FJ v MH (no 2) (private law - welfare following fact finding)

I am concerned with three sisters, referred in this judgment as E, F and G. E is twelve, F is eleven and G is nine.

The father, fifty-nine, is originally from [Country A]. He has lived in England for over twenty-five years. The mother, thirty-eight is originally from [Country B]. The parties met in [Country B] in 2010 and were married the following year. The mother moved to England in 2012. The parents separated in June 2022. Shortly thereafter the mother and the children moved to a refuge. This was the third time during the relationship that she had left with the children and moved to a refuge.

This is the final hearing of the father’s application issued in July 2022, for a child arrangements order, and for prohibited steps orders to prevent the children travelling to their mother’s home country [Country B]. Initially, in December 2022, the Court determined that a separate fact-finding hearing into the allegations of domestic abuse raised by the mother in response to the applications was not required.

In January 2023 the father issued applications for protective orders in respect of female genital mutilation (FGM). He asserted the mother or members of her family intended to abduct the children to [Country B] and to arrange for FGM to be performed on them.

For the next six months the Court was primarily occupied with directions in respect of those applications, including obtaining expert evidence in respect of the issue of FGM and [Country B]’s law. Supervised contact between the children and their father started in May 2023. The various applications were listed for a combined fact-find and welfare hearing in October 2023. However, on the day of the final hearing, the Court determined that there should now be a separate fact-find. That hearing was listed to take place in March 2024. An order was made for contact to progress out of a contact centre and into the community, to be supported rather than supervised.

The parties attended Court for a fact-finding hearing on 7 March 2024, but the QLR booked by the Court did not attend to assist the father. The hearing was adjourned to July 2024, and this time, the decision was made once more for there to be a combined fact-finding and welfare hearing. An order was made for contact between the children and their father to progress to unsupervised.

The mother appealed the Court’s decision in respect of contact. The appeal hearing was heard by the Court of Appeal on 23 and 24 July 2024. The appeal was allowed and the case was remitted for hearing to me.

I first met the parties on 2 September 2024. I made directions for a fact-finding hearing in October 2024, restoring the order for supervised contact in the interim.

Very unfortunately, when the parties attended for the fact-find, yet again there was no QLR in attendance. I had to adjourn the matter yet again, to 10, 11 and 12 February 2025. Finally, at that hearing the father had the benefit of Ms Tariq, and the fact-finding hearing was effective.

Following the hearing I delivered a judgment in which I made a number of findings against the father, including that he had perpetrated physical, emotional and sexual abuse against the mother. I found that the children had also been victims of domestic abuse. I did not find the allegations that the children were at risk of FGM to be made out, rather I found that the father’s applications that would have resulted in restricting the mother’s and girls’ travel to [Country B], were a continuation of a pattern of controlling and coercive behaviour, seeking to reduce the mother’s autonomy, and to isolate her from her family.

I gave permission for the mother to travel to [Country B], accepting undertakings from her to return. I refused the father’s application for a FGM protection order. I directed that until the final hearing, contact between the children and their father should continue to be supervised.

Thereafter, [RA] from Cafcass completed an addendum section 7 report (dated 11 April 2025). The father did not engage with her.

The father applied for permission to appeal the fact-finding decision. Lord Justice Baker refused permission to appeal by order dated 2 July 2025.

The final hearing listed on 8 and 9 July 2025 was also adjourned, by agreement of the parties, as [RA] was on long-term sick leave. It was hoped that she would have recovered in time to attend the adjourned hearing listed on 1 September 2025. Unfortunately, that has not been the case. The assistant service manager Ms Ruth Palayiwa attended Court in her place, ready to be cross-examined.

The father did not attend the final hearing on 1 September 2025. His position throughout the proceedings has been that he seeks regular, unsupervised contact with his daughters, but since the outcome of the Court of Appeal’s decision, he has not participated in these proceedings at all. He chose not to speak with [RA]. He has not filed or served a witness statement setting out his response to her section 7 report, nor his proposals for contact. Mr Roderick, the mother’s solicitor, has made many attempts to contact him in recent weeks, including over the weekend and on the morning of the hearing, eventually reaching him by phone just after 10.00 a.m. The father said that he was unwell and was not able to attend Court. The father said he understood the court would decide the case without him being present.

The children have not had any contact with the father since 18 January 2025. The father has not been in touch with the contact centre to make arrangements for supervised contact to take place.

The father has not requested an adjournment. He has not engaged with Cafcass, the Court, or the mother’s solicitors. The proceedings have gone on for more than three years. There is a pressing need for the children’s futures to be settled, and for them and their mother to have some respite from the litigation. In all the circumstances, I considered it appropriate to proceed with the final hearing in the father’s absence.

