LKM v NPM

I continue to be concerned with twins LLA and LL who were born on the 23^rd of October 2014, and who are thus now 8-years-old. The father is LKM who is represented by Ms Kirby KC and JMW Solicitors. Their mother is NPM who is represented by Mr Verdan KC, Mr Shama and Penningtons Manches Cooper. The principal application before me is the father’s C100 for a child arrangements order dated 21 October 2021.

That application was case managed by the Justices and DJ Hammond to a fact-finding hearing, which I undertook in July 2022. I am now considering the welfare outcome for the children; whether a shared lives with order should be made, what time the boys should spend with each parent and whether supervision remains necessary in respect of the father’s time with the children.

Background

In July 2022 at the fact-finding hearing, I made serious and extensive findings of abusive behaviour by the father, which were summarised as:

The father has much to reflect on. He is clearly capable of providing good parenting to the boys and loves them dearly. However, in my assessment he has a flaw in his character which until it is addressed means he poses a risk of losing his temper with them, of imposing unreasonable rules on them and poses a risk of emotional and physical harm (limited at present) outside the confines of supervised or supported contact. Until he addresses that flaw that risk seems likely to remain. Given he has said he would address it in the past and has not seen it through either because he never really accepted the full nature of the issues, or because he found it too hard or became demotivated, presents a challenge going forwards. How will a psychotherapist truly know if he is engaging or is paying lip-service?

Following that hearing I case managed the application by the following steps taken to progress to this welfare hearing:

The litigation has been as hotly contested as private law litigation can be. The total costs expended over the two years (although it includes some financial remedy litigation) are said to amount to something close to £1 million. Given this is not a significantly wealthy family this represents a huge proportion of the marital assets; to the extent that there is said to be a real issue over whether the family can now afford to keep their two boys in private education. The approach taken by the parties and their respective legal teams has been to skirmish up hill and down dale in their journey towards the set piece battle which this hearing represents. It has been conducted in writing and in advocacy in highly adversarial terms for what is supposed to be an inquisitorial child focused process. This plainly reflects the underlying conflict between the parents which at times appears to be easing, but at others erupts into fierce forensic conflict.

Over the course of these four days, I have heard evidence from:

The section of this Judgment headed Evaluation contains the essential reasons for the decision with my conclusions on the Evidence contributing to that.

Decisions about LL and LLA’s future must be made with their welfare as the paramount consideration. I have well in mind the statutory presumption of parental involvement, the no order principle and the welfare checklist set out in section 1(3) of the Children Act 1989.

The appellate courts have considered the circumstances in which shared residence orders or other shared lives with orders may be made in a number of cases over the years:

It is unsurprising that the courts have emphasised that the only authentic principle guiding the making of shared lives with (residence) orders is the paramount welfare of the child. However, the courts have made observations which inform the evaluation of paramount welfare. These indicate that shared lives with orders:

These indicators reflect the broad range of factual circumstances in which courts have considered to be in a child’s best interests for a shared lives with order to be made. Ultimately the question is what will best promote the child’s welfare.

PD12J and the learning on domestic abuse is relevant and incorporated into my thinking.

The parties’ arguments amount in writing to nearly 50 pages of close text. Their closing submissions were given over ½ a day. This summary does not purport to cover anything approaching all the numerous, interesting, relevant points they make. My intention is to capture the essential limbs, and to explore them within the evidence and evaluation.

For the ather, his position was at the commencement, and remained, this:

On behalf of the mother, her position at the commencement of the hearing was:

The experts met to discuss their reports and identify areas of agreement and disagreement. The transcript of their meeting resulted in an agreement of the matters set out below. However, the evidence of both of the experts in essence expressed a degree of reservation about the agreement, and I gained the impression that both had compromised for the sake of agreement which they felt stretched their personal opinions close to the boundaries of acceptability. The main areas of agreement and disagreement were as follows:

Dr Freedman is a psychiatrist and psychotherapist of long experience both in clinical practice and as acting as an expert. She was jointly instructed by the parties, albeit I think by the father’s former solicitors rather than his current solicitors pursuant to my order. The remit of her instructions was limited to an assessment of the father’s mental health, including whether he had any identifiable mental health personality or other disorder; in the event that one was identified what impact this had on his parenting abilities and whether any risk could be ameliorated through support; whether any risk to the mother in a co-parenting relationship could be managed or ameliorated; if therapeutic work, the likelihood of the father engaging, the timescales, the risk of relapse, and the risk to the children and the mother whilst work was underway, and signposting to appropriate resources. Following the receipt of the report on 3 February 2023, and my refusal of the father’s application to instruct another psychiatrist, the father’s new team, I assume purportedly in accordance with FPR 25.10(2), sent a list of 35 numbered questions (although given the number of sub -questions the total was significantly more) accompanied by 20 odd pages of personal references to Dr Freedman. Given that FPR 25 questions must be proportionate and only for the purpose of clarification of the report these can only be regarded as compliant by applying the most generous interpretation to proportionate and clarification. The sending of 20 pages of personal references cannot be regarded as within Part 25, even on the most generous interpretation. Dr Freedman answered the questions across a further 14 pages of detailed narrative. The questions amounted to cross-examination by written question. Her report numbered 49 pages (plus appendices), and so with her supplementary answers some 65 pages of detailed analysis. A summary of the material of her report and conclusions, adjusted to take account of the further answers, experts’ meeting, and oral evidence may be as follows:

