TF v DL & Ors

This is my judgment in the application brought by TF dated 6 July 2020. The respondent is TF’s former partner, DL and the application concerns their children E aged nine and P aged three. The parents represented themselves at this final hearing. The children were joined as parties by order of 21 June 2021, Mr David Faulkner was appointed as the children’s guardian, he instructed Nina Skilton of the Smith Partnership who in turn for this final hearing instructed David Payne of counsel.

The original application sought enforcement of the order of HHJ Thomas made on 4 DDJ O’Hagan properly recognised that the order of 4 December 2015 was in effect a ‘no order’ with an agreement between the parties reached at court on that day being set out in a recital. As such there was no order to enforce and indeed in any event P was not born at the date of that hearing. It was agreed and ordered that the application would proceed by way of an application to vary the order of 4 December 2015 or more properly in my estimation an application for a Child Arrangement Order with respect of both children.

This case has progressed through the Family Court at Birmingham but there are no Birmingham connections. The 2015 case was transferred here due to TF’s allegations against members of the judiciary in his local area and for that reason this case has been dealt with at this court.

TF regards himself as a litigator focused on furthering human rights and relentlessly pursuing justice in the face of a corrupt court system. The view of the higher courts is that his litigation is ill-judged and frequently abusive in tone. The view of the Single Joint Expert psychiatrist in this matter is that TF has a delusional disorder which exhibits itself in an obsession with litigation. The key issues in this case include determining which of these perspectives is accurate and then applying those findings to the welfare of the children with particular regard to Practice Direction 12J, the Welfare Checklist as set out in Section 1(3) Children Act 1989 and the presumption of parental involvement and the risk analysis set out in Sections 1(2A) and 6 of the 1989 Act. This is in the context where the guardian advises a no contact order and a Section 91(14) Children Act 1989 order for a period of five years.

It is the responsibility of the Family Court to deal with evidence relevant to the eventual welfare analysis. On 4 December 2015 HHJ Thomas determined that the parents could organise how and when TF could see his child between themselves. As such I determined revisiting events between the parties prior to December 2015 was not relevant to my enquiry. I further determined it was not appropriate for me to seek to revisit the findings of other judges in other courts. If any party was aggrieved with the findings of others, they should pursue that in the relevant court and when all avenues of appeal were exhausted those findings become legal fact. The parents represented themselves and I further indicated that I would not hear evidence on matters the parents did not have direct knowledge of where no effort had been made to adduce that evidence in accordance with the rules governing hearsay.

Much of the evidence in the case comes in the form of applications and exhibits to those applications made by TF as such there is no factual dispute that this is information he has presented.

TF has litigated in many different forums. Two High Court Justices and a Circuit Judge sitting in the High Court have made findings in relation to TF which I must have proper regard to:

In this case TF has made at least 13 separate applications. I determined each application at the outset of the final hearing and after hearing submissions dismissed each one. Mr Payne has provided a schedule of those applications which I attach as Schedule 1 to this judgment.

The applications have no merit. However, the conduct goes beyond that. Many of the applications contain threats and abusive language. Again, Mr Payne has assisted by collating these and I attach his summary as Schedule 2. In relation to the judiciary, TF has made the following comments in applications. I repeat the words and grammar used without an attempt to edit or highlight errors.

This litigation has resulted in piles of paperwork, all meticulously copied or scanned and tied together with string. When I complemented TF on the neatness of the string loops holding each application he smiled and indicated they were ‘little nooses’.

The abuse has extended widely beyond the judiciary. Much of the recent abuse has been

This picture is repeated with other professional with the following references being made:

Sadly, and most relevantly, this abuse extends to intimate partners with TF using the following phrases in relation to DL in either applications, social media posts or electronic correspondence:

In a communication to a third party he states “This is DL going out and meeting xxxxxx (a racially abusive term) to suck dick whilst rather I or her parents watch the kids. I’ve washed my hands with her you can all sit there and slag me off as much as you want. Least I am not a lying cheating xxxxxx (a racially abusive terms) shagger” C 43

In a text to DL on 27 May 2020 he states;

In this matter both parents provided witness statements, expert evidence was provided by Dr Rafiq, a Consultant Psychiatrist, and the Guardian provided his analysis. I confirm I have read and considered all of that evidence. I have further heard live evidence from the parents, Dr Rafiq and the Guardian and heard cross examination. In the case of TF’s cross examination of DL that was conducted by me following the provision of questions by TF. Finally, I have received written submissions from all parties. The fact I do not refer to a particular piece of evidence or submission does not mean I have not considered it.

