M v F

Granting or refusing an adjournment is a matter of discretion in the particular circumstances. An adjournment must be granted if refusing it would be a denial of justice. The applicant bears the burden of proof.

Medical evidence should be scrutinised carefully. It is tendered as expert evidence and its weight must be determined according to general principles regarding such evidence. They include the doctor’s expertise and familiarity with the condition said to preclude the party’s participation in the relevant legal process; the detail of the material on which the doctor reaches their opinion, including their knowledge of the party’s medical history; the nature, length and number of examinations or consultations the party has had with the doctor or others regarding the condition; and details of any other material on which the doctor has reached their opinion.

The court must consider fairness to both parties. If the medical evidence is deficient, it may be appropriate to consider a short adjournment to enable this to be addressed.

Applying the relevant caselaw above to this situation, F was applying to adjourn for medical reasons, so the burden of proving that fell on him. The only evidence in support of his application that he produced was a screenshot of a video appointment for an annual review at the haematology department. He did not produce any evidence to support his contention that the annual review was potentially linked to any urgent medical treatment immediately afterwards, and his last email made it clear that he would not produce any further details. I did not actually have any medical evidence of any kind as envisaged by the relevant caselaw, just a screenshot of potentially a routine appointment. It was a video appointment so F would not be at the hospital, which also called into question his assertion that he may need immediate treatment afterwards. He also produced no evidence to show that he was unfit to attend court, and it seemed from his last email that even if he had been granted a short adjournment to produce that proof, he was not willing to do so. I was also mindful of the fact that this is a case in which I have made serious findings of domestic abuse perpetrated by F against M, including coercive and controlling abuse and psychological and emotional abuse of M, and that this is not the first time that F has sought to adjourn a listed hearing having said initially that he would be available. Something very similar happened for the fact-finding, whereby he sought to adjourn, albeit for work related reasons, but failed to produce proof in support of that. I also considered that, as happened with the application to adjourn the fact-finding hearing, F’s reasons for seeking an adjournment appear to change every time he communicated them. I was concerned that by seeking to adjourn in this way F was trying to expose M to further domestic abuse by manipulation of the court process and considered that he should have re-arranged the routine medical appointment to prioritise attending this final hearing.

The application by F to adjourn this listed final hearing was therefore refused.

However, F then attended for the start of this hearing. The hearing proceeded and he did not renew his application to adjourn. As planned, Ms Jones gave her oral evidence with the court calling her since both parties had aspects of her evidence that they wished to cross examine her about. M asked her questions, and then F was given his opportunity to ask his questions. Initially, albeit with some assistance from me to break longer questions into shorter, more manageable ones, or to help suggest a form of question that was relevant and appropriate, things were proceeding as planned. I did ask F to move on from repeating questions about why the CAFCASS officer had accepted the findings and not looked for other evidence, because Ms Jones had explained more than once at in answer to his earlier questions that the law required her to consider her assessment in light of the findings and not to go behind them. F concluded asking his questions, and I started to ask a couple of questions in clarification. In fairness to F, one of these clarification questions was about an option for supervised contact and whether that might mitigate the risk of domestic abuse because it seemed to me that was something that F had not put to Ms Jones and a litigant in person he might not have realised that and it would assist everyone to hear her evidence about that. Ms Jones was dealing with this aspect when F became increasingly agitated and started to verbally interrupt the hearing, saying that he thought it was all unfair and he had been prevented from asking his questions. He then said he would leave. I offered him an opportunity to take a moment to breathe, think and proceed, reminding him that if he left the case would proceed without him and thus without his evidence, but he became more agitated and refused to either listen or to stop talking over me, saying again that it was all unfair. I said that he should either stay quietly or leave at this point, but he didn’t leave the courtroom or remain quiet, so I ended up rising anticipating that security may be required to remove him but before any action could be taken, he left. This behaviour was obviously upsetting for M, and it seemed to me to be a repetition of some of the behaviours that I found F had subjected to in the past, as well as a stark illustration of the sort of rigid refusal to accept the outcome that Ms Jones’ evidence had identified.

The remainder of the hearing proceeded without F as a result and I was so concerned about F’s demeanour and behaviour that it was arranged for Ms Jones to have a security escort to the hearing in the Magistrates’ Court, and permitted M to return for judgment via a remote link rather than be physically present in the courtroom.

Background

The background is as set out in my judgment following the fact-finding hearing.

