E v G & Anor

This is the conclusion of a hearing concerning the arrangements for a child, X, born on 27 June 2009. Her parents are E and G. I have reached my decision after hearing a day and a half of evidence and submissions regarding contempt of Court in which I have already given judgment, and then the hearing of further evidence yesterday with submissions this morning about the ongoing child arrangements. I have taken all the evidence over the last three days into account.

No statements have been filed specifically in relation to child arrangements and I do not have a specific Guardian’s analysis for this hearing, but I do have the Guardian’s position statement and affidavits filed in pursuit of the contempt application with substantial evidence from a number of Guardians in earlier proceedings, and further evidence in relation to the committal proceedings. The papers that I have considered in the bundle go back to the 2019 proceedings.

There is therefore a long history to this case. The judgment I give today should be read in conjunction with my own judgment from yesterday and with the judgment of District Judge B 2020 and Recorder H in June 2022.

I have considered carefully the immediate factual matrix as set out from the perspective of the contempt proceedings, and that is what is set out in my own judgment from yesterday. The first order in this case, as I understand it, I have not seen it, was made by District Judge P in 2012, and that order split X’s time over a fortnight with eight nights spent with Mother and six nights with Father which is the closest that the arrangement has come to the 50/50 split that Father seeks. In 2016, Her Honour Judge C made an order splitting X’s time nine nights to Mother, five to Father with a section 91(14) order.

Notwithstanding that, new proceedings were issued in 2019. In October 2019, X was made a party and a Guardian was appointed for X. It is not the same Guardian who acts for X now.

The final order in those proceedings was made in October 2020 by District Judge B and it again provided for X to spend time with both parents, with three nights a fortnight with the father including every other weekend. Otherwise, X was to live with the mother, and there was another order under section 91(14).

Very soon after that, Mother applied, in December 2020, for permission to pursue another application and permission was granted. I presume the proceedings were actually issued in 2021 because of the case number that we have before us now, which is a 2021 number.

Therefore, the child has been in proceedings for all but a very few years of her life, and the parents did not separate until X was, I think, a couple of years old, so she has been in proceedings for almost the entire time of the parents’ separation.

In January 2021, the order that District Judge B had made in October the previous year was suspended and replaced by supervised, indirect contact only, with a prohibited steps order for there not to be any other contact between Father and child. A penal notice was attached to that. It is not clear to me from the papers, I do not have exactly what the breaches were, but there clearly had been non-compliance with the order by the father. The effect was that District Judge B reduced the time that the child would spend with the father to indirect, supervised contact only, in January 2021.

The judge also ordered a s.7 report at that time, and the order records, and the s.7 report records that father made it clear that he would not take up any form of supervised contact, also that he indicated an intention of publishing information from the proceedings. Both are positions that he has continued to adopt since then.

What is surprising and concerning is that father was not able to work with the order from October 2020 which was an order which gave a substantial amount of time for X to spend with both parents, a very normal order in these sorts of proceedings. Father was focused instead on his conviction that the right order was for X to have half her time with each parent, and he was not prepared to accept less.

The psychological report of Dr Bailham that was ordered and filed in September with an addendum in October 2021 assessed the parents and gave the opinion that father did not have a personality disorder, but he did have dysfunctional personality traits. She did also recommend that there might need to be a psychiatric assessment if a more detailed assessment was necessary. Her report, to my mind, was inconclusive about the difficulties suffered by father but she did record that he had an inability to be reflective about his own behaviour and how it was harmful to X. Dr Bailham did not think that the mother had a personality disorder and she did think that she showed some reflective thinking, although also her behaviour was influenced by some anxiety about X.

Dr Bailham did not think that X had suffered any emotional harm, but there was a risk of her suffering emotional harm in the future if X was not listened to. She recorded that X felt a need to placate adults and needed time to develop normally.

She recorded that she saw X as having a good attachment to the mother, and a strong emotional attachment to her father, but that X felt a need to compensate for his behaviour and that X needed some therapy to help with that. She was concerned at the idea that X might not have a relationship with the father because of the risk it would carry of her being resentful of her mother.