In light of the clear evidence of highly abusive behaviour aimed at public servants and individuals it is not necessary for me to relate all the evidence before me which in TF’s part was largely an attempt to justify the reasonableness of his approach. The following is relevant.

Dr Irfan Rafiq is a Consultant Forensic Psychiatrist whose report was dated 15 December 2021. He confirmed TF was pleasant and co-operative throughout the assessment. Dr Rafiq confirmed that TF had capacity to litigate. He had experienced childhood trauma in that his father was killed in a workplace accident when he was six but he was not told the truth about the death. He attended two different Universities but did not complete either course. One course was Law. He believed he had been kidnapped by X Police and that incident and their subsequent ‘harassment’ ruined his education. He had not worked since 2016 and spent a lot of his time fighting legal proceedings. He stated he had been arrested at court for threats to kill a judge. He indicated that due to the judge acting in a treasonous manner he was legally entitled to stab him in the neck. He has six (now seven) children with five (now six) different partners. He indicated he had not been violent towards any of his partners but had been the recipient of violence. He accepted that he had been diagnosed with a delusional disorder but believed it was an incorrect diagnosis. He had been detained in mental health institutions in March 2016 and October 2017. He was prescribed depot anti-psychotic medication but has ceased taking it because of its side effects.

Dr Rafiq indicated that a letter from TF’s GP dated 27 July 2021 confirmed a diagnosis of delusional disorder and anxiety disorder combined with a dependency on hypnotic and anxiolytic drugs. A letter from his clinic dated 24 April 2020 repeated the diagnosis of a delusional disorder. At that point it was reported he was stable and able to function meeting his own basic needs, signs of relapse would be an increase in delusional ideation which would impact on his functioning for example a preoccupation with legal services, making unfounded allegations that might lead him into coming into contact with the emergency services. Other signs of decline might include increased reliance on hypnotics or cannabis, poor sleep, poor appetite and self-neglect.

Dr Rafiq confirmed his diagnosis was that TF suffered from a delusional disorder, but he was stable and his risk to himself and others was low. His view was that this did not directly impact on parenting ability unless he became fully wrapped up in litigation. He indicated the best treatment was the medication prescribed and the prognosis was poor because there was non-acceptance of the condition.

Dr Rafiq was provided with the correspondence and bundle and requested by both the Guardian and TF to answer further questions which he did in a supplementary report dated 15 February 2022. A review of the documentation led to Dr Rafiq being more concerned and he reported:

Dr Rafiq was asked to reconsider the issue of risk and stated:

Dr Rafiq’s evidence was not undermined by cross examination indeed he confirmed that the condition was difficult to treat because the sufferer does not recognise he has the condition. In reaching a diagnosis he particularly relied on the periods of inpatient admission which he regarded as the gold standard of assessment as other variables such as drug use could be removed, and the patient observed by teams of professionals over time.

TF was polite with me at all times. He listened very carefully to evidence and played an appropriate but active role in assisting me with cross examination on his behalf. When decisions went against him, for example, on the applications made he appeared interested in the legal reasons given and did not question the outcomes. DL attended with screens and neither TF nor DL could contain themselves from commenting and making asides about the other person’s evidence, however this was very much tit for tat.

TF was clear he was far more involved in the children’s lives then DL had informed the Guardian. He would see them regularly and for a period of time took E to school alone. He described the relationship as ‘on and off’ over ten years. By May 2020 he suggested DL was staying over at his flat with the children. He alleged the reason for the breakup with DL’s infidelity. He described a situation where after the breakup a Mr Q, a friend of DL kept on contacting him. He was clear DL had come to see him during the currency of the proceedings and they had slept together, he believed this was in April 2022.

TF confirmed there were presently proceedings before the Family Court in X in relation to his youngest son where the Local Authority are pursuing public law orders. He was clear that as a result of those proceedings for some months he stopped drinking and using cannabis.

When taken through the various applications and comments made, he did not take back or regret any of the comments. He reiterated that he believed that individuals should be hung for child abduction. When asked to comment on the picture of the noose he stated: “I believe the police officers, judges and doctors should be hung.”. He was asked to comment on his description of DL as a ‘child abusing whore’ after thinking about that he said he felt that was not fair and she was in reality a ‘child abusing slag’.

