Cala and Daib, Re

This is the final determination of an application issued by the father against the mother on 16^th December 2022. The case concerns two children, Cala, a girl born in 2015 and now eight years old, and Daib, a boy born in 2017 and now six years old. The father seeks a child arrangement order to decide with whom the children should live and how much contact each parent should have with the children. In addition he seeks a specific issue determination as regards the religion of the children.

The mother opposes the application and submits that the father’s direct contact should be ended with the children having indirect contact only with the father. Her position mirrors the advice of the Family Court Advisor, Ms Jennie Senior, who gave evidence in the case.

The parents were in a relationship which ended in 2017. The mother had three children from a previous relationship. They are significantly older than Cala and Daib and were still living at the mother’s home for most of the relevant time. Those children are now adults. The father issued proceedings under case number ZW17P00359 seeking a child arrangement order that Cala and Daib live with him. This led to a fact-finding hearing to determine whether the father was guilty of serious domestic abuse against the mother. By a judgment of 20^th December 2017 District Judge Tempia found that the father was guilty of that behaviour, which included sexual, physical and emotional abuse. The father did not attend the fact-finding hearing due, he claimed, to his mental health difficulties. Notwithstanding his non-attendance, the father thereafter fully accepted the learned district judge’s findings of fact. That remained his position before me.

Subsequently, by Order of 14^th August 2018, the father’s application that the children live with him was refused. Instead he was given indirect contact. The father was directed to undertake a Domestic Abuse Perpetrators Programme (“DAPP”) after which it was ordered that there should be direct contact between the father and the children.

There proved to be difficulties finding a DAPP which the father could attend. He began proceedings under case number ZW19P01090 seeking further directions. By order of 18^th October 2019, the earlier provisions as regards indirect contact were continued. The parents were directed to attempt to agree a suitable DAPP after which direct contact could commence.

The father did then find a DAPP. He attended the course with perfect attendance until it went online during Covid. Thereafter he attended remote classes without a break. The final report of the provider dated 4^th September 2020 noted the father’s positive commitment and his expressions of remorse. It records that he accepted responsibility for his harmful behaviour.

Thereafter the father issued proceedings under case number ZW20P01695. Direct contact was introduced, beginning with two sessions of supervised contact. The reports on the two contact sessions were very positive, with both children enjoying seeing their father.

An Order was made on 6^th April 2021 which directed that the children continue to live with the mother and spend time with the father on alternative Saturdays from 9am to 6pm. The mother stopped those arrangements on 23rd July 2021 after having the previous day filed a C2 application to suspend the child arrangements order. The father on 11^th August filed a cross-application to enforce the April Order. By Order of 8^th September 2021, contact was reinstated with effect from 18^th September 2021 with the father having direct contact with the children on alternate weekends, Saturday from 9am to 6pm and Sunday from 1pm to 5pm. A report was directed from Cafcass. Pursuant to this order, the Family Court Advisor, Patrick Mamattah, in his report of 20^th December 2021 advised that the then current arrangements should continue with contact being increased to overnight staying contact and shared holidays.

Mr Mamattah’s advice was incorporated into an order dated 22^nd February 2022. The recitals to the order recorded this:

On 16^th December 2022 the father made the current application. The main driver, he says, of his application is that the children appeared from October 2022 to be being alienated from him. In particular, they told him that the mother had shown them a video of a Muslim man stabbing a baby. The mother allegedly said that this is what Muslims did. He was afraid he would lose his children as a result of their alienation from him and his Muslim extended family due to the horrific content of the anti-Islamic video. The mother denies that the showing of such a video ever occurred. This is an important factual issue in the case.

By Order of 17^th February 2023, Cafcass were directed by 19^th June 2023 to make a section 7 report. Para 14 of the order reads as follows:

The Order also noted that the Court might need to consider its powers under section 91(14) of the Children Act 1989 to restrict the bringing of further Family Court applications in the light of the number of applications made to the Court.

In fact, Mr Mamattah was unavailable. Instead Cafcass allocated Jenny Senior as the Family Court Advisor. So far as appears from her report she has no specialist experience of dealing with dual-heritage children and the cultural/religious issues.

Ms Senior’s report is dated 10^th July 2023 and was served on the Court and the parties on 11^th July 2023. This was the day before the next hearing on 12^th July 2023. I shall return to the reasons for the late delivery of the report.

Ms Senior says:

This final hearing was listed for two days over 20^th and 21^st December 2023. It started late due to other matters being listed before this case. At the Dispute Resolution Appointment on 4^th September 2023, Ms Senior was given permission to attend the final hearing remotely. There were some technical difficulties establishing the link, but she was able to join the hearing on 20^th December as the case was called on.

The mother gave evidence and was cross-examined by Dr Chiy of counsel who had been appointed as a Qualified Legal Representative for the father. The father then gave evidence and was cross-examined by Ms Millin of counsel on behalf of the mother. His evidence completed in the mid-afternoon of 20^th December, the first day.

