H (A Minor) (Child Arrangements: Section 91(14) Order), Re

I am concerned with the interests and future of H, a boy, born in 2013, so 9 years old.

H lives in England with his mother, the first respondent, M. H is habitually resident in England.

H’s father, the applicant, is F. F originates from Pakistan but has lived for most of his life in the UAE. He currently lives in Ajman. F has parental responsibility for H, by virtue of his being married to M at the point of H’s birth.

F has represented himself at this hearing, as he has at previous hearings.

M has been represented at this hearing by Natasha Miller, Counsel.

H has been represented, through his Children’s Guardian, Katy Sanderson (“the CG”), by Nathaniel Garner, Counsel.

F applied, as long ago as 3 September 2020, for a child arrangements order in relation to H. At that point, although he alleged H’s having been wrongly retained in England after a trip to England from Dubai, where he had been habitually resident, F did not seek H’s return to the UAE, but rather contact, twice weekly by video, and once or twice a year for holidays in the UAE, for periods of at least 10 days.

M opposed the application. She made allegations of significant domestic abuse against the father referable to their cohabitation in the UAE and the period of time she remained there following their separation.

The case came before me, then sitting as a Deputy Judge of the High Court (given the international issues then pertaining), in the week of 16 August 2021 for a fact-finding hearing. I delivered an extensive oral judgment (which has subsequently been transcribed) on 27 August 2021, making far-reaching findings of domestic abuse against F.

The hearing before me today, 5 January 2023, has been the final welfare hearing bringing to an end unusually protracted proceedings.

The issues which I have had to determine are:

At my direction, the CG has given brief oral evidence at this hearing, limited to certain matters which I considered had not been fully dealt with in her recent report. Both other parties had the opportunity to cross examine her, although F had no questions for her.

Other than that, the case proceeded on the basis of the parties’ submissions (F’s being on oath, given his status as litigant in person and given the contents of his submissions ranged – as expected – somewhat beyond what had previously been committed to writing in statements supported by statements of truth).

F clearly thought that M should have been asked questions, principally about her role in H’s reluctance to have anything to do with F. He did not make a formal application for M to give evidence or to have her cross-examined (I would not have permitted him to have done so himself, given my earlier findings of abuse). I told F, who had not submitted questions in advance, for me, rather than him to put to M, that I would review the need for M to give oral evidence after having heard the parties’ submissions.

I was much assisted by the submissions made, and, once again, am grateful to F for his polite and respectful participation in and engagement with these difficult and protracted proceedings, notwithstanding his obvious frustration with what he perceives to be a lack of any real progress.

Having heard those submissions, I formed that view that it was neither necessary nor proportionate to require M to give oral evidence.

I set out the extensive background to this case, including the detail of the parties’ allegations against each other, from paragraphs 18 to 117 of my fact-finding judgment of 27 August 2021. That judgment, necessarily and appropriately far more detailed than this, is to be read alongside this judgment.

The briefest of summaries provides context to the reader unable to read the full fact-finding judgment:

The proceedings in England began in September 2020. By May, the case was listed before me, sitting as a Deputy High Court Judge.

After two case management hearings, in May and June 2021, the case came before me for a fact-finding hearing in August 2021. At the hearing on 10 May 2021, F represented himself (as he has, in large part, throughout proceedings). After a careful and protracted exploration (in lay, not legal, terms) with him in relation to jurisdiction, forum and where H should primarily live, I recorded in my order of that day these five recitals:

While the fact-finding judgment sets out in detail the evidence, my impression of the witnesses, my analysis and, in narrative format, my findings, for the purposes of this judgment, I need do no more than set out the summary of my findings, as recited in my order of 27 August 2021. I made the following findings:

I declined to make further findings sought by M against F, including that he had acted inappropriately with H (allegations with quasi-sexual connotations) and that he had made little attempt to have a relationship with H.

It was recorded in my order of 27 August 2021 that the CG ‘supports the continuation of indirect contact (by letters/cards) between the Applicant Father and [H], noting that [H] has expressed a wish to see some photographs of his paternal family.’ I directed F to file a statement in response to my findings and outlining his amended aspirations in relation to contact with H, the CG to follow this with a position statement detailing her recommendations as to the progression of the case.

F’s first statement purportedly in response to my direction did not substantively engage with the findings I had made.

That notwithstanding, the CG was able to formulate her position, which was that, in light of the findings, she could not recommend direct, face-to-face contact until successful completion of a DAPP, which, she discovered, was no longer available online. Even if a DAPP were completed, the CG was clear that contact could scarcely take place in the UAE, given the orders in place in that jurisdiction and the unacceptably high risk of retention. She could not recommend contact supervised by a family member, given the issues; and considered that a supervised contact organisation would be unlikely to accept the case until there had successful completion of a DAPP. The CG’s positive recommendations were:

At a hearing before me on 3 December 2021, I directed further evidence, a final report from the CG and that a final hearing be listed before me on 28 and 29 March 2022.

F, in his statement of 31 December 2021, made it completely clear that he did not accept any of my findings against him. He continued to seek twice-weekly video contact and proposed his travel to the UK over the summer and Christmas holidays for periods of a few days, unsupervised. He indicated a willingness to undertake a Domestic Abuse Perpetrators Course (“DAPP”), but only if this could be undertaken online, as he lived overseas. He continued to contend for H to travel to Dubai to stay with him (‘if H wishes to’), offering up undertakings from F’s UK-based brother as guarantor.