He said the Guardian’s actions were a bit ‘noncy’ and felt it was fair to call the court a load of ‘bacons’ which appeared to effectively mean the same. He was clear that his litigation was entirely legitimate but conceded he might sometimes make applications which might be interpreted in the wrong way.

DL had prepared fairly brief evidence. She indicated she was very young when she met TF being younger than sixteen with him being thirty. She described the events which let to intervention by Children’s Services in 2013/14 and gave details of the life she had with the children where they all live with her parents.

When giving evidence she misled the court. It was suggested to her that she had received a threat from a man called K who said he would rape E. It was suggested she had then continued to be friendly with this man. She was presented with an electronic communication sent by her to TF which reported this threat. She denied it was her account alleging it was a fake account. Once TF had spent the night printing out copies of all the emails from that account’ she conceded that it was her account. She then indicated she had forgotten this threat which was not credible in relation to the nature of the threat. She again denied meeting TF in April of this year, she was absolutely clear about this. She was again confronted with evidence she had met up and she then accepted she had. It matters not why they met up but the meeting was preceded by sexualised texting from TF. What matters is her untruthfulness about this to the court and to the Guardian. She also accepted that she had conspired with the same individual who had made the threats to E to make TF believe they were sleeping together and she accepted that she knew that would ‘wind him up’. She conceded she was ‘good at poking the hornet’s nest’ as far as TF was concerned. She stated she was now working as a support worker and the care of the children was split 50/50 between herself and her parents.

It is important to note that DL also embarked on abusive language with regard to TF.

The safeguarding letter dated 5 August 2020 reports TF has 10 convictions covering 34 offences. He also has a significant number of matters where no further action was taken or allegations were withdrawn. It is stated DL has a caution for battery which appears to relate to a domestic incident involving TF. DL indicated that she had applied for that caution to be set aside due to her age and the circumstances of her relationship with DL. She exhibited a CRB check which appeared not to show it which would support that contention. The family were known to X Local Authority and concerns were raised in 2018 when DL denied previous local authority involvement, presumable in the context of ante natal care for P which was not true. It appears that the midwifery team were asked to monitor the situation and no action was taken following P’s birth.

During the initial interview process DL had said TF had disowned the children in May 2020. She did not have concerns about TF seeing the children but she was concerned about his delusional disorder. She indicated that TF has messaged E to say “because your mother is a fat slag you are going to be disowned” but she intercepted the message before E read it. TF said that DL had whipped E with a tea towel, was not fit to be a parent and brings black men to the house who deal ‘crack, monkey dust, heroin and weed’. He reported that DL was associating with a man who had been reported for sexual offences.

The officer reported TF continually using extremely derogatory terms in relation to DL and she was highly concerned about the level of anger TF displayed towards DL and the impact this could have on the children.

David Faulkner was the writer of a Section 7 report dated 31 March 2021. He reported much of the history and allegations made as reported above. He indicated that E was making progress in school and was a sociable little girl. E indicated that the people important to her were “Mummy, Nana, P and Grandad.”. She spoke positively about these family members. She struggled to know where to place her father on the drawing and eventually she drew an angry face and referred to herself feeling sad and angry. She made references to her father shouting and being angry towards her and DL. She appeared anxious when the talk was about seeing TF and wanted reassurance from him that he was would not shout or become angry. P was described as being full of energy. Mr Faulkner’s conclusion was that the children were thriving in the care of their mother, he did not discern E’s responses to be rehearsed in any way. Mr Faulkner indicated there was evidence that needed to be collected and considered and advised that a guardian should be appointed.

Mr Faulkner briefly reported in in his new role as guardian on 4 August 2021 but simply indicated that he needed evidence in relation to TF’s mental health before he could provide a full analysis. His final analysis was dated 22 March 2022. He made certain comments of note as follows:

Mr Faulkner advised the court that he felt the appropriate length of time for any Section 91(14) order was five years in light of how TF had presented himself at court and the way the evidence had come out he was worried about litigation being used as a means of coercion and control.