Ms Senior was then affirmed. I was aware that the father had served an extensive witness statement which appeared to have been prepared with some professional or semi-professional help. It made a large number of potentially significant points in respect of Ms Senior’s report. It seemed to me that these should be put to Ms Senior so that she could answer them: see Re W (A child) [2016] EWCA Civ 1140, [2017] 1 WLR 2415 and most recently TUI UK Ltd v Griffiths [2023] UKSC 48, [2023] 3 WLR 1204. I discussed with the father whether it might be easier for me to put the points in his witness statement to Ms Senior, but he said he preferred to start his cross-examination in the way in which he had prepared for it. This did not appear to be a problem. We were making good time with the evidence. I would be able to put to her on the second day any matters from his witness statement which the father did not cover in his cross-examination.

In the event, the father’s cross-examination showed some of features typical of litigants-in-person. He started with a reasonable point on the way in which his emails to Ms Senior in the run-up to 19^th June 2023, when her report was initially due, had caused her to amend her report. (He had obtained an earlier version of her report by means of a subject access request and was thus able to show the changes.) However, he then became engaged on a discussion with Ms Senior about the difference between subconscious racism and internal bias. I did not find this a useful topic and directed him to move to more productive areas of cross-examination. He did then deal with various key topics, but not at the level of detail which he had set out in his witness statement. Further, despite my attempts to dissuade him, he had a tendency to make speeches commenting on the answers given him rather than asking further questions.

As four o’clock approached, I indicated that we would be looking to wind down and recommence the following day. At this point, Ms Senior said that she would be unable to attend the following day. She explained that she was due to commence her maternity leave. She would not be returning to work for a year. Both parents showed surprise at her saying this. (Neither Ms Millin nor Dr Chiy had been at the DRA, so could not comment.) Nor had Ms Senior communicated this to the Court at the start of the day, when it would have been a simple matter to have her give evidence as the first witness. She said that she had told the Court this at the DRA on 4^th September, but there is no record of this in the Order made that day. Quite the contrary. The Order recites that “upon this matter being listed in person for Final Hearing on the 20^th and 21^st December 2023 when the Applicant and the Respondent will attend in person and Ms Senior of Cafcass will attend remotely as at the time of the hearing she will be heavily pregnant and there being no objection to her remote attendance.” This implies she would be present remotely on both days.

In the event we carried on sitting. The father completed his cross-examination (although he might have benefited from further preparation overnight) and Ms Millin cross-examined. Due to time constraints, it was not practical for me to take Ms Senior through the father’s witness statement, so she could answer points which had not been put to her fully by the father. Thus although the father’s case was put to her, it was not put to her in as full a form as I would have ensured that it would have been if her evidence had not been curtailed.

The Order of 4^th September 2023 says that the issues to be determined at the final hearing were “whether [the children] should spend time with the other parent and, if so: i) how often; ii) whether there should be overnight stays and longer stays; iii) whether it should be supervised or supported; iv) whether it should be limited to indirect contact.” The possibility was raised of the Court making an order under section 91(14) of the Children Act 1989 preventing the father from making further applications in respect of his children without leave of the Court.

Probably due to the late service of Ms Senior’s report, the Order on the DRA does not set out any factual issues or any areas of disputed fact which might need to be determined at the final hearing. This is particularly problematic, because it is apparent that large areas of background which might potentially be relevant to the taking of a holistic view of the case have not been the subject of any inquiry by the Court. By way of example, during Dr Chiy’s cross-examination of the mother she said that there had been public law proceedings taken with a view to putting the children into care, but there is no documentation at all relating to these proceedings in the bundle or what the concerns were which resulted in care proceedings being begun or when. Likewise, an issue considered by Ms Senior was whether the children were at risk at the mother’s by reason of their having seen domestic violence inflicted by one of the mother’s older sons on his girlfriend whilst they were living at the mother’s. Ms Senior was unable to ascertain sufficient information to form a view on this issue and it was not investigated at the hearing.

In the event, the evidence adduced on behalf of the mother and the father largely followed the matters of concern raised by Ms Senior in her report. These were:

The Serious Crime Act 2015 has an offence of controlling or coercive behaviour in an intimate or family relationship. I shall call behaviour matching this provision as “2015 behaviour”. Section 76 provides:

Abusive behaviour is more widely defined in the Domestic Abuse Act 2021. I shall call this “2021 behaviour”. Section 1, so far as material, provides:

Practice Direction 12J to the Family Procedure Rules has a different definition. I shall call this “12J behaviour”. Para 3 provides, so far as material:

Para 4 of the Practice Direction 12J notes:

It can be seen that there is a great difference between 2015 behaviour and 2021 behaviour. 2015 behaviour must be repeated or continuous behaviour, whereas 2021 behaviour can be a single incident. 2015 behaviour must have a serious effect on the complainant, whereas there is no minimum threshold for 2021 behaviour to constitute abuse. 2015 behaviour requires a statutory mens rea on the part of the perpetrator, albeit one which is largely objective; 2021 behaviour contains no express requirement that the perpetrator have a particular state of mind. As Peel J held in A v B (Appeal: Domestic Abuse) [2023] EWHC 1499 (Fam), “abuse can occur without an intent to abuse.”