Ms Kirby launched an all-out attack upon on Dr Freedman’s conclusions and her evidence both in her Skeleton Argument and in her cross-examination. In her closing submissions, her core argument was that Dr Freedman’s evidence should be discounted in its entirety because her approach to the diagnosis of narcissistic personality traits was not consistent either with the DSM-V diagnostic criteria for narcissistic personality disorders, but nor did she apply a consistent approach across the report, answers to the questions, and her oral evidence. Ms Kirby’s argument is fully articulated in her Skeleton Argument, in particular paragraph 5, and a central feature of it is that Dr Freedman identifies narcissistic personality traits as interchangeable with the nine ‘criteria’ identified in DSM-V - a minimum of five of which must be present for the diagnosis of a narcissistic personality disorder. The argument goes on that given that DSM-V requires the criteria to be pervasive, persistent and longstanding, and that Dr Freedman accepted that a personality trait must meet those tests (see [464 in particular]) her conclusion that the father met those tests was not consistent with the totality of the evidence. Moreover, it is argued that her evidence on this changed when she said that the presence of those traits only in the intimate context of the relationships with the mother and children was not consistent with narcissistic personality traits having to be pervasive across a number of areas of a person’s life. The manner in which these were explored in Dr Freedman’s oral evidence generated a very considerable degree of heat but only a limited amount of light. The Skeleton Argument which was provided to Dr Freedman in advance amounted to the forensic equivalent of a WWI artillery barrage giving plenty of notice of the full frontal infantry assault which followed in cross-examination, taking the form (as presaged in the Skeleton, the Table which accompanied it, and the 25 written questions of Dr Freedman) of an exploration of the DSM-V criteria for the diagnosis of narcissistic personality disorder, and how the father did not fit those criteria; how she had failed to properly approach personality traits; how Dr Freedman had failed to take account of all the other evidence in the case. Wave upon wave of criticism was launched from the father’s trenches, made their way across no man’s land and then became caught in the wire of Dr Freedman saying she had not diagnosed a narcissistic personality disorder under DSM-V, but rather narcissistic personality traits, was mown down by Dr Freedman saying the facts found by the judgment and the father’s own account was far more important than other evidence. There were occasional and limited breakthroughs with Dr Freedman having misunderstood some aspects of the judgment and not having grappled more fully with the situational element relating to risk assessment. Whilst the approach was obviously a deliberate one and based upon the father’s response to Dr Freedman’s report including the second opinion, he had got from a forensic psychiatrist Medical School friend, it was a less productive approach than it might have been. Dr Freedman inevitably was more defensive than I have seen her in giving evidence in other contexts, and thus was more circumspect, and the blunt nature of the approach limited the opportunity for exploration of the areas of her report where there was more nuance and scope for thoughtful reflection. Although Ms Kirby considered that she needed far more time for the cross-examination of Dr Freedman to bear fruit, I am satisfied that the cross-examination by paper together with the highly adversarial cross-examination in court was more than adequate to demonstrate that Dr Freedman was not going to retreat from her primary position, and that any advances would be of limited effect and harder to discern than might have been the case and resulted in more limited in-roads into her analysis than may have resulted from a more inquisitorial and probing approach than the obviously aggressive frontal critique. Having said that – I do not make this as a criticism of Ms Kirby’s advocacy – her approach was determined by that of the father which, as he made plain in evidence, was fundamental disagreement with Dr Freedman’s methodology, evaluation, and conclusion from the perspective of a medical practitioner himself and based on his discussions with his forensic psychiatrist colleague. As a medical practitioner himself, the father was prepared to place it at the level of unprofessional. Ms Kirby submitted that it was in breach of Dr Freedman’s obligations as a court expert under FPR25 PD25B. That reflected the overall level of conflict in the case where the parties’ positions have been at the extreme end of the spectrums in their approach to the litigation itself, the substance of their evidence, and the positions they have adopted in consequence; that applies to the father in particular, but also to the mother. That said the limited advances did highlight for me some important points.

However, a fundamental difficulty that the critique of Dr Freedman’s methodology, evaluation and conclusions is that they are highly consistent, not only with my own findings as to the father’s behaviour during the marriage, but also with the father’s own account of his personality and the conclusions of Dr Oppedijk, which I concluded in the fact-finding judgment represented a true account by the father at that time of these difficulties. In her answers to the written questions Dr Freedman notes:

The critique of Dr Freedman’s methodology thus appears to me to be too formulaic in its approach and subjects the totality of her evidence to a too narrow textual analysis, which in effect asserts that, as she had at one point said to be a trait it must satisfy one of the nine DSM-V criteria, and as she said at one point to satisfy that it had to be pervasive across a number of domains of life, the later assertion that it is enough to identify a dysfunctional way of acting in the relationship with the mother means the whole of the edifice crumbles. This seems to me to ignore the totality of the evidence. Thus, the existence of abnormal, disturbed (however one should properly describe them) traits in the father’s personality is well-founded in the totality of the evidence but in particular in my judgment, Dr Freedman’s interviews with the father, and the previous accurate psychiatric assessment of him. In particular, the abusive behaviour and the broader issue of his functioning over at least the period 2017 – 2021 is not explained otherwise. As I identified in the fact-finding judgment, the behaviour seemed to me then linked to or arising from aspects of the father’s psychological functioning as opposed to, for instance, being deliberate. Referring back to what Dr Freedman noted from the DSM-V description, is the behaviour better explained by some other disorder, condition or, for instance, substance misuse. The answer to those is no. The father’s discussions with his forensic psychiatrist colleague do not produce some alternative formulation for his behaviour save it was a product of a marriage under strain or failing, the pressure he was being placed under by the mother to work more than he wished, the strains of the arrival of children, the pressures of the arrival of Covid lockdown, and financial strain. Those sorts of features are present in very many cases that the courts see (Covid is a more recent dimension), and I do not see them as coming close to an overall explanation for the totality of the father’s behaviours which are most apparent in the period of 2017-2021, but which were also present to some degree prior to that (the parties separated in 2018 as a result of the mother’s growing concerns over at least a year prior to that and the father confirmed his dysfunctional behaviour to Dr Oppedijk who saw it as obsessive character traits requiring psychotherapy), and also since the separation (examples being his bitterness and sense of being wronged by the mother, his denial of proven abuse, his inability to accept responsibility or own his actions, and his remarkable evidence during the fact finding). There is much more to the father’s behaviours than a product of anxiety and stress. That anxiety and stress and situational factors play a part in this psychological functioning, in particular his dysfunctional behaviours, is undoubtedly true. As Dr Freedman identifies anxiety, stress, other situational factors are relevant to how personality traits manifest themselves. The father is made up (as we all are) of a host of personality traits (I use the term loosely). The father clearly has many personality traits which are normal across all domains, where even the most intense stress and anxiety will not result in them causing disturbed, abnormal, or functional impairment or distress. However, the best explanation for the father’s abnormal or dysfunctional behaviours which led to the abusive behaviours I found is that there are aspects of his personality (traits) which whilst they operate within normal parameters in many domains in most circumstances, within his intimate relationships they can become dysfunctional, in particular when he is anxious, or subjectively under stress, but also when his needs, for other reasons, are somehow not being met. Thus, for instance his trait that seeks order and organisation becomes dysfunctional and obsessive in the domestic environment over mud and sticky fingers. His sense of inadequacy or not being good enough which causes him to strive to do better becomes dysfunctional, and he is unable to tolerate challenges to what he sees as being the ‘right’ thing to be done. I do not seek to be exhaustive – these issues are far more in the domain of the psychiatric/psychology professional than the legal, and one should look at the substance of his behaviour and seek to understand what is the underlying trait that generates the dysfunctional behaviour and thus abusive actions.

I do not think that focusing on labels is of much assistance and tends to detract from the substance of the concern, as was clearly evident in the cross-examination of Dr Freedman and to an extent in the father’s own evidence. Focussing on the word narcissism generates a great deal of heat – asking why it is that the father’s trait of order and organisation becomes obsessive and dysfunctional; why he loses his ability to act with empathy and to take account of his wife or children’s feelings, and why he tends to become focussed on satisfying his needs to the near exclusion of theirs and to behave abusively (losing his temper and otherwise) when he is unable to, is, it seems to me, at the heart of what needs addressing. This is as opposed to asking whether he falls within some of the criteria for DSM-V narcissistic personality disorder such that he has narcissistic personality traits. That may, from a clinician’s perspective, be a useful guide, and it certainly helps to categorise for me how the father’s psychological functioning is explained within the field of psychiatry or psychology, but if it becomes an obstacle to understanding the behaviours and seeking to assess risk and effect change it is a distraction. I am satisfied that the underlying fact and the core conclusion of Dr Freedman is correct, within the framework of her report and which fits with the much bigger evidential picture that lies before me that the father has personality traits which can manifest themselves in some situations which are dysfunctional or disturbed. As Dr Freedman said, they are most likely to be seen in the most intimate relationships as they can be managed or controlled or suppressed in many other contexts, and as with most individuals the effects of anxiety and situational stress are most likely to emerge in the relationship context.

