K v R & Ors

The Court is concerned with a girl born [2022], and a girl born [2023]. They are the children of the applicant father and the mother, and the grandchildren of the second and third respondents. It is the welfare of the children which is the Court’s paramount consideration. It is obvious from everything that I have heard and read that these little girls are very much loved by their parents and grandparents in equal measure.

The matter comes before the Court today in respect of two applications, the first in time is that of the father who on 10 May 2024 applied for a child arrangements order to determine the lives with and spend time arrangements. There were associated applications in relation to schooling, passports, birth certificates and medical treatment, but I am told that those, thankfully, have been resolved and that the only matter the Court has to determine today is that in respect of the father’s application for the contact and lives with arrangements.

The second application is made by the paternal grandparents who had made an application for a child arrangements order on 27 June 2024. They were granted leave to pursue that application on 3 July 2024.

The current arrangements as far as the father’s contact is concerned is that this takes place from a Tuesday overnight to Wednesday and from a Friday overnight to Saturday, in effect therefore two nights and four days. The father seeks an incremental increase to eventually achieve an equal split of time on a five two, two five basis. That is opposed by the mother. She is opposed to any increase in the current contact arrangements.

As far as the grandparents’ contact is concerned, this is occurring and the mother does not object to contact occurring between them and the children. The grandparents say that they wish for some consistency and clarity in the contact arrangements and seek to see the children on a Tuesday from 12pm to 6pm weekly, and alternative Saturdays from 12pm to 6pm. They wish this contact to take place pursuant to an order and only on occasions when the children would normally be in the care of their father but when he is out of the jurisdiction for work purposes.

That is the essence of the dispute the Court has to decide today and in so doing the Court has not heard any oral evidence from the parties.

At the last case management hearing before Deputy District Judge Jenkins on 10 September 2024, it was agreed that, there being no safeguarding concerns in respect of any of the parties, the matter would proceed today on the basis of submissions only. At the commencement of this hearing, I ascertained from the parties that they were content for the hearing to proceed on that basis, and they confirmed that they were.

Today, the applicant has been represented by Ms Porter-Phillips, the mother appeared in person with the assistance of a McKenzie Friend, and the respondent grandparents were represented by Mr Rogan. Submissions were made to the Court on behalf of and by each of the parties.

In reaching my decision, I confirm that I have also read and taken into consideration the bundle of documents produced in this case which runs to 241 pages. That bundle includes statements and addendum statements from the parties, position statements filed on behalf of the parties, the Cafcass safeguarding letter, the applications and other relevant documents. I have also had regard to the updating position statement filed by the mother yesterday in response to the position statement from the grandparents.

At the conclusion of the submissions, the Court adjourned the matter for a short while to enable it to consider what has been said today and in order to come to a considered judgment.

Before going into the positions of the parties in slightly greater detail, it would be helpful to set out some background.

The applicant father is 41 years of age. He lives in [redacted]. He has parental responsibility for the children. The mother is 38 years of age and lives in [redacted]. The paternal grandparents are 74 and 71 years old respectively, and they also live in [redacted].

The parties’ relationship came to an end in April of this year. The parties make allegations against each other in relation to their behaviour, but the Court has previously determined that these do not warrant any further investigation given that the principle of contact is not in issue and that neither party raises the behaviour of the other as a bar to contact.

One of the slightly unusual features of this case is that the father is what can best be described as a seafarer and has until recently been the captain of super yachts working six months a year, six to eight weeks on and six to eight weeks off at a time. This undoubtedly has caused some difficulties with contact arrangements that many other families would not encounter. The father has now changed his employment, I am told, so that he is not as rigorously tied into a particular working commitment. However, it remains the case that he will still have to spend 40 weeks a year at sea in order to retain his licence, although he anticipates that he will be away for shorter periods of time, likely to be two, three or four weeks at a time maximum. Save for any contact that the court orders as far as the grandparents are concerned, it is agreed between the parties that the children should be with the mother when the father is away working.

Although there was some contact post-separation, this ceased in March of this year which led to this application. There is a dispute between the parties as to the exact events that led to this situation, but I do not intend to go into that now. Indeed, as a mark of my general approach to this case I am more concerned about the future rather than what has gone on in the past. Whilst one always has to have regard to what has gone on in the past, this cannot and should not be ignored but the focus of this hearing and these parents has to be in the welfare interests of their children the future.

The fact that there is acrimony between the mother and the father and the mother and the grandparents is a fact. There is nothing I can do about that. The Court must bear this in mind and essentially work around that. It has to be that adult issues should not get in the way of the welfare of these children and their arrangements.