It was decided at the December hearing that there would be monthly video calls between H and F. The CG helpfully agreed to facilitate the first two of these, scheduled for January and February 2022. However, as it transpired, H refused to engage on both occasions.

The CG, in her February 2022 report, described the then 8-year-old H’s presentation as having been difficult for her to determine when she met with him. She thought him to present as happy enough to engage with her sessions with him, but never to be forthcoming with information, giving single word or very brief answers (“I don’t know”; “I can’t be bothered [to write to F]”). The CG used various techniques to engage H in relation to his having contact with F. He would not sit and write a list with her of topics to talk to F about, he would not dictate a letter for her to type up on her laptop, he would not agree to the CG speaking first to F in any telephone call, before handing over; H just politely declined, while continuing to smile. H said he did not think much of the videos his father had sent him, declined to write to F or to record a voice note, still less to engage in a video call. He said it had been a long time since he had seen F, and that he could no longer remember what he was like or what it had been like when he did see him in the UAE. Even when told that both of his parents had agreed that he should have monthly video calls with F, he said he did not want this. It was clear that – for whatever reason – he was well aware of there being ongoing conflict between his parents. He told CG – when asked how often he would like to text his father – that he would like to do so monthly, using his mother’s ’phone and supported by her. An hour after that visit ended, M rang the CG to tell her that H had subsequently said that, although he had told the CG that he wanted to text his father, he did not.

In her February 2022 report, CG maintained the view that successful completion of a DAPP would be a necessary prerequisite to addressing the risk posed by F, but that, given his non-acceptance of the findings of domestic abuse, F would not meet the criteria for acceptance on such a course. (And even if this changed, his overseas location would prevent his ability to engage with a Cafcass course.). The CG considered that there were ‘no safeguarding reasons’ why H should not engage in the proposed video calls. Given H’s clear knowledge of there being ongoing dispute between his parents, the CG concluded:

Considering it unlikely that M was actively telling H not to engage in the calls, the CG formed this view:

By the point of the final hearing listed at the end of March 2022, the CG remained of the view that H should continue to live with M, but that he should have monthly video contact with F. In light of the fact that latter was still not taking place, despite her efforts to facilitate it by supporting H’s engagement, the CG recommended the adjournment of the final hearing pending a referral to the Improving Children and Family Arrangements (“ICFA”) service.

ICFA is a service, funded by Cafcass, available on referral by Cafcass, providing each parent consents. ICFA’s work is described as follows:

The support commissioned by a referral can last up to three months. The CG had established that ICFA would accept a referral in the circumstances of the current case. The plan was for approximately six sessions of support, to include sessions with the parents to address any barriers to contact, a preparation session with H, and then some sessions of facilitating contact. There might have been scope to extend the service if ICFA had thought progress was being made.

M was initially reluctant to consent, taking the view that it would result in more agencies and professionals being involved with H, which she thought would be destabilising. In the event, M reconsidered. Thus it was, that, with the parents’ consent, and on ICFA’s agreement to take the case, I agreed to adjourn the final hearing, I directed both parents to attend a Separated Parents Information Programme (“SPIP”) and I re-listed the final hearing for later in the year.

Unfortunately, the ICFA process was not successful. Indeed, the programmed ended early ‘due to the emotional impact on H and it was no longer deemed to be in his best interests’.

Despite the ICFA workers’ best efforts, it was not possible to move H from his simple but obdurate position that he did not want to speak to his father.

ICFA’s description of the failed process contained a number of excerpts suggesting that M had not been able to commit wholeheartedly to the process. For example, during the direct work in relation to her trying to promote F to H and to support a relationship between them:

The reasons given by ICFA for discontinuing its work were described thus:

The CG’s reluctant conclusion at that point was that it was not in H’s welfare interest either to continue the ICFA process or, in light of that, to seek by any other means to progress to video calls.

Due to illness, the ICFA process had been delayed. The case came back before me for directions on 3 November 2022 for a two-hour hearing, to consider whether final orders can be made in respect of H, if not, directions to a final hearing and the application – issued earlier in the year – for an order pursuant to s.91(14) of the CA 1989.

The case could not be concluded at that hearing. I directed further and final statements (M’s to exhibit translated copies of the various documents emanating from the ongoing Dubai proceedings), skeleton arguments and the hearing which took place before me today.

In relation to any decisions relating to H’s upbringing, s.1(1) of the CA 1989 requires me to have as my paramount consideration his welfare. In determining how best to secure his welfare, I am to have particular regard to the non-exhaustive list of factors at s.1(3) of the CA 1989. When considering the appropriate detail of any child arrangements order, I am to presume, unless the contrary is shown, that involvement of both parents in H’s life will further his welfare.

I am bound to have regard to the parties’ ECHR rights, in particular, in the current context, the Art. 8 right to respect for family and private life. In the event of conflict between a subject child’s Art. 8 rights and those of an adult parent, it is the child’s rights which must prevail. Any interference with any person’s Art. 8 rights must be necessary and proportionate to the perceived harm against which the proposed interference is designed to protect.

In circumstances, as here, in which I have found there to have been domestic abuse, I am to have regard to the provisions of PD12J of the Family Procedure Rules 2010 (“FPR 2010”).

Paragraph 4 of PD12J reminds the court that domestic abuse is harmful to children and puts them at risk, and points out that harm may be suffered directly, by their being the victim of domestic abuse or being exposed to it, or indirectly, where the domestic abuse impairs the parenting capacity of one or other parent.

The provisions of PD12J have been faithfully followed in this case, a fact-finding hearing having been listed, case-managed and heard.