The allegations commence when the boys are little, in 2017, although the parties had been together for 7 years by then. Although the mother’s statement says he became increasingly domineering and she felt controlled her statement links the start of the behaviour with when the boys were very young and became messy [M2 #4, 9, 10] and deteriorating until the end of the marriage in March 2021 – which incorporates a year of lockdown and pandemic stresses. She says he coped reasonably well when the children were babies. Father told Dr Oppedijk they had fundamentally different parenting styles – she laid back, he strict. He was anxious and stressed which exacerbated his obsessive traits – they drifted apart. Dr Oppedijk thought he was candid and had insight into the relational dynamics. Individual psychotherapy and marital therapy was warranted. In his texts in 2018 the father accepted change was needed and saw a therapist who spoke with the mother as well. It appeared that some effective work was being undertaken – this was not sustained though when they reconciled. All this goes to bolster the conclusion that Dr Freedman is right, and that there is an underlying personality or character trait issue.

There are areas where it seems to me that Dr Freedman’s analysis is probably too narrow in its compass. One of the (nearly appropriate) questions asked under FPR 25.10 is ranges of opinion. Whilst an expert is not required to give a range of opinions (this is only required where there is a range) it would have been useful to have had more about her conclusion that “personality traits are enduring, so whilst they may be more apparent during a stressful situation that does not invalidate their presence as part of the person’s emotional make up”, in particular the extent to which in this case the personality traits manifested themselves in dysfunctional ways as a result of external stressors, and how that might have been relevant to the future. It is also right that Dr Freedman appears to have misunderstood one aspect of my judgment; namely whether the father had manipulated Dr Oppedijk and the mother. Dr Freedman clearly works on the basis that I concluded he had manipulated them whereas, in fact, I concluded on fine balance that he had been honest with Dr Oppedijk but was now giving a different account (#51 of my judgment). Thus, her identifying manipulative behaviour based on this, and bringing this within the criteria of exploitative behaviour in DSM-V terms is erroneous. Having said that there are other examples of his being manipulative to a far lesser degree, but this central feature is inaccurate and so Ms Kirby’s criticism in this regard is accurate, and there is some basis therefore for her criticism that my reference to this being narcissistic (if it had occurred) has played some part in leading Dr Freedman into the territory of narcissistic personality traits. This, to some degree, leads me to question where on the spectrum of seriousness the father’s disturbed personality traits may lie, and what level of intervention is required to address them.

Where I think Ms Kirby’ critique has some force which is relevant to risk assessment is that Dr Freedman’s assessment of the traits they give rise to focuses very heavily on my conclusions and her assessment. Whilst it is true that in her evidence she identifies the fact that these traits have not been noted to be present in other domains of the father’s life, and says that this is not uncommon with disturbed personality traits (or I think with personality disorder), because individuals can maintain a degree of control in other settings which they feel is unnecessary (or does not arise) in intimate relationship settings, I did not think that how she followed this through in terms of risks was complete. In answer to Q.3 [465] she herself identified that traits would be more apparent in a stressful situation, and clearly the situation of the father parenting alone, not living in a failing relationship, perhaps less stressed with work would potentially be relevant to whether the personality traits were likely to become apparent in a dysfunctional and harmful way, and thus the level of risk that arose. Thus, her analysis did not focus in on the circumstances in which the disturbed personality traits came to the surface, and to generate the behaviours which underpinned the abuse. Although the father and the mother have been in an intimate relationship (in all senses) since 2010, the problematic personality traits emerged in only after the twins arrived and had become toddlers. Dr Oppedijk’s interview with the father and his conclusions identify some situational/stress factors which would appear to be relevant in bringing them to the fore, both in terms of the dynamic between the parents but also the behaviours of the toddlers. It is of course right to bring into account that Dr Oppedijk also identified character (personality?) traits which merited psychotherapy which the father to some degree pursued in the aftermath of that report, but did not see it through to an end, and this no doubt played some (perhaps a very considerable) part in the re-emergence of the dysfunctional and abusive behaviour over 2019 – 2021. Thus, in terms of the mother’s account the father’s traits became problematic six odd years after their relationship commenced. It seems to me that the context in which his personality traits became problematic within the relationship, and the fact that his personality traits have not been noted in any other domain in his life (work, family, friendships, social) needs to be taken into account when looking at the risks which may exist for the children and the mother in their involvement with the father. That also needs to be noted for the purposes of the therapy which the father undertakes.

Dr Freedman was clear that the existence of untreated disturbed personality traits means that there are ongoing risks to the children and the mother in particular of a repeat of the abusive behaviours of which I found as facts, but also in other areas. A repeat of the confrontations with the boys in relation to their behaviour carries with it risks both of higher levels of physical or emotional harm as they grow older, but also emotional risks of them choosing no relationship with the father rather than being exposed to scary outbursts of anger and physicality. In relation to the children, the development to unsupervised and staying contact would carry with it risks relating to children being exposed to the father’s criticism of the mother; his need to be seen at least as an equal (his focus on him being the principal role model for boys of this age suggests that he now sees himself as more important than their mother, which is concerning) and his minimisation of previous abuse carries with it a risk of the children becoming more aligned to one or other of the parents (LL to the mother and LLA to the father), and of them being conflicted if their own memories come into conflict with a different narrative while in the father’s care. Interestingly Ms Sandrini already noted that LLA expresses a different recollection now of his life with his mum and dad to that which he did in 2021, whilst LL recalls his father’s behaviour but feels he has changed.

Both Dr Freedman and Ms Sandrini discussed risks in a generic way rather than focusing in on the formulation of risk in particular scenarios. It seems clear to me that the nature of the risks, and the magnitude of such arising depends on the nature of the time that the boys would spend with the father. There are clearly risks to the boys even within the existing framework; risks of the boys developing different perspectives on their father and the past, risks of their relationship with the father being unable to evolve organically due to the presence of supervisors, risks of them being exposed to the parents’ own negative views of the other parent (more of this later), risks of remaining caught between two warring parents where they need to align themselves with the mother when in her care and with the father whilst in his care. Thus, even the existing situation carries risk of harm. A move away from the current situation into unsupervised time with the father, or a move to overnight contact and extended periods of time with the father, or a move towards a shared care arrangement carries with it increasing and to a degree differing risks.

