JE v TS (No.2: Welfare Determinations)

This judgment follows the final hearing of an application for a Child Arrangements Order brought by the father, JE, in respect of the child K, who was born in September 2020 and is therefore aged 4 years old. The respondent to the application is K’s mother, TS.

This judgment must be read in conjunction with the judgment handed down at the conclusion of a finding of fact hearing that took place on 28^th and 29^th November 2024, and published as JE v TS[2025] EWFC 77 (B).

The background to the proceedings and the circumstances that led the court to embark on fact finding are set out in that judgment, and I do not propose to repeat in detail what has already been said.

However, by way of a brief summary, the parties commenced a relationship in May 2016, and separated in July 2022. K is the only child of the parties’ relationship, although the father has two other children from an earlier relationship.

K has remained in the care of his mother and not spent time with his father since the end of the relationship. The mother made a complaint to the police about the father’s behaviour in the relationship, and the father was the subject of criminal charges that proceeded to trial before the Magistrates Court in February 2023. The father was acquitted of a single charge of controlling and coercive behaviour.

The father issued his application to the Family Court on 11^th September 2023. Following the finding of fact hearing, I made several findings in respect of the father’s behaviour towards the mother and K prior to the end of the relationship. To summarise, I made findings in respect of three categories of abuse.

First, I found that the father exhibited a pattern of coercive and controlling behaviour towards the mother during the relationship, and was financially abusive. His behaviour included:

As I conclude at paragraph 60 of my judgment, I am satisfied that these behaviours were intended to punish or frighten the mother and make her subordinate. The mother was left both emotionally and psychologically harmed because of the father’s actions, and although young, K was also a witness to this behaviour.

Second, I found that the father physically abused the mother on more than one occasion, including:

Third, I found that the father raped the mother by having sexual intercourse with her without her consent and against her express wishes on two occasions, the first in December 2021, and the second in June 2022 (paragraphs 122 to 140).

I also made the following findings:

Following the handing down of judgment on 3^rd January 2025, the court adjourned matters to obtain an addendum s.7 report from Miss P addressing the father’s application considering the findings made. In her report dated 28^th February 2025, she recommends that it would not be emotionally safe for either the mother or K for there to be anything other than indirect contact by way of gift, cards and letters three times per year and on special occasions.

In response to these recommendations and in advance of the Dispute Resolution Appointment listed on 24^th March 2025, the mother issued her own application for three specific orders as follows:

It was not possible to narrow the issues between the parties at the DRA, and the matter was listed for a contested final hearing with Miss P preparing a final addendum report dated 22nd April 2025 addressing the mother’s applications.

In respect of the primary issues to be determined at the final hearing, a summary of the parties’ positions is as follows:

The trial bundle included the parties witness statements, no less than five separate reports from Miss P, drug and alcohol test results in respect of the father, and select medical records. In addition to this, the mother, the father and Miss P all gave oral evidence. Both parties made submissions through counsel, and I record my gratitude for the helpful and measured approach taken to matters by both Miss Walker on behalf the father and Miss Rudd on behalf of the mother.

In light of the limited amount of time available for the court to prepare judgment at the conclusion of submissions and the range of issues to be determined, I reserved judgment to be handed down on the first available date convenient to the court, the parties, and counsel, namely 24^th June 2025.

Ordinarily, I would now proceed to set out the legal framework applicable to the case. However, given that each of the four applications before the court require consideration of specific points of law, I have decided it clearer to structure this judgment by first setting out a summary of the evidence, and then turning to each application and its legal framework in turn.

In his final statement dated 21st May 2025, the father makes it clear that he does not accept the findings made by the court and remains of the view that the mother fabricated the allegations. It is his view that the mother has made a conscious decision to erase him from K’s life, and is now using the proceedings to achieve this aim. He asserts that he is the victim of a “campaign of parental alienation”, and that the mother has “constantly lied to keep me from our son.”

The anger and bitterness felt by the father towards the mother is palpable. He states that the mother continues to control matters, as she did during the relationship: “she has controlled the narrative, she continues to weaponise K”. He determinedly ignores the central concerns identified in the finding of fact judgment, choosing instead to focus on the recent progress that he has made in reducing his alcohol intake, and how it is he who has been adversely affected by the proceedings. In his view, “the respondent is at pains to remind the court of the impact these proceedings have had on her, but she fails to recognise the impact they have had on me also.”