Under cross examination Mr Faulkner put on record that he had found the way he had been described in applications and documents was deeply offensive. He accepted there was evidence that DL had been dishonest and on occasions made derogatory comments. It was suggested he had failed in his duty by not recognising the threats DL’s associates present to the children. In particular it was suggested he had failed to act in relation to the allegation that a person had threatened to rape E. His response was that the volume of documents sent to him, some highly offensive and many containing multiple attachments made it almost impossible for him to consider every exhibit and that was one he had not specifically seen. He denied being biased in any way.

It was put to him that there was no real evidence TF had harmed his children and his answer bears repeating in full:

Mr Faulkner directly and politely engaged in the questioning put to him by TF and behaved in a dignified understated way. His overall analysis was not undermined by the cross-examination process.

In Re A (No.2) (Children; Findings of Fact) [2019] EWCA Civ 1947 Peter Jackson LJ said the questions for every fact finder, are What, When, Where, Who, How and Why? Some answers, he said, will be obvious, while other questions may be extremely hard or even unanswerable. Sometimes a question may not need answering at all. The answers to the questions will be provisional until they have been checked against each other to provide a coherent outcome.

The court is not bound by a schedule of findings sought and may reach an alternative solution of its own: Re S (A Child) [2015] UKSC 20. If, however, the court is to go ‘off piste’, there must be a good enough reason and solid evidential basis for doing so and procedural fairness must be maintained (the person against whom the finding is sought must know the nature of the allegation and the substance of the supporting evidence and have a reasonable opportunity to respond): Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10. Re B (A Child) [2018 EWCA Civ 2127 and A (No.2) (Children:Findings of Fact) [2019] EWCA Civ 1947.

Where factual matters are in dispute the burden of proof is on the person making the allegations. That party must satisfy me the finding they seek are true on the balance of probabilities, meaning I must be satisfied it is more likely than not that the matters they assert are true. If a fact is proved it happened, it if it not proved it did not happen and must be disregarded- the so-called binary consequence. As a matter of common sense, the court can take into account inherent improbabilities in deciding whether the standard of proof has been met. Re B [2018] UKHL 35.

Findings of fact must be based on evidence, not speculation: see Re A (A Child) (Fact- finding hearing; Speculation) 2011 EWCA Civ 12. While the court may draw proper inferences from the evidence it must be careful not to reverse the burden of proof.

When carrying out the assessment of evidence the court invariably surveys a wide canvas. It must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. It should exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward has been made out to the requisite standard of proof.

The evidence of parents is of the utmost importance and the court must make a clear assessment of their credibility and reliability: Re W and another (Non-accidental injury) [2003] 2 FCR 346. Of particular importance is the direction given to juries in the case of R v Lucas [1981] QB 720. It is not uncommon for witnesses to tell lies in the course of an investigation and the hearing. Witnesses lie for different reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a person has lied about one thing does not mean he has lied about everything. I have to be satisfied that the lie is relevant to the finding sought.

There is a different but related question of witness fallibility, which is a matter of reliability rather than credibility. The court should bear in mind the recall of events by a witness is a process of fallible reconstruction which may be affected by external influences and supervening events, moulded by the process of litigation and the drafting of lawyers, with past beliefs being reconstructed to make them more consistent with present beliefs and motivated by a desire to give a good impression; Gestmin SGPS Sav Credit Suisse (UK) Ltd & Anor [2013] EWHC (Comm), Leggatt J.

A number of factual findings in relation to TF are in reality not in dispute as they are set out in documentation before the court which is accepted to be genuine. I make these findings as follows:

A number of factual findings arise from the overwhelming body of evidence these are:

A number of factual findings need to be made in relation to DL.

This is a case where the Guardian advises no contact as such the case law in relation to that type of decision is relevant. In determining Father’s application, s.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)).

The significance of ending a case with an order which prevents direct contact was set out in the case R (no order for contact after findings of domestic abuse) [2020] EWFC B57 (03 December 2020) decided by HHJ Vincent where she stated:

The same ground was considered in the Court of Appeal in the case of Re G (Children: Intractable Dispute) [2019] EWCA Civ 548 where LJ Peter Jackson set out the scenario in detail and widened the enquiry to include the cases of blameless fathers. I set out the section of his judgment entitled ‘Governing Principles’ in full.

TF has received a polite and sympathetic hearing from this court, Dr Rafiq and the Guardian. That is in the starkest contrast to how he treats any individuals of authority he comes into contact with.