On the basis of the overall effect of Dr Freedman’s evidence I conclude there is more scope for exploration of the circumstances in which those disturbed personality traits are likely to manifest themselves to their fullest extent, and thus to generate the behaviour and future risks of harm, what form that might take, and how it might be ameliorated. Into this, it seems to me, that there is also a need to explore the extent to which events since March 2021 shaped those traits or the father’s capacity to manage them. Dr Freedman identified that the most effective way to address those disturbed personality traits was in the form of psychoanalytic psychotherapy of an extensive nature (2-3 times per week over 2 years) and that through this vehicle the risks to the children could be reduced. Hence the agreement that unsupervised contact could become unsupervised after three months of therapy. She said that in most circumstances an acceptance of the problem, and a willingness to explore it and to change was a key part of the likely success of psychotherapy. However, Dr Freedman also gave evidence that the mere fact of a denial of findings did not necessarily mean that the risks of repeat remained unchanged. Her evidence was that events in life might cause changes in behaviours (she referred to judgments or convictions) even though the individual continued to deny the existence of a problem. This seems to me to be entirely logical. An individual may be unable to openly accept abusive behaviour, findings, disturbed personality traits etc. but be able to have acknowledged internally or to have altered their thinking patterns (either of their own motion or through other forms of support) in a way which affects change.

Notwithstanding that possibility (indeed actual limited change of which more below), finding as I do that the father does indeed have personality traits which are dysfunctional, certainly in the domain of intimate relationships in particular when anxious or stressed, the best way of addressing those and affecting the risks they carry would clearly be in psychotherapy with a psychiatrist. The role that anxiety, for instance, plays in personality traits become dysfunctional, and the high intelligence of the father and his medical background all point to the need for the psychotherapist to be at this level in order to have the best chance of the therapeutic process delivering results. An effective therapeutic process is clearly the best way to address the ongoing risks which arise from those personality traits and their propensity to become dysfunctional and abusive.

Ms Sandrini is an ISW who was instructed to carry out a welfare report in relation to the family. She is a very experienced social worker and expert. She undertook the assessment in a situation of some pressure where the ISWs originally proposed had not been available, and consistent with the rest of the litigation, a dispute had arisen over how that should be managed. She participated in the experts’ meeting and gave oral evidence. She had clearly substantially altered her initial conclusions as a result of the experts’ discussion as she had not considered Dr Freedman’s report to have contained a ‘diagnosis’ which required addressing in therapy. Some of the most important points which I derive from her evidence are set out below:

It emerged clearly from her evidence that Ms Sandrini’s assessment had been substantially predicated on the understanding that the father did not have a ‘diagnosis’, and that the fact-finding judgment was relevant more as historic record than of highly relevant to current concern. This seems to have been because in her own extensive enquiries Ms Sandrini had not read of or observed any behaviour of the father’s that gave rise to a current concern in her own mind. This however was in effect to set aside the consequences of the fact-finding conclusions and the report of Dr Freedman, as if they were part of the background rather than central to her assessment of any risk the father represented. As with Dr Freedman, Ms Sandrini considered risk more as a generic issue rather than looking in more detail at the contexts in which the risk would have to be evaluated. My conclusion from the totality of her evidence was that this was primarily driven by her conclusion that her assessment did not lead her to identify any risky behaviour of the father in her current assessment.

The overall effect of Ms Sandrini’s evidence was to provide valuable information about the current situation of the family, some insight into the father’s parenting of the boys and his character, and a useful application of the welfare checklist, but where her conclusions in terms of risk assessment (risk and capability) and thus the way forward were very substantially undermined by her approach to the findings of fact, the father’s response to them and her interpretation of Dr Freedman’s report. The change in her position contained within the experts’ meeting was maintained in her oral evidence.

Given my conclusions about his evidence and its delivery at the fact-finding hearing it was a pleasant surprise to see the father present himself very differently at this hearing. He had clearly reflected on his performance in July 2022, and said as much in his statements and to Dr Freedman and Ms Sandrini. He was much more composed, prepared to listen, able to acknowledge some level of abusive and harmful behaviour, and to express contrition. This indicates progress. Inevitably the question arose as to whether this was from coaching or reflected a genuine change in position. I conclude it is a mix of identifying the harm he had caused to his own case by his presentation and the need to present himself differently and better to me, but also reflects a degree of movement. He ascribed his previous performance as being the product of great anxiety and over-preparation, which I accept was a part of it. The fact that he blamed his previous legal team for over-preparing was a continuation of the trait I noted on the last occasion of avoiding responsibility for his own behaviour and blaming them on external factors (his lawyers, the mother, anxiety) rather than identifying his own responsibility – for instance his absolute insistence in July 2022 that he had done nothing wrong, and his vigorous rejection of a case I found to be largely proved. However, given what Dr Freedman said about the role that anxiety might play in bringing out the dysfunctional range of a personality trait, I think that his performance in July 2022 is likely to be an example of just that where his anxiety converted his need to be in control and for events to conform to his version into a highly dysfunctional interaction with the court and counsel. This thus tends to confirm Dr Freedman’s formulation, in addition to all the other features which support the existence of dysfunctional personality traits.

The father was able to accept some aspects of my conclusions from the fact-finding hearing and to express what I thought was some genuine insight and sincere regret over his actions, and the impact this had on the boys, although far less so in respect of the impact on the mother. However, whilst this was positive, it only went so far. Upon exploration of the car roof incident, it was clear that he did not accept my finding to anything close to its reality. He continued to minimise his behaviour. This was also true in relation to his loss of control in terms of shouting where, in effect, he described the mother and he both behaving in an equally unrestrained way which is also far from my conclusions. He did accept that Dr Oppedijk may have been right in identifying obsessive characteristics in him, although he did not accept that he really needed psychotherapy in relation to them. He wholeheartedly and vigorously rejected Dr Freedman’s assessment of him, and preferred that of his med school colleague to that of an eminent consultant psychiatrist who had assessed him and had access to all the material, or to that of the psychiatrist who he himself sought out in 2018 (he continues to assert that he misled Dr Oppedijk and the mother in a highly manipulative way, rather than accept he had been honest at the time), despite the congruence of their two sets of findings and their mutual recommendation that he undertakes psychotherapy. He continued to avoid answering the question in many instances, focusing on giving his own narrative – another example of his need to control the narrative rather than being able to accept direction from the advocate.

He spoke with warmth and affection about his time with the children and his aspiration to develop that relationship. Although there remains an element of bitterness about the imposition of supervision and a sense of unfairness and injustice at his situation, and thus a need to right the wrong of the imbalance in his relationship with the boys compared to the mother’s, there is also undoubtedly a very significant component which is a genuine wish to parent his sons because of his love for them, and his desire to be a role model for them, to shape their characters, and to imbue them with the characteristics he sees as beneficial. There were passages where he spoke with warmth and insight into how things are different now to 2019-2021 and this, I thought, showed a genuine development in his thinking. Although he loves both, he clearly identifies to a more obvious extent with LLA with their shared love of physical activity, their more black and white view of the world, and their shared sense of humour. This is consistent with both his and the mother’s sense that LLA is more like him and more aligned to his position, and that LL is more like his mother and more aligned with her position. Those also come across from Ms Sandrini’s discussions with them and her assessment of them.