12J behaviour is different again, but in terms of the seriousness of the abuse, it is nearer the 2015 standard. Although the definition of “coercive behaviour” includes “other abuse”, the seriousness of such “other abuse” must in my judgment be on a similar level to the preceding four examples of “assault, threats, humiliation and intimidation”.

Controlling and coercive behaviour covers a large spectrum of behaviour, with various shades of grey. At the darkest end is 2015 behaviour. 12J behaviour is near that end of the spectrum. 2021 behaviour can be at the much lighter end of the spectrum.

The Court of Appeal dealt with the elements of domestic abuse prior to the coming into force of the 2021 Act in the combined appeals Re H-N [2021] EWCA Civ 448, [2022] 1 WLR 2681. Sir Andrew McFarlane P held that:

The Court of Appeal also rejected the applicability of criminal principles in construing domestic abuse for the purposes of family proceedings:

Thus, it is not necessary for the Family Court to determine whether (in this case) a father demonstrates 2015 behaviour. Nonetheless, if the Court is satisfied on balance of probabilities that the father has behaved that way, the Court will necessarily consider that that behaviour is very serious. Although a finding of 2015 behaviour will not inevitably result in a refusal of contact, it may well be that, unless remedied, 2015 behaviour will be such that the risk to the children is so serious that direct contract is contra-indicated. A similar conclusion is likely in relation to 12J behaviour, unless the perpetrator can show significant improvement in his or her behaviour.

By contrast, 2021 behaviour, which is neither 2015 behaviour nor 12J behaviour, may not be such a high bar to the perpetrator having contact with their children. It may do, or it may not do.

In my judgment Her Honour Judge Vincent in Re R (A child) [2020] EWFC B57 accurately summarised the law when she held:

In the current case, the father’s behaviour as found in the fact-finding judgment of District Judge Tempia in my judgment constituted both 2015 and 12J behaviour. A key issue is whether the father’s subsequent steps to remediate himself are sufficient. This is particularly so, because Ms Senior in cross-examination by Ms Millin for the mother said that the current coercion and control which she considered existed was “covert”. Later she referred to the “subtlety” of her concerns. This is much more the language of 2021 behaviour than of 2015 or 12J behaviour.

The law on contact is helpfully set out in Ms Millin’s position statement for the mother and was not in dispute:

Ms Senior did not consider that the father’s attendance on the DAPP showed he had made sufficient relevant change in his views on domestic violence. In her report she said:

This contrasts with the assessment of the DAPP provider, dated 15^th September 2020, which concluded:

Likewise, Mr Mamattah in his report of 20^th December 2021 says:

Ms Senior interviewed the father by Teams on 7^th June 2023 once in the course of her investigations. The father obtained a printout of her notes through a subject access request. The notes are not verbatim, but they are clearly a fairly full record of her interviews. The relevant part of the interview with the father is surprisingly short (I have tidied the grammar):

It is unclear if Ms Senior saw the DAPP assessment (or a later DAPP assessment from November 2020, which was not included in the Court bundle and which I have not seen). Her report says she saw the Cafcass electronic file in respect of Cala and Daib and this may have included the DAPP report, but, if she did see it, she does not engage with the DAPP assessment in her report. She presumably did see Mr Mattamah’s report, because it would have been in the Cafcass file, but again she does not mention Mr Mattamah’s involvement or his conclusions in her report. Due to the deficiencies in the way her evidence had to be adduced, these matters were not explored in cross-examination, nor were her views tested against these other assessments.

It will be recalled that a key issue, and the alleged prompt for the father to bring the current proceedings, was the mother allegedly showing Cala and Daib a video of a Muslim stabbing a baby and then telling the children that this is what Muslims did.

The mother denied showing any such video to the two children. In her witness statement she said:

In cross-examination she said that there had been three different descriptions of what the video showed. The social worker describes the video as a Muslim stabbing a baby; the police a Muslim stabbing a baby’s head; and the school a Muslim cutting a baby’s head, although she was less sure about whether this last description was in fact that of the school. The first description matches that in Ms Senior’s report. There is no documentary evidence (or evidence other than from the mother) about the police description. The description ascribed to the school does not match the incident report set out below.

There is no independent evidence as to the mother’s mental health. I deal with the father’s complaints to social services and the police below, but the complaints are reasonably limited and were resolved quickly. Overall, I treat the mother’s evidence with circumspection.