After that report was produced, the proceedings were reallocated to a circuit judge and listed for February 2022, and ultimately, for a final hearing, which was heard by Recorder H in May and June 2022. By that time, there had been no order for X to spend time with her father since January 2021. If the orders had been adhered to, X would not have spent any time with him since that time. However, in spite of the suspension of the previous order for contact, time together had in fact continued by way of father waylaying X on her way to or from school. It is clear that during this period, X wanted to see him, and there are texts and reports by the Guardian which show this.

At the conclusion of the hearing on 1 June, the order was dated 7 June, Recorder H considered the split of 50/50 care that was sought by the father. He considered the idea that there should be no contact at all. He considered continuing the order in similar terms to the order of October 2020, and that is what he did, rejecting in clear terms a 50/50 split of time, but taking the view that a controlled and positive order was better and more likely to achieve a positive outcome for X than no order at all. In fact, he increased the order slightly so that it included the child spending time with the father on Wednesdays as well.

He was clear that X wanted the litigation to stop and that he had seriously considered, notwithstanding that, making no order. He was also clear that the problems for X were caused by the father. He recognised that if there was more fighting and refusal of contact offered or refusal to comply with the order, his hopes would prove to have been misplaced. That, sadly, is where we are now. Recorder H’s order was not challenged formally in any way by any party.

On a positive note, the father did not refuse to engage in the contact that had been ordered, and it did proceed under the order. However, in addition, he continued to see X outside of the order and indeed the fighting has continued. I refer there specifically to the incidents on 21 July and 4 September. That is when the fighting literally continued. Also, on 11 July when father took X to spend time with him outside the terms of the order.

He also sent an email to the Court and the Guardian on 16 June saying that, “Not I nor X in fact won’t stick to the latest order”. His complaint was that he believed he should have half the holidays, as I understand it. There was, however, no appeal against the order made.

The result of the incident on 22 July, when Mother attended the house and alleges she was assaulted by Father and I have seen a video recording of that incident, was a request by the Guardian for an urgent hearing to review the situation, notwithstanding the 91(14) order which restricted the parents. A hearing took place before me as a result on 1 August 2022.

At that hearing, I replaced the direct contact order with the suspension of that order and with indirect contact with directions for evidence from both parents. The case came back on 5 October at which point the father had not taken up any indirect contact, nor had he filed the evidence directed. At that hearing, the Guardian made it clear she was intending to apply for committal, and directions were given to accommodate that, the application in fact being made on 11 October. The effect is that X has not spent time with father, in a way sanctioned by the Court, since 21 January, apart from those six weeks in June and July last year when, for a brief period, the order worked as intended except that even then, it was not fully obeyed; there was that additional time spent on the 11^th and 12^th  July.

I have dealt, in my separate judgment, with the number of times Father is known to have met with X in spite of the order, and I do not propose to deal again with that now, save to say that there were 11 breaches proved of the order made on 1 August last year.

20^th  July was the last time that X saw father in accordance with the order. Indeed, father appeared to suggest yesterday that there are more times when he has met with X than any of the adults in this court are aware of, apart from himself.

I have considered all the papers in the bundle which contain numbers statements, some erroneously called position statements, and the recommendations of the Guardian. I have heard the oral evidence of the mother and father and the Guardian, in addition to the evidence heard at the beginning of the week.

Father gave his evidence yesterday in the knowledge that he is at risk of going to prison if he does not comply with orders of the Court in the future. He continues to seek equal shared care, to say that that is what is best for X, but he has started to say he will comply with an order made, because he does not want to go to prison.

Mother’s position is that it is time for this situation to come to an end. She is supported in that by the Guardian. Both suggest to the Court that there should be a continuation of the existing 91(14) order and that there should be no order at all for direct contact; the contact should be by letterbox only.

Mother struck me as being genuinely focused on the child’s welfare and worried about her. She said, and I accept, that she has supported contact up to now because that is what the child wanted, but also she said that X has now had enough. When asked about it, X is neutral, mother told the Court. X says, “I don’t know” when asked about whether she wants to see the father, and also tells the mother that when the father asks about this X also tells him, “I don’t know”.

Father’s evidence to the Court continued to be very concerning. At some points, there were signs of softening; he showed some distress, presumably at least in part, because of fear of separation from X, but also very clearly because he has suffered a wake-up call. He now stands to go to prison if he does not comply with orders.