On the question of contact, the father considered that the involvement of professional supervisors would reduce the risk of the mother being “triggered”. If the court ordered indirect contact only, the father would eventually want to progress to unsupervised contact. In respect of the change of surname, the father believes that “it is not a matter of incorporating [the mother’s surname], but an issue of erasing [the father’s surname].” He confirmed that he would be agreeable to limits on the exercise of his parental responsibility in line with Miss P’s recommendations, but opposed the making of an order pursuant to s.91(14) for anything like the 11 years that she had suggested.

The father’s approach to his oral evidence was in keeping with the defiance of his witness statement. He stated that he considered himself to be the victim in the case, as it was impossible for him to accept the ‘false’ allegations. In response to being asked whether he accepted the mother had been emotionally and psychologically harmed by his behaviours, he responded that he “had read this”, but that “we’ve gone through court for years so would say both of us have been emotionally harmed”. The father was equally dismissive when asked whether K had suffered harm, stating that “he was only one and a half when I last knew him, before he was taken away from me”. In his view, he had taken responsibility for the arguments that took place in the relationship, whilst the mother had not.

The father accepted that he had not even attempted to contact the domestic abuse course provider suggested (with contact details being provided) by Miss P in her report dated 28^th February 2025, as he had preferred to undertake change through willpower alone. He told me that he had managed to work on himself in a “dramatic way”. He stated that he was on a two to three month waiting list for a counselling service, although this was not with domestic abuse work in mind.

The father denied having delayed providing the sample for his most recent alcohol testing with a view to skewing the results in his favour. When it was put to him that the court had set the date for the sample collection deliberately, he responded that he “felt there was no issue with the delay”. The father stated that he now accepted the findings of test results from January recording excessive alcohol consumption, results that he had disputed at the DRA on the basis that they might have been contaminated by the use of hair spray and deodorant.

The father was asked how he considered the mother might be affected by having to promote any contact with K. He accepted that there would be an impact, but remarked that “she’s having psychological issues, but I know she’s had those from a very young age”. When it was suggested that this was him once again attempting to denigrate the mother, he responded that he was “just pointing out facts”.

Turning to the change of name, the father denied that there had been discussions about giving K the mother’s surname when he was born. In the father’s words “He’s a [the father’s surname]. He was born a [the father’s surname]. He has [the father’s surname] brothers.” That said, he was agreeable to a double-barrelled surname.

Ultimately, I was left with the impression that the father remains preoccupied by his own grievances and an entirely misplaced sense of injustice. There was no hint of insight or reflection. He gave his evidence in precisely the same vein as at the finding of fact hearing, with elements of evasion, manipulation, and abusive tendencies.

The mother’s final statement is dated 2^nd May 2025. In setting out her opposition to indirect contact, she describes how “the anxiety and emotional strain it would create within our home would be ongoing. I would be feeling anxious and unsure as to whether the father would follow through, and I am extremely worried about the effect it would have on K if it did not.”

The mother sets out the effect that the proceedings have had on her in the following terms:

“Over the past three years, there have only been six months during which no active court proceedings were ongoing. The cumulative effect of these proceedings has significantly impacted every area of my life. I have experienced immense anxiety and panic attacks, and I have been required to take time off work as a result.”

The mother then details the efforts she is making to address her trauma, including seeking specialist domestic abuse support and counselling through the community mental health team. She describes having to rebuild her life, and how she believes that both she and K need a “period of respite and stability to recover and regain a sense of normality”.

In her oral evidence, the mother told the court that she had sought specific advice and support for K through his health visitor and GP. She described how K becomes greatly upset by loud and sudden noises, and requires significant reassurance before calming. Whilst he has not been the subject of any formal assessment or diagnosis, the health visitor has suggested that it might be developmental trauma. With this in mind, K has been referred to young person’s mental health services. The mother had also discussed play therapy with Rise, the domestic abuse support service, but it was not considered that he would benefit from this until he is a little older.

