HK (A Child), Re

The people involved in this case are:

I shall refer to the Father and the Mother as “the Parents”. Both parents have Parental Responsibility in respect of H, the Father having been named on her birth certificate.

The Mother and the Father are related to each other. The Mother is a British National and the Father is Pakistani. They were married in Pakistan and the Father came to the UK in July 2017. They agree that they only lived together for a very short time before separating, before H was born. The Father lived with his brother and his family in Lancashire and the Mother lived independently in Manchester. It is evident from the evidence presented to me that there has been a degree of wider family involvement mediating between the couple after the relationship ended.

H lives with the Mother. This is at least the third set of proceedings concerning H. Proceedings in 2018 shortly after H’s birth resulted in a supervised spend time order after the High Court became involved when the Mother left the jurisdiction with H and went to Pakistan during proceedings, and the message that she gave to the Court and to the Father through her solicitors was that she would not be returning to the UK.

The subsequent enforcement proceedings that the Father felt compelled to issue in 2019 ended in December 2021 and concluded on the basis that there was an order by consent for H to spend time with the Father on a supported basis initially, before there would be an eventual progression to unsupervised contact.

In fact, the Father only saw H once, or maybe two more times, after the final child arrangements order in 2021. It is common ground that he last saw her at the very end of December 2021 or in the first few days of January 2022 before the Mother again left for Pakistan with H on 03 January 2022. This time she returned in April 2022.

The Mother applied on 25 May 2023 for the existing child arrangements order to be discharged, arguing that the Father lacks commitment towards the child and that he is motivated to obtain contact solely to assist him in retaining his immigration status in the UK. She does not support any contact between the Father and H.

It is agreed that the Father came into this country on a spouse visa which was revoked when his marriage to the Mother broke down and the Mother informed the Home Office of their separation. He has subsequently sought to regularise his status in the UK in reliance on a persisting direct relationship with H which is a ground for leave to remain being granted within the immigration rules. It is agreed that his last leave granted by UKVI was limited leave to remain outside the immigration rules from March 2023 until March 2024, which was granted, despite their decision that he did not fulfil the requirements for leave within the rules, because he was in the process of taking part in these proceedings. As a result, he was granted discretionary leave so that he could conclude these proceedings and demonstrate that he has direct access to H and plays an active role in her life.

The Father resists the application to discharge the existing child arrangements order and instead argues that it should be varied so as to re-introduce contact so that he can re-establish his relationship with H, who he loves.

He accepts that his relationship with H is key for his immigration status in the UK however he denies that his sole aim in restoring his relationship with her is to retain his status in the UK.

In the previous proceedings Mrs Adams supported the agreement that the parties reached in December 2021. In these proceedings she supports a variation of the order to provide for indirect contact only.

The Father reminds me that he has been positively assessed by the Local Authority in respect of his brother’s children, who live in the same house as him. He argues that Cafcass’s assessment of risk must therefore be flawed, as the Local Authority have no issue with his living with, and spending unsupervised time with, children.

My consideration of this application must involve consideration of any changes in circumstances since the December 2021 agreement was reached. There is one notable change since the last proceedings. During those proceedings the Mother drew the Court and Cafcass’s attention to multiple complaints of sexual assaults made by the alleged victims of the Father that she had seen on Facebook. No record of those complaints came up in police checks carried out by Cafcass and Mrs Adams says that her approach to those complaints during those proceedings was that they were unproven allegations that were not corroborated by police checks.

In fact, charges were brought as a result of those allegations, and in August 2022 there was a criminal trial at which the Father was convicted and was given an eighteen-month suspended prison sentence. The risk arising out of that offending has been the subject of a risk assessment by probation and has factored into Mrs Adams’ risk assessment in these proceedings.

I dealt with the matter at a final hearing on 10 and 11 October 2024. I heard evidence and submissions but ran out of time and so reserved my judgment until today.

In the last set of proceedings, the Mother made a number of allegations of domestic abuse against the Father. The Court declined to hold a finding of fact hearing and also declined to consider the Mother’s assertion that the Father’s application was motivated solely to retain his status in the UK.