It seems to me that he showed love for his child, I have no doubt of that, but little insight into what was going to be most helpful to her, or what might be harmful to her. It did not seem to occur to him that the child might be saying to him, might have said to him in the past, that she wanted to see him just in order to appease him. It was a view held by the Guardian, and it is a view that has been expressed by numerous professionals in this case. Notwithstanding his inability to see that, the father did suggest that X was simply trying to appease the mother.

It seems to me that it is not surprising, and I am satisfied that, it is the father that she is trying to placate and to appease. I say that when I read communications to the child from the father, including the one that was considered by Recorder H and recorded in his judgment where Father says, “I can’t support you unless you step up”, and then again in the letter of 1 November 2022 where Father says:

Father openly acknowledges seeking to give the letter to the child, and I saw no evidence from him of understanding why it was inappropriate and damaging. Fortunately, X has not seen it. I cannot think of a less child-focused way of speaking to a child.

Added to that, having said that he wanted to comply with court orders, and that he had undergone a wake-up call, Father’s demeanour as he cross-examined the Guardian was very worrying. It appeared to me to be bullying and I had to stop him. In other words, he had returned, whilst still in court, whilst still under the spotlight, to his focus, to his insistence, on seeing the child on his own terms.

Father was anxious that I should consider his statement from March 2022, which is in the bundle, and to consider the videos for which links were provided in the statement. I have done that. They are delightful. I agree, they are very positive. They show the child having a lovely time engaged in all sorts of activities with her father, swimming, playing musical instruments, skiing, riding, walking and so on. I entirely accept the evidence of those videos, but they are only part of the picture, and the Court must take into account the whole picture.

The Guardian’s evidence was helpful and considered. The Guardian having, in June, started by recommending a very significant restriction on any sort of contact, had given it further thought and then recommended continued direct contact. Before the Court this week, she has changed that view given the developments that have occurred since. There were a number of considerations. The child no longer wants to see any professionals. The child has had enough after 10 years and more. The Guardian’s view was that it is impossible to know what the child wanted. The child is torn between the parents. The child needs some peace, and so the Guardian recommended no direct contact. The Guardian could not see a way it could be made to work without it being used to apply pressure, or being breached and causing conflict. I accept the Guardian’s evidence. It is thoughtful and considered, and it is given after a long acquaintance with this case. That is not to suggest it covers the full length of the case; I realise in those terms that she has relatively recently been appointed, but it is still significant.

I mention briefly Dr Bailham’s report. I have not heard evidence from Dr Bailham. Recorder H did. That report does not recommend a cessation of contact. I have read the report itself in the bundle in those proceedings which concluded only a few months ago. However, her two reports were prepared in September and October 2021, 15 months ago, and without knowledge of the current situation. Recorder H had the benefit of hearing from Dr Bailham and he felt that she had not grasped the seriousness of the case, even as it was then. I agree that her report as it stands does not reflect the situation that the Court is dealing with now.

I turn to consideration of the Welfare Checklist which I must have in mind when making my decision. What I am told about X’s wishes and feelings is that what the child says is ‘I do not know’. X does not know what she wants to happen. The child is so confused and torn between her parents that she does not even want to be asked about it. She does not want to see professionals any more. I find that entirely unsurprising. She knows of the acrimony between the parents. On the other hand, she has in the past enjoyed time with the father; that, I think, is clear. She finds him fun, and he is stimulating. Seeing those videos, I do not disagree with that.

The Court is left having to draw inferences about the child’s feelings from what she tells the parents and what she tells the Guardian, and what she does not tell them. The father says she cries while speaking to him sometimes. Mother agrees she cries sometimes after contact with Father. We do not know why that is though. It could be because she is upset at seeing her father, it could be because she is upset at not seeing her father. Mother says that when Father tried to hug her on 4 September, she just froze. The Guardian says that X just wants it all to stop.

It seems to me reasonable to assume that if possible X would want to see both parents, but it has all got too much for X. The inference I draw from, “I don’t know” being the response when asked what she wants in terms of seeing the father is:

Moving on to the child’s physical and educational needs, that is not an issue. X is doing well. X would be well looked after by both parents. It is clear that Father is very good at providing for X’s physical needs, and as I have said, stimulating the child.

X’s emotional needs are the same as for any child. X needs a calm, nurturing environment where X can develop best. The question is how to achieve that.