The mother stated that K has limited memories of time spent with his father, and does not recall his half-siblings. At times, K will occasionally ask about things that he might have done with his father, such as whether they had been to the beach together, and the mother will respond truthfully to give him a “rounded experience”. That said, the mother acknowledged that K is aware that the reason he does not see his father is because she had to protect herself on the day that they separated. When it was put to the mother that this risked creating a negative view of the father in K’s mind, she accepted that this was potentially the case. However, she stated that explaining the situation to K in such a way was the advice provided by a range of agencies, including social services and the organisation Cardiff Family Advice and Support. The mother stated that K had never questioned seeing his father, and appeared content in his understanding that they were a family of two.

The mother considered that indirect contact would become a protracted ordeal, starting in advance of taking K to a contact centre to receive whatever the father had sent. The mother believed that the build-up would lead to “questions and feelings” from K that she would then have to explore and manage. After receiving the contact, she was concerned about the prospect of having to manage K coming to terms with whatever he had learnt, something that she thought K would likely process again and again over the following weeks. The mother described living with the constant unknown as to when he might then and ask her questions. As she told the court “I am doing what I can to get me in the best place possible to parent K. Having constant anxiety about [contact] every 3 months does not give me time to move on from the relationship and work on ourselves so that we get to the point when maybe one day there could be contact”.

The mother took the view that it was better for K to continue as they currently were, with the father being discussed on K’s terms. The mother explained how “I don’t particularly want to do it, but I am aware of the importance of his identity. Sometimes I am able to put it beyond my thoughts. It does upset me having to talk about him [the father], or show him [K] photos, because they might be nice happy photos but I know what happened after the photo was taken.”

The mother was asked for her take on the father’s evidence to the court. She stated that it had left her even more worried, as it was clear he was not in a place to accept what had gone on, and does not recognise the harm caused or his ongoing anger towards her. In her view, the father is not in the place to have contact that would be in the best interests of K.

In respect of her application to change K’s name, the mother’s witness statement details her concerns that K will grow to feel confused and excluded by having a different surname to everybody else in his household (which currently includes the maternal grandparents). She states that she suggested the possibility of giving K her surname at birth, but that the father “dismissed this suggestion, laughed, and stated it was not an option.”

In addition to highlighting the practical difficulties of having different surnames, such as when travelling, the mother notes as follows:

“The relationship I had with the father was extremely abusive and I find that using K’s current surname can be emotionally triggering for me. I genuinely believe that changing K’s surname would be an important and positive step in helping K and me to heal and move forward as a unit. It would also reflect the reality of K’s life.”

In her oral evidence, the mother stated that the father’s surname was a “stab to the heart” and a constant reminder of the abuse that she suffered. She described the upset caused if somebody presumes that she is ‘Mrs JE’, as once occurred at the GP surgery.

In respect of her application to revoke the father’s parental responsibility, the mother sets out her agreement to the court instead imposing orders to limit the father’s ability to exercise it in real terms. In her view, this approach would “allow me to make decisions regarding K without being subjected to abuse and control from the father”.

Once again, I considered the mother to be an impressive witness in the difficult circumstances of the case. She was calm, composed, and dealt with each question put to her in a straightforward and open manner. I found her to be notably measured in her responses, making little reference to the serious findings made about the abuse that she suffered. I was left with the impression that she just wanted to be left alone to parent K and facilitate an understanding of his father in the way that she saw best as his primary carer. It was clear that the mother did not want either her or K to be in the situation that the father has put them in.

In her report dated 28^th February 2025, Miss P discounts the prospect of direct contact in the following terms:

“Given the findings made by the court in relation to domestic abuse, I cannot be sure at this stage that making any form of order for direct contact could be said to be in K’s best interests as there is a risk that K could be exposed to further domestic abuse incidents and this could impact on their emotional wellbeing. It is my view that K is also a victim of domestic abuse in his own right given his experiences of being exposed to domestic abuse…

It also does not appear to be emotionally safe for [the mother] if anything more than indirect contact was supported. There is a risk that if any direct contact were supported at this stage, it is likely to impact her ability to recover from her past traumas caused by the father and this would impact on her ability to parent. This would also indirectly impact on K as she is K’s sole carer.

It is also my view that given the serious findings made by the court, it would cause a significant emotional impact on mother should she be asked to promote indirect contact and share letters etc from Father. Should the court decide that indirect contact could be promoted to promote K’s identity, a third party such as Blossom or Swan contact centres could facilitate indirect contact between the father and K.”