Ms Senior records the following in her report:

Although parts of Ms Senior’s interview with the mother were produced pursuant to a subject access request, the parts referring to the video incident were not produced. Ms Senior’s report does not record what Daib said about the video during what, she said, was a forty-five minute interview.

The school recorded an incident on 2^nd February 2023, which reads as follows:

Despite the redactions in the first paragraph, the reference to Daddy being a Muslim and “you… a Christian” indicates that Cala was referring to her mother having shown her the video. This record of Cala’s disclosure contains no suggestion of doubts on her part.

There was a measure of agreement about the father’s treatment of his two children. It was common ground between the parties and Ms Senior that as between Cala and Daib, she was the dominant sibling. Daib is not just younger, he also has some slight delay in speech development. This may be a symptom of glue ear, from which Daib regularly suffers and which causes intermittent deafness. Further, whereas Cala specifically tries to be the “good” child, Daib tends to be naughtier. Ms Senior commented that the two children were “fairly different in character.”

The father had a system whereby he would give the children points and prizes for good behaviour. Now in principle this is a good system for ensuring children are well disciplined. However, it becomes problematic when one child is the consistent winner. The father said that Daib did win some points and prizes, however, it seems clear that Cala did do better under the system.

Further, Daib complained to Ms Senior that his father shouted at him. In evidence, the father accepted that he had shouted at him on occasions. He gave an example of Daib having dropped a glass on the floor and he (the father) being concerned that he might cut himself on it with his bare feet. He denied shouting at Daib in an abusive way and said that Daib’s glue ear sometimes meant shouting was necessary. He said that he had completed a positive parenting course shortly before the hearing in order to improve his parenting and had modified his behaviour with Daib.

Ms Senior says in her report:

Mr Mamattah’s report on the father’s interactions with the mother was more nuanced. He said:

In cross-examination of the father, no emails or text messages were put to him as being abusive of the mother. The only reference to communications was a somewhat elusive reference to his having sent the mother a text during dinner, but that in itself is hardly abusive.

It was put to the father in cross-examination that the inclusion in his evidence of a number of sexually explicit text messages from the mother to him in July and August 2020 was intended to denigrate the mother. The father’s explanation for putting these messages in evidence was this. In the summer of 2020 the mother wanted to rekindle a physical relationship between them, as shown by the text messages inviting him to engage in intimate relations with her. He had rebuffed her. As revenge she had refused him contact with the children resulting in his issuing the proceedings ZW20P01695.

The father has in the past complained about various issues concerning the children both to the local authority and to the police. The significance of his having made these complaints were given more prominence by Mr Mamattah than by Ms Senior. Mr Mamattah said:

Ms Senior updates the picture as follows:

At para 32 she says:

When I come to assess the witnesses I remind myself what I said at paras [75] to [79] of IsZo Capital LP v Nam Tai Property Inc [2021] ECSCJ No 478, BVIHC (COM) 2020/0165) (3^rd March 2021) https://www.eccourts.org/judgment/iszo-capital-lp-v-nam-tai-property-inc-et-al (appeal dismissed [2021] ECSCJ No 714, BVIHCMAP 2021/0010, 4^th October 2021; stay pending appeal to the Privy Council refused 8^th November 2021 [2021] ECSCJ No 754). In particular I remind myself of the fallibility of reliance on evidence of demeanour.

I also remind myself that I must take a holistic view of all the evidence in the case. Although I shall consider each of the areas of factual dispute separately, I have taken care to test my conclusions in respect of each area against the evidence as a whole.

It will be recalled that Ms Senior’s view was that the father’s learning from the DAPP was “fairly superficial… and centred largely around emotional regulation and safe relationship choices.” She considered that he may have attended the DAPP “as a means to secure time with the children, rather than to reflect in depth on his behaviours.” As such he continued to represent a danger to his children.

I have to reach my own view on whether Ms Senior is right. I must of course take her opinion into account, but I am not bound by it.

I am well aware of the dangers of abusers undertaking courses, not in order to make any real underlying behavioural change, but instead merely to “tick a box” so as to obtain contact. It has also long been recognised that “the devil himself knoweth not the thought of man”: (1468) YB 7 Ed IV fo. 2, pl. 2 per Brian CJ.

The providers of DAPPs are equally aware of these issues. However, a programme provider has an opportunity over many months to assess a participant and to reach a view on the genuineness of the participant’s response. The amount of interaction with the participant is much greater than the single interview a Family Court Advisor will typically hold. It is significant in my judgment that the DAPP report is extremely positive of the father’s response to the programme. This is reinforced by the father’s perfect attendance record, which is some evidence of his commitment to the course.

Ms Senior’s opinion seems to be founded on the father’s answers to the two questions posed by her, which I have set out above. The questions and answers in her notes together amount to 293 words. In my judgment it is not fair to describe the father’s response as “fairly superficial”, when he is only asked two questions. If she wanted greater depth, then it was for her to ask more questions. Further the real issue is not whether the father can provide an academically sound analysis of domestic abuse, but rather whether he understands the impact of his behaviour and shows remorse. Ms Senior does not discuss remorse at all.