When considering the likely effect of change, the issue that the Court is considering is whether to return to the contact orders that have been in place in the past: more or less alternative weekend contact, or something greater, such as an equal share for each parent of time with the child or nothing at all, except letterbox contact with the father; or indeed something in between, not suggested by the Guardian, such as overnight contact or daytime contact only.

The change is in itself not an issue because what has been happening is so murky. X has not seen her father under an order over the last two years except for a period of about six weeks in the summer. However, we know she has seen him outside the confines of an order. We do not know exactly how much. What is clear to me is that change is necessary, and that the change that it is necessary to achieve is clarity and the removal of responsibility from X .

Considering the age, sex and background of the child; this is a case where the child has a dual heritage and it is important that it should be preserved. It sounds to me as if it is being preserved. X is learning to speak father’s language , X is doing very well in speaking it. X is studying for a GSCE a year early. X is apparently, according to Mother, studying at an A-Level standard. X should also have, in my view, a second passport if possible under this order. X should see her grandparents, her non-British grandparents.

I heard both Mother and Father on the subject of her ability to speak her second language. If Father is correct, X cannot speak it and would be upset by going abroad to see her paternal grandparents. I am not persuaded by that. You can have a loving relationship with a grandparent even if you do not speak the same language. There can be hugs, there can be the building up of that language.

If Mother is correct, and I think she is more likely to be correct, then there is not a problem in any case and X can converse with paternal grandparents and should be given the opportunity to do so.

Moving on to the question of harm and risk of harm, and how capable each parent is of meeting the child’s needs, I have already identified that the harm here is the emotional harm, the potential emotional harm to the child and the antagonism between the parents which has already caused great harm. I have already echoed the reservations of Recorder H about the opinion of Dr Bailham and it is my view that the situation is even worse for X now.

On the mother’s part, I believe that she has done her best, but in the face of father’s aggression and ignoring of orders, she has been stuck and the conflict has continued. I do not think she could make it work without cooperation from the father, but I do accept that she has always wanted to promote contact. This is the first time she has come to court and asked the Court to stop contact altogether.

Father has told the Court that he has had a real wake-up call this week because of the committal decision. It remains to be seen how long that will last, and I must take into account what has happened in the past. His change of heart is apparently because of fear of going to prison, not because of contrition or an understanding of the effect of his behaviour. He continues to show a lack of insight into his own responsibilities. He continues to blame the mother and pursue his own agenda. Through his evidence, he blames the mother, for example, for the incident in July last year, for coming to the house at all. He appears to have expected others to accept, and when I say “others” I mean the mother and the Guardian, to accept his assurance that the child was fine, without allowing them to speak to her. I find it difficult to understand why he thinks that is reasonable. Also in fact, Mother’s evidence was that the child has since then said the opposite to the mother, that she was not being allowed to contact them. Indeed, if X was fine, I do not understand why he did not let her speak. Behaving in that way, and keeping X beyond the time she was meant to be with him, beyond the morning of 21 July, is what caused the situation to go out of control. It is not what the mother did.

I have referred already to the letter of 1 November 2022. It is very recent, and it is very worrying. It puts responsibility on X where she has none. It would make her feel guilt and anxiety for the future. Fortunately, she has not seen it.

I am persuaded that the father has begun to see a need to change, but it is out of self-preservation, not an understanding of X’s welfare. He is still asserting that what X wants is to spend time with him. I do not accept that X is placating her mother. It is the father X has been trying to placate. Therefore, I do not accept it when Father asserts that X is saying she wants to see him. I do accept that it would be very harmful for X to have no relationship with her father at all.

Against that background, I come to a consideration of the options. The best thing for this child would be to have a full and proper relationship with both parents. That does not mean that X would need to share her time between them equally. It does not mean the 50/50 arrangement that Father has been seeking. The question is whether that is possible.

Father, in his submissions, emphasised that this is the time to start with a blank page, to free up X from what has gone before. He gave his word that he would walk away from the conflicts. He said an order for her to spend time with him would stop the conflict. I recognise that it is hard for any parent when a couple splits up because it means inevitably that they cannot spend as much time as they used to with the child. It is also hard for the child because most of them want just for their parents to get back together.

Now, in this case, there is in fact no sign that what father wants is what X wants, but what X does need is a way of navigating the situation. Father has made that very difficult for her by his insistence that she conspire with him to breach orders that she knows are in place.