Having made findings of domestic abuse, the court ‘should consider the conduct of both parents towards each other and towards the child and impact of the same’. In particular, the court should consider:

The court is also to consider such expert risk assessment as has been commissioned and, in the light of it, the welfare checklist in determining whether direct contact is safe and beneficial to the child and, if so, what, if any directions or conditions are required to enable the order to be carried into effect (para. 38, PD12J). If the court does not consider direct contact appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact, (para 39, PD12J).

In general terms, the right of access to the Family Court by a parent with parental responsibility seeking to make an application pursuant to the CA 1989 is absolute and unconditional, subject only to the imposition of a prohibition on doing so without the leave of the court. S.91(14) provides:

The locus classicus in relation to the appropriate deployment of s.91(14) has long been the judgment of Butler-Sloss LJ inRe P (Section 91(14)) (Guidelines) (Residence and Religious Heritage) sub nom: In Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15; [1999] 2 FLR 573, the eleven ‘guidelines’ which provide:

A number of recent developments have perhaps led to the need to look at s.91(14) and the Re P guidelines in a slightly different way.

By virtue of s.67 of the Domestic Abuse Act 2021, a new section was inserted into the CA 1989, taking effect on 19 May 2022, s.91A:

Even before the coming into force of the new s.91A, the Court of Appeal had cause to consider afresh the question of the appropriate guidelines in relation to the making of s.91(14) orders. In Re A (A Child) (Supervised Contact) [2022] 1 FLR 1019, King LJ (with whom Newey and Arnold LJJ agreed) said this:

As to the then prospective insertion into the statute books of s.91A, King LJ wrote:

Even more recently, and after the coming into force of s.91A, the use of and procedure in relation to s.91(14) orders came to be considered by Knowles J in A Local Authority v F and Others [2022] EWFC 127. Knowles J, having recited the terms of s.91(14) and s.91A and the Re P guidelines, and having summarised the relevant parts of King LJ’s judgment in Re A, noted a subtle, but significant, change rendered by one particular part of the wording of the new section:

Two corollary changes have been made to PD12J to accompany the coming into force of s.91A. The newly inserted para. 4A in PD12J sets out that, where allegations of domestic abuse are proved, the court should consider whether a section 91(14) order should be made, even if no application has been made. Further, the newly inserted paragraph 37A.1 reads:

PD12Q is the new Practice Direction, inserted into FPR 2010 to accompany the advent of s.91A. At Section 2, it records a number of ‘Key Principles’. Among them are:

As to points of procedure contained in PD12Q, these include:

In relation to the appropriate duration of any order:

As to the requirement in s.91A(4) that, on the making of an application for leave, ‘the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made’, PD12Q contains this important clarification:

In relation to the possibility of prohibiting service of the application for permission until the court has made an initial determination, PD12Q sets out:

It seems to me from the above that the approach I should take is as follows:

F’s desire is clearly for H to live with him (‘I want my son to live by my side; he was, here in the UAE.’). When I asked F if he agreed to the making of a ‘lives with’ order in M’s favour, he said that he had come to my court, and if I thought such an order had to be made, then it must be, but his position remained as it always had been: he wanted his son back in the UAE. Effectively, though, the thrust of his written evidence limited his aspirations at this trial to his seeking monthly live video contact with H, alongside meaningful and reciprocal indirect contact (via cards and other electronic equivalents, such as video or voice messages, e-cards, etc., WhatsApp messages, and gifts as and when appropriate).

F argues that he has come to the court with a simple request and that this has simply failed to materialise, largely, he would argue, because M has willed it so. He points to the close relationship he had with H in the UAE, both before separation and when he had contact with him after separation and stresses the importance to H of growing up knowing his father in a meaningful way.

Even if there were an order for video contact, coupled with an order that M encourage H to participate, F poses the question as to who would monitor the genuineness of M’s efforts to ensure engagement. F thanked the various professionals who have tried in earnest to effect change; that change was not forthcoming he attributed to M’s failure or inability meaningfully to encourage H.

M argues that she has done her best to encourage H, but that he has always shown and continues to demonstrate reluctance to engage with his father. It is not in H’s interests, M argues, to be forced to interact; in fact, this would be both counterproductive to the underlying aim and would risk harming his relationship with his mother by putting her, as primary carer, in the position of forcing him to do something he has expressly said he does not want to do.

M’s alternative proposal is that the order records her agreement to continue to promote video contact between H and F and to facilitate anything H wishes. She is prepared to facilitate WhatsApp messaging between H and F, but via her phone, H being too young, at just 9, to have his own smartphone.

M considers that once these proceedings have come to an end and the proverbial dust has settled, H may come to be more inclined to have such contact with his father. M has long expressed her view that H has been disturbed and upset by the involvement with him of numerous professionals, all asking him about, and seeking to cajole him into, something about which he has repeatedly expressed a negative view.

The CG set out in her final report the factual position: that H has made it clear throughout that he does not wish to engage in any form of contact with F, and that he has, to date, refused to engage with all attempts; that M, Cafcass and ICFA have all attempted to facilitate video calls, but that all attempts to date have been unsuccessful; that this has culminated in ICFA concluding that it would not be in H’s best interests to continue to pursue the possibility of video calls, ‘as it is clearly causing H distress and he has consistently stated for over a year that he does not want to have an form of contact with his father’.

The underlying reason for this reluctance she described as ‘a conundrum’. Further, if H does not have any meaningful contact with F, this will impact negatively on his identity needs. It is disappointing, the CG notes, that H has clearly already lost his relationship and attachment with his F.