I released Ms Palayiwa, and heard submissions from Mr Rustin on behalf of the mother. Mr Rustin had also provided me with helpful written submissions in advance of the hearing.

The only updating evidence since the fact-finding hearing is the addendum section 7 report and a witness statement from the mother in response, the sixth she has filed in these proceedings.

In light of the findings made by the Court, [RA] identified the following risks that might flow from contact between the father and the children:

[RA] concludes in relation to direct contact: ‘The children have made their wishes and feelings clear and do not wish for any direct contact with their father. Having considered the findings made, it is also sadly my recommendation that this the risk posed cannot be sufficiently mitigated to make any direct contact safe, for them or their mother under PD12J.’

[RA] considers that the father’s inability to reflect or take responsibility for his actions puts him at the ‘pre-contemplation stage of change’. In the circumstances, she concludes that there is an ‘extremely high likelihood that [the father] will continue to present a significant risk of emotional and psychological and physical harm to the children and [the mother], including in any supervised contact.’

Due to previous inconsistency in the father’s compliance with indirect contact as well as concerns around the content of letters/cards if they were to be sent, [RA] does not consider that indirect contact should be directed.

[RA] recommends the making of a s.91(14) order for a minimum of three years.

[RA] further recommends the making of a prohibited steps order to prevent the father from removing the children from their schools or any person whom the mother entrusts to care for them.

It is also recommended that the mother is not required to inform the father of the dates and times of any holidays abroad, nor any educational or health decisions that she takes (except in the case of a medical emergency).

[RA] recommends the mother continues to provide the undertakings about travel to [Country B] that she has previously offered, but they be amended such as to remove the requirement to facilitate any indirect contact with the father while the girls are abroad.

She proposes an extension to the non-molestation order made at the conclusion of the fact-finding hearing, with consideration “of no expiry date”.

She suggests the mother considers accessing counselling in relation to honour-based violence through Karma Nirvana.

She proposes that permission is granted to share the final court order with relevant professionals working with the children.

If the father were to make any further applications to the Family Court for contact with the children in the future, [RA] proposes that he should provide evidence to the court that he has, as a minimum, completed:

The father did express an intention to take part in an anger management course back in 2023, but there is no evidence he did so.

The mother agrees with each of [RA]’s recommendations and seeks final orders in those terms.

Section 1(1) Children Act 1989 applies; the children’s welfare must be the Court’s paramount consideration and the Court’s welfare assessment must be informed by an analysis of the factors in the welfare checklist under s.1(3).

Further, s.1(2A) provides a presumption in favour of both parents being involved in a child’s life, unless that is proved to be contrary to the child’s welfare. That involvement need not be equal and may be direct or indirect (s.1(2B)).

Pursuant to Practice Direction 12J of the Family Procedure Rules 2010, the Court must take into account a number of factors when considering whether to make a child arrangements order when domestic abuse has occurred. Paragraphs 35- 39 provide as follows:

In the case of MS v MN [2017] EWHC 324 (Fam) per Moor J, an appeal was allowed against an order that a mother should make a child available for contact with a father who had been found to have perpetrated serious domestic violence upon the mother. In the course of his judgment, Moor J emphasises the need for the Court to consider Practice Direction 12J. He referred to comments of Wall J in the case of Re M (contact: violent parent) [1999] 2 FLR 321:

Moor J then cited the well-known case of Re L (A child)(Contact: Domestic Violence) & Ors [2001] FLR 260, perLady Justice Butler-Sloss, who was President of the Family Division at that time. At paragraphs 272-273 of her judgment, she said:

The Domestic Abuse Act 2021, incorporated into Practice Direction 12J expands the definition of domestic abuse beyond domestic violence, but the balancing act described above is a distillation of the task set for the Court by Practice Direction 12J.

Returning to this case. The Court has made findings of domestic abuse that reached back for many years and continued after the parties had separated. The mother attempted to leave the relationship three times, by moving to a refuge with the children, but on the first two occasions was manipulated by the father into returning to the relationship. She was subject to his control financially, he sought to influence her family against her, and he put emotional pressure upon her. The children have witnessed him lose his temper and be physically violent towards their mother and to them.

The abuse continued post-separation, with the father attempting to track the mother and posting deeply offensive content about her on social media. In contact, the father sought to split the children up and whisper things into the ear of one child when the supervisor was occupied with the other children. He has sought to put pressure on them by offering them gifts if they say they will spend more time with them, he has continued to abuse their mother verbally in their presence.