Therefore, the question is whether direct contact is manageable in the present situation, or does it risk further emotional harm? I am afraid it is true that all options will cause some level of harm and only possibly time and work by the father will restore a situation where X can see both parents without harm.

Mother has made the point that in father, X has had to date a very poor role model, and that is a point also made by Recorder H. X is at a critical time in her development with an awareness of adult behaviour, and it is vitally important that X lives in circumstances of calm and proper behaviour.

There is a balance to be considered with, on one side the increased likelihood of surreptitious meetings, if there was no order at all, with the increased risk of harm to X if there is no order for contact, or indeed if there is an order that does not give father what he wants so that he continues to seek contact outside the order, and on the other side the consequences of allowing direct contact, unsupervised direct contact where there is an entrenched position held by the father, as expressed in his documents, where he puts blame and responsibility onto X.

The Court must weigh the benefits and disadvantages of all the options, but I start with the two extremes, and I consider the options bearing in mind that this has been going on for 10 years with no solution. If there is no direct contact at all, I am sure it will be difficult. It will be very sad for father, and I suspect there will be some level of sadness for X as well. As I have said, I viewed that March statement and the videos and they show happy and vibrant times. There are clear disadvantages in there being no contact. However, things have moved to a point where something has to change.

I have accepted the mother’s evidence that X is now unresponsive and does not want to discuss all of this, and she is supported in that by the Guardian. Father says X does want to see him, but he shows a consistent pattern of seeing things only in his way.

I am persuaded, as I have said, it is there throughout the evidence, that part of X’s response is to placate Father, so anything X does say to him is in fact not reliable.

The other extreme of the options is for there to be the equally-shared time between both parents. That in itself to my mind would cause conflict, and I have heard no evidence that it would in itself be beneficial. The only reason it is put forward is because it is what Father wants. Between that and no contact at all, there are a number of gradations as set out by the Guardian. They include returning to something like the order of June last year, or overnight contact, or daytime contact only.

The June 2022 order, the order made by Recorder H, lasted six weeks before it led to a major conflict, provoked by Father retaining X without justification. I do not accept that it was just a mistake. I do not criticise that order in itself; it was made in a hope that has not been realised.

I am satisfied that once the shock of these hearings is over, there is a high risk that father will continue to seek to influence X and to distort what is happening through the prism of his own view of what is happening. For example, I have already heard from him today about how X cannot go to his native country without him because of the language barrier. I am not yet satisfied that there has been a genuine change in his attitude.

The situation is now protected by a committal order reducing the risk of unauthorised meetings, and also by X’s own change of position as expressed to the mother and, to some extent, to the Guardian. That is something I take into account when considering making an order that there should be no direct contact at all. The conflict has gone on for 10 years and none of the orders for direct contact that have been made have removed that conflict; sooner or later, it recurs. It recurs as on 4 September 2022, even without it being intended that contact should happen.

Another option suggested was supervised contact. I can see some benefit in that. I am doubtful that the father would take it up, but the reality is that there is simply no suitable person to help with that supervision of contact. It may emerge as a possibility in the future, but it would have to be something that X was looking for.

Shorter stays or non-overnight stays are equally not viable. It would, to my mind, increase the likelihood that father would not be satisfied and would seek to see X in addition to the times specified, and importantly, to influence X when the child is with him so that she cooperated with him in further unauthorised meetings. Those middle ranges, that is the limited direct contact or supervised contact, are just not viable for practical reasons and because of the history of the case.

That leaves the Court considering either the 50/50 option or continuing the existing order on one side, or making no order for contact at all on the other. I have already said I discount the 50/50 option. It has been rejected over and over by judges hearing this case, and if anything, things are now worse in terms of X’s wishes and feelings. I am not satisfied it is what the child wants. It would also increase father’s control over the situation and the likelihood of conflict.

Therefore, the options for the Court to consider are an order something like the order made in June last year by Recorder H, or letterbox contact only. Sadly, Recorder H’s order has proved not to be viable. It has been both breached specifically and its ambit exceeded. It was a perfectly sensible order at the time.

However, now it is different. The risks of no contact happening at all, other than by letterbox, is in damaging the relationship between Father and child and increasing the likelihood of unauthorised contact. However, the relationship with between Father and X is already damaged; X witnessed his assault on the mother. Had X seen that letter of 1 November, she would have been further damaged.