Ultimately, though, the CG agrees with the ICFA assessment that the time has come to stop seeking to persuade H to engage in video contact, as the pursuit of that aim is becoming emotionally harmful to H. The CG is eager to keep open the future possibility of video contact, at least, and suggests that this be effected by the monthly, bilateral indirect contact proposed, M to respond to F if H does not wish to do so. This should be alongside the routine provision of school reports and other relevant updating information.

The mother alone contends for this order. She points out that, while such an order is often referred to as a ‘barring order’, it is no such thing; rather, and as recognised by the new Practice Direction, it is a protective filter.

M concedes that F has not made repeated applications in the courts of England and Wales, but, she would argue, he need not have done so, the current proceedings having taken more than two years to reach their belated conclusion. M argues that F has, however, already been found by this court to have used court proceedings and repeated, sometimes clearly unmeritorious and dishonestly-brought, proceedings in the UAE in a controlling and coercive manner. M further points to the fact that the proceedings in the UAE continue to rage unabated, and that these various proceedings include both F’s persistent pursuit of fines (even at an increased daily rate) to be levied against M, and of his repeated insistence that H is wrongfully in England and that he should – by whatever means – be returned to F’s care in the UAE (as the UAE custody order requires).

Thus, F knows, Miss Miller argues on M’s behalf, the power of court proceedings and the abusive impact they can have on the other party.

Miss Miller points to the fact that H has been so affected by the proceedings and the involvement with him of numerous professionals that the CG chose, unusually, not to visit him in the preparation of her last report. The CG wrote:

F opposes the making of a s.91(14) order. He told me that he has no intention of ‘filing continuous applications’; rather, he has made a single application for contact. He should have access to the UK court, F argued. He only came to this court because he could not effect H’s return to the UAE. ‘Tomorrow, if I need your court, I should be able to [access it],’ he said, later clarifying that he was referring to the possibility of requiring court enforcement of such contact order as is made.

When I asked F about his litigation in the UAE, in particular in relation to the accumulating fine against M and his request that this be increased in rate, F’s answer was effectively that if M wants to end the various Dubai proceedings, then all she need do is to travel to Dubai and argue her case. She could come to Dubai, he said, saying that she was ready to settle, and a compromise could be reached and approved, allowing F to visit H in England and H to travel to visit F in the UAE.

The CG opposes the making of a s.91(14) order. In her report, she cited the fact that F has made only one substantive application in the English court, ‘and so there is no evidence to suggest he has any intention of making a further application and therefore no evidence to support the making of a s.91(14) Barring Order’. It was not, she thought, appropriate ‘to use [F]’s applications to a different court, in a different country that address different aspects of his separation from [M] and application to spend time with H, as evidence to justify making such a draconian order in this country’. Responding to M’s principal contention, that such an order should remain in place until H reach the age of 16, the CG considered it wrong for F never ‘to […] pursue a further application to spend time with [H], for the remainder of his childhood’. Given (a) that it is safe for H to have video calls with F, and (b) that H is unable to articulate a reason why he is opposed to such calls, the CG thinks ‘it is something that needs to be revisited in the future when H is older’. In fact, the CG would ‘actually encourage [F] to make a further application to this court to spend time with H, in the future when he is older,’ contemplating that there may be a time, away from the pressure of the court proceedings, as H starts to grow up, when ‘he may start to ask questions about his identity and his father which may lead him to feel more open to contact with [F] in the future.’

Given that the CG in her report seemed to be considering only the 7-year s.91(14) order proposed by M or no order at all, I required her to give oral evidence to indicate her view about the possible benefit to H of a far shorter s.91(14) order and to focus on the impact on H (and M) of the proceedings to date and on the likely impact on H (and M) of any further application. In that oral evidence, the CG confirmed her view that the proceedings had had a negative impact on H, leaving him frustrated, sometimes distressed, because he perceives that nobody is listening to him. If a further application were made, the further emotional impact on him would be ‘considerable’. It would not be appropriate, the CG thought, for F to make another application in the next year. That said, she did not consider that F was likely to make such an application, and so considered that such an order was not ‘necessary’. The CG confirmed her view that the emotional impact on M of these proceedings has also been ‘considerable’. In cross-examination, the CG indicated that she considered that F had not behaved unreasonably during the proceedings in this country and did not consider his litigation conduct in the UAE to be a matter to concern this court, not least as the Dubai courts do not seem to have raised concern about his conduct there. She was not troubled by the fact that F was telling the Dubai court that H was wrongfully retained and so should be returned to the Emirates, as that was different to what he was asking this court for, viz. indirect contact. Pushed by Miss Miller to agree that it would be positively detrimental for H for a further application to be made not just during the next year but for a longer period, for example, two years, the CG said it would be difficult to know where H would be then, and did not move from her view that one ‘can definitely say that the situation won’t have changed in the next year’. She rejected the notion that there should be concern about F using these, or any future, proceedings as a means of exerting coercive control over M.

M seeks various recitals to the order emanating from this hearing.

The CG agrees in principle, proposing some small changes, and suggesting that some matters would better be dealt with in this judgment than by way of preamble to an order.

F did not express any particular view on the matter.

M seeks permission to disclose relevant orders and the two judgments (i.e. this one, and that from the fact-finding hearing), appropriately translated, to the Dubai court.

The CG agrees.

F agrees to the judgments being disclosed but not the orders. I confess to having struggled to understand F’s rationale for that, save that he thought that such a course may be to cause ‘confusion’ in Dubai.