Likewise in my judgment, she is unfair in criticising him for mentioning the personal issues he had when he entered the relationship with the mother. The father explained to her that he had lost his brother shortly before. There is nothing in the notes to suggest that “he minimised [his abusive] behaviour as being a result of a period of stress and grief.” Rather the father was explaining the background. Indeed his account tends to show some reflectiveness on the part of the father as to the way in which and the reasons why the relationship with the mother developed as it did.

The father fully accepts (and has throughout accepted) the findings of abuse made by District Judge Tempia, but Ms Senior does not seem to consider this is material to a consideration of whether the father is facing up to his earlier behaviour.

Mr Mamattah’s view was that the father had shown remorse. He had some concerns about his on-going communications with the mother (and I discuss these below), but he considered that the father’s response to the DAPP was genuine.

I saw the father give evidence. He was cross-examined by Ms Millin on behalf of the mother. I repeat the warning I gave myself about demeanour evidence, however, in my judgment the father was a candid witness. He made concessions, for example, about having shouted at his son. He appeared to show genuine remorse about his abuse of the mother during their relationship. He accepted that he was not a perfect father and that he made mistakes. He said, however, that he had undertaken a further course in parenting in order to try and improve himself.

Another relevant consideration in my judgment is the fact that the father back in 2020 refused to restart his relationship with the mother. Her sexually explicit texts showed that she was keen to get back together with the father. If the father was an unreformed domestic abuser, then he might have welcomed this opportunity to be able to abuse his victim once again.

I have to stand back and consider whether I accept the father’s case that he is no longer the serious domestic abuser he was until his relationship with the mother ended in 2017. In making this decision, I have taken into account the findings I make on the other factual disputes in this matter. In my judgment, the father has learnt from the DAPP and is genuinely remorseful of his behaviour during the relationship. I reject Ms Senior’s conclusion that there is “limited evidence of meaningful learning and reflection from [the father].”

There are really only four explanations for the children’s account of the video. One is that the children simply invented the story. Another is that the father put the children up to telling the story. A third possibility is that some stranger or maybe another child had shown Cala and Daib the video. The last possibility is that the mother did in fact show them the video.

There is no evidence that the father put the children up to telling the story. Indeed the suggestion was not put to him when he was giving evidence. Likewise there is no evidence of a third party showing the video to the children. The likelihood is low in my judgment of (a) a third party showing the video and (b) the children then concealing that fact.

The main evidence relied on by Ms Senior for her conclusion that the mother did not show the video is firstly her view of the mother’s character and demeanour and secondly the doubts which she considered Cala showed when Ms Senior questioned her.

As regards this second matter, it is unfortunate that Ms Senior’s questioning of Cala in respect of this important issue appears to breach the guidance given for achieving best evidence (“ABE”) from vulnerable witnesses. A Family Court Advisor will be seen by a young child as an authority figure: see the Home Office Guidance Achieving Best Evidence in Criminal Proceedings at paras 3.74ff https://assets.publishing.service.gov.uk/media/6492e26c103ca6001303a331/achieving-best-evidence-criminal-proceedings-2023.pdf. As such it is important not to ask “tag questions”, in other words questions which suggest the answer which the questioner seeks: The Advocates’ Gateway Toolkit 1 at para 6.2 https://www.theadvocatesgateway.org/_files/ugd/1074f0_846f9ab1f1e94dd7bd58bcc62f76ddb8.pdf. Although these sources are directed at criminal proceedings, the principles apply equally to civil proceedings: The Advocates’ Gateway Toolkit 17 https://www.theadvocatesgateway.org/_files/ugd/1074f0_095d4a26cf2b4300bcd421894c78c96f.pdf.

In the current case, asking Cala: “Did that definitely happen?” will suggest to the then seven-year-old child that the questioner has doubts about the child’s account. There is in my judgment a substantial risk that the vulnerable child will then tailor her answer to conform to what she perceives as the preferences of the authority figure. The failure to follow the ABE guidelines in my judgment substantially weakens Ms Senior’s conclusion that Cala showed uncertainty. Further Cala’s report of the matter to the school (which Ms Senior had not seen when she prepared her report) does not contain these doubts.

As to the mother’s presentation when interviewed by Ms Senior, the considerations about the dangers of overreliance on demeanour apply equally to Ms Senior. I agree that a parent who has good insight into why showing a traumatising video to her children is less likely to do so than a parent who lacks such insight. However, it is a sad fact that even insightful parents do do bad things.