I first heard submissions on behalf of the father. Those were produced in writing by Ms Porter-Phillips on his behalf. The mother was provided with a copy on the morning of the hearing and was afforded an opportunity to consider them. It is the father’s position that the mother does not meaningfully promote contact. On his behalf it is said that he has been patient with regards to obtaining and progressing contact and that notwithstanding previous agreements with regards to contact these have not been adhered to by the mother. He has not issued any application for enforcement as it is his view that this would not be in the best interests of the children, and he disputes the overall impression that the mother gives that she is positive and supportive on contact and an extension to that contact. He says it is the mother’s anxiety about the children being away from her that leads her to act the way that she does. He has gained the impression that the mother has formed the view that she is the only parent with a significant attachment to the children and takes the view that this assessment is wrong. It is his view that whilst the mother may say the right things and gives the impression that she is promoting contact, that her actions on the ground contradict this. It is his view that the Court should carry out a holistic evaluation of the welfare checklist in coming to its conclusion and he is unable to identify a good reason as to why contact should not progress.

His proposals are set out at pages 116-117 of the bundle. He seeks the establishment of the five two, two five split next year. On his behalf it is said that this is his ideal, but he will work with whatever timetable is set by the Court. This seems to be a sensible and child focussed approach. The bottom line, if I can put it that way, for the father is that contact should increase and that this should be embodied in the terms of an order.

I next heard brief submissions on behalf of the grandparents. On their behalf Mr Rogan had also produced a position statement which was provided to the mother yesterday. On their behalf it was submitted that notwithstanding the provision for a round table meeting in the hope that the parties would be able to agree contact going forward, this unfortunately has not been the case. Mr Rogan reminded the Court that the grandparents already spend time with the children. Indeed, it is submitted on their behalf that the mother does not object to the grandparents spending time with the children in principle, but that she is opposed to the Court prescribing in an order the amount of that time. He acknowledged that there was some hostility between the grandparents and the mother, but he reminded the Court that the Court should focus on the children’s welfare and that adult issues should not interfere with this.

On behalf of the grandparents it was confirmed that they are not in effect seeking to take time away from the mother, but they are seeking an order for contact on a Tuesday and Saturday from 12pm to 6pm when the father is away for work times, those being times when under the father’s proposals the father would have the children with him in any event.

It was acknowledged that the mother and the grandparents have a poor relationship, but I was told that the grandparents are willing to work on this. There are no safeguarding concerns as far as the grandparents are concerned. On their behalf it was submitted that a resident parent’s hostility to grandparent contact is not a sufficient reason in itself to prevent that contact where there are factors in favour of that contact.

After a short break in order to enable the mother to consider what she had heard, I then heard submissions from her assisted by her McKenzie Friend. She wished to make it clear to the Court that she did respect and would want to promote the children’s contact with their father, and she disputes what she says is an ongoing narrative pursued by the father that she does not. She told me that she is focussed on the happiness of the girls and says that this is fundamental to everything that she does. She says that her position is not about her but is about the children. She pointed out to me that there was now more contact with the father than there ever has been before and that she has made compromises where she has felt able to do so. She points to what she describes as the children’s distress after contact and says that it is the need to manage this that is behind her position. She confirmed that she was opposed to any increase in contact at all. She pointed out that consecutive overnight contacts had not yet been tried. She found the whole process of these proceedings tiring and draining and she told me that she was left worrying that this was not fair. She confirmed that special occasions would always be shared with the father and is concerned that her voice and her concerns are being lost in these proceedings.

As the parents are not able to agree then it is for the Court to make a decision. It is always regrettable in these situations that the parents are asking someone who does not know their children to make the decisions that they should be making. In coming to my decision, I do of course bear in mind that the welfare of the children is my paramount consideration and that I must have regard to those matters set out in section 1 of the Children Act 1989, commonly referred to as the welfare checklist.

I do approach this matter holistically as encouraged to do so by Ms Porter-Phillips. The Court stands back and considers what it has heard and read and makes a decision which it considers to be in the best welfare interests of the children.

Having done that I come to the conclusion that there is no good reason as to why the Court should not make the orders that progress the father’s contact in line with his proposals and also makes an order for contact as requested by the paternal grandparents. I come to these conclusions for various reasons. There are no safeguarding issues engaged in these applications nor are there any particular welfare considerations. The progression of contact between parents to a situation whereby in the absence of a good and sustainable reason to the contrary there is a reasonable division of time between those parents is an entirely natural occurrence and is one which is very common in those cases seen in the Family Courts.