I found that the father’s applications for prohibited steps orders to prevent the mother travelling and for FGM protection orders were motivated by the father’s need to control. He used the litigation in an attempt to restrict the mother’s autonomy. Before the relationship broke down, in November 2020 the mother and children had travelled freely to [Country B] to spend time with maternal family with the father’s blessing. While she was away, the mother sent a message to the father asking for a divorce. The father then took the step of reporting her to the police for abducting the children and claimed they were at risk of FGM. On their return to England they were taken from the aeroplane in full sight of all the other passengers and taken to a place where they were interrogated by police.

During the proceedings the father sought orders preventing the mother and children travelling to [Country B] for the whole of the girls’ childhoods.

The abusive posts on social media made by the father are extreme, and caused significant distress and anxiety to the mother. She was extremely fearful of the reaction of her own family and community to such comments, which were entirely and completely unjustified. She was called unfaithful, a prostitute, a sinner and he said she was pregnant with another man’s baby.

The father has not taken any steps at all to reflect upon the findings that have been made, to accept responsibility for his actions, nor to demonstrate any desire to change his behaviour. During the fact-finding hearing he continued to assert that he was the victim, and had been the mother’s ‘target’. He did not accept that the children’s wishes and feelings were their own, but said they were the mother’s words in the children’s mouths. However, I am satisfied that the children’s wishes and feelings are borne out of their direct experience of their father.

Ostensibly he has said that he wishes to spend time with his daughters, but in practice, unless contact with his daughters takes place on his terms, i.e. unsupervised, then he has not taken any steps to spend time with them or to send them letters or cards.

The children have expressed clear views about seeing their father. In a letter to me, E wrote that she did not feel comfortable seeing him. In a letter she wrote:

F said her father ‘talked rubbish about mum’. She said when they used to see their father in [place name redacted] she felt left out because her father would always ‘pick G’, so she asked to go out more, but then her father had offered ‘to buy me anything I wanted and do different countries because he knew how much I wanted to do that’, but in return she had ‘to lie’ about wanting to live with him. She then described him stealing her toy called ‘silly duck’ after this by refusing to return it when she no longer wanted to see him. She said, ‘last time I told him to stop saying things, but then he did it again, so I told mum’. She told [RA] that ‘I don’t really want him to say more bad stuff about mum’, and that she feels that he looks like a good dad because he is always buying things, but this is not the case, ‘because now he keeps asking, ‘why doesn’t mum get you that stuff’ and this ‘makes me sad’. She has said that she no longer wishes to see him or receive letters or cards from him.

G told [RA] that when they had contact with their father they went and looked at things in shops and had sushi. She said that when the supervisor was not close her father would ask ‘weird questions’ in contact like ‘is your mum married to a man’. She said she would be quite relieved if there was no more contact because, ‘he wouldn’t be able to ask more weird questions’. She was conscious of her father’s disapproval of a book she had chosen, explaining he pulled a particular expression and said ‘ok, ok, ok.’ She said receiving letters from her father would be the most comfortable for her.

[RA]’s report is based on a full appreciation of all the evidence, the Court’s findings, and her own enquiries with the children, their mother and their schools. [RA] has carried out a balanced and thoughtful welfare analysis, identifying the risks to the children and to the mother should the Court order them to spend time with their father, and ways in which the risks might be mitigated.

The father chose not to speak with [RA]. He has not filed a statement of evidence, nor put forward any proposals as to contact. He has prioritised his own wish to see the girls on his terms before maintaining his relationship with them. It has been his choice not to see them since January. He does not appear to have been able to reflect upon the impact that would have had on them. He has been aware of the concerns raised about him seeking to manipulate and influence the girls, and of speaking negatively to them about their mother for a long time, but has not sought to provide to the Court any reassurance that he would behave any differently in the future.

In all the circumstances, I consider that making an order for direct contact, even if supervised, is not in the girls’ welfare interests. There is no real prospect of the father engaging with supervised contact now. Even if contact were to continue and to be supervised, there is no evidence that the issues raised by supervisors, by [RA] and the girls directly, would have abated. The father has not been able to show any ability or any intention to change the way he speaks to the girls. He continued to put emotional pressure on them, to show them his disapproval and they continue to demonstrate significant anxiety at the idea of him continuing to speak badly about their mother, and about him continuing to pressure them to say and do what he wants them to do, and of incurring his disapproval.