When cross-examined by Dr Chiy, the mother said that she had told the school about the video. She said that she would not know herself where to find such a video. She said that the father was making the story of the video up. There are difficulties about this evidence. It seems to have been Cala who told the school about the video and it is not apparent why the mother would independently be telling the school about it. Whilst abhorrent videos are undoubtedly banned, people do nonetheless manage to find them. The allegation that the father was making the story up lacks a factual basis and in my judgment shows ill-will on the mother’s part.

Ms Millin in her oral closing submitted that there was not sufficient evidence in relation to the video for the Court to reach a 51 per cent conclusion and that I should simply say that the allegation against the mother was not proven.

Standing back and looking at matters in the round, in my judgment the allegation that the mother showed the video to her children is made out on balance of probabilities. Cala’s account to the school was clear. It would be strange story for Cala to invent. The doubts which Ms Senior ascribed to Cala’s account to her can in my judgment be discounted by reason of Ms Senior’s failure to follow the relevant ABE guidance.

This finding is consistent with the father’s case that the two children started to be estranged from him in the latter part of 2022 as a result of being shown the anti-Islamic video. It was his fear that they were being alienated from him which prompted him to start the current proceedings.

There was no real dispute that the father’s method of giving points and prizes to his children for good behaviour resulted in Daib receiving fewer rewards. Whilst such a system of rewards may often be a satisfactory means of encouraging good behaviour, in the current case it has not done so. The father, however, has recognised this and taken a course to improve his parenting skills. In my judgment, the issue of the differing treatment of the two children has been satisfactorily dealt with.

The father’s shouting at Daib is potentially more serious. However, it has to be remembered that Daib suffers from glue ear which causes some deafness. Further the father gave an example where Daib was at risk of cutting his feet on glass. Shouting would be justified in such a case. In my judgment, the father has engaged with the criticisms of his parenting style. Shouting at a naughty child is not good parenting, but the father is aware of his imperfections and endeavouring to remedy them.

In my judgment, these are comparatively minor matters, which do not affect the ultimate welfare assessment.

So far as abusive behaviour to the mother is concerned, I have given details of what Ms Senior and Mr Mamattah have said on this topic. As noted, however, no specific allegations of abusive communications were put to the father in cross-examination. In consequence, it is not open to me to make findings about these: TUI UK Ltd v Griffiths [2023] UKSC 48, [2023] 3 WLR 1204.

In any event, there is no real dispute that relations between the parents are poor. This is not simply the father’s fault. At para 17 of her report Ms Senior records Cala saying that she wished that her mother “would stop fighting with my dad.” Both parents are trying to minimise contact with each other to prevent such incidents. The father also appears to have recognised the criticisms made by Mr Mamattah of his style of communication.

In my judgment these matters should be taken into account in assessing the overall welfare assessment, but do not reach the threshold for 12J behaviour.

Ms Senior put weight on what she considered was the father’s improper use of subject access requests and his sending emails to herself and other professionals. In my judgment, these criticisms are misplaced. Anyone is entitled to make subject access requests to public authorities and there is an intricate body of law on how a public body should respond. Making such a request cannot impact on the children at all, because they will not know such a request has been made. Indeed the other parent is unlikely to learn that a request has been made, unless the results of the request are used in the litigation.

A litigant such as the father is entitled to do what he lawfully can to bolster his case. Although there are procedures for third party disclosure in the Family Court (see FPR rule 21.2), these are not necessarily straightforward, particularly for a litigant-in-person. A subject access request might reasonably be described as a “poor man’s third party disclosure order”. In the current case, the father’s requests have produced at least two significant documents: Cala’s disclosure to the school of having seen the video and Ms Senior’s notes of her interviews with the father and the mother. These have materially assisted in my reaching the conclusions I have.

Likewise sending emails to her and other professionals cannot impact on the children. I regret to say that Ms Senior’s comments on the father’s interactions with her can be interpreted as an unwillingness on her part to have her views challenged. In my judgment her criticisms of the father are unfair, since by comparing Ms Senior’s draft report (obtained by the father via a subject access request) with that which was finally served, it can be seen that she did make some changes prompted by the father’s comments in his emails.

As set out in both Mr Mamattah’s and Ms Senior’s reports the father has made a number of complaints both to the police and to the local authority. These complaints have been investigated and in the event no action has been taken. This does not, however, in my judgment necessarily mean the complaints were made improperly or maliciously. Neither Mr Mamattah nor Ms Senior make such a finding.

I agree with Mr Mamattah that the father finds himself in a difficult position if he is told something by his children which gives rise to concern. On the one hand, if he ignores the issue, then he potentially exposes the children to harm at the mother’s house. On the other hand, if he reports the matter to the police or social services, he may be treated as carrying out a covert campaign of abuse against the mother.

There is not sufficient evidence adduced before me to reach a conclusion as to whether the father did or did not act reasonably in making the referrals. In these circumstances, I find the assertion that the father acted improperly in making referrals to public bodies is not proven.