Miss P does not address her recommendation for indirect contact in any further detail, either in this report or in a subsequent short addendum prepared on receipt of the transcript of the court’s judgment at the finding of fact hearing. Her conclusions simply record that she supports a Child Arrangements Order stipulating that K lives with his mother and has indirect contact (letters, gifts, and cards) with his father facilitated by a contact centre once every 3 months and on special occasions.

In respect of work to be undertaken by the father, Miss P concluded that he will benefit from a Respect accredited domestic abuse course so as to “help to increase his understanding of motivating factors in domestic abuse, reduce individual risk factors linked to domestic abuse and help him to develop pro-social relationship skills.” Miss P even provided the details and specific contact details (telephone and email) of the coordinator for Safer Merthyr Tydfil to allow the father to self-refer to an appropriate course.

In oral evidence, Miss P agreed with Miss Rudd that it was concerning that the father continues to deflect responsibility for his actions and seeks to portray himself as the victim of the mother. However, her view remained that indirect contact could be undertaken safely provided it went via a professional third party. Miss P focussed on the importance of indirect contact to K’s identity, but accepted that it would not be in K’s best interests if this led to the mother becoming distressed. On the assumption that the father did not undertake the work required, she considered that indirect contact might progress as cards and gifts for approximately 5 years until K turns 9, before progressing to letters. She considered that this would strike the right balance between protecting the mother and K from harm, whilst putting in place a ‘stepping stone’ for the future.

Turning away from contact and to the applications made by the mother, Miss P considers these in a separate written report dated 22^nd April 2025. Starting with the application for a change in name, Miss P sets out her opposition to the application with the following in mind:

In oral evidence, Miss P stated that K identified himself with reference to the father’s surname, although she was unable to say whether this constituted an emotional attachment to the name. However, she described K having a right to maintain his identity and to “understand his history”. In her words, "This was the name he was given at birth. Changing that will change his identity.”

In respect of the mother’s application to revoke the father’s parental responsibility, Miss P’s written report states as follows:

“…My enquiries have indicated that JE has shown commitment to K in a number of regards , he had a relationship with K when he and the mother lived together, He has made a court application in respect of reestablishing a relationship with K and he has participated and fully engaged in those court proceedings and he has been paying some child maintenance.

Whilst it is my view that revoking JE’s parental responsibility will be draconian, I do not believe that it would be in K’s best interest if JE’s parental responsibility is not constrained. I would be concerned with how JE might use his parental responsibility given the findings made by Court. The existence of unconstrained parental responsibility will give him access to medical and school records and he will need to be consulted in relation to important decisions, which he has not been party to for the past two years. It is my view that Father's continued full involvement in K’s life, even at the periphery would adversely affect the mother and indirectly impact on K.

It is therefore my view that Father’s parental responsibility should be restricted by means of recitals in the child arrangement order, a Prohibited Steps Order or Specific Issues Order.”

Finally, Miss P concluded that an order pursuant to s.91(14) is necessary.

“The findings made by the Court are very serious and likely to have caused harm to the mother, who is K’s primary care giver. It is my view that the mother requires protection against further trauma to help ensure that her parenting capacity is not impaired. It is my view that further court proceedings would be genuinely traumatic for the mother and indirectly impact on K.”

Miss P recommended that any order remain in place until “K is of an age whereby he will be able to make decisions with respect to his relationship with his father.” In her written report, she considers that this will likely be “when he is about 15 years of age.” In her oral evidence, she explained that she wanted to give the mother time to process her trauma, but accepted that she might be in a better position in potentially 2-3 years once she completed further therapy and counselling.

The court’s starting point is section 1(1) of the Children Act 1989. When the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration.

The court’s task is to undertake a global, holistic, comparative evaluation of welfare issues to determine what is in the child’s best interests. To help in this task, the court has regard to section 1(3) of the Children Act 1989, more commonly known as the ‘welfare checklist’. I do not propose to set out all the particulars of the welfare checklist here, although they are lodged at the forefront of my mind when considering this matter. I note that I do not need to consider or give equal weight to each individual factor.

The court also has regard to section 1(2A) of the Children Act 1989, which creates a presumption, unless the contrary is shown, that involvement of a parent in the life of the child will further the child’s welfare. Section 1(2B) defines involvement as “involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

Given the findings of domestic abuse, the court must engage with the provisions of Practice Direction 12J of the Family Procedure Rules, and in particular paragraphs 35 to 39. The following is a summary of the core principles to be applied.