Whilst there is undoubted acrimony between the parents in this case, that is not and cannot be a good reason to justify the stifling of ongoing contact. The adult issues should not get in the way. There is a presumption of contact and there are no limits set on that presumption. It is not a question of what is fair between the parties, but rather it is a question of what is in the best welfare interests of the children. It has to be, in my judgment, in the best welfare interests of the children to have as much contact with each parent as they can in all the circumstances.

I do gain the impression that the mother is perhaps overly anxious about the effect that contact has on the children. However, this has not led her to the conclusion that contact should not happen for that reason. I take her assertion on face value that she is willing to promote contact. It is entirely natural and normal in the experience of this Court for children to be anxious and unsettled by changes to contact arrangements. It is also the experience of this Court that that anxiety and restlessness soon settles once children are in an established routine. It will no doubt be the case until a final regular pattern is established at Easter, but this is not something out of the ordinary and it is not something that the mother should use to justify any restriction on contact.

The mother’s underlying view is that extensive time with the father is “causing the children to have damage to the one secure attachment relationship that they have which is myself.” This perhaps goes some way to explaining her current position, but the welfare interests of these children demand that the mother promote contact with the father to the extent that she is not the only one secure attachment relationship they have. It is in my judgment in their best welfare interests for them to have a secure attachment with both parties.

The father’s proposals do, in my judgment, represent a gradual increase. The change to the working pattern of the father will undoubtedly help whereas in the past it has perhaps been a hindrance. This is positive. Previous contact has been inconsistent and largely dictated by the mother. I agree with the submission made on behalf of the father that he can and is able to have extensive time with his children and that this needs to be incorporated in the body of a Court order. I again accept the submission made on behalf of the father that his change of employment has enabled him to be more available for the children and that it provides more stability and that the father has what is described as a dependable network to assist him in caring for the children in his absence. Again, as submitted on behalf of the father, it is clear that the children love their father and have a positive time when they are with him, and this is to be encouraged.

It is my view that in some part the difficulty lies with the mother being unable or unwilling to emotionally invest and support that progression of contact with the children. This is not well evidenced nor is it a justifiable reason to delay progression of contact, but I understand her position and why she says what she does.

Having made these observations, I step back and consider the welfare checklist. The children are too young to ascertain from them their wishes and feelings. Their physical, emotional and educational needs will not be interfered with by this decision. As far as the likely effect on them of any change in circumstances is concerned, there will of course be a change to their daily arrangements, but they are young, and they are already accustomed to spending time with both their parents in both homes. Matters with regards to their sex, ages, background or other characteristics which the Court considers relevant are not identifiable. With regard to harm which they have suffered or are at risk of suffering I am not satisfied that the children are suffering any harm, nor will they be by the proposed arrangements, but they are at risk of suffering serious emotional harm if the disputes and acrimony between the parents continue and the children are continually are exposed to it. Both parents are capable, in my judgment and there is no suggestion otherwise, of providing their care.

For those reasons therefore the Court will make an order in line with the father’s proposals for the progression of contact. I will canvas special occasions Christmas etc., once I have finished delivering this judgment.

It is also clear to me that the order should be expressed as a joint lives with order. There is no particular magic to that phrase and a joint lives with order does not add or detract from the parental responsibility which the parents share. I think it is important in this case that it emphasises that both parents have equal rights and the views and perspectives of one parent do not diminish or extinguish the other. A joint lives with order will reflect that the children are spending a significant amount of time with each parent, and that reflects what will be happening on the ground.

As far as the grandparents’ application is concerned, the welfare principle also applies. I can deal with this very shortly.

The mother is not opposed to the children having contact with the paternal grandparents. She puts forward no reason as to why this should not happen, save for the acrimony that existed between them. It is in my judgment in the best welfare interests of the children for them to have regular contact with the grandparents and that this is not frustrated by the mother exercising her parental control in denying that contact for whatever reason. I cannot deduce any good reasons as to why that contact should not take place.

It is of course the grandparents’ position that their contact is only to take place when the father would ordinarily have the children, so it is not the position that they are taking away any contact time from the mother. They are used to seeing their grandchildren and it is in many ways in the best welfare interests of the children to see paternal family during periods when the father is away.

I conclude that it is, therefore, in the best welfare interests of the children to have contact with the paternal grandparents and given the difficulties that exist between the mother and the paternal grandparents, the Court cannot have any confidence that contact will take place unless it is embodied in the terms of a Court order. I am told that the grandparents are amenable to a stepped arrangement, and this can no doubt be the subject of further discussion.

For those reasons therefore the Court makes the orders in relation to the progression of contact as requested by the father and a contact order as requested by the paternal grandparents and I will now explore the finer details of that order.