I turn then to the welfare checklist in section 1(3) of the Children Act 1989 and commence with section 1(3)(e), any harm which the children have suffered or at risk of suffering.

My finding that the father has responded well to the DAPP means that Ms Senior’s view that there is an ongoing risk of serious domestic abuse needs to be reconsidered.

I note, however, that Ms Senior may in any event not have been considering properly what constitutes 12J behaviour and whether the father’s current presentation was itself 12J behaviour. In para 34 of her report she says that “coercive behaviour can be very difficult to evidence.” Yet (as cited above) Hayden J in M v F at para [4] in the passage approved by the Court of Appeal in Re H-N at para [29] held that ‘“coercion” will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats.” Those forms of behaviour are not usually “very difficult to evidence.” This may suggest that Ms Senior considered that lesser forms of domestic abuse (such as 2021 behaviour which does not amount to 2015 or 12J behaviour) entail the serious consequences on contact often entailed by 12J behaviour. In the light of my findings, I do not need to consider this point further.

In my judgment, the father’s positive response to the DAPP reduces very significantly the risk to the children of exposure to serious domestic abuse. There is admittedly an ongoing risk to the children from exposure to the poor relations which continue to exist between the parents, but in my judgment it is not such as of itself to mean that contact between the children and their father should be stopped on the grounds that the relationship between the parents is so toxic that the benefit to the children of contact with their father is outweighed by the harm.

I turn first to section 1(3)(a), the ascertainable wishes and feelings of the children. Cala was very positive about her enjoyment of contact with her father. She told Ms Senior that “she wanted to spend seven days at her mother’s house and then seven days at her father’s house.” The worst thing she found about contact with her father was that he shouted at Daib.

As to Daib, Ms Senior says:

I have dealt with the father’s different treatment of the two children and how he has recognised the need for change. Since the Order of 12^th July 2023, contact has continued under the supervision of the paternal uncle. Although there has been no formal assessment of the contact, it appears both children have gone to it and enjoyed it. I also note that Daib’s desire “to see his father for ten minutes once a week on a Thursday” is a very odd statement from a six-year-old child.

In my judgment Daib’s age is such that only limited weight can be put on his expression of wishes. His main complaint is in relation to shouting, but the father has addressed this issue. In my judgment it is in Daib’s best interests to continue to have contact with his father.

I turn to section 1(3)(b), (c) and (f). The children are well provided for at the mother’s. Any change is likely to be undesirable. The current contact between the children on the one hand and the father and the father’s extended family on the other is working well and in my judgment is of benefit to the children.

As to section 1(3)(d), the only relevant consideration is that the children are of mixed race with a Christian (albeit non-practising) mother and a practising Muslim father. The question of religion is the subject of an application for the determination of a specific issue. In fact, however, the issue between the parents is quite a narrow one relating essentially to practicalities. Neither parent wants the Court to determine the faith in which the children should be brought up. Both agree that that is a matter for the children themselves to determine as they grow up. (At present, Cala says she wants to be both Christian and Muslim, but this may present theological difficulties.)

The practical issue is how to introduce the children to the Muslim faith. The father and the mother live over thirty miles away from each other. The father’s mosque is near his home, but does not provide classes for children at the weekend, only on Tuesdays and Thursdays. The children would thus need to be transported across London mid-week if they were to attend classes there. The parties agree that transport is a matter for the father to arrange. The mother, however, considers that the father should take the children to the mosque at the weekend rather than disrupting them during the week.

The father, until the Order of 12^th July 2023 changed the contact arrangements, had supper contact on Wednesdays with the children. An obvious possibility would be for that day to be changed, so that the children could go to the mosque before eating with the father. It might also be possible to find a mosque nearer the mother’s home. (The father has family members who live in that part of London, so this may not be too difficult to arrange.) I will hear the parties on these matters when I come to make the Order consequential on this judgment.

In my judgment, having regard to the welfare checklist, it is appropriate to reinstate unsupervised contact between the father and the children as it was before the Order of 12^th July 2023.

Ms Senior in her report invites the Court to make of its own motion a non-molestation order and a prohibited steps order against the father. The mother supports the making of such orders. In the light of my findings I decline to do so.

Ms Senior suggested in her report that it might be appropriate for the Court to make an order under section 91(14) of the Children Act 1989 to prevent the father from making further applications to the Family Court regarding his children without the leave of the Court. The mother supported this proposal. The Court in its Order of 4^th September 2023 gave directions for the determination of this issue.

The basis for making a section 91(14) order was (a) the number of applications already made by the father and (b) the danger that the father’s applications could amount to further coercive behaviour.

I discussed the legal requirements for a section 91(14) order whilst sitting as a section 9(1) High Court judge in Re Fatima; Leicester City Council v Mother and others [2023] EWFC 212:

To this summary of the law, I should add that access to the Courts is a constitutional right: Raymond v Honey [1983] 1 AC 1 and R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869. Although a requirement of leave does not prevent access to the Courts, it does raise a hurdle to a litigant seeking to apply for relief.