Although he maintained that the mother is a very good mother and that he did all he could to promote her, there remains a simmering sense of injustice which arises from his obviously continued belief that the findings are not the truth but the product of an exaggerated and embellished account given by the mother. He continues to believe that she denigrates him to the boys, that she places obstacles in the way of contact, and that she makes further wholly unwarranted accusations against him. The contact notes do support the fact that the father is not openly critical of the mother to the boys and that indeed he is positive about her in contact, and so his evidence to me about her qualities is both sincere and backed up by his words to the boys. However, that is only a part of the picture of how he feels about her – albeit an important one in terms of how he portrays her to the boys – as there is self-evidently a component which is strongly hostile to her, highly distrustful of her motives, and a desire to re-occupy the position of equal parent. Indeed, perhaps given his perception that for boys of this age the father is the more important role model, he may now see himself as more important to the boys than the mother. Thus, there is a positive which is that he can promote the mother to the boys in contact. There is likely to be some element in this of awareness that if he was critical it would be recorded and held against him, and so supervision has played its role of protecting the boys from the risks it was put in place to protect from but it seems to me there is also some recognition, perhaps as a product of the process of supervision and what he has learned from supervisors like Mr RF, of the importance to the boys for their emotional well-being of promoting a positive view about their mother and the benefits to him of the boys hearing positive statements from him about the mother. That what he says to the boys is not a reflection of wholesale approval of the mother and support her parenting for more nuanced. However, it has, I think, become such a part of the contact landscape that out of habit, self-interest, recognition that it is good parenting, it is unlikely to go into reverse if supervision is to be lifted. It would be so confusing for the boys now to do that - it would likely rebound on him in the boys rejecting him and would almost certainly be reported to the mother and school - that denigration of the mother is far less of a risk. That is not to say that the children would not be exposed to an atmosphere in his household and family in which the hostility that exists between the father and his side of the family towards the mother would not be apparent to the boys. It seems from what the parents both say in terms of how the boys align themselves with the other whilst with them, and from what Ms Sandrini says, that this a feature of their existence. The father’s response to the mother’s schedule of critical comments being made by the boys was I thought less convincing. Clearly those comments are not made in supervised contact, the majority arose when family members were supervising contact, and given what the father’s sister said to the independent social worker, it seems more likely than not that during that period of time, things were said within that family, and discussions were held between family members including the father in which the boys heard and picked up on negative comments being made. On balance I think the father is too intelligent to have sought directly or deliberately to criticise the mother; he would however remain capable in a moment of frustration or irritation of making an unguarded, sarcastic or snide observation as he tended to in his evidence at the fact-finding hearing. It is also more likely than not that his sister would be capable of being overtly critical of the mother. To feel that the mother had plotted for four years over the divorce is a quite extreme view to hold. The mother is very detailed in her account of the email that was read out in the car with the father, but read by the father’s sister in front of the boys’ and with comments being made about its unfairness. This rings true and is sufficiently detailed and consistent with the mother’s prior approach to record keeping and evidence giving that I accept that an event of that sort occurred. The father’s inability to recall fortifies my conclusion that it occurred.

The evidence in relation to the ongoing dynamic between himself and the mother was also a mixed picture. Their ability to attend school events together without incident, their working together over the triathlon, and their productive discussion over football cards and pocket money were good news. That each of them were able to manage this is a small spark of hope in an otherwise unremittingly dark and hostile dynamic between the two. The mother’s evidence of the father ‘intimidating’ her by hanging around the barber’s shop, hanging around in traffic, and using a bench he had been asked to avoid was dismissed as either untrue, coincidence or trivial. Given the mother’s general reliability on these events and her recall of detail, and the father’s general credibility and inability to recall detail, it seems more likely that the mother’s careful factual account is right, albeit what she infers from it is maybe a different matter. Although seemingly trivial, the father sitting on a bench which he was aware he had previously agreed not to use (as it might upset the mother as she was obliged to drive past it on their journey to and from her home) seems to me to be less an example of the father seeking to intimidate the mother, but rather an example of him asserting his right to do as he chose. However, he quickly drew himself back again when it was raised. It would seem to be an example of pushing a boundary to assert his rights. I also found his evidence in relation to rubbing the mother’s back to be less convincing than the mother’s very detailed account, and I am satisfied that it was an act of inappropriate behaviour in the context of their dynamic. Whilst it might be innocuous in many parental relationships even after separation, in this parental relationship it was clearly inappropriate and would be obviously unwanted. Why it occurred is less clear – was it a deliberate pushing of boundaries to see how she would react, or was it a spontaneous but ill-thought-out act? On fine balance, given the context the mother describes, I think it more probably the father was unable to control a spontaneous action. Whether that is more alarming than a deliberately provocative act is debateable.

The father’s attitude to therapy and the proposal formulated in the experts’ meeting was a trenchant rejection of therapy on Dr Freedman’s terms. He was open to therapy effectively on his terms albeit those terms might also be my terms if they were either acceptable to him or he was left with no alternative to achieve his desired goal. His evidence that he would consider appealing my decision if he did not agree with it was refreshingly frank but is a further indication that what the father really seeks is an outcome on his terms rather than a willingness to accept that someone else with an objective and independent viewpoint and, if I say so myself, expertise in these sorts of matters might know better than he.

The father remains driven by a sense of unfairness and injustice - no supervision was ever necessary; the court case and the costs were used to punish him by the mother. In fact, it seems a distinct possibility that the mother’s willingness to continue with contact, initially supervised by her mother and then by paid professionals has probably ensured that the father has as positive a relationship with the boys as he does. Had unsupervised contact taken place as sought by the father in the immediate post March 2021 environment, it seems highly likely that the traits which caused the abusive behaviour between 2019-2021 would have continued to some extent, perhaps at a lesser level given the dynamic between the mother and father would have been less present, but when he was extremely bitter, stressed at work and home and anxious. Repeat examples of his abusive behaviour then might have sounded a death-knell for his relationship with the boys or at least led to a significant interruption in their relationship. As it is the boys have experienced their dad in an almost exclusively positive way, undertaking fun activities and seeing his best side. LL still remembers his mean dad but considers he has changed. That indicates a considerable degree of maturity on his part in comparison to his more black and white brother, who only sees his dad as he has been over the past two years and has blanked out or genuinely forgotten the bad times. The father’s willingness to continue to push boundaries in court with his questions, his documents (formatted to comply superficially but in fact in breach of the rules) and in his interaction with the mother (touching her back and staring intently at her during his evidence until he realised I was looking at him) all indicate he continues to feel unjustly treated by her and the system, and although he professes no bitterness now or when I concluded he was, it seems clear that this is still a significant component of his thinking.