TF has used the vilest abuse against DL and sought to undermine every aspect of her personality and parenting. This amounts to domestic abuse in accordance with Section 1 (3) (e) of the Domestic Abuse Act 2021 being ‘psychological, emotional or other abuse’. As a result of this finding Practice Direction 12 J is directly engaged. Of immediate relevance is Paragraph 33 which reads:

It is clear that TF does not accept that he has committed domestic abuse and where it might be otherwise possible for treatment to be effective has indicated that he does not accept his diagnosis, he maintains he is justified in his actions and will not accept the treatment recommended. This precludes any further useful assessment or plan of intervention.

In those circumstance the following provisions of the Practice Direction come into play:

This application fails on the basis of Paragraph 36(3)(b) alone. In light of the factual findings I have made I cannot properly satisfy myself that the physical and emotional safety of these children and DL can be secured both before and after contact. I can also not satisfy myself that DL would not be subject to further domestic abuse. Without self-realisation and treatment TF presents a clear and present risk to DL’s emotional wellbeing and in my finding does not have the degree of empathy and understanding required to prevent such harm happening to his children as they grow older.

In many circumstances it is possible to protect the resident parent by using professionals or familial support to create a safe environment for children to see a previously abusive parent. TF’s complete contempt for all professionals and DL’s family make this impossible.

If I were wrong on this point Paragraphs 37 (c)(d) and (e) would preclude my ordering contact. TF enjoys litigation, his avenue to civil litigation has been significantly curtailed so he has used these proceedings as a means of considering his various crusades whilst littering his applications and evidence with abuse of DL. There is hardly a mention of the children in his evidence. I have grave doubts as to whether he wishes to see his children at all or understands the consistency required to be a father. I note he has little or no contact with any of his other children save for the child in care where that is closely supervised.

Turning to the Welfare Checklist the magnetic factor is 1(3) (e) CA 89. These children are at risk of emotional harm from their father and that risk cannot be mitigated to an acceptable level either by treatment or professional support. For the same reason the provisions of Section 1(6)(a) CA 89 apply, there is no method of involving TF in the children’s lives which does not put the children at risk of suffering harm. This deals with issues of proportionality. It can never be proportionate to expose young children to unmitigated emotional harm. This also deals with the issue of whether the court has done all it can, there are no practical arrangements or viable treatments which TF would accept which the court could order.

In relation to DL the evidential process has raised issues in relation to her ability to be honest with the court and professionals. However, an experienced guardian has determined that the children are thriving within her home with her parents playing a significant role. Here relationship with TF is clearly toxic and began when she was very young. On balance I am satisfied that with the children thriving in her care it is not necessary to prolong these proceedings further. It is thus appropriate to make a Child Arrangement Order in her favour.

The courts have long recognised that the litigation process can be used as a method of post separation abuse and that is reflected in the new Section 91A CA 1989 brought in by Section 67(3) Domestic Abuse Act 2021. This reflects the concerns highlighted in The Harm Panel Report; (Assessing Risk of Harm to Children and Parents in Private Law Cases)Ministry of Justice: Assessing Risk of Harm to Children and Parents in Private Law Children Cases; Professors Rosemary Hunter, Mandy Burton and Liz Trinder which states

TF is aware that the Guardian recommends a Section 91(14) order for a period of 5 years. Practice Direction 12Q assists in setting out Key Principles as to the use of these orders and the following are of interest with the most relevant sections highlighted.

I have disposed of 13 separate applications in this case, none were successful and many irrational and abusive. However, most importantly DL needs some respite from constant abusive litigation. An order is thus warranted.

In different scenarios Justices of the High Court have reached the same conclusion.

I note that 7 years after the order of Simler J TF continues to use every opportunity to litigate and thus if not restrained he is likely to do so in the future. A period of five years thus appears appropriate.

Section 91(14) is not a bar but a filter; were TF to return to taking his medication and to desist from abusive behaviour and spurious litigation for a significant period of time then he is has a rational argument for suggesting leave should be granted.

It would have been impossible to conclude this case in the time allocated without the excellent assistance to the court and the parties provided by David Payne. I am deeply grateful for the work undertaken at short notice and often out of hours.

Finally, David Faulkner and Nina Skilton have been subject to intense, unpleasant, personal abuse from TF. None of it justified in any manner. They have performed their obligations to the children in an exemplary manner.

SCHEDULE 1 (SCHEDULE OF APPLICATIONS)