[RA] wrote, ‘the tentative progress in the children’s confidence in their relationship with their father seen in the addendum report dated 29 January 2024 has significantly deteriorated and coincides with further conflict when the children challenge his decisions for example why they are not allowed on holiday to [Country B], inappropriate responses such as to look at court documents, inconsistent contact at the contact centre, and exposing the children to negative views about their mother during supervised contact.

These concerns are not about the father having a different parenting style than their mother, or presenting as sterner or of a more disapproving nature. The father has been found to have perpetrated significant domestic abuse of which the children and the mother are victims. The children have experienced their father’s disapproval in the past, and seen that when he is challenged, his emotions can turn quickly to threat, to anger and at times to physical violence.

The mother has been subject to the father’s control for many years and continues to suffer the impact of her experiences.

In all the circumstances, and having regard to each of the factors on the welfare checklist and to the PD12J factors, the risks of the father continuing to act towards the mother and the children in the same way that I have found him to have done in the past continue. There is no evidence that measures can be put in place to reduce or manage these risks; the behaviour continued even in a supervised setting, but in any event, the father has not shown himself willing to continue with supervised contact. There is no evidence that the father has or is currently willing to engage with professional support to help him understand the impact of his actions on his family and to set about making meaningful change.

In the circumstances, I cannot be satisfied that the physical and emotional safety of the children or their mother can be secured before, during and after contact. I cannot be satisfied that the mother will not be subject to further domestic abuse by the father. It follows, that applying practice direction 12J, I cannot make an order requiring the mother to make the children available for direct contact with their father. His application for a child arrangements order to that effect is dismissed.

I have considered carefully whether or not the mother should make the children available to receive letters from the father.

This was previously offered to the father and he said he did not wish to send letters to the children. There is no evidence before the Court that he has changed his mind. He has not made any proposal to the Court or to the mother’s solicitors about how this might happen.

During these proceedings there has been the possibility of sending letters through the mother’s solicitors. Once the proceedings have concluded, any correspondence would have to go straight from father to mother or else their schools or some other third party would need to be involved.

[RA] writes, ‘I have no reassurance that the children will not be exposed to further inconsistency in this regard, nor that father will be able to refrain from voicing inappropriate views and questioning the children. This would cause the children further emotional harm and impact on their sense of identity. There is a high risk in any continued contact that [the father] will continue to make comments regardless of the orders of the court. This would continue to undermine the children’s relationship with their mother.’

Had the father attended the final hearing and engaged more with the proceedings the possibilities of indirect contact could have been explored. However, in the absence of proposals or reassurance form the father, and having regard to [RA]’s recommendations, I decline to make an order requiring the mother to make the children available to receive any form of indirect contact.

Mr Rustin relies upon two authorities.

In Re A (Parental Responsibility) [2023] EWCA Civ 689 (CA, Sir Andrew McFarlane P, Moylan LJ and Dingemans LJ), the father had been guilty of violent, abusive and coercive/controlling behaviour by towards his wife and children, both before and after separation, such that they had had to move to a confidential location and change their names. The mother had, by a combination of prohibited steps and specific issue orders, been given the right to exercise parental responsibility exclusively and without reference to the father. When setting out the legal framework, Sir Andrew McFarlane remarked as follows:

T-D (Children: Specific Issue Order) [2024] EWCA Civ 793(CA, Sir Andrew McFarlane, P and Peter Jackson LJ) concerned a specific issue order made at the conclusion of care proceedings granting the father overriding parental responsibility in the event the parents could not agree on schooling, therapy and communications with social workers and medical professionals. This was in the context of the trial judge’s assessment that the parents’ inability to negotiate agreements made the orders necessary to regulate the exercise of parental responsibility. The judge said he trusted the father to put the children’s needs first, but not the mother. The appeal was allowed on the basis that the order was disproportionate, unworkable and the parental conflict could best be resolved by the trial judge determining which school the children should attend. In considering the legal framework, Peter Jackson LJ states:

By operation of section 67 of the Domestic Abuse Act 2021, Section 91(14) of the Children Act 1989 was modified by a new section 91A, which provides as follows:

Practice Direction 12Q of the Family Procedure Rules 2010, inserted to accompany the addition of Section 91A Children Act 1989, sets out a number of ‘key principles’ to consider when deciding whether or not to make an order under section 91(14). The new provisions were reviewed by Gwynneth Knowles J in A Local Authority v F and others [2022] EWFC.

Drawing those sources together, the Court’s approach to an application for a section 91(14) order should be as follows:

In the case of F v M [2023] EWFC 5 there were findings that the applicant father had coercively controlled the mother throughout the relationship by preventing her access to ante-natal care, isolating her from her family, friends and peers, controlling her money and food and deliberately curtailing her freedom, also amounting to emotional abuse. The Court found that the father had raped the mother. The Court found that the father had caused emotional harm to the child of the relationship and that it would not be possible to safeguard the child from his emotionally and psychologically abusive behaviours until he had undertaken behaviour change work.

The order made was for indirect contact once a year. A section 91(14) order was made. In his judgment, Hayden J at paragraph 18 he said:

At paragraph 20 of his judgment, Hayden J said as follows:

This litigation has lasted for the whole of the three years and three months since the parents’ separation. The mother has experienced the litigation as a continuation of the abuse that she and the children were subjected to during the marriage. She was prevented from travelling to see her family in [Country B]. She had to relive her experiences when giving her own evidence, and she listened to the father’s continuing attacks, attempts to humiliate and undermine her when he gave evidence. The children have had some positive experiences with their father in contact, but have also felt pressured, felt uncomfortable and upset when he has continued to speak badly of their mother and ask questions of them, and as he has continued to try to manipulate them to saying or doing what he wants them to. They remain anxious of incurring his disapproval and about him hearing they may have said things that he would not like to hear.

If the father were permitted to issue further applications in these proceedings, before he has demonstrated that he has understood both the nature of his actions towards the children and their mother, taken responsibility, and shown that he has changed, then the mother and children would be subjected to the risk of further harm from the father’s behaviour towards them.

I found that the litigation itself has been used as a means of continuing the coercive and controlling behaviour that predominated in the parties’ relationship. So I must be cautious before inviting a return of that behaviour without any check or balance being in place.

In all the circumstances, I consider it appropriate to impose a filter on any future applications.

The father would not be prevented from making an application to the Court at any time while the section 91(14) is in place, but the restriction, as it is designed to do, would place the onus on the father to show that he has changed.

The Court must consider the length of time of any section 91(14) order. Any interference with a parent’s unfettered right of access to the Court, must be proportionate to the harm the Court is seeking to avoid.

The impact of domestic abuse is not time-limited, and can be lifelong. By imposing an arbitrary period of time of three or four or five years, the Court would be inviting the mother and children to take that time to recover themselves sufficiently so that they may then be in a position to face any future applications that come their way, irrespective of whether or not the father has changed his attitude towards them or his behaviours.

E will be sixteen in just over three years so it might make sense to impose an initial period that lasts to her sixteenth birthday. But why then should F and G be exposed to the risk of litigation at that point? In three years’ time, F will be starting year eleven, and G will be just a year behind.

In all the circumstances, I consider that it is reasonable to impose a section 91(14) order until the youngest child has reached the age of sixteen.

The imposition of a section 91(14) acts as a filter, not a bar. The father would not be prevented from making applications to the Court for a variation to the existing child arrangements orders at any time. But the onus would be upon him to establish, with evidence, that there has been a material change of circumstances since the order was made.

The Court cannot be prescriptive about the evidence that would be required to meet the test of a material change of circumstances before permission would be given to bring a fresh application. Whether permission is given will depend on the circumstances at the time. However, it may be helpful for the father to refer to [RA]’s recommendation, that he should complete an in-person RESPECT-accredited domestic abuse perpetrator programme (DAPP) of at least 26 weeks in length and in addition an accredited/a professionally recognised anger management course, such as through counselling or therapy, for a considerable and meaningful period of time. It is noted that the mother’s position is that an in-person anger management course would be of the most benefit to the father.

I shall provide that the father must share with any DAPP and/or anger management course provider a copy of the Court’s judgments, [RA]’s addendum report and the Court’s final order to consider before commencing any work with the father.

I will hear submissions from the mother about whether or not she would wish to be notified of a future application before the Court has decided whether to let it proceed.

On 24 April 2025 I made a non-molestation order forbidding the father from going to or entering any address where he knows or believes the mother or children to be, attempting to locate them or track them, send threatening or abusive letters, texts or voicemail messages, or calls, communicate with the mother, or post on any social media website or public internet forum information about the respondent or children.

The order is in force until 24 April 2030.

Mr Rustin asks that the time is extended by another eighteen months or so, to cover G’s eighteenth birthday.

The order is justified as a result of the father’s behaviour to the mother and the children. It tells him not to engage in conduct that would constitute harassment of the mother and children and put them at risk of harm.

The order may be varied or discharged upon application.

In the meantime, in all the circumstances of this case, I consider it reasonable to extend the time that it remains in force until the youngest child of the family is eighteen.

I have written a letter to the children explaining my decisions.

That is my judgment.