The overall effect of the father’s evidence was a mixed picture. A huge improvement when compared to his July 2022 evidence in delivery and content, but given the depths to which he mined in that evidence he is only just poking his head above the ground now and is far from the sunlit uplands which he seeks. Of importance to the eventual outcome is that there has been a change in his approach, presentation and the substance of his evidence which provides a foundation upon which we may build.

Mr RF’s evidence covers a number of subjects; the relationship between the father and the boys; handovers; awareness of adult issues; safeguarding concerns; his impartiality, and provision of the statement. The mother believes he has become too close to and not biased towards the father. She described conversations, and I have no reason to disbelieve her, in which Mr RF questioned the wisdom of a fact-finding process and how relevant the allegations might be. Given the findings I subsequently made, this in retrospect plainly looks ill-advised, as did his recommendation that supervision be lifted. However, hindsight is a marvellous thing and Mr RF was advising on what he saw in front of him and so although he might have led with his chin. I do not think he was biased. His observation that the mother [being] pleasant and friendly to the father at handovers and encouraging face-to-face meetings as being good for the boys, was incongruent with her allegations tends to undermine her putting the childrens interests above their own but I do not think that is justified given my findings which would for many parents have caused them to insist on an independent person dealing with all handovers which she did not. In the main his observations chime with other contact supervisors which supports the conclusion that his observations are by and large factual and objective. I accept his evidence about the positive nature of the relationship between the father and the boys and how keen they are to see him and see more of him. I also accept that at times the boys are challenging, rude and occasionally physically aggressive, and that he has managed this well. The origins of their awareness of adult issues, which are evidenced in the contact notes and Mr RF statement are it seems likely a product of the children’s experience and memories of the father (certainly in the earlier days of contact) together with a degree of atmospheric contamination from the mother and her household. It is not likely that the mother is actively denigrating the father to the children, that is both contrary to her nature and would be a self-inflicted wound, but is consistent with her being relatively open with the boys if they raise the issues, and it is also seems to me within her capacity to make unguarded comments about how suspicious and distrustful and perhaps fearful she is of the father and how he can behave. The making of safeguarding referrals was clearly his decision and the Social Services notes of the father’s position make clear he did not consider the mother responsible, albeit he took the opportunity to have a dig at her family. Given that he knew, as I have been told, of the findings I had made and my conclusions in relation to the mother’s high level of care for the boys and the father’s abusive behaviour, it seems a little surprising, but Mr RF was no doubt acting in accordance with what he sincerely believed to be his professional obligations rather than for any other motive. Thus overall, Mr RF’s evidence is of assistance in supporting the picture of the father as being capable, loving and appropriate during contact and of the boys having a strong bond with him.

The mother’s evidence was given in much the same way as July 2022. She remained composed, focused on answering the questions, able to provide a high level of detail even down to the precise times of e-mails (I assume she has kept further diaries, albeit she never referred to them and they were not produced) and was able to give spontaneous additional detail about, for instance, the rubbing of the back, the reading of her email in the car, and the reconciliation agreement which did not sound rehearsed but was from recall. My confidence in relying on eye-witness accounts of events remains therefore intact with the caveats I identified on the last occasion. Her self-belief that she has an almost video like memory of events is maintained without acknowledging the possibility of memory creep or misperception. She remains prone to a degree of floridity or hyperbole – the father ‘intimidated’ her by being on the bench or by hanging around the barbers. She finds it almost impossible to acknowledge any positive change or action of the father; struggling to really accept that the boys not only enjoy contact but actually now have a good relationship with their father. Of course, given my findings about her experiences with the father in his failure to abide by the reconciliation terms and addressing his problems in psychotherapy to a conclusion, his subsequent abusive behaviour and his response since 2021 in denial, counter-allegation and hugely stressful and expensive litigation, it is hardly surprising she is distrustful of him, and that she finds it difficult to be objective. The text exchange in recent days arising out of the boys questioning why their contact with the father would start late on day two of this trial and how the mother assumed that the father had been discussing the forthcoming case with the boys was a clear example of this. To the objective bystander, the likelihood of the father in professionally supervised contact initiating a conversation about the forthcoming court case is of course unlikely. A person with different experiences might have contacted the contact supervisor to ascertain what had occurred. But the mother has experienced what she experienced and so her default position is to assume the worst. This, of course, is by large what each of them do in respect of actions of the others which might have either a benign or a malign motive behind it; each assumes malign until proven otherwise. The mother accepted as much. She says she is taking beta-blockers to deal with stress, is off work for a while, and that she finds dealing with the father very difficult and stressful. She says matters had not really improved. But she finds it very stressful; who wouldn’t after her experiences in the father’s general approach over the last few years? I accept that she needs therapy to cope with the stress and pressure of interaction with the father to help her deal with the events of the last few years. Such therapy would hopefully give her better coping mechanisms, be able to gain greater perspective on the current situation, and thus be more objective going forward than she is currently able to be. That can only have benefits for her and the boys. The fact that she was prepared to do face-to-face handovers in the early days for the sake of the children (as narrated by Mr RF) shows her willingness to put the boys’ interests over her own. In retrospect it was probably unwise from her own perspective and perhaps in an unexpected way was harder for the children given the very high level of conflict they had previously witnessed between their parents.

She was able to identify some ways in which she might be at fault, but only to a limited degree, and placed the lion’s share of the blame for the marriage failing on the father. This is largely justified, although her approach to the father’s recent changes of working practice could not really process the idea that he might legitimately have come to the conclusion that he ought to strike a better work life balance and that money was not all. Nor did she really seem able to acknowledge the huge stress that the father may have been under, in particular from spring 2020 when his private income plummeted as a result of lockdown and his medical practice had to take place under very stringent conditions, which given his obsession with cleanliness and order must have been even more challenging for him than many. Although the mother is by and large empathetic in nature and is particularly attuned to the boys, I think she has now (and -probably then) had developed a blind-spot in relation to the stress and anxiety that the father might be experiencing and how that was impacting on his behaviours which clearly were at their worst in 2020-2021. This distrustfulness and subjectivity has an effect on her ability to see any progress or beneficial change in the father. She now sees the marriage and the relationship very much through the lens of that traumatic period of time, and this clearly affects her views of any qualities the father may have.

She was quite insightful still about the risks although she sees them very much in terms of how they presented in 2019 to 2021; dirty shoes, mealtimes and suchlike although she was also quite astute in recognising the risk to the boys in a reformulation of the boys thinking about their lived experiences. She also was insightful about how the boys think, accurately predicting that were a worrying event to occur during unsupervised contact, LLA would be inclined to cover it up whereas LL would tell her. Although critical of the father, the mother did not take the opportunity to add to this. When questioned about the father’s personality traits, had she wished to target further criticism at him and to promote the thought that he might have a narcissistic personality disorder she might have taken the opportunity to describe other aspects of the DSM-V [criteria], however she did not.