Since that hearing CAFCASS have completed a section 7 report and a Dispute Resolution Hearing was conducted on 13^th August 2024.

Evidential summary

I have had written evidence in the Bundle as well as oral evidence from the CAFCASS report writer, Ms Jones, and M. As noted above, I had neither written nor oral evidence from F by his own choice in absenting himself from the hearing.

Relevant legal considerations

The court must consider the welfare of the child, and this must be the court’s paramount consideration. The court must apply the relevant aspects of the welfare checklist contained in section 1(3) of the Children Act 1989.

Practice Direction 12J is also relevant given the findings in respect of F in this case, particularly paragraphs 32 onwards since these consider what is necessary after findings of domestic abuse have been made.

Analysis

The first relevant welfare checklist heading in this case is the ascertainable wishes and feelings of A in light of her age and understanding. A is only just four years old. She is therefore too young to be able to independently and properly articulate her wishes and feelings. Her wishes and feelings have been ascertained by Ms Jones in the preparation of her report, and the evidence about this is at pages 175-176, paras 17-18.

The next relevant welfare checklist heading is the physical, emotional and educational needs of A. A has a need to know about her identity from both sides of her family, and to have a relationship with both of her parents as long as neither parent poses a risk of harm to her. A has no additional physical or educational needs to those usual for her age. The section 7 report notes that A has lost the relationship with her father over the past year and that will have been very difficult for her, and she will not be able to process that loss unless she masters the development of her own emotional and social regulation, and she needs to feel safe to do that (page 176). As the report also notes, it is possible that the impact on A of the domestic abuse that I found to have happened may have caused her some developmental trauma, but the recommendation to engage with a programme designed to address the impact of domestic abuse on children should mitigate this in time. Ms Jones was also clear in her oral evidence that her enquiries with A’s nursery showed that A was thriving in the care of her mother and engaging well at nursery.

The likely impact on A of any change in circumstances is the next relevant heading. The section 7 report recommends that A should live with her mother and not spend any direct time with F, and that there should only be indirect contact between F and A three times a year by way of letters. In her oral evidence, Ms Jones expanded this recommendation to make it clear that such indirect contact didn’t just have to be letters, it could also be photographs of F and his family, and child focused gifts. For reasons that I will expand on under the risk of harm heading, F has not seen A directly for over a year now. This is a significant portion of her life because A is only just 4 years old. Direct contact between A and F would therefore be a change in circumstances for her. I found that F exposed A to domestic abuse both directly and indirect, and Ms Jones was clear that her professional judgment is that F is at high risk of continuing to expose A to domestic abuse. The likely effect on A of the change of reintroducing direct contact with F is therefore that it would be disruptive and harmful to A at this point.

The next relevant checklist heading is the age, sex, background and any relevant characteristics of A that the court considers relevant. I have already noted A’s age. It is also very clear that A has a rich and diverse dual heritage from each of her parents. Ms evidence to me showed very clearly that she understands that A would benefit from being able to learn about her paternal heritage from her F, if that was safe for A, and that M’s strong desire had always been for this to happen. I noted in my fact-finding judgment at para 30 that M had “produced compelling evidence to show the efforts that she had gone to both during the relationship and afterwards to try to ensure that A spent time with F”. As I also noted in that same paragraph, M had been willing for A to spend time w F, and for that time to be unsupervised, from the outset of the proceedings. Her only caveats had been around handovers being safe to protect her and A from the domestic abuse by F that I found had occurred. The fact that A stopped seeing F in August 2022 was because, despite both M and the court being willing to explore the possibility of A spending some limited time with F to mitigate potential risks of domestic abuse prior to the outcome of the fact-finding, F refused to co-operate with this. An order permitting limited contact on a Sunday was in fact made by the Magistrates at the First Hearing Dispute Resolution Appointment on 8^th August 2023. However, by the time of the hearing on 19^th October 2023 when the re-allocated proceedings came before me for the first time, F had still not taken the opportunity to spend time with A that the 8^th August 2023 order allowed. On 19^th October 2024 I continued the 8^th August 2023 order and tried to impress on F that it was in A’s welfare interests for him to spend time with her as set out in that order. Sadly, by the time of the pre-trial review on 30^th November 2023, F had still not done that, and told me that he was not prepared to accept any limitations on his time with A (and that was his emphasis since it was more about him and his feelings than A). As a result, I suspended the order for direct contact and ordered instead only indirect contact by way of letters or cards no more than once a month. In addition, as set out in the section 7 report at page 180, as recommended by CAFCASS M set up the parenting app, AppClose, as a means of indirect contact between F and A. F repeatedly told Ms Jones that he did not feel comfortable using the app and that he was not prepared to use an app. M told me that she sent F both the initial invitation to the app, and then an update via the app, but as far as she can tell F did not accept either. It seems as if the only indirect contact between F and A since M set up the app is that F sent A a gift for her birthday in June this year. As detailed by Ms Jones in her report at page 180, the fact that A had not had any other indirect communication with A meant that this gift came out of the blue and was unsettling and upsetting for A. If F had used the parenting app to remain in regular contact with A, Ms Jones notes quite rightly that his gift would have been unlikely to be so unsettling for her. I find that the only barrier to F having direct contact with A is the fact that F has subjected M and A to serious and sustained domestic abuse, does not accept this, and is unable at the moment to evidence any changes which would mitigate the risk of A being exposed to further domestic abuse. I also find that the only reason he has not had regular indirect contact with A is because he has chosen to put his needs above those of A in refusing to accept any limitations on his contact, and this includes refusing to regularly use any form of indirect contact including a parenting app. He is clearly technically capable of using a parenting app from the voluminous and numerous emails and electronic documents that he has submitted to the court over the course of these proceedings.