In these proceedings I have also decided that it would not assist the Court to hold a finding of fact hearing, however I have allowed determination of the Father’s commitment and motivation which includes consideration of whether or not his position is solely informed by his desire to retain his UK status. I have also permitted exploration of whether or not the Mother seeks to exclude the Father from H’s life as part of my welfare assessment.

The advocates have been careful not to seek determination of allegations of abuse which have not been the subject of the usual directions and evidence gathering that would be inherent in any finding of fact hearing.

My decision holds significant importance for the Father. If I refuse direct arrangements between him and H, I risk damaging his relationship with his child, whilst at the same time significantly undermining his prospects of being able to remain in the UK to seek to rebuild that relationship or to enjoy the benefits of living in the UK.

The Mother’s application to discharge the existing spend time arrangements between the Father and H is governed by section 8 of the Children Act 1989. In order to vary or discharge an existing child arrangements order it is incumbent upon the applicant to demonstrate a change of circumstances since the original order was made. In reaching my decision I am required to make the child’s welfare the paramount consideration.

I am required to have regard, in particular, to those matters listed in section 1(3) of the Act (‘the Welfare Checklist’) which are:

Sections 1(2A) and 1(2B) of the Children Act 1989 provides for a presumption that unless the contrary is shown, the involvement of both parents in the life of the child concerned will further the child's welfare. “Involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child's time.

When considering whether or not to make an order, I am not to do so unless making an order would be better for H than making no order at all.

I am also required to have regard to the Article 8 rights of the parties and the child involved in this case. Article 8 is a qualified right, and any interference with the right to family life can only occur if the interference is proportionate.

There has never been a finding of fact hearing in any of the proceedings between these parties. However, as there is an allegation of domestic abuse made by the Mother the Court is required to consider Practice Direction 12J of the Family Procedure Rules.

I do not intend to read the entirety of the practice direction into this judgment, however I have considered it in full and the key provisions relevant to this case appear to me to be:

The Domestic Abuse Act 2021 and the Practice Direction both specify that witnesses of abuse, such as children in a household where abuse takes place, are to be considered as victims of abuse themselves.

In this case there have been no findings that the Father has been abusive towards the Mother, but the unresolved allegations mean that there is an unassessed risk that must be guarded against. The fact of his conviction for sexually abusing a woman [whilst in a position of trust] invokes consideration of some of the provisions of Practice Direction 12J as subsequent risk assessments have determined that he poses a risk of harm to adult females including the Mother and a risk of emotional harm to children who may witness an associated female being harmed.

As part of this judgment, I have to make findings of fact. Those findings are to be made on the balance of probabilities. In other words, I have to decide if something is more likely than not to have happened in a particular way.

I considered a bundle of documents that ran to 255 pages and an additional order from previous proceedings which had been omitted from the bundle.

I heard oral evidence from the following people:

The Father and his brother gave evidence with the assistance of a court-appointed Urdu interpreter. The Father’s understanding of English was good, but he wanted to use the interpreter to ensure that he did not misunderstand the questions that he was being asked.

At the conclusion of the evidence on day two of the hearing I heard submissions from the two advocates, and I reserved judgment until today.

Mrs Adams gave evidence first. I found her to be a careful and considered witness. She is an experienced Family Court Advisor, and she stood up well to robust cross-examination and engaged thoughtfully with the questions she was asked.

She was asked by Mr Din why her opinion of the Father and her recommendations had changed since the last proceedings. In those proceedings she had reported that the Father had made substantial progress and he had demonstrated significant commitment to H. She had opined that his uncertain immigration status should not prevent his relationship with H.

In these proceedings she questioned his commitment and was of the view that his motivation was based on his need to secure his immigration status in the UK. She did not support a re-introduction to H and said that this was due to cumulative issues.

Whilst she placed some weight on commitment, motivation and immigration status it was clear from her evidence that the most important feature of this case is the Father’s conviction and the likely knock-on effect regarding risk, insight, progression of contact, his ability to present a positive role model to H and the likely effect of implementing contact on the Mother.