F’s informal application for permission to disclose the CG’s reports to the court in Dubai was somewhat clarified in the course of his submissions to me. He seeks permission to disclose only the most recent report. He has no particular intention of disclosing it to the UAE court, but does not want to find himself in trouble if he chooses to do so later. The Dubai judge, he said, would not be interested in seeing the report in any event, but he wanted permission just in case.

Miss Miller, for M, objects. Such reports are evidence, but are not definitive. If they are disclosed, so should the evidence on which they are based and in response, she argues. She fears the ‘muddying of the waters’ in Dubai if such documents are released into any proceedings.

The CG did not formally object to the application, but queries why it is necessary.

I have made a series of findings against F of significant domestic abuse. The period of time over which those findings span is significant. During the marriage, the abuse comprised not only occasional physical violence but, more frequently, behaviour which was threatening (physically charging at M, causing her to fear for her safety) and/or demeaning (spitting at her, including in her face). After the marriage, the abuse comprised a course of terrorising M through prolific court proceedings in the Emirates, in which F sought to control and punish M, not least by attempts to achieve outcomes which – if successful – would have acted significantly to H’s detriment (reducing alimony, seeking M’s imprisonment, making unfounded allegations in order to remove H from her custody). Also after the marriage, F’s actions as found, were abusive not only to M, but must have impacted on H, both indirectly, through the impact on M’s capacity to provide attentive care, and, in some instances, directly, for example, by reducing M’s access to provisions and finances and by playing a part in her and H’s spending time in unpleasant conditions in a police station.

It is notable that, even now, F does not accept the truth of any of these findings or the validity of the description of any of his conduct as abusive.

It is also notable that F continues his pursuit of litigation in Dubai. I am struck by the CG’s words in her report in February 2022:

The continued pursuit of the proceedings, then, is relevant for two reasons.

First, F knows that the fact of his litigation leads directly to upset, anger and frustration on the part of M, and that this is likely both to be transmitted (whether intentionally or inadvertently) to H and to act on M’s preparedness – or not – genuinely to encourage H to engage with his father.

Secondly, it was spelled out to F, if not before, certainly in February 2022, when this report was received, that M perceives the ongoing litigation and the manner in which it is pursued as having the potential to be an extension of the coercive and controlling litigation behaviour (as already found), and positively abusive of M. However, since that report was received, it is apparent from the translated UAE court documents, that F has made such assertions as:

It seems to me that, far from taking heed of the clear professional advice to seek to lower the temperature by bringing to an end the litigation in Dubai (which, looking at the third of the above excerpts seems likely to be well within his power, certainly in relation to the ongoing fining of M), F has continued to seek to continue, even (in relation, for example, to the level of financial penalty) to escalate.

The consequence of the above, it seems to me, is that I must treat F as a man who does not accept at any level that he has behaved in any way inappropriately, still less abusively, to the mother of his child. He has demonstrated neither remorse in relation to nor insight into his behaviour towards her. No less troublingly for the purposes of these proceedings, he has no insight in relation to the multi-layered impact of this on his son. H will have been affected by what he witnessed of parental discord and his father’s abusive treatment of his mother. He will have been affected by the difficulties of his life with his mother after separation. He will certainly have been affected, in the view he holds of his father, by the impact on him, H, of the effects of his father’s ongoing behaviour on his primary caregiver. Given what I have seen of the ongoing litigation in the UAE, it seems abundantly clear to me that F’s use of court proceedings in order to instil fear, upset and anxiety in M continues, largely unabated. It so happens that these proceedings have been underway in the UAE rather than England; but that does not prevent there from being an adverse impact on M, albeit that she is currently safe from the fear of enforcement or civil or criminal penalty.

In relation to the proceedings in England, however, I note that F denied any wrongdoing whatever, forcing M to endure giving evidence in the fact-finding hearing. On my making findings against him in the clearest terms, he has shown no acceptance, still less the slightest hint of remorse. Nothing resembling an apology to M has been forthcoming in the sixteen months since my judgment. It could be said that each denial of responsibility, each specific refusal to accept the truth of his behaviour, represents a further act of aggression, as this is how it will inevitably be perceived by his victim.

Mr Garner was quite right to remind me, at the beginning of his submissions, not to lose sight of the subject of these proceedings, H.

His welfare being paramount, I turn to the welfare checklist, albeit that I approach the various factors out of turn and need deal with some in rather more detail than others.

H is, by all accounts, a lovely, charming engaging little boy, of whom his parents can rightly be proud. He is just nine years old. He has a rich and complex heritage, given his parents’ racial backgrounds, and where they, and he, have lived during their respective lives. He has no particular physical or educational needs. His other needs should be reviewed in light of his extraordinary life experiences to date. He was initially brought up in affluent conditions, albeit that he was almost certainly exposed to some elements of his parents’ abusive relationship. He then lived in the UAE with his mother in separate accommodation to his father, before spending a significant period in significantly reduced circumstances in the equivalent of a women’s refuge, moving then to a hotel, then to an apartment building. He spent overnight with his mother in a police station in highly traumatic circumstances. He was almost certainly aware of both his mother’s financial difficulties and his parents’ conflict. During that time, by all accounts, while he saw fairly little of his father, he enjoyed a close and loving relationship with him. He then moved, suddenly, to England and has not seen his father now for nearly 3½ years.

It seems to me that H has almost certainly suffered emotional harm as a result of this concatenation of atypical childhood experiences.