There is an extensive body of case law to which the court might have regard to when considering whether an order for contact should be made. Miss Walker referred me to M (Children) [2017] EWCA Civ 2164 and the following paragraph:

“49.

What is meant by welfare and how is it to be assessed? Again, Re G provides the answers. We start with this (Re G, paras 26, 27): “26. ‘Welfare’… extends to and embraces everything that relates to the child’s development as a human being and to the child’s present and future life as a human being. The judge must consider the child’s welfare now, throughout the remainder of the child’s minority, and into and through adulthood.”

In addition, I have also considered Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, where Munby LJ (as he then was) held that ECtHR case-law had established that [paragraph 47]:

Finally, when asked to determine an application with a ‘no contact’ order, the court must ensure that it does not exercise its discretion in a way that is incompatible with the parties’ rights to a private and family life pursuant to Article 8 of the European Convention of Human Rights: Re A[2013] EWCA Civ 1104. The court must consider whether it is a necessary or proportionate interference with the father and the child’s rights to refuse contact in the circumstances of the case.

The father abused the mother in the most abhorrent of ways. K was witness to elements of his father’s behaviour and is also a victim of abuse.

The harm that the mother suffered was significant and is enduring. I accept her evidence that she is still trying to piece her life back together. She has been left anxious and uncertain, suffers panic attacks, and is forced to take time off work. A happier future now depends on her having to relive and address her trauma through counselling and therapy. There will be no quick fix. In all reality, the impact of the father’s abuse will haunt her for years to come.

K is young and the effects of being exposed to his father’s abusive behaviours are still unknown. There is currently no evidential basis on which to conclude that he too has been left with longstanding difficulties, although I note that health professionals are sufficiently concerned about the prospect of developmental trauma to make referrals to support agencies ahead of time. In any event, K will not be immune from the suffering of his primary carer. If the mother’s emotional wellbeing is compromised, it is likely that her capacity to parent will also be undermined.

The risk that the father poses is undiminished by the passage of time. Whilst I acknowledge that he appears to have taken recent steps to address his alcohol intake, he remains unable or unwilling to accept responsibility for his actions. He is devoid of insight into the harm that he has caused and is lacks any motivation to address the concerns of the court. Instead, he has chosen to wage war against the mother. He angrily blames her for his predicament and continues to use the proceedings as an opportunity to denigrate and disparage. The father’s attempt to reframe of himself as a victim of ‘parental alienation’ came with an air of inevitability.

That said, it remains necessary for me to consider carefully the benefits to K of having some form of contact with his father on an indirect basis. Miss P’s focus was the importance of this to K’s identity, but she did not necessarily expand on what she meant by this. I take it to mean that K will better understand that he is the product of two people, and that he will have inherited certain characteristics, as intangible as they might be, from both.

In addition, the act of receiving regular correspondence has the potential to create and maintain a direct link with the one father that K will ever have. As it stands, this would be the only connection that K will have to his paternal family. K will learn of his father’s interests, perspectives, and personality, all of which may benefit him emotionally and assist him to understand his place in the world. If this is not fostered now, it might be harder to cultivate in the years to come.

It is also correct that regular indirect contact is the route through which K is most likely to receive a positive impression of his father, which in turn may promote his self-esteem and sense of self-worth. That is not to criticise the mother or suggest that she would look to seed negativity, but instead acknowledges the reality that it will be difficult for her to paint the father in a positive light given what she has experienced. For the avoidance of doubt, I fully accept the evidence that the mother has to date sought to support K’s understanding of his father in a balanced, sympathetic, and child focussed manner.

Against these points, the court must balance the risk of harm that even indirect contact poses to K and the mother. In this regard, I remind myself of the view expressed by Miss P, namely that “it would cause a significant emotional impact on mother should she be asked to promote indirect contact and share letters etc from Father”. This is in the context of a recognition that the mother’s need for respite is so acute that “there is a risk that if any direct contact were supported at this stage, it is likely to impact her ability to recover from her past traumas caused by the father and this would impact on her ability to parent”. Much the same is said in the context of Miss P’s support for an order pursuant to section 91(14).