Any harm which A has suffered or is at risk of suffering is the next relevant welfare checklist heading. The findings that I made in this case were of F being physically, psychologically and emotionally abusive towards M, subjecting her to coercive and controlling abuse, made threats to remove A from the jurisdiction, and that F had emotionally abused A and failed to parent A in a way that protected her from harm. F’s communications and documents sent to the court since the fact-finding hearing make it abundantly clear that he does not accept the outcome of the fact-finding hearing in any form. He also made that clear to Ms Jones when interviewed for her section 7 report as that report noted and as Ms Jones confirmed in her evidence to me today. His comments and cross examination during the first part of this hearing before he left also made it clear that he does not accept the findings. It is sadly clear to me that F doesn’t accept that he was abusive to M and A in the way that I found at the conclusion of the fact-finding and, in fact, doesn’t accept that he has done anything wrong and should have done anything differently. Nor does he accept, as I found, that he puts his needs above those of A and is not putting her welfare first. As Ms Jones told me in her evidence, because F doesn’t accept the findings or that he has done anything wrong, he is at high risk of continuing to expose M and A to similar significant domestic abuse as that which I found had happened before. Supervised contact, in her professional opinion, would not mitigate this risk to an acceptable level to make direct contact safe for A. This was because A has been significantly harmed emotionally by the domestic abuse that she has experienced, evidenced by what the nursery have observed about her before the direct contact ceased, and since. Ms Jones was clear that A now feels safe at home, and this means she also feels safe at nursery, whereas when F was still seeing A and exposing her to domestic abuse, A did not feel safe and home and therefore also didn’t feel safe anywhere else. This led to A exhibiting some challenging behaviours, which have now stopped, and the nursery information shows that A is now a settled, happy and thriving little girl.

Supervised contact, in Ms Jones’ professional opinion, would still be likely to expose A to an unacceptable risk of harm from F’s domestic abuse. Ms Jones told me that she has reached this conclusion because F is so rigid in his views that the findings are incorrect and he has done nothing wrong and that it was M who was the abuser and to blame, and that he has so much hostility towards M that A would be exposed to that even at a supervised contact setting. Ms Jones’ confirmed to me that even with professional supervision there is still a real risk of F saying something about it being M’s fault that he can only see A in a contact centre if A were to ask why. She was also clear that having to organise contact at a contact centre would also pull M and A back into a situation where they have to regularly see someone who has abused them, meaning that neither M nor A would get a break from the abuse. Ms Jones also told me that it was significant that F’s approach to objecting to direct contact was actually about controlling the situation rather than what was best for A. She also pointed out that his failure to engage in indirect contact via the parenting app can be seen as a pattern of controlling behaviour too. I agree with her assessment of this and find that for F it is all about him having control and putting his needs first, before A’s needs. I am also mindful of the fact that any supervised contact that needs to be supervised at a contact centre also risks drawing M back into a situation of coercive control by F, because, as Ms Jones told me, M would have to arrange the times and dates in communication with F and would be permanently anxious about whether he would turn up or seek to change the times. It would also expose M to a risk of financial control, I find, since contact centres come at cost and, although I could order F to pay all of the costs of any contact centre, his track record in the proceedings and in generally doing what is required of him would suggest that he is not likely to comply with that.

Parenting capability is the next relevant checklist heading. Ms Jones’ evidence to me about this was very clear, the only issue about F’s parenting is that he has perpetrated domestic abuse. He needs to address this by completing an appropriate Domestic Abuse Perpetrator Programme (DAPP) first, and it would not address this issue for him to simply complete a parenting programme, though any parent can benefit from a parenting programme, and it might be something for him to consider doing in any event. She also explained that, because of the domestic abuse findings and F’s extreme resistance to accepting those findings, it would not be appropriate for F to complete the CAFCASS Planning Together for Children course either, since that would again expose M and A to further domestic abuse from him. Ms Jones was also clear in her evidence that F first needs to complete a minimum 26-week RESPECT accredited Domestic Abuse Perpetrator Programme, not some short online course, and that he will need to wait for a period of time after the conclusion of the proceedings before he could apply for such a course because such courses are deliberately not available during proceedings. She also noted in her report and her oral evidence that F is unlikely to be accepted onto a DAPP while he fails to accept any of the findings and the need for him to change.

Finally, the court must consider the range of powers available under the Children Act 1989. An order setting out arrangements for A is clearly necessary given the findings I made, the level of dispute about the arrangements for A, and the CAFCASS recommendation. Under PD12J para 37A, because I have made findings of domestic abuse, I also have to consider whether an order under section 91(14) is necessary to protect M and A where a further application would constitute or continue domestic abuse. Para 37A reminds courts specifically that future applications could be part of a pattern of coercive or controlling behaviour or domestic abuse towards a victim. Ms Jones was very clear in her report that an order was necessary in this case, noting at page 182 para 53 that she was concerned about the impact on A of the potential emotional harm of repeat proceedings. Ms Jones had also noted in her report at para 17 page 175 that there is some evidence that A may be aware of the difference in her life to her peers because of the number of professionals who have been involved with her, and any further proceedings would also risk having professionals involved with her again. Ms Jones also told me in her evidence that she was quite concerned about what F had written in his two most recent documents about having the right to make applications about A as and when he chooses, so she thought there was a potential for further proceedings. M was less sure about this, telling me that she thought F was unlikely to be able to afford fees or to make applications since that would require him to be proactive rather than reactive. I did point out to her in clarification that, although F has only made two C2 applications to adjourn proceedings in this case, he has sent numerous emails and documents to the court in which he is asking the court to allow him to spend time with A, which could all be taken as his applications for an order that permits that. Based on my assessment of the evidence at this stage, and having witnessed the extremely volatile and unfortunate behaviour of F during this hearing, I am satisfied that F is very likely to try to apply in relation to A in future and for that to expose M and A to continued domestic abuse by way of coercive control, as well as emotional and psychological abuse, since it would draw them into proceedings again, mean that M would be worried about the outcome and mean that A would have to engage with more professionals.

I have reminded myself that a section 91(14) order does not prevent F from making any applications, it just prevents him from applying for orders under the Children Act without the permission of the court. In this case, I am satisfied that such an order is necessary and proportionate to protect M and A from future applications which would be risking exposing them to further domestic abuse in themselves. I accept the evidence of Ms Jones that F would need to show that he has successfully completed an appropriate DAPP course to be able to apply if a section 91(14) order is made. Because he does not accept the findings, or that he did anything wrong, and has demonstrated absolutely no capacity to change in the evidence before me, it is not possible for me to fix a timescale on when it is likely that F may have done the necessary work and the risk from him would have reduced. The order will therefore have to be an indefinite order, to last until F is able to evidence that he has successfully complete a minimum 26-week RESPECT accredited DAPP. To evidence this, he would need to provide a certificate of completion from an accredited course provider, as well as a report completed by the course provider covering both the midway and end point of the course. If he is unable to source a RESPECT accredited DAPP but completes a course that he believes is equivalent, he will need to produce independent evidence from the course provider to confirm that the elements of the course are equivalent to the RESPECT accredited course modules and that the course was of a minimum length of 26 weeks or six months.

I have also noted that, as required by PD12J, Ms Jones has set out some details of support available for M and A considering the domestic abuse that they have suffered. She has provided M with details of the Freedom Programme, and a programme for A as I have noted earlier. It is very positive to hear from M that she is committed to both of these.

Taking all the above into account, I find that:

There should be a Child Arrangements Order specifying that A is to live with M.

There should be a Child Arrangements Order specifying that A will not spend time directly with F, but that F may have indirect contact with A by way of emails, letters, cards, photographs or presents which shall be sent to M no more than 3 times per year, once on A’s birthday, once at Christmas and on one other occasion during the year. M may set up and share with F a dedicated email address to facilitate this indirect communication, but she has confirmed that she has no objection to this or to receiving items in the post on the three specified occasions and does not think it necessary for there to be a requirement for F to send post to someone else on her behalf. M also agrees to keeping anything sent in accordance with this order by F for A when she is older, as long as the communications are child focused and appropriate for A. So, the order will also allow for M to set up a dedicated email address for F to use, and for M to keep these indirect communications for A to enable her to explore her paternal identity as she grows up. The indirect communications from F can include information from and about A’s extended paternal family to support her heritage.

The existing Prohibited Steps Order made to prevent F from removing A from the jurisdiction and from the care of her mother or anyone caring for A on her behalf will continue until further order, so is also an indefinite order. This is necessary because F has made threats to abduct A in the past, and I am concerned that his lack of acceptance of the findings makes it even more likely that he may seek to do this in future.

I will also grant a Specific Issues Order permitting M to make all decisions about A’s education and healthcare without the need for input and consent from F, save for any experimental medical treatment in respect of a life-threatening condition. This order will also last indefinitely and is necessary to prevent F from subjecting M and A to coercive and controlling behaviour in relation to the exercise of parental responsibility. The order means that M can make all decisions about where A goes to school, what she does at school and in after school activities, and what routine and emergency medical treatment she should receive, apart from anything that is experimental medical treatment for a life-threatening condition. I will also make a Specific Issues Order that M can make decisions about what passports A can have and when and permitting her to apply for a UK passport without the need to have F’s consent, as well as permitting her to take A on holiday both within and outside of the jurisdiction without F’s consent. I will give permission for M to disclose a copy of this order to the UK Passport Office in connection with any application for a passport for A. The order will also require that M, who agrees to this, will keep F updated three times a year about routine matters in relation to A, via the dedicated email address that she is going to set up to facilitate indirect contact. For the avoidance of doubt, in case of any emergency affecting A, M will inform F as soon as possible about this and not wait for one of the three updates each year and again M agrees with this.

I will also give permission to M to share a copy of this court order, and potentially both the fact-finding judgment and this judgment if that is required, with anyone involved in safeguarding for A.

I will make a section 91(14) order preventing F from applying for any orders under the Children Act 1989 in connection with A, including enforcement, and that order will last indefinitely or until further order. To make an application for permission to apply while this section 91(14) order is in force, F must complete the required application forms and submit documentary evidence in support, which must be a certificate of successful completion of a 26 week minimum RESPECT accredited Domestic Abuse Perpetrator Programme, or independent documentary evidence to show that he has completed a course that is of an equivalent length and content, and he must also submit written reports from the mid-way and end points of the course.

I will reserve any future applications in relation to A to me if available, and direct that a copy of this judgment is to be sent to both M and F, and also to CAFCASS to be held on file in case of future applications or if A wishes to obtain a copy when she is old enough.

If F is able to reach a position where he can accept the findings made and that he needs to undertake work to address the risk of future domestic abuse from him, as recommended by Ms Jones, although he doesn’t need this under PD 12G in terms of sharing information from the proceedings, I will specifically state on the order that he has the court’s permission to share the fact finding judgment, the section 7 report and this judgment with any professional working with him.

Finally, since I note from the information obtained from the Home Office as a result of the Court enquiry that F has an outstanding application for leave to remain which was made before the outcome of the fact-finding, and the Home Office is not able to advise about the timescales for that application being determined, it is not clear to me whether there is a potential for an Immigration Tribunal to become involved in that. If that were to happen whilst these Family Court proceedings were ongoing, there is a protocol for information sharing between the Family Court and the Immigration Tribunal, but these proceedings will end today so I will direct that a copy of the fact-finding judgment and this judgment are to be disclosed to the Home Office should they prove useful in connection with that application and for onward transmission to any Immigration Tribunal that may become involved with that application in future.