His mother is well able to meet all of his needs, save that she is, it seems to me, very unlikely to be able to promote his father in any positive way. Given the wholly negative view she holds of F, largely justified by his treatment of her, even were she to try, she would, in my estimation, find it very difficult to conceal from a bright 9-year-old, no doubt well-attuned to his sole carer’s every emotion, her true feelings.

His father may well be able to provide well for his physical and educational needs, were he to be called on to do so. However, the findings of fact, or rather, the behaviour they describe, coupled with F’s complete denial of them and his ongoing misuse of litigation as a weapon, speak to significant deficits in an ability to meet H’s emotional needs. However, F still has much to offer. F is an intelligent, engaging man. He clearly loves his son – the pain he feels at being entirely apart from him is real and visceral.

F is H’s father, and for reasons of identity and self-image, which will become more and more important in the coming years, it is very much in H’s interests to grow up knowing his father as a person, and conscious that his father loves and is interested in him.

F’s non-acceptance of his abusive behaviour, and so his inability to take any meaningful steps to reduce risk, render direct, face-to-face contact currently impossible. However, I agree with the CG that video contact would not be unsafe and – if it meant that H could know something of his father – would be in H’s interests.

However, despite the very best efforts of the CG and other professionals, and despite the court allowing an unusual amount of time to these proceedings, it has not been possible to move H to a position where he is able to countenance such contact. The reasons for H’s sustained refusal are probably several in number and interlinked in a complex manner. H is likely to have adverse memories of parts of his life in the UAE. As he has grown older, he is likely to have become aware that his father was responsible for many of these. It is likely that his mother has been unable to hide from him her own dislike of the father, or the fact that his father has also mistreated her. It is likely that – whether intentionally, subconsciously, or somewhere between the two, the mother has found it simply impossible to promote H’s having a real relationship with his father, for the straightforward reason that, in herself and born of her own sustained abusive experiences of F – she does not believe that it is in H’s interests to have such a relationship. It is not possible for me to determine in what proportion these various ingredients have combined to produce the current situation. The simple fact, however, is that H is not prepared to have the contact with his father, which his welfare would otherwise dictate, and the process of adults and professionals seeking to force him into this has begun to cause harm in itself.

With a somewhat heavy judicial heart, then, I am driven to agree that H’s interests are currently best served by an order for reciprocal, monthly indirect contact, M to respond on H’s behalf if H is reluctant to do so, with M also responsible for keeping F updated in relation to educational and other developments.

It is to be hoped that by the respite provided by such a course, by the cessation of these English proceedings, and in combination with H’s natural development, from a 9-year-old likely to absorb most of his view of the worldfrom his primary carer, into a more independent adolescent, driven by curiosity and his own authentic thoughts, that H may come to want more of a relationship with his father. That remains to be seen. It seems to me, though, that, given that H has been at the centre of parental conflict for most of his remembered life, he needs a real, meaningful and sustained break from such conflict.

The chances of H moving from his current position, which is unhealthy for him from a longer-term emotional and psychological point of view, will be enhanced if both of his parents play their roles with patience and good faith. For M, this will require her – in her son’s interest – to stick to her word in relation to promoting F to H. For F, this will require him first to create and to stick to a regime of monthly indirect contact with H, giving thought to how best to engage him, not losing heart and withdrawing when green shoots do not immediately emerge, and secondly to do everything in his power to bring to an end the various forensic battles between him and M.

In determining this question, I will work through the checklist I set for myself at paragraph [63] above.

I note that this is a question which, in light of my findings of domestic abuse, I would be required to consider, even had M not applied for such an order. And I note that an order such as this is ‘the exception and not the rule’, albeit that I do not have to assess the case against some notional ‘exceptionality’ criterion.

I also note that such order would not come close to being an absolute barrier to access to the court, but rather would represent a ‘protective filter’.

It is not necessary that there have been ‘repeated and unreasonable’ applications. In this case there has been only one application in this court, albeit that it has taken an inordinately long time to dispose of it. However, looking more broadly, perhaps more purposively, at this potential criterion, it is important to note (a) that at the fact-finding I found F to have used court proceedings in another jurisdiction in a punitive and coercive way, to have engaged dishonestly in such proceedings at times, and to have sought in those proceedings results which would have positively detrimental to his son, (b) that I have found in this current judgment that F has continued to litigate unreasonably and with abusive intent in the UAE, and (c) that F does not accept at any level either any of my findings against him, or that he bears any responsibility for the position in which he finds himself. The CG considers that F has not behaved other than properly in these proceedings. I do not agree. As I have indicated, to deny the truth of one’s wrongdoing and so to put one’s victim through the ordeal of a fact-finding hearing is, in my estimation, to weaponize legal proceedings; and to continue wholly to deny the truth of findings of abuse is abusive in itself.

I consider that M has been significantly detrimentally affected by these proceedings. The stressful nature of any proceedings is compounded in the case of a litigant who is also a victim of domestic abuse. I also consider that H has also been significantly detrimentally affected both by the proceedings and by the well-intentioned efforts of the court and professionals to engage in the contact thought best for him.

From that, I form the clear view that, in the event of further application, both H and M (the latter being ‘another individual’) would be at risk of harm, as defined. Quantifying the risk, the likelihood of harm occurring would be virtually inevitable, if the application were very soon, and would probably diminish over time. Equally, the degree of likely harm would be, for both M and H, significant, if the application were made soon, reducing over time.

Combining, then, my view in relation to F’s litigation conduct, here and in the Emirates, previously and ongoing (which goes to establish a real likelihood, in my estimation, of some further application), with the likelihood of harm, in the event of such an application, a strong factor militating in favour of such an order arises.