She explained that she had developed a working relationship with the Father in the previous proceedings. She had gone over and above what might be expected of a Guardian to attempt to put arrangements in place to create a formula for contact which would work for the Father. She believed that he had not demonstrated the commitment to build upon that framework, but more importantly he had not acknowledged the sexual assault that he has been convicted of that stems from the incident in 2019.

She told me that in those proceedings the Father had dismissed the allegations. He had not told her that he had been, or might be, charged and had not admitted the offence. She said that these failures suggested to her that he lacked honesty, integrity and that she felt unable to trust him. And if she could not, how could the Mother? The Mother had repeatedly raised her concerns during the previous proceedings but had been dismissed by the Father, Cafcass and the Court. Her fears have subsequently been borne out.

Mrs Adams said her recommendations in the previous proceedings were made in circumstances where there was no factual matrix, there was no police evidence and no conviction. There were no grounds for concern during the contacts that she saw.

The fact of the conviction is important for her. The Father continues not to accept his offending behaviour. He was convicted of [deleted] sexually touching the leg of a woman whilst in a position of trust. He has demonstrated no victim empathy. He blames the victim for setting him up along with another woman.

The probation evidence provided to the Court and to Mrs Adams suggests that the Father remains a medium to high risk of harm to women. Their assessment, no doubt informed by his failure to take responsibility for his actions, identifies the Mother, and intimate partners, as being at risk of domestic abuse in the form of threats and controlling behaviour, whilst he poses a medium risk to adult females of serious sexual harm. Children present within relationships are assessed as being at risk of emotional harm from witnessing violence but are described as being at low risk of serious harm.

Mrs Adams takes issue with the probation assessment of risk towards children, pointing out that probation are largely adult focussed, whereas Cafcass are specialists in assessing the risk posed to children.

She was of the view that the risk that the Father poses to adult females is such that without acknowledgement, and the development of insight, the risks to H would require any direct arrangements to be professionally supervised in a contact centre. Otherwise, there is a risk H would be exposed to emotional harm and abuse through witnessing abuse of an adult female.

She cannot support a return to contact centre contact for H. In the absence of the Father’s acknowledgment of his offending it is unlikely to be able to progress and long-term contact at a contact centre is not positive for a vulnerable young child. In addition, the Mother, who may be a victim of abuse from the Father could not be expected to support that contact. Mrs Adams questioned the message that would be sent to H during those sessions given the Father’s behaviour towards women and his lack of accountability. There is no subsisting relationship with H despite intensive efforts from Cafcass in the previous proceedings and the Father must bear some responsibility for failing to maintain the relationship given his decision to ask for a break in contact, a matter I will return to shortly.

The Mother gave evidence next. I found her evidence to be a mixed bag. A lot of what she said to me was unlikely to be accurate given the documents available to me in the bundle. She has nothing positive to say about the Father which is not surprising given that they were at odds almost from the minute that he arrived in the UK.

I have little doubt in concluding that she has continually and repeatedly sought to make life difficult for the Father as he pursued contact with H. I find it hard to accept her evidence that the Father had failed to step up and fulfil the role of father to H. She criticised him for failing to commit to contact, failing to buy presents and send cards or provide money for H. The documents show repeated complaints by her to the police about the Father following their separation where he was warned off contacting her. His initial application to the Court was met by allegations of domestic abuse which required statements and a Scott Schedule to be produced, but before they could be considered the Mother had left unannounced for Pakistan taking H with her, a criminal offence, following which she told the Court through her lawyers that she did not intend to return. Her attempts to distance herself from that conduct were unimpressive.

Once she returned and a final order was made the Father was forced to apply to enforce the order. Her suggestion that she has no idea why the Father was forced to apply to enforce the order lacked substance.

I believe the Father when he tells me that he has had to commit extraordinary amounts of time and money to pursue his application to spend time with H. As is often the case in litigation things are not black and white. I cannot exclude the possibility that the Father was abusive to the Mother following their separation and whilst that abuse is not the subject of findings that I could properly make, I do accept that the Mother has always viewed the Father as pursuing a relationship with H to allow him to remain in the UK, and I suspect that has fuelled her reluctance to commit to his having a relationship with H.

The Mother’s cousin gave evidence next. The impression given by the Father in his evidence (and that of his brother) was that this cousin had been responsible for terminating his arrangements and that he bore some responsibility for the failure to restart arrangements. I found Mr O to be entirely straightforward. He told me that he had supervised some contacts at the end of the last set of proceedings but that the Father had terminated arrangements and had never sought for them to restart. He said that messages sent by the Father in March 2023 at C28 related to requests from the Father to sign documents to assist him in an immigration application.

The Father gave evidence next. As with the Mother, I found the Father’s evidence to be mixed. I am prepared to accept that he wants a relationship with H but there were aspects of his account that were deeply unimpressive and posed more questions than answers.

There can be little doubt that he committed to multiple applications and court hearings following H’s birth. He fought to have her returned from Pakistan and he fought for contact. He impressed Mrs Adams in the previous proceedings who wrote that he had shown ‘significant commitment’ to H.

The vagaries of the immigration system mean that I am often presented with arguments that a parent in the UK is using child arrangements as a vehicle for immigration purposes only. As I said repeatedly throughout the hearing, two things can be true. The Father may need a relationship with the child to retain his status in the UK whilst also wanting a relationship with that child. Further, arguments that the Father has committed to multiple sets of proceedings only takes matters so far. Status in the UK is often so prized that the commitment to the proceedings could equally be about a desire to retain UK status rather than a desire to have a relationship with a child.

I accept that the Father’s commitment to H, as noted by Mrs Adams in 2021, was because he genuinely wanted a relationship with her. The fact that this coincided with his immigration needs did not render his desire for a relationship non-existent.

The extent of his commitment, however, must be questioned. The Father’s evidence is that he was forced to fight over a number of years to have contact with H. He describes the Mother as being prepared to do anything to thwart his arrangements and he fought through proceedings with a guardian to broker an agreement in December 2021. He complains that the Mother then left for Pakistan immediately following that arrangement being agreed. That complaint appears, on its face, to be well-founded- the Mother left for Pakistan on 03 January 2022 taking H with her. She went for three months and did not get the Father’s permission despite his having parental responsibility for H. Once again, she failed to recognise his PR and committed a criminal offence by taking H out of the UK for more than a month without the Father’s permission and without the Court’s permission.

The problem with this complaint is that, on the Father’s own evidence, he had already paused his contact with H. He told me that after one or two sessions following the consent order in December 2021, he told Mr O that the contact should stop. Apparently, the weather was bad at the park where the contact was to take place and H was having difficulty with the contact. Instead of persevering and enjoying jumping in puddles, or hiding from the rain together, he gave up and suggested a pause. It is little wonder that the Mother does not believe that he is committed to contact. How could he expect that H would want to form a relationship with him if he was so inconsistent and gave up so easily? How does his decision to give up accord with his evidence that the Mother was so obstructive, and he had to fight for any contact? Mr O’s condemnation of the Father’s attitude to contact at that time was compelling- he supported the assertion that the Father was not demonstrating the sort of commitment that a father could be expected to show.

The Father’s evidence that he only wanted a short pause is difficult to accept. There is no compelling evidence of any contact from him to anyone within the Mother’s family seeking to reinstate contact following his decision to cease it in December 2021 or January 2022. Whilst he criticises the Mother’s decision to go to Pakistan, he had no idea that she was there because he was not pursuing his court ordered contact, having taken a pause. He describes some contact with the Mother whilst she was in Pakistan and says that she told him that he could see H when she returned but he appears to have made no efforts to find out when she was back. He could easily have messaged Mr O, but he did not.

When he was asked about this, he told me that he thought the Mother was still in Pakistan, that he was depressed through not seeing H and that he was concentrating on his criminal case that took place in August 2022. He accepted that he had taken no steps to continue his hard-won contact with H since agreeing to a pause. There was no enforcement application, no variation application, and no direct requests for contact to recommence. The medical evidence supporting his depression at that time is limited in its usefulness as it contains no analysis of the symptoms and effects of the condition. Many people function perfectly appropriately on anti-depressants.

The Father seeks to convince me that his desire to spend time with H is evidenced by his complaints to the authorities that his time was being frustrated, however the evidence around these efforts raises real suspicion that it was designed to support an immigration application as opposed to there being a genuine attempt to restart contact.

The Father relies on complaints to the local authority, complaints to the Court and complaints to Cafcass. It is notable that all those emails were sent around a two-week period in March 2023. At the same time, he suddenly made contact with Mr O again after months of no contact and asked him about restarting arrangements (on his account) or having documents signed (on Mr O’s account). At the same time H’s school received a visit out of the blue from the Father who apparently asked them to write him a letter. The emails he sent were all forwarded to his immigration advisors and at the end of March he received notice of the decision which refused his application under the rules but granted him the year’s status outside the rules. That letter referred to evidence that he had provided which suggested a contact with H in March 2023 which cannot have taken place on either party’s account, which he cannot explain.

The evidence suggests to me that the Father was not demonstrating the requisite commitment to H following his decision to pause contact. His flurry of activity was to support his immigration application. Once he got his status he spent 5 months during the next year in Pakistan. He told me that this was because his father was unwell, but those trips are inconsistent with his slew of complaints in March 2023 which he would have been unable to make good on should there have been the possibility of contact restarting at that time.

As far as my assessment of the Father’s motivation is concerned, Mr Din repeatedly expressed his concern that Mrs Adams relied on a view expressed to her by a probation officer that the Father’s motivation towards contact was for immigration purposes only. I made it clear to him, and I repeat the same in this judgment, that I place no weight on the untested view of an unnamed probation officer whose understanding of the immigration system is unknown and may very well be limited. Mrs Adams made it clear that the Father’s motivation over his immigration status is not determinative as far as her recommendations are concerned, and her recommendation would remain intact even were I to find that the Father was motivated to form a relationship with his daughter and not at all by his immigration status.

The indirect contact that he has exhibited to his evidence is lacking in content and engagement. There is no effort in those emails or ecards to engage with H. I appreciate that it is difficult to write to a child when you have no knowledge or information as to what they like and who they are, but in order to engage H the Father would have to provide much more substance, perhaps by trying to tell her more about himself and what he likes and seeking similar information in response from her. Again, these seem like the sort of easy-to-write emails that can be attached to immigration or family applications rather than correspondence that seeks to engage an estranged little girl.

I hold further concerns over the Father’s evidence around his conviction. He plainly does not accept his abusive behaviour and continues to blame the victim. He has developed no insight and has done no work to reduce his risk to women.

I have to consider the Welfare Checklist in reaching my decision.

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

Mrs Adams was told by H that she did not wish to see her father and she appeared to have very little recollection of him. H is only 6 years old. She is unlikely to understand the ramifications of the opinions that she expresses, and her views therefore should be accorded limited weight.

her physical, emotional and educational needs;

Mrs Adams is of the view that the Father is not sufficiently motivated to develop a consistent relationship with H and that this will be damaging for her in the long term. I agree. His actions from December 2021 cause me real concern.

the likely effect on her of any change in her circumstances;

H would be likely to be able to adapt to spending time with her Father however if the time was not consistent it would cause her emotional harm.

her age, sex, background and any characteristics of hers which the court considers relevant;

H is a young girl who would require consistent care from her caregivers.

any harm which she has suffered or is at risk of suffering;

This is the key consideration in determining this application. The harm to H in not permitting a direct relationship with her Father could be significant. It could result in identity issues in later life having been deprived of a direct relationship. In addition, those identity issues could be exacerbated by the knock-on effect of the Father having to leave the UK permanently.