As I have indicated earlier, I accept that the mother is capable of reinforcing some negative perceptions in the children about the father because she is unable to detach herself from those events and so if they come up she will be unable to deflect. It also seems that the intensity of the litigation, the emotional and temporal resources it takes up must at times lead to an atmosphere in the house where the negativity about the father will be palpable and will be imbibed by the children which leads to them being challenging to the father or referring to things they have heard which are critical of him. I do not accept this is deliberate. The mother remains adherent to the contact arrangements, accepts they must take place, accepts on some level they are of benefit to the boys and does not actively undermine them. To the extent the boys are influenced it is inadvertent. They would not be as positive as they are if their primary carer was not actively supporting their relationship with their father. That she can contemplate LLA being closer to the father is the ultimate illustration of this. Of course, the nature of their relationship with their father and his behaviour plays a role, but inevitably where the children live the very significant majority of the time with their mother it is in significant measure down to her too that they are enabled to have a good relationship with the father.

So where does this analysis of the evidence lead to in terms of the paramount welfare of the children taking into account the welfare checklist? I reject the father’s case that one can and should ignore Dr Freedman’s assessment for the reasons I have explained. That said, nor do I think the mother’s approach or the joint experts’ meeting approach is necessarily correct. I consider her report, as a result of the limitations or flaws I have identified, tends to place the father’s level of dysfunction and risk further along the spectrum than I think it justifies. He is a significant risk, but not to the extent that Dr Freedman identifies, particularly when one takes into account the broader picture available to me from my knowledge of the case and the parties and the additional information I draw from Ms Sandrini and the rest of the evidence. If I were driven to conclude that Dr Freedman’s report was worthless I would find myself back in the position I was after the fact-finding where the father’s behaviours were not explicable by deliberate abuse, where the risk of repetition was not addressed by the passage of time and the other limited progress he has made, and where there would remain an unexplained underlying psychological issue relating to his character or personality which needed further exploration by an expert. Happily, the additional delay that would involve does not come into play.

It is clear that the children wish to spend more time with their father, considerably more time in LLA’s case in particular. They wish to spend overnights with him, and they wish to see the removal of supervision to enable them to do more things together. These views are to a very considerable degree authentic, derived from their own enjoyment of their relationship with their father. There is an element with LLA perhaps of adopting a position of the father in terms of fairness although this may to some extent be his own personal view too; children have a fairly acute sense of justice. LLA’s position seems to be without reservation because he has, it seems, reshaped this memory of life with his mum and dad so as to erase the negative. After the breakdown of the marriage, he was less enthusiastic about seeing his father as a result of the abusive experiences that had occurred. Whether he has now genuinely forgotten seems unlikely given LL’s memories and the fact that references back to unhappy times occur periodically. Thus, it seems more likely for LLA that makes life simpler for him to push to one side negative memories and focus on the positive. LL more clearly recalls the past, and either as a result of a level of maturity or again adopting to some degree a position he is aware the father adopts, thinks they should give unsupervised contact a try. The views of both boys deserve some weight, but they are the views of 8 ½-year-olds, and they are to be viewed in the context of the matters recorded above which lessen their weight, and more importantly they must be placed alongside the other important considerations, in particular risk and capability.

Both boys have a standard range of the usual needs. They are likely to have a vulnerability emotionally given their exposure to physically and emotionally abusive behaviour and this needs to be taken into account. Both Dr Freedman and Ms Sandrini support the need for child-centred therapy in order to address the consequences of their exposure to abuse but also their exposure to continuing parental disharmony and conflict. They have an emotional need to maintain their strong attachment to their mother and to build on their attachment to their father if that can be done safely. Although both boys are bright and do not have significant educational needs LL is thought to perhaps be dyslexic, but in terms of their educational needs these are unexceptional save that they are currently in a private school in which they are thriving, and which provides a safe and secure and nurturing environment for them. In particular, they have the support of ELSA which is a very important component moving forwards. Developing a relationship of trust with an individual at school such that they can and do talk about their feelings each fortnight is likely to be a useful and valuable form of support, both currently but also particularly going forward in the event of changes to their arrangements. I therefore consider that they have a very particular educational need to remain at their current private school and that would be highly material to how one could structure changes to their arrangements going forwards.

The effect on the children of changes in their circumstances will of course be directly related to the nature of the change. A change in terms of the removal of supervision on weekday afternoons is likely to be welcome to them and, subject to the question of risk below, not to be accompanied by negative effects. LL might experience some concern over what will happen without the supervisor, but on the basis of his current expressed views it is likely to be a modest impact. A change to remove supervision on the weekend is also likely to be welcomed by both. LL might feel more than a twinge of concern about how his father might be on issues surrounding misbehaviour or other previous triggers of scary behaviour by their father. Although LLA seems to have compartmentalised his memories it is conceivable that even for him the removal of supervision may cause a flutter and open the window into the compartment of concern that I think exists in his memory. However, these are not likely, again subject to there being no repeat of the father’s abusive behaviours to be of more than passing concern to the children. More significant changes including the introduction of overnight contact are likely to raise that level of concern in the children’s minds. They will not rapidly be returning to their mother’s care; they are not sufficiently old enough to look after themselves or to really manage their father and a move to overnight contact would require a significant period of time in which their confidence in their father’s parenting had been established where he had gained their trust that scary dad was not going to re-emerge overnight. Extensions to overnight contact to include consecutive nights would logically follow from this. I do not think that they would be ready for this at the moment, and they are very very far from being ready to spend significant periods of time living with their father and being away from their mother.

Given their ages, the role modelling their father can provide is potentially of considerable benefit to the boys - if he is able to provide good quality parenting without repeats of the behaviours found, and without seeking to bring the children on side and distance them from their mother. . Their background of exposure to abuse is also highly relevant too, as is their background of exposure to conflict and separation of the two halves of their family with each mutually distrustful and hostile to the other parent and possibly the family. No bridge exists.

Given my findings of the harm the boys have suffered as a consequence of their father’s emotionally and physically abusive behaviour, they are at risk of suffering future harm if that behaviour were to be repeated. There are new and additional risks related to the possibility of them rejecting their father were such behaviours to be repeated. Conversely there are risks that if the father were to undermine the mother in an attempt to become the primary role model that the boys might be split with LLA being more likely to align himself with his father, and LL to align himself with his mother, both because he has a greater awareness of his father’s scary side but also because he feels protected by his mother and perhaps protective of her. How these risks might manifest themselves will depend on many factors. This includes how much time they are spending with the father; the presence or not of supervision; the extent to which he has changed since 2021; the extent to which he changes in the future as a result of therapy (which may be expected to lead to more rapid change) or from the passage of time and experience (a much more gradual possibly static process); the extent to which they are vulnerable; the extent to which they can be supported in developing resilience and in being able to deal with any worrying behaviour in terms of reporting it, and the ability of the mother and father to insulate them from or indeed to address that hostility to reduce its level.