There is an interrelated factor which it is also important to consider. My ruling in relation to child arrangements (above) is that while, other things being equal, it would be in H’s best interests to have more significant indirect contact with his father, it is not possible to direct this at this time as H refuses to engage in it, and further efforts to change this will be positively harmful. However, I have set out my hope that, with time and space, that is, an appreciable period of calm, the chances of H’s views (and M’s underlying attitude) changing will improve. This, it seems to me, represents another strong argument in favour of putting some form of forensic safety net around H (and M). A section 91(14) order would provide just such protection.

What are the potential dangers of a s.91(14) order? First, H will be adversely affected if F is prevented from coming to court at a point when an application would be a timely route to rekindling the relationship between father and son. Secondly, F will be unfairly treated if he is wrongly denied access to the court of the country in which his son is habitually resident at a point when he, F, has a legitimate and arguable case to argue.

However, I note that such an order is a ‘protective filter’, not some sort of impenetrable procedural barrier to access to the court. If I make such an order, I can and must trust absolutely that the process by which any application for permission to apply during its currency is fairly decided. In that circumstance, the two potential disadvantages reduce significantly in their potency.

Cross-checking at this point against Re P guideline factors 1-7, the only outstanding point to consider is the first half of factor 7 (the second half (‘serious risk’) having been varied by the wording of s.91A and my having considered this above). As will be evident from the facts of this case, I am certainly satisfied that the facts go ‘beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute’.

Taking into account the above, and applying my analysis in relation in relation to the welfare checklist (above), it seems to me that H’s welfare interests will best be met by a s.91(14) order.

I am conscious that my view differs to that, conscientiously reached, of the CG. As will be evident from the foregoing, while I agree with the CG that H will be detrimentally affected by a further application, I do not accept her assessment either of the likelihood of such an application being made or of the relevance of that factor once likely harm has been assessed. Moreover, when I survey F’s use of litigation in this jurisdiction and in the UAE in a manner either designed to cause, or with the effect of causing, harm and distress to M, I reach a markedly different conclusion than that expressed by the CG.

Having decided that such an order is required in H’s welfare interests, I must consider (a) its duration, (b) its breadth, and (c) whether M should, by prohibitive order, be protected from any subsequent leave application pending initial judicial determination.

As to duration, M contends that a s.91(14) order should endure until H reaches the age of 16; failing that, until H reaches the age of 13. The CG contends that, if I am minded to make such an order, it should not remain in place for more than a year.

I ask myself, then, the question required by the Re P guidelines and now enshrined in the new PD12Q (para. 4.1): what duration is proportionate to the harm I am seeking to avoid?

The harm I am seeking to avoid, simply put, is H (and M) being caused harm by becoming embroiled again, to whatever degree, in further proceedings. Both the likelihood of harm occurring, and the likely degree of such harm, as I have set out above, I consider to be significant in the short term, diminishing over time.

The purpose I am seeking to achieve by the imposition of a s.91(14) restriction is to create a prolonged period of calm, in which M and H can exist without the spectre of social workers, and children’s guardians, and ICFA workers, and lawyers, and judges impinging directly or indirectly on their lives, and in which their current view of F as some unwelcome spectre might soften, to H’s advantage.

Thus, like the CG, I do not for a minute wish to discourage F from seeking to play a more prominent part in H’s life at some point in the future. That point will depend on a number of factors, some in F’s gift, some not. But it follows that a restriction on application to the court enduring for some seven years is wholly disproportionate to the court’s legitimate aim.

I am struck by the duration and consistency of H’s obduracy, by the length of time for which he has been exposed to these proceedings, and by the extent, as I assess it, of M’s current (and largely subjectively justified) antipathy towards F. I do not anticipate any particularly ‘quick fix’. H has just turned nine years old. It seems to me that, given that the vast majority of his consciously remembered childhood has been overshadowed by parental conflict, he should be afforded a fairly significant period of time in which, if change is to come, it comes from him. I do not consider that a year is likely to be a long enough period for that. Moreover, the danger of such a short period may be that, if emotions have not sufficiently calmed, the expiry of the term serves almost as an invitation to reapply. There is no magic to numbers such as these, even if they are carefully chosen, but the appropriate term, in my view, is two and a half years. On my reckoning, this would coincide with H being about to finish his last year at primary school. At 11½ years old, H will be at or somewhere close to the point of beginning his adolescence, with all of the attendant drift towards independence of mind and opinion involved.

Looking again at the question of proportionality, on the one hand, this seems to me to be a stretch of time which appropriately reflects the need for an appreciable period of calm; on the other hand, if, in the meantime, matters develop in a way not currently anticipated, then the s.91(14) prohibition will not act as an unfair bar to access to the court, simply as a purposeful ‘safety filter’ to prevent premature or inappropriate access.

What should be the breadth of the prohibition? In my judgment, all applications under the CA 1989 should be prohibited, save for any application to enforce the CAO which I am to make. I can see no reason either to remove any particular types of application from scope or to prevent F from being able to enforce the contact – minimal though it is – afforded him.

Should there be a prohibition on the service on M of any leave application pending initial judicial determination? In my view, absolutely there should. The damage potentially caused by the sudden knowledge of what ultimately turns out to be an unmeritorious leave application would likely be to undo whatever positive progress may have emerged by virtue of the period of calm intended by this order.