X is protected now from unauthorised contact with the father by the suspended committal order. It seems to me that there being no contact between Father and X is more likely to reduce conflict than increase it, and to remove Father’s control. A reduction of conflict is what X in particular seeks, as well as Mother.

It will be upsetting for Father, but it is X’s welfare that is paramount and that I have considered in this judgment. Direct contact with Father has not served X well over the last 10 years.

I want Father to have a good relationship with X. He may be surprised to hear me say that, but it cannot be on his terms. I hope he may start from this week to see how damaging it is to X to get her to see him behind her mother’s back and behind the back of the court. If he can stick to the order I am making this morning, there is a way forward. If he can stick to it, he will not go to prison, and X will get some peace to think about what she wants. I expect that in the future that will include a relationship with him, and I believe that Mother will encourage it if the conditions are right. The conditions being right will include Father having done some therapy. I have not seen any sign of any need for Mother or X to do that, apart from perhaps some counselling.

Therefore, the order is for the father to have letterbox contact only with X. He will be able to write to her, or send a card or a present, once a fortnight. X will be encouraged by Mother to reply to that contact. The letters sent must not be in any way similar to the letter of 1 November. It will be vital Mother vets those letters and decides what is appropriate.

It is a difficult skill to write appropriately to a child in these circumstances, but the guidance is for it to be child-focused; what is X doing? How is X getting on? not what the parent wants. It will take some time for Father to show, through that means, that he can be trusted, but that is how to do it. His saying today that he has had a wake-up call is not sufficient.

There will also be an order under section 91(14) that there should be no further applications to the Court without permission until X reaches the age of 16. Any application for permission will need to be supported by something demonstrating change. It might be something that comes from X herself, via her mother, or it might be something coming from father such as evidence of therapy and a report of change arising from that therapy.

As to the second passport, it is entirely in X’s interests to have a second passport in the present post- Brexit circumstances. That does not cause me to say that X must spend time with the father in order to get the passport. It is the mother who is going to have to support the application. I entirely recognise that it is likely that X needs to be present in order to obtain the passport. I am very much more doubtful that one parent rather than the other has precedence in terms of obtaining it. It will be for Mother to check with the Embassy and to find out about that. If Father really wants her to have the passport, he may need to give an application number so that she can do so. There will be a recital in the order that Mother is entirely supported by the Court in seeking to pursue the application for the passport.

There will also be a recital that Mother has agreed to support and arrange contact between X and her paternal family. That does not include Father.

There will be a non-molestation order and a prohibited steps order in similar terms. I am able, under section 42 of the Family Law Act 1996 to make an order of my own motion, and that is what I am doing. The terms need to be reconsidered. When the prohibited steps order was considered before the Court, towards the end of last year, Father’s objection was that he wanted to be able to go to the supermarket when he liked. I was satisfied that that was obstructive, that he could manage without going to the supermarket at precisely the moment when X was going to school, but I do recognise, I have not heard submissions about it, that there may be occasions when he needs to go somewhere else and leave first thing in the morning. It seems to me that that can be dealt with by saying that he is restricted from going onto that road, on foot, between the hours of eight and nine, and three and four, and similar terms can be reflected in the non-molestation order. If he is in a car, he should still not approach X. That would be just as damaging as if he were on foot.

Finally, I say that there have been suggestions that it is Mother’s fault that these matters keep coming back to court. She, it is true, has been the one, on the whole, to make the applications but the applications are provoked by Father not complying with orders. It cannot be said that it is Mother’s fault.

Most importantly of all though, X must know that it is not her fault. This is an adult problem. It is a problem almost, not entirely but almost entirely, of Father’s own making. That is not something I want to emphasise to X. What I want to emphasise to her is that whatever the adults have done, this is the Court’s decision, nobody else’s. Bearing in mind also that X has not wanted to speak to the Court, I am considering writing a letter to her, directly after these proceedings. I would like to hear what the Guardian thinks about it, but it would be a short, simple letter. It is not an easy letter to navigate because of course it must not upset her. However, it is likely to say something along the lines of that her father loves her, her father wants to spend time with her, but the Court has decided that that is not the best thing for her at the moment.