At present I accept that the risk the father poses in general terms has abated in some modest way since 2021. He has done many courses on parenting and anger management. He has had much support and input from contact supervisors. He has had the benefit of a supervised environment in which to test new skills in a safe setting and he has set the passage of time in which his parenting and the relationship it has with the boys has developed, and new ways of interacting have been created and bedded in. The contact supervisors have included experienced social workers; the father has been observed by Ms Sandrini and their feedback would support the conclusion that the father is now a better parent than he was. That has also thought to recognise that his parenting has been conducted in the safe confines of supervised contact. I accept Ms Sandrini’s point that the supervision has been so extensive and has become so familiar that it is unlikely that the father’s abilities have all been the product of his awareness of being under observation, and that if the risks were very close to the surface that there would have been some observed dysfunctional or abusive behaviour which there has not been. That would support the conclusion that the environment has helped, and that the father has made some improvements, but that given the absence of psychotherapy to address the underlying traits which can become dysfunctional they will remain and will remain susceptible to being triggered in particular in times of stress, anxiety, challenge. Psychotherapy remains the best way of addressing those sources of risk. The passage of time alone might demonstrate the father had learned, but the risks inherent in ‘giving it a try’ would be very considerable compared to a progression based on the secure foundations of the father addressing the behaviour found by me in therapy.

The mother remains an essentially capable mother, child centred, attuned, calm and protective. She can meet near all of their physical, educational and emotional needs. She has difficulty in relation to their emotional need for a positive relationship with their father as a consequence of her experiences of abusive behaviour, and the effect of this litigation and the further distrust and stress that it has caused her. This could be ameliorated to some extent in therapy but of course the main cause for change would be her having a lived experience where the father had himself changed, and demonstrably so in his interactions with her, in his parenting of the boys, and in his response to challenges in the parenting of the boys.

The father self-evidently has a more fractured and complex capability. He is certainly capable of meeting the boys’ physical and educational needs; indeed, in relation to some aspects of their physical needs he may be more capable than the mother particularly in relation to LLA. However, he has a very significant flaw in his capability of meeting their emotional needs which arises from the underlying dysfunctional personality or character traits which underpinned his abusive behaviour to the mother and boys within the marriage. He loves his children, and when his disturbed personality or character traits lie dormant, he can be loving, supportive, fun, inculcate security and provide good role modelling of hard work, active and healthy lifestyle and much beside. However, it the wrong situation, where a trigger or combination of triggers lead to the eruption of a dysfunctional expression of a personality or character trait, he could remain abusive in the sense of a risk of physical aggression and aggressive and frightening verbalisation to the children. He also remains vulnerable to seeking to diminish the mother, to promoting his own interests over hers and the boys, and to generating anxiety and stress in the mother which impacts on her ability to provide her best parenting to the children.

There is no prospect of the parents co-operating at this point in time to manage the boys in a collaborative way. They are mutually distrustful of each other and assume the worst which means that negotiation and discussion to seek an agreed way forward in respect of any matter relating to the boys is inconceivable at the present time and for the foreseeable future. A veritable sea change in their attitudes to each other would be required, and I do not see this happening absent obvious changes in the father’s behaviour arising probably from therapy which would enable the mother’s level of suspicion to abate, and which would, as a by-product of the therapy, mean the father’s own perceptions of the mother would shift. This means that a highly defined order will be required dealing not only with the living and spending time with arrangements but also the exercise of parental responsibility in relation to day-to-day matters. A Re A schedule will be needed. Exercise of parental responsibility on big-ticket items such as which school the children will go to, medical treatment, will I anticipate need application to the court.

It is essential that the children remain at their current school so that changes in the spending time arrangements can be supported and monitored. Registration at alternatives ought to be uncontroversial but of course was not. Clearly, they ought to be registered in case the funds cannot be found to enable them to continue – whether from the marital assets, the father’s income, or from the maternal family. I am going to work on the assumption for this order that the funds will be forthcoming from some source, including the maternal grandparents.

I am satisfied that drawing all of the above matters together allows a modest change to the current arrangements, such that dropping supervision of weekday contact to occur immediately. The risks are modest, the boys wish it, the effect on them is likely to be good overall, and the father’s capability suggests he will manage it. However, the risks and effects of change in relation to full-day contacts are different. Supervision will need to continue for full-day contacts until the father has been in therapy with a psychiatrist psychotherapist for a three-month period, and it can end when that therapist confirms he has been attending and is engaged. Absent such engagement, a much longer period of successful unsupervised weekday contacts and supervised weekend contacts would be required to illustrate that the risks had ameliorated to the extent that supervision could be lifted. Six months seems to me to be too short, and one year too long; albeit somewhat arbitrary I would place that ‘no therapy’ move to weekend unsupervised at nine months.

If weekend ‘time with’ becomes unsupervised at three months, the therapy is continuing, and the father is engaged over the ensuing three months, the time could be extended to overnight at the weekend; thus after six months of engagement with therapy and no incidents of concern, a move to one overnight at the weekend; alternating Friday from school to Saturday evening or Sunday morning to Monday morning at school.

Three months after that – and so about a year from now (allowing for several weeks to get the psychotherapist on board) the matter can be listed for review before me to consider the way forward then. In the event the father rejects the therapeutic route, the review at one year will still be appropriate to see how the change to unsupervised (at 9 months) has then gone and whether it can move beyond that.

That framework does not envisage the boys living with the father but living with the mother and spending time with the father. That both reflects the reality – they do not and, absent significant progress with the father, will not live with him – but I also consider the father’s position currently where he seeks to equalise or prioritise his position over the mother requires that the mother has a sole lives with order, and the associated Re A schedule to minimise the issues they need to liaise over and to enable her to make the day to day decisions without worrying about communications with the father. I will make those orders accordingly, and the orders will need an accompanying schedule identifying who may do what in their time with the boys. The mother can remove the children from the jurisdiction by reason of that order for periods of up to one month. Any time lost should be made up with the father which may mean that the father might have several consecutive full days with the boys if the mother is away for more than a fortnight – they will not include overnights beyond the one night I provide for above. School holidays can involve extension of the Tuesday and Thursdays to full days with family supervision, but one session each week whilst supervision remains in place must be with a professional.

Along with the father seeking therapy for himself the mother should seek it.

I think it is agreed, but if it is not a specific issue order can be made that the children should be referred to a play/art therapist.

I see no point at this stage in appointing a third party to assist the parties to make progress for the reasons set out above. The supervisor can advise, and the school will provide a forum for the children’s response to be independently monitored (although no obligation is on the school).

If the father makes progress in therapy, it may open a window to the parents exploring some coparenting work or family therapy but their relationship, the state of distrust and the relative lack of progress of the father so far makes that a distant prospect now.

I do not expect further applications to vary the arrangements set out save for the most pressing reason. Unjustified applications may of course result in section 91(14) orders. The parties and children need to move away from the court arena for as long as possible, and to implement this decision and live their lives.

I will prepare a Narrative to go to the boys. It might be sensible for Dr Freedman and Ms Sandrini to have the opportunity to consider whether it is suitable for these 8-year-old boys.

That is my judgment.