Finally, on the question of the s.91(14) order, I have asked myself whether I ought to set out some sort of view in relation to factors which I anticipate might militate in favour of a grant of leave during the pendency of the order. I do not consider that the recent changes in law change the underlying message drawn from the dicta of the Court of Appeal in Re S (Permission to Seek Relief) [2008] 1 FLR 369 and Re A (Contact: Section 91(14)) [2010] 2 FLR 151, viz., on the one hand, it is not for a judge making a s.91(14) order to seek to impose conditions on it, but it may be permissible to identify a particular issue and to suggest to a litigant that unless he could show that that particular issue had been addressed, any future application for permission was unlikely to succeed.

In this case, there is no particular stellar factor which has caused me to impose the order, and so there is no single issue, the resolution of which would properly or necessarily open the way to a further application within the currency of the s.91(14) order. However, certain factors have weighed heavily in favour of my decision. The resolution of some of these are beyond F’s reach. Others, though, are within it. F’s inability or refusal to acknowledge his abusive behaviour towards M, or the impact of this on M and, directly and indirectly, on H, represents a real and ongoing impediment to progress. Further, F’s persistent litigation in the UAE is a factor which will stand in the way of positive change for as long as it endures. This litigation seems to include, for no obvious beneficial reason to himself, the quest for the fine outstanding against M to reach ever higher levels (precluding her ever returning to the UAE, which can only reduce to infinitesimal levels the chance of H ever being able to travel there during his minority). Moreover, given that F has accepted, at least as a matter of fact and law, that H is habitually resident in England, that the English court considers itself to have sole jurisdiction in relation to H, and that, given my unappealed findings, there is no sensible question but that H will continue to live with his mother, to continue to state otherwise, or at least to litigate on an alternative footing in the UAE, can only be counter-productive in relation to what should be the more important quest, that is to create an environment in which H (and his mother) can contemplate the rebirth of H’s relationship with his father. At a more basic level, if F is able to settle into a routine of sending H messages, in whatever medium is most likely to engage him, and reflecting what F has been told by M or H currently interests him, if he is able to maintain this, even if there is little reciprocation for a prolonged period, then he will be doing his best to create fertile ground for positive change.

There is no dispute in relation to permission being given to either party to disclose my two judgments in this case (my fact-finding judgment, and this final welfare judgments) to the Personal Status Court of the UAE. There is no reason for this permission not to be granted. I make it clear that I do not grant permission to any party (or non-party) to disseminate the judgment any more widely than is allowed by this grant of permission (or other rule of court).

I suspect that the judgments, given their length and the amount of space devoted to considerations of English domestic law, may not particularly assist the UAE court. While F does not agree to the relevant orders being disclosed, it seems to me that these are likely to be far more readily comprehended by courts whose legal rules and the principles on which they act differ to those of the English courts. I can see no reason for the relevant orders not to be disclosed, and I give permission for their disclosure, on the same terms as above.

As to the Guardian’s report, I am concerned about F’s true intentions in seeking permission to disclose it to the UAE court. I am also concerned as to the danger of misinterpretation by foreign courts of the true nature of a body such as Cafcass (being on the one hand quasi-governmental, but on the other, whose recommendations are not automatically accepted or actioned by the courts. I have summarised above, at some length, much of the Cafcass report, and the extent to which I have accepted the conclusions. It seems to me that, there being no good reason set out for its disclosure, and some potential for its misuse or its being misunderstood, I should not permit its disclosure at this stage.

As to the suggestion that the order from this hearing should include certain recitals, I take the view that this is very sensible, given the real possibility that judges and lawyers in other jurisdictions may find themselves trying to understand exactly what this court has decided and ordered, and why. The guardian floated the idea that certain of the proposed recitals might better be dealt with by the underlying fact being explained in this judgment rather than inclusion in a recital. Given what I have said about the potential difficulty of some specific detail in a lengthy judgment being readily accessible to a foreign court, I take the view that anything which ought to be made clear for the purposes of explaining to another court what has taken place and why would better be dealt with in a recital to an order.

Accordingly, and noting M’s and the CG’s suggestions, the following are to be included as recitals to my order:

F does not object to an ongoing (slightly varied) order prohibiting him from removing H from M’s care, although he states that he has no intention whatever of doing so.

It is not controversial that the All Ports Warning I made on 9 June 2021 can now be discharged, allowing H to travel with M, as appropriate, beyond the frontiers of England and Wales.

I shall make a Child Arrangements Order providing for the monthly exchange of indirect contact between H and his F; if H does not willingly respond, M is to update F in relation to H instead, including providing him with the sort of information about H’s life, likes and interests which will enable F to communicate with him in a meaningful way. In any event, M is to keep F appraised of any and all significant developments in H’s life. The order will include a recital recording M’s commitment to promoting F to H in a positive manner and her willingness to facilitate indirect video contact (or similar) whenever H is amenable to this.

I shall make an order pursuant to s.91(14) of the CA 1989 prohibiting any further application by F in relation to H pursuant to the CA 1989 (except for an application for an enforcement order), this to endure for two and a half years from the date of the hearing (i.e. until 5 July 2025).

I give permission to either party to disclose to their lawyers and/or the Personal Status Court in Dubai my judgments and my orders both from this hearing and from the hearing which concluded on 27 August 2021. I do not give permission for any further dissemination of any of those documents.

My order will include the recitals set out at paragraph [140] above.

I make a prohibited steps order that F must not:

I hope that H and M will be afforded some respite by the terms of this order, that this time will also allow F the chance for self-reflection, and that the combination of the two will allow for a revival of a meaningful relationship between father and son.

As above, I am grateful to counsel, Miss Miller and Mr Garner, for their assistance, and to F for his respectful and patient participation.