I agree with Miss P’s assessment of the mother’s vulnerability and how this might compromise her ability to care for K when placed under emotional stress. However, I struggle to reconcile this assessment with Miss P’s ultimate conclusion that it would be possible to insulate the mother and K from harm by utilising a contact centre to facilitate any indirect contact that takes place. Such an approach appears to assume that even contact limited to cards and gifts takes place in a vacuum. It patently does not, and I am forced to conclude that Miss P has not properly engaged with the reality of the situation.

As the mother states, her ordeal would commence in advance of taking K to the centre to collect the contact. She will ask herself a number of questions. What if the father fails to send something? What if he says something inappropriate? How is K to be prepared, and how is she to explore and manage the feelings that he might have? Even before she gets K to the door, she will be forced to confront the prospect of her abuser again and again.

The aftermath will bring its own challenges. Again, the mother is wise enough to see these on the horizon. How does she assist K to come to terms with the contents of what he had received? How does she support him if he wants to reply? What if K takes his time to process his feelings, and only starts asking questions a week or a month after the event? How is she to support a positive narrative that is in complete conflict with her own lived experiences? She would be forced to endure this cycle of anxiety and uncertainty every three months (plus special occasions). It is not reasonable to expect the mother to navigate this and retain the emotional availability necessary to meet K’s needs.

A further complicating issue is the position that the father has adopted in relation to the findings of the court. The father’s engrained narrative is that the situation has been orchestrated by the mother. It appears that there is no prospect of him availing himself to meaningful perpetrator work in the foreseeable future. The court is not being asked to consider indirect contact for a limited duration whilst the father addresses the risk that he poses. The problem is not short-term or transient. It is difficult to see how indefinite indirect contact, starting at age 4, is going to serve K’s identity needs in a meaningful way.

The court must also consider medium to long-term considerations, including K growing more curious about why it is that he is unable to see his father. What will K come to think if he learns that he was forced by the court to engage in even indirect contact with a father who always refused to accept responsibility for treating his mother in the way that he did? To my mind, this should be his decision to take at a time when he is mature enough to do so, rather than one being imposed on him in a way that will set the tone for years to come. I consider that there is a real risk of future emotional harm being visited upon him by such an approach.

Having considered and balanced the benefits and the risks inherent in indirect contact, I am of the view that this is a case in which exceptional circumstances exist to justify an order that there should be no contact between K and the father. The exceptionality comes from the grave nature of the findings made, the extent of the harm caused, and the father’s refusal to take responsibility.

I do not take this decision lightly. However, I am entirely satisfied that the mother would be exposed to an unmanageable and enduring risk of further emotional harm if she is required to facilitate even indirect contact, regardless of whether this goes via a contact centre. With PD12J in mind, I do not consider that that the mother’s emotional safety can be secured before, during and after contact, and I find it likely that K would also be harmed by reason of the effect on his mother.

Above all else, K needs security and stability in the care of his mother. The mother’s effort and success in providing this, despite everything that she has been through, must not be undermined. As the mother states, she and K now need a period of respite to recover and regain a sense of normality. In the circumstances, any order for contact would amount to court sanctioned abuse of the mother and be manifestly contrary to K’s welfare interests.

I am not satisfied that the father is currently motivated by a desire to promote the best interests of K. I have regard to the father’s refusal to acknowledge or act on the court’s findings, a repetitive focus on his own grievances and needs, and his determined effort to denigrate the mother. I find that the father’s approach to the litigation and his evidence has caused further harm to the mother.

I acknowledge Miss P’s legitimate concerns about K’s emotional need for a rounded sense of identity and how this will be promoted in the absence of contact. However, I consider that she has attached undue weight to this issue when balancing the range of competing considerations. In addition, she has failed to properly reflect to points:

I have considered whether there are any measures that might have precluded the outcome that I have reached. Had the father shown motivation to engage in meaningful therapeutic work, such as a domestic violence perpetrators course, then the court could have considered this as something for the medium term at least. However, the reality is that not even this would have been an available option as things stand given the father’s continued denials of abusive behaviour.

For now, the involvement of the father in K’s life will not further his welfare. In all the circumstances, I conclude that it is both necessary and a proportionate interference with the father’s Article 8 rights to refuse contact to secure the health and safety of the mother and K.

Accordingly, I make the following orders on the father’s application for a child arrangements order:

Paragraph 37A of FPR PD12J provides that in every case where a finding of domestic abuse is made, the court should consider whether an order under section 91(14) of the Children Act 1989 would be appropriate. It makes plain that section 91(14) orders are available to protect a victim of domestic abuse where a further application would constitute or continue domestic abuse.