The second ground for making the order is said to be the risk of the father using any application as a form of coercion against the mother. Care needs in my judgment to be taken with this way of putting the case for a section 91(14) order. It occasionally happens that parties to Court proceedings conduct “friendly litigation”. This, however, is rare. The usual purpose of litigation is to coerce the other side. A creditor wants to use the power of the state to coerce the debtor into payment of his debt, if necessary by levying execution. A father wants contact with his children, to be enforced if necessary by the state punishing the mother for not allowing contact.

As a result, the new section 91A does not refer to coercion. Rather section 91A(2) requires the Court to be satisfied that an application would put “the child concerned… at risk of harm.” Now in some cases it will be obvious that the number of applications to the Court is having a harmful effect on the children. This, however, will be fact-sensitive. It cannot be assumed that litigation will always harm children. In particular, where an application has resulted in contact arrangements being made which are to the benefit of the children, it will not in general be possible to say that the application has harmed the child. To the contrary, the application will have benefited the children.

The typical case in which section 91A(2) will bite is where repeated or hopeless applications have been made which have been intrusive and therefore detrimental in the children’s lives. The Court will often be able to say that the children need a break from litigation for at least a couple of years. However, before making such an order, it does need evidence that the children have been or will be harmed.

In the current case, Ms Senior recommends that a section 91(14) order “be made to prevent further applications being made to the Court and the impact of this on Cala and Daib’s wellbeing and interactions.” However, she gives no evidence that the previous applications have had a negative impact on the children. The previous applications resulted in the children having direct contact with their father, which was to their benefit. The risk of harm occurring in the future seems to be posited on the father constituting an ongoing risk to the children, but I have refused to make such a finding.

In my judgment, there is no sufficient evidence that a further application by the father will put the children or either of them at a risk of harm. In these circumstances, I have no jurisdiction to make a section 91(14) order. This is not to encourage the father to make further applications. On the contrary, he should make every effort to agree contract arrangements voluntarily with the mother. If he makes unreasonable applications the Court can revisit the section 91(14) question.

I should add that, even if I am wrong in my conclusion that I have no jurisdiction to make a section 91(14) order, I would still in my discretion refuse to make such an order. An important consideration in my judgment is that the father has had a reasonable degree of success in the applications he has brought. The first application established that he needed successfully to complete a DAPP in order to have direct access to the children. The second application gave effect to the earlier order once the father completed the DAPP. In 2021 he obtained further contact. His application for enforcement of the contact arrangements against the mother was not proceeded with, but this is usual and proper when contact arrangements have been restored. His current application was prompted by the children’s reaction to him after they saw (as I have found they did see) the abhorrent anti-Islamic video. Again he has in these current proceedings obtained the relief he has been seeking.

Accordingly I refuse to make a section 91(14) order.

By Order of 12^th February 2023, the Court ordered Cafcass to serve a section 7 report by 4pm on 19^th June 2023. This was in good time for the hearing listed for 12^th July 2023. The Order also provided for the parties to provide position statements by 5^th July 2023.

On 22^nd June 2023 Cafcass wrote to the Court with copies to each side requesting a short extension. This request was legitimate. Ms Senior had completed her report in draft for service on 19^th June 2023, but the father had sent her emails raising various matters. As I have noted above, it was legitimate for him to do so. Ms Senior quite properly considered his points and revised her report to reflect them.

What then occurred is not in my judgment legitimate. Cafcass took the view that it would be too dangerous to allow the father to see the report in late June. This is because he would have direct unsupervised contact, as previously ordered, on 8^th and 9^th July 2023. They were fearful as to how he might behave. Ms Senior’s report is dated 10^th July 2023 (although it was completed earlier), but it was served only on 11^th July 2023.

Cafcass did not contact the Court to seek permission to adopt this strategy. The deliberate late service of the report was in my judgment a direct interference with the course of justice. Firstly, it meant that the parties could not provide position statements as ordered in February. Secondly, it necessitated the mother’s legal representatives making an application dated 8^th July 2023 to adjourn the hearing on 12^th July 2023, thus wasting costs and legal resources. Thirdly, it meant that the father, a litigant-in-person, was hampered in obtaining advice prior to the hearing. Fourthly, it may have contributed to the Order made on 12^th July 2023 containing no recital of the issues of fact which were in dispute.

There was a foreseeable risk that the short service might mean that the Court might not be able properly to consider what steps it should take in response to Ms Senior’s report. In the event, that risk did not eventuate. The order that contact continue, but with supervision by the paternal uncle, was appropriate and was not affected by Cafcass’s behaviour. But it might very easily have been different. For example, the father was lucky that he was able overnight to obtain the uncle’s agreement to supervise contact.

I propose to refer this judgment to the designated family judge, so that these issues can be raised with Cafcass.