anxieties and there is a risk of harm to her if, as a result of contact, they recur and impair her emotional or psychological development and wellbeing, or impact upon her schooling.

The wishes and feelings of M are ascertainable and have been ascertained. She told Mr Cowmeadow that she does not want to see her father - see paragraph 13 of his report. She wrote a letter to the judge on 31^st March 2017 in which she wrote: “I would just like to say that I don’t want to see my dad and I feel scared with him and I don’t want to talk to him. From M.”

Mr Cowmeadow considers that a combination of the history of abuse often witnessed by M; her history of anxieties; and her own expressed wishes and feelings should preclude any attempt at promoting direct contact even if strictly supervised. I do not agree. Whilst there may be risks attendant upon seeking to promote some supervised direct contact in the short run, very long experience has taught me, and the propositions in Re C underscore, that a longer term view must also be taken. Not to seek to promote some contact now will almost certainly store up long-term psychological harm for M. It is not healthy that she is currently scared of her father. It will not be healthy that she enters adolescence with no relationship at all with him.

So, notwithstanding her own expressed wishes and feelings and the opinion of Mr Cowmeadow, I am not willing, as a conclusion of this so-called final hearing, to make an order which precludes or does not contemplate any direct contact between M and her father. This is, indeed, a paradigm case in which it would be premature for the court now to “stop” contact, and in which the court “must grapple with all the available alternatives before abandoning hope of achieving some contact”, to echo the words of Munby LJ.

However, I do accept that because of M’s history of significant fears and anxieties, and because of her expressed views, the resumption of contact will require particularly sensitive and specialist handling. For that reason I agree that in the case of M a guardian must be appointed to represent her. It is likely (although I do not at this stage make provision for it) that a child psychologist will require to be instructed to make an up-to-date assessment of M’s psychological functioning (the CAMHS reports and indeed Mr Cowmeadow’s own observations, which date from March, are now out-of-date). It is likely that the psychologist will be required to advise upon whether a resumption of contact would be so damaging that it should not even be attempted; and if it is to be attempted, to advise how best to prepare M for it and to implement it.

A guardian is required in order to instruct a psychologist and to oversee the process. The guardian must, of course, be allocated by CAFCASS, but must not be Mr Cowmeadow. The guardian must, of course, read Mr Cowmeadow’s written report, but should not otherwise discuss or communicate about this case with him. A sufficient time must be allowed for a guardian to be allocated and to investigate this case, after which there must be a further directions hearing before the allocated circuit or district judge once he or she has been identified.

In relation to M, therefore, I propose to appoint a guardian and to direct that the case be fixed for further directions before the allocated judge as soon as possible after the end of March 2018. I make no order for direct contact in the meantime. Constructively, it was agreed at the end of the hearing in November that meantime the father would send letters and small gifts for M via her school (with the agreement of the school) and pre-read by the school to check their suitability. [I here interpose into the prepared written judgment a reference back to the observations which I made at the very beginning of this judgment with regard to what has taken place between November and now in relation to letters and gifts for M].

I

In summary, I has general developmental delay which affects his physical movements, including walking, and his speech and communication, and may in the longer term impact upon his behaviour. I accept the evidence of the mother that these effects make him more dependent upon her than if he was a normal boy of his age. Because of his communication delays I’s wishes and feelings with regard to contact were not ascertainable by Mr Cowmeadow.

In the case of I a reservation was raised whether the father could manage and cope with his particular physical disabilities and limitations during even supervised direct contact. In my view that could not be a reason for not attempting supervised direct contact, but, rather, for observing it closely and providing assistance to the father if he needs it. In my view there are no grounds for not attempting some carefully structured and supervised contact between I and his father.

There was considerable discussion at the hearing as to the availability of a suitable centre. In the end it was narrowed down to Springbourne in Bournemouth. I was inclining at the conclusion of the hearing to make an activity direction under the provisions of section 11 of the Children Act 1989; but I made clear that the father must first produce a package from Springbourne describing who they are, what they can provide, timescales and cost. Before contact is embarked upon, the father will need to demonstrate his willingness and ability to provide the funding, for no one else will do so.

That is the point at which my prepared written judgment ended, for, as I said at the outset of this judgment, I wished to consider what developments had taken place between the end of the hearing and today.

Insofar as M is concerned, it remains my position and view that a guardian must be appointed to represent her. There will have to be a further hearing once the guardian is fully appraised of, and on top of, this case. Meantime I hope, despite the regrettable difficulties during the last month, that the father will be able to write appropriate letters together with appropriate gifts (such as an age-appropriate magazine) which can be sent to M via her school, as was contemplated at the last hearing.

So far as I is concerned, it remains my view that the court and the legal system must not give up at this stage upon the attempt to promote direct contact between I and his father, even if that may require to be supervised for a long time to come. Unfortunately the groundwork has not been done with Springbourne that was contemplated by Mr Thorne at the end of the oral hearing and as I have just described in the prepared written part of this judgment. Now that he is acting in person, I appreciate that it may be less easy for the father to make forward progress. That, I am afraid, is a difficulty inherent in the relative lack of available legal aid and in his own financial constraints. He must obtain such help as he can within the community.

I cannot today make any order for actual supervised direct contact at Springbourne or any other centre for, frankly, I do not know enough today about what such a centre could, and would, actually do in this case. Further, it appears that Springbourne would require a prior risk assessment. I do not know who would undertake that risk assessment, but as a first step, once a transcript of this judgment is available it can, of course, be supplied to Springbourne.

So in the upshot I make no order as to direct contact in relation to either child and I can do little more as a conclusion to this hearing than direct that a guardian be appointed to act for M and that there be a further hearing as soon as possible after 1^st April 2017 before the allocated local judge once he or she has been identified.