I shall not rehearse the text of section 91(14), but note that it must now be read in conjunction with the amendments set out in section 91A. Section 91A(2) makes it clear that the court may consider making an order pursuant to section 91(14) in circumstances where the making of a further application would put the child or another relevant individual at risk of harm.

I have had regard to the two authorities assisting the court with regards to the practice of section 91(14), Re P [1999] 2 FLR 3 CA, and Re A (Supervised Contact: Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749. The latter includes observations about the changing nature of private law applications and the considerable scope for the greater use of section 91(14) in the interests of the child.

In terms of the duration of any section 91(14) order, I note the assistance provided by paragraph 4.1 of FPR PD12Q.

“4.1.

Sections 91(14) and 91A are silent on the duration of a section 91(14) order. The court therefore has a discretion as to the appropriate duration of the order. Any time limit imposed should be proportionate to the harm it is seeking to avoid. If the court decides to make a section 91(14) order, the court should explain its reasons for the duration ordered.”

The mother and the father agree that an order should be made preventing further applications being made by the father without leave for a defined period. The issue for the court’s determination is narrow – the father proposes that an order be in force for two years, whereas the mother proposes three. Both parties agree that Miss P’s somewhat arbitrary recommendation that an order should last until K turns 15 is disproportionate and unsustainable.

I accept the mother’s evidence of the cumulative effect of the near back-to-back criminal and then family proceedings. I also note Miss P’s conclusion that further court proceedings would be “genuinely traumatic for the mother and indirectly impact on K.” I agree that the mother and K now require a period of calm and stability in which to breathe and heal. When the court also considers the father’s determined refusal to accept responsibility for his actions, this is plainly a case in which it is proportionate to deploy the protective filter of a section 91(14) order.

The father considers that two years is a sufficient period for both parents to undertake work to address their individual needs. From his perspective, he has in mind the counselling service in respect of which he currently sitting on a two to three month waiting list. The mother’s case for three years is predicated on K being unable to start play therapy until he turns 7, and the anticipated four to six month delay for an initial assessment to establish her own precise therapeutic needs.

In reaching a conclusion, I have in mind my assessment of where the parties currently stand with regards to the abuse in the relationship, my reasoning for refusing contact between K and his father, and the real harm that would be caused to the mother and K if the father makes an application before he is ready to do so.

I consider that three years from now is the very earliest point at which the court might consider it realistic for both parents to have moved on from their current circumstances. This will have the following benefits:

Accordingly, I order that the father shall be prevented from making further applications for an order pursuant to section 8 of the Children Act 1989 without the leave of the court until the 25^th of June 2028. I also direct that no application for leave shall be served on the mother until the court has made an initial determination of its merits. Pursuant to paragraph 3.6(d) of PD12Q, the court may make such determination without an oral hearing if it considers it appropriate in the all the circumstances.

The legal framework governing such an application is that summarised by MacDonald J in D v E (Termination of Parental Responsibility) [2021] EWFC 37:

“30.

Subsequent to the decision of the House of Lords in Dawson v Wearmouth, the Court of Appeal in Re W (A Child) (Illegitimate Child: Change of Surname), Re A (A Child), Re B (Children) [2001] Fam 1, sub nom Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930 at [9] held that the following factors will fall for consideration on an application seeking to change the surname of a child, stressing that such factors are only guidelines which do not purport to be exhaustive, with each falling to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing:

i)

On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria.

ii)

Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

iii)

The relevant considerations should include factors which may arise in the future as well as the present situation.

iv)

Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight.

v)

The reasons for an earlier unilateral decision to change a child's name may be relevant.

vi)

Any changes of circumstances of the child since the original registration may be relevant.

vii)

In the case of a child whose parents were married to each other, the fact of the marriage is important and there have to be strong reasons to change the name from the father's surname if the child was so registered.

viii)

Where the child's parents are not married to each other, the mother has control over registration and, within this context, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.”

The father objects to the mother’s application and makes the following points:

In respect of point (f) above, I note that Miss P’s opposition to changing K’s surname also centred on questions of identity. I accept her concern that K may find it confusing and struggle to adapt to a new surname, but disagree with her assessment that allowing a change to the mother’s surname is tantamount to the father being “effectively removed from his life”. A change may well result in additional distance in the connection between K and his paternal heritage, which is undoubtedly an important consideration, but that is not necessarily determinative of the link. As I have already described, I am confident that the mother will continue to promote K’s understanding of his father in a way that reflects the circumstances.