The harm to H in permitting direct arrangements is likely to be worse. His inconsistency and lack of motivation would likely lead to equivalent identity issues from a father who fails to maintain his end of the bargain and cannot meet her emotional needs. The harm to H in requiring the Mother to support arrangements with a father who she fears is inconsistent, who she believes is motivated solely by immigration needs and who may have abused her and certainly has attacked another woman cannot be underestimated.

In addition, the Father’s lack of insight into his offending and the corresponding assessment of risk from probation means that the Cafcass recommendation would not be for contact outside of a professionally supervised environment. I accept that recommendation is well-founded and I also accept that long-term supervised contact can only be beneficial in a limited number of cases. Supervised contact should be a stepping stone where a parent is making their way through the cycle of change and could be expected to address their abusive behaviours. This father has not begun that journey despite his offence having taken place in 2019.

It is not an answer to say that the Local Authority have assessed his risk differently in respect of his brother’s children. I have no idea how they assessed the risk. It is difficult to imagine that they had the same information from probation that Mrs Adams and the Court have been provided with. In any event, the evidence on risk that I have heard is from Mrs Adams. It was well argued, thoughtful and compelling. Whether I would have formed a similar view of the Local Authority’s assessment is a moot point.

how capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs;

The Mother appears to be largely meeting H’s needs, although I am concerned at her failure to have promoted her identity needs as far as her father is concerned. Whilst I can understand a reluctance borne out of her experiences with the Father, the Mother needs to understand that H may have unmet needs caused by the Father’s absence from her life. Her repeated failure to respect his parental responsibility is a red flag.

I have already expressed my concerns at the Father’s inability to prioritise his daughter’s emotional needs in pausing the contact and then failing to follow it up.

Following the handing down of this judgment in draft form the Father’s counsel asked me to clarify what weight I had given to Mrs Adams’ view that indirect contact had not been passed on to H coupled with the fact that the Mother would remove H for extended periods from the UK. Throughout the judgment I had identified concerns that the Mother was failing to promote the Father with H and had admonished her from acting in such a way as to disregard the Father’s parental responsibility. The harm caused by her failures to promote and consult the Father is a factor I had already considered and made reference to in the judgment. It is not such that it tips the balance away from the recommendations of Mrs Adams who had already identified these causes of harm when making her recommendations. The Father is right, however, that these are examples of the Mother failing to meet H’s emotional needs.

the range of powers available to the court under this Act in the proceedings in question

This is not relevant to the assessment I have to undertake.

It is not appropriate, and not in line with H’s welfare needs, to require her to be subjected to, and her mother to support, supervised arrangements for an indeterminate period with a man who she has no recollection of, who is a perpetrator of abuse with no insight and no remorse, when he has been shown to be lacking in motivation. In all those respects I accept the recommendation of the Family Court Advisor.

The previous order for supported contact progressing to unsupervised arrangements is no longer supportable for the reasons I have identified.

The harm caused by preventing direct arrangements can be reduced by providing for indirect contact, although I would hope that the Father could spend more time crafting correspondence that could get H to engage.

I cannot stress enough the importance to H of the Mother ensuring that any correspondence received is shared with H. I have seen too many cases where children have broken their ties with mothers who have failed to present a positive image of an absent father and who have failed to pass on letters and cards. At some point H will become old enough to make her own enquiries of her father, and if he is able to demonstrate that he was there for her, and was sending correspondence that was not shared with her, there would be a real risk that she would blame her mother. The harm that would cause to H and the wider family would be disastrous and should be avoided at all costs. Mrs Adams’ report contains a road map for the Father in order that he can begin a journey towards direct arrangements.

I therefore vary the child arrangements order made on 20 December 2021 to provide for an order that H lives with the Mother, that there be no direct contact with the Father but that there is to be indirect contact by way of letters and cards every three months together with cards and presents at Eid, for her birthday and at Christmas if celebrated.

I will direct that a copy of the final order and this judgment be shared with the relevant local authority so that they may re-consider their risk assessment of the Father’s current living arrangements.