I also do not accept the contention that the mother’s arguments in support of her application have waivered or developed over time. The mother’s reference to the emotional burden associated with K’s surname is reflected in her discussions with Miss P, her written evidence, and her oral testimony. That the mother only considered it appropriate make the application upon receipt of Miss P’s report in March is neither telling nor surprising. For one, the report would have inevitably focussed the mother’s mind as to possibility of a long term link to the father. Moreover, the report laid bare the father’s ongoing anger and bitterness towards her, and the reality that his abusive tendencies remained.

I repeat again, this is not a case in which it might be said that the mother has the aim of distancing K from his father as part of some ongoing parental conflict or attempted alienation. I am satisfied that the mother is genuinely motivated by a desire to move on and protect herself and K from risk of further harm.

Whilst I acknowledge that the court should have particular regard to K’s registered surname in circumstances where his relationship with his father is to be so limited, and that his current surname represents an important link to his paternal heritage and identity, I have reached the conclusion that it is in K’s welfare interest to permit the change of name to that of his mother only for the following reasons:

I have considered, as both the father and Miss P suggest, the concept of a double barrelled surname. However, retaining the father’s surname in any capacity fails to recognise the principal issue or address the concerns outlined above. It is not a question of perception or equal representation, rather the need to close off an avenue for further distress and harm.

For all these reasons, I consider it in K’s welfare interests that an order be made providing that he is known by the mother’s surname.

The court was informed at the outset of the hearing that the parties had agreed to a series of recitals and orders that had the effect of restricting the father’s ability to exercise his parental responsibility in any meaningful way. Although the wording of each may be refined, they essentially provide for the following:

I note that this approach followed the recommendations of Miss P.

That said, the mother did not seek to withdraw her application for an order, and invited the court to consider whether merely limiting the father’s parental responsibility was the correct approach in the circumstances of the case.

Given the measure of agreement, I do not propose to engage in a lengthy discourse of the applicable legal principles. I again refer to the judgment of MacDonald J in D v E (Termination of Parental Responsibility) [2021] EWFC 37, who summarises the law and factors to be considered from paragraphs 31 to 35.

In short, when deciding whether to terminate a father’s parental responsibility pursuant to s.4(2A) of the Children Act 1989, the child’s welfare is the court’s paramount consideration. The court is not required to consider the factors of the welfare checklist, but it is likely to be helpful to do so. There is no presumption of continuance over termination, and the court is bound to bear in mind evidence of attachment and the degree of commitment that the father has shown to his child. The significance of the parenthood of an unmarried father should not be under estimated, and the court should have regard to the shared nature of parental responsibility when the same is conferred on both parents.

In the circumstances, I am satisfied that the recitals and orders agreed between the parties strike the right balance between upholding the father’s Article 8 rights without disproportionate interference, and the need to secure K’s welfare.

Leaving the father’s parental responsibility unfettered would fail to reflect the harm that he has caused in the past, or the risk that he will cause further harm in the future. On the other hand, K is just 4 years old, and notwithstanding the manifest deficiencies of the father as highlighted in this judgment, there remains an opportunity for a relationship to be established whilst he is a child (subject to the significant changes required as described above). Such a conclusion is consistent with the court’s determination that an order pursuant to s.91(14) ought only to be place for a period of three years in the first instance.

The agreed suite of orders and recitals ensures that the mother can proceed to take important decisions with regards to K without the threat of routine influence or disruption from the father. I find it persuasive that the mother herself considers this to be an appropriate level of safeguarding.

An order revoking parental responsibility in circumstances such as these ought not to be considered, as Miss P described, ‘draconian’. There is plainly an arguable case that it is proportionate to remove parental responsibility where a father has no contact with the child concerned, has caused significant and enduring harm to the child’s mother, does not accept any of the court’s findings, and where the father’s continued involvement in the child’s life risks the mother and the child’s emotional safety. That the mother has not sought to press the court for an order is entirely in keeping with her measured approach towards the father and his role in K’s life. I appreciate that this will go unheeded, but the father would do well to reflect on this.

I make the following orders: