MZA v FHB (No 3) (private law - welfare judgment)

I continue to be concerned with J, who is two months away from his tenth birthday, and his sister K, who is nearly seven.

Their parents were married in June 2014. They separated in January 2022 after the father physically assaulted the mother at the family home.

At this final hearing in proceedings brought under the Children Act 1989, I am asked to determine a number of questions concerning the welfare and upbringing of the children, as follows:

On 30 July 2024 I handed down judgment following a fact-finding hearing. I found that during the parties’ marriage and after their separation, the father perpetrated serious domestic abuse against the mother.

Both the mother and children were victims of the abuse. The children suffered harm directly and suffered and/or were at risk of physical, psychological and emotional harm as a result of witnessing the father physically and verbally abusing the mother, and from living in a home environment in which the father’s behaviour towards the mother was controlling, physically and psychologically harmful, impacting all aspects of her life.

During the final hearing, the totality of the conclusions I reached were frequently referred to in the singular; ‘the findings’. While it may be convenient to group the Court’s conclusions on the evidence in this way, it is euphemistic. It draws a veil over the exact nature of those findings, which is material to hold in mind as the Court determines what, if any, orders are required to meet the children’s welfare.

For that reason, at the outset of this judgment, it is necessary that I set out each and every one of the findings made, collated by mother’s previous counsel Miss Chaudhry.

Pausing for a moment, I rehearse what I said in my judgment about the incident on 21 October 2021, to give context to the findings around the father’s use of videoing. From paragraph 113:

I made two specific further findings of using video recordings in a way that constituted emotional and psychological abuse:

For the avoidance of doubt, the finding was not limited to these specific incidents but was that the father used video recordings ‘repeatedly’ in this way throughout the relevant period.

The remaining findings in respect of emotional and psychological abuse are as follows:

The father’s application for permission to appeal my findings was refused. The Court proceeds on the basis that what has been found as a fact, happened. It matters not whether these matters have or have not been investigated by the police, or the criminal courts, nor if there have been no consequences in the wider world for the father. The Court has found that within the confines of this family, often behind closed doors, this father perpetrated abuse against his wife and children as set out in the judgment.

Following the fact-finding hearing, the Court commissioned [the ISW], an independent social worker, to prepare a report to advise the Court.

On 10 September 2024 District Judge Devlin gave judgment on a preliminary issue within the financial remedies proceedings, which was the question of whether payments made by the father’s parents to the parties in December 2015 in the region of £1.2 million constituted a gift or a loan. The father and his parents asserted that £200,000 was a gift, £210,000 had been repaid, but the rest was a loan repayable to the paternal grandparents, for which the parties are jointly and severally liable. The mother asserted that the payments were all a gift.

In respect of a flat in London, the father and his parents sought a declaration that it was in the joint ownership of the father and his parents in accordance with a declaration of trust. The wife sought a declaration that the flat was held by the husband beneficially for him alone and the declaration of trust was a sham arrangement.

District Judge Devlin found that the evidence from correspondence and documents created in and around 2015 was overwhelming that the monies advanced were a loan and not a gift. Secondly he found that the declaration of trust in respect of the London flat reflected its signatories true intentions and the beneficial interest in the flat is 20% to the father and 80% to his parents.

The court made a money judgment against both parents in the sum of £1,026,677. The mother was ordered to pay the father’s and the intervenor’s costs which on the schedules total about £310,000.

The order is I understand, silent on the question of when interest should start to accrue. Mr Allen submits it is likely to be around £8,000 a month. In correspondence the father has refused to agree to a sale of the family home unless the mother accepts that his parents should receive full interest as of the date of completion. Further, on 17 November 2024 the father threatened to delay the sale of the house to maximise the mother’s liability for interest.

The parties attended a financial dispute resolution appointment in January 2025 but were unable to resolve the issues. A final hearing is to be listed in due course.

A one day hearing was to take place on 25 March 2025 to consider the father’s application to reduce his liability for child maintenance towards the mother. I do not know the outcome of that hearing.

Those issues are not for this court to resolve, but provide context to these proceedings; these parents have been locked in conflict including the bitterly fought financial proceedings, since their separation in January 2022.

Section 1(1) Children Act 1989 applies; the children’s welfare must be the court’s paramount consideration and the court’s welfare assessment must be informed by an analysis of the factors in the welfare checklist under s.1(3).

Further, s.1(2A) provides a presumption in favour of both parents being involved in a child’s life unless that is proved to be contrary to the child’s welfare. That involvement need not be equal and may be direct or indirect (s.1(2B)).

Pursuant to Practice Direction 12J of the Family Procedure Rules 2010, the court must take into account a number of factors when considering whether to make a child arrangements order when domestic abuse has occurred. Paragraphs 35- 39 provide as follows:

In the case of MS v MN [2017] EWHC 324 (Fam) per Moor J, an appeal was allowed against an order that a mother should make a child available for contact with a father who had been found to have perpetrated serious domestic violence upon the mother. In the course of his judgment, Moor J emphasises the need for the Court to consider Practice Direction 12J.

He referred to comments of Wall J in the case of Re M (contact: violent parent) [1999] 2 FLR 321:

Moor J then referred to the case of Re L (A child)(Contact: Domestic Violence) & Ors [2001] FLR 260. This is a well-known case. It was one of four joined cases all involving a background of domestic violence. The Court had the benefit of a psychiatric report from two consultant psychiatrists, Dr Sturge and Dr Glaser, together with a report from the Children Act Sub-Committee of the Advisory Board on Family Law. In her judgment Lady Justice Butler-Sloss, who was President of the Family Division at that time, gave guidance as to the approach that should be taken. At pages 272-273 of her judgment, she said:

The path from this judgment to Practice Direction 12J is evident.

Mr Allen has referred me to the President’s comments at paragraph 52 of the Court of Appeal’s judgment in Re H-N and Others (children)(domestic abuse: findings of fact hearings) [2021] EWCA Civ 448 (emphasis added):

Again, the court must consider all the circumstances, the children’s welfare it’s paramount concern. The court must balance the realistic options for the children’s future, and using the same analytical framework as applies in relation to international relocation (Re C (Internal Relocation) [2015] EWCA Civ 1305. That includes consideration of the practical details of the proposed move, the effect on the child of the change of circumstances, the proposed contact arrangements after the intended relocation, and the confidence which the court can have in the relocating parent to support the child’s relationship with the non-moving parent if the move is permitted.

The court has power to restrict a parent’s exercise of their parental responsibility by making prohibited steps orders, or a specific issue order, or a combination of the two. Again, such orders are made following consideration of all the circumstances, with reference to the welfare checklist factors at section 1(3) of the Children Act 1989, the children’s welfare being the court’s paramount consideration.

Mr Allen has referred me to the case of Re A (Parental Responsibility) [2023] EWCA Civ 689, in which the Court of Appeal held that where parents are married or in a civil partnership, there is no power to revoke the parental responsibility of a father. However, the court ‘may control and limit a parent’s ability to exercise parental responsibility through the making of prohibited steps orders, and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues.’ In the leading judgment, the President of the Family Division referred to other cases where this course had been acknowledged, P v D [2014] EWHC 2355 Baker J, at 109, in H v A (No 1) [2015] EWFC 58, and HHJ Sheikh Mohammed Bin Rashid Al Maktoum v HRH Princess Haya Bin Al Hussein [2021] EWHC 3480 (Fam), in which the President made orders affording the mother sole responsibility over any aspect of the children’s medical care or schooling. Giving the lead judgment in Re A, the President endorsed orders made by Russell J in the judgment under appeal, which went even further:

In H v A the father was in prison, had a non-molestation order against him and had driven his car into the home of the mother and set it on fire. The father’s parental responsibility was not revoked but the court imposed restrictions on his use of parental responsibility and removed any obligation on the mother to consult with the father in the exercise of her own parental responsibility. In his judgment, Macdonald J sets out the approach to be taken:

In deciding whether to grant a prohibited steps order the children’s best interests are the courts’ paramount consideration and the court must have regard to the matters set out in the welfare checklist at section 1(3) of the Children Act 1989 The court should not make a prohibited steps order unless doing so would be better than making no order at all.

Mr Justice Macdonald went on to say:

I heard evidence from [the ISW], the independent social worker, from the mother, and from the father. I have read all the documents in the bundle, which include lengthy statements from each of the parents and three reports from [the ISW].

Her first report was dated 15 November 2024. The second was dated 28 November 2024, in response to twenty-one questions put by the father in response to the first report. The third is dated 24 February 2025 and considers the mother’s application to relocate to [County C].

[The ISW] is a social worker of some forty-five years’ experience, including twenty-two years as a children’s guardian. Her reports were prepared after having met with each of the parents, (around seven and a half hours in total with each of them on their own, and an hour and a half with each of them with the children present), and the maternal grandmother. She spent further time with the children on their own, spoke with their teachers, and reviewed a wealth of written material.

She was heavily criticised for her decision to speak with the children in the house they share with their mother. She explained the agreement for the mother to be there in the first instance to make the introductions but then to speak with the children alone. In his evidence to me, the father said that while he did not suggest the mother was actively putting words into the children’s mouths, he felt the children were heavily influenced by being in the family home. He said, ‘I would contrast that with a time they were with me and [the ISW]] was there, K was clinging to me, coming to my lap, we were doing pumpkin carving – we had a good time and the children were right at their best behaviour as if they were to present themselves like an exam or a school classroom. If they were asked similar questions in that environment I wonder what that would have been.’

The father’s interpretation of this was that the children thought they were being evaluated and wanted to show [the ISW] what a good time they had with their father. To me, it indicated a concern that the children perceive strongly a need to comply with the father’s expectations of behaviour.

[The ISW] explained the good reasons she exercised her professional judgment to meet with the children at home with their mother, where she perceived they would be at their most relaxed. She has set out in her report the work she did with the children to gather their wishes and feelings, she has had regard to the experiences they have had, to the conversations she has had with each of their parents, and the whole of the evidence, and explained why it is that she considers the children to be expressing their true wishes and feelings, based on the experiences of parenting they have received. In my judgment there is no reasonable basis for criticising her methods or the evidence she has put forward of the children’s wishes and feelings, which are well-reasoned and supported by the wealth of the evidence.

More broadly, [the ISW]’s assessment of the father’s ability to take responsibility for his actions, his insight into the children’s emotional needs are in my judgment balanced, fair, well-reasoned, and rooted in a sound and thorough understanding of all the evidence. In summary she wrote:

In his written submissions on behalf of the mother, Mr Allen said:

I agree. This is seen throughout the evidence. The father has said a number of times that he accepts the findings, but then goes into explanations, provides justifications, and raises matters which show that he still places significant blame upon the mother, denies any significant impact upon the mother and children of his actions, and repeatedly asserts that all will be well for the children if only there can be a return to ‘normality’, and he is given the opportunity to rebuild his relationship with the children by having a shared care arrangement.

When giving his oral evidence, the father said that when he first met [the ISW] she seemed ‘open minded’, but by the second time, ‘she had met with the mother and got her reaffirmation – she had read the judgment and that was done. I wrote to my solicitors and said, ‘game over – she hates me’.’

The father was unable to take in or reflect upon this experienced social worker’s conclusions, but has decided that she is acting out of personal animosity towards him, and some desire to align herself with the mother and has accepted her case ‘without scrutiny.’

Throughout her written and oral evidence, [the ISW] gave examples of the observations she made that led her to conclude the father did not have good insight into the children’s emotional needs.

For example, she described seeing a huge Barbie palace that K had received from the father and paternal family for her birthday, and when she asked what J had received for his birthday, she said neither J nor the father had been able to tell her. The father with some anger said that in fact J had received a bicycle, and had [the ISW] followed this up with him she would have discovered this. [The ISW] was clear in her evidence that she had asked at the time, and not received an answer.

She spoke of a time when she was present and the father had spoken sharply to J, telling him he should be making eye contact with [the ISW]. The father felt this criticism was unfair, he simply wanted to remind his son to show good manners.

However, I can see why [the ISW] mentioned it. Firstly, many children can and prefer to engage with adults or peers without making eye contact and this is not borne out of lack of manners. Secondly, [the ISW] said that J had in fact been engaging well with her over the previous hour including making lots of eye contact, and thirdly, and most significantly, she said her concern was the sharp tone in which the father spoke to J, which she considered to be unjustified. I have made significant findings that this father had a need to control, that he could get angry and find it difficult to regulate his emotions and behaviour when he perceived that his wife or children were behaving in a way to him that was inconsistent with his view of how they should be, resulting in him acting in a way so as to cause physical or emotional harm to them.

In the circumstances, this small interaction represents a continuing concern. The father is watching and noticing J’s behaviour, he is not able to let him express himself in his own way, but seeks to regulate it. He shows his displeasure to his son by speaking sharply. He is not able to reflect on the reasons [the ISW] may have picked this up with him, but sees it only as her finding ways to attack him, borne out of what he perceives to be a personal dislike of him, which he understands her to have formed as a result of the mother’s influence on her.

The father also criticised [the ISW] for failing to take much interest in two photo albums (which were also showed to me) filled with photographs of the children, their father, paternal grandparents, and other members of the paternal family, spending time together and looking to be having fun. These albums are an indication of the positive impression the father would wish [the ISW] and the court to have of him and the paternal family. But they are but one piece of evidence within a much wider canvas, and cannot carry more weight than the observations of an experienced social worker, and the voices of the children themselves.

[The ISW]’s impression was that the photo albums had been prepared more for her benefit than the children’s:

[The ISW]’s observation of the children with their mother was that there was a lot of physical contact with both sitting either side of her except when doing the work sheets, and at various times cuddling into her. She wrote, ‘there was a calmness to their interaction and reciprocal warm relationship with lots of eye contact, laughter, reassurance and guidance when necessary. There was a lot of joking and good natured teasing between the three of them, particularly when [the mother] kept scoring one when playing Monopoly There was an ease to their relationship with spoke of trust and security and a secure attachment.’

In submissions, [the ISW] was criticised for failing to identify the mother’s ‘extreme and uncontained anger towards the father’ and failing to factor it into her thinking. When the mother gave evidence, she did so robustly, and I would describe her as angry. Her anger was directed at the father. This criticism of [the ISW] (and the mother) carries little force with the court for the following reasons:

[The ISW] says that in reaching her conclusions she has been guided by the welfare checklist, the Cafcass Domestic Abuse Practice Policy, from September 2024, and Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm, August 2024.

The heavy emotional toll that the court proceedings have taken on the mother was evident, as was her continued worry for hers and her children’s physical and emotional safety, and anxiety and stress about what turn events may take.

I accept her evidence that rehearsing all the events of the marriage in the fact-finding hearing then reading about them has been profoundly distressing, and the strain of the continued litigation is overwhelming.

A theme of the father’s evidence was that the outcome of the preliminary issue hearing in the financial remedy proceedings reveals the mother to have been an unreliable witness, that she has been engaged in entrenched ‘lawfare’, yet has not taken responsibility for her part in the ongoing litigation. The financial proceedings are to continue on. The mother’s position is that she accepts the decision of the Court that the paternal grandparents own eighty percent of the London flat and the advance of £1.2 million to purchase the family home was a loan and not a gift. She maintains her position, consistent with my findings, that the father, supported by his parents, arranged his financial affairs so as to prevent her from being in a position to continue to repay the monthly payments to the paternal grandparents; the father prevented her from receiving an income post-separation. This enabled the paternal grandparents to bring the civil action against her which has now resulted in judgment being given for repayment of the entire loan now, with a question over the interest now payable, in addition to two costs orders against her, when it was previously envisaged that repayments would be made over the longer-term.

The father’s attitude to the litigation appeared to be that he is involved in a long and drawn-out war of attrition, holding on to the finding in the financial remedies proceedings as something to go into the balance that lessened the impact of the findings I have made in the Children Act proceedings. He said to [the ISW] that if another judge had heard the Children Act proceedings they may well have come to a different view. It is consistent with his approach to the litigation as only a stage in the ongoing and long-term battle that he intends to fight with the mother.

At times in his evidence he appeared to be signalling this to the mother, and to the Court. For example, he said in his evidence that if the mother’s application to relocate was allowed, then, depending on the contact the Court awarded, he would consider his position. He said it is his intention to be as involved in his children’s lives as much as possible, and so he would consider moving to the area to ensure that happened. He said that he would be more likely to move closer to the children if he were not given overnight contact, or only limited contact, so that he could host the children locally. While these comments were portrayed as being considerate of the children, it is evident that this was received by the mother as a threat.

At another time in his evidence, the father was expressing concerns for the children if their mother were to be permitted to move with them. He said they have their schools and clubs where they are, that the mother was not being child-focussed, and that he hoped ‘it wouldn’t be the beginning of a long journey for the children to adjust and which I fear could result into psychological issues, for J especially, it would be petrol on the fire of the children being within the litigation’. I accept Mr Allen’s submission that this particular phrase triggered severe distress for the mother, because it is a phrase that was used within the WhatsApp messages exchanged between him, his brother and their parents. These are referred to at some length within the fact-finding judgment, but were indeed peppered with references to stoking the flames, or as in this brief excerpt, ‘smoking’ the mother out of home. In the fact-finding judgment, I wrote the following:

The father’s presentation and the evidence he gave was consistent with the way he presented in the fact-finding hearing, and while he said in broad terms that he accepted the findings that had been made, he showed little or no sign of taking responsibility for his actions, or understanding the impact they had on the mother and his children. He continued to blame her, sought to minimise or deny what he had been found to have done, and maintained his position that he did not present any form of risk to the mother or to his children, and that the only harm they were suffering was as a consequence of their relationship with him being curtailed in the way it has been.

He was unable to accept that the children’s clearly and consistently expressed views about him were founded on their experiences of his parenting, but continued to suggest they were influenced only by their mother’s negative feelings of him.

The father had six sessions of therapy with Ms M between 22 January and 17 February 2025, following which she produced a letter dated 21 February 2025. The therapist had not seen the judgment or the schedule of findings but had read [the ISW]’s first report.

The letter is heavily influenced by the father’s account and describes his views of parenting, of the children’s needs, and his abilities to meet them. It contains the father’s hopes that the parents ‘should be able to co-parent and look after the children together in a peaceful way’.

There is evidence of some discussions about ‘the many ways an individual can perceive the behaviour of another person as a form of domestic abuse and coercive control.’ The father is reported to have said that the online Freedom Programme he had done had helped him understand the personality of the dominator and characteristics related to this personality, and recognised that some of his past behaviour could be relatable to these personality types.

However, it is difficult to see that within the few weeks of these sessions, the father had made much progress with his therapist in understanding or acknowledging the impact of his behaviour. Discussions seem to have been based around the difficulty of the mother having ‘perceived’ or ‘misinterpreted’ the father’s well-intentioned behaviour as controlling or coercive. Again, blame lies with the mother:

It is suggested that these messages from the father relating to the children’s health, dental care and hobbies; the father is portrayed as a well meaning father who has been wronged by the mother’s misguided misinterpretations.

The mother is blamed for beginning the Court proceedings that led to the father being deprived of ‘normal’ time with his children:

The father’s own part in this is somewhat glossed over, ‘Whilst [the father] accepted the court’s findings with regards to his conduct he did not fully agree them to reflect his understanding of the former family situation nevertheless [the father] was willing to follow the recommendations flowing from the court hearing. …..

Describing the events of 14 January 2022, as an ‘altercation’ significantly minimises a sustained physical and verbal assault on the mother, witnessed by the children, which resulted in the mother being left with widespread bruising on her arms and chest, which in photographs taken by the police that night, are hard to unsee. The bruises were extensive, and a deep purple and black colour. The children were taken with their mother to the police station in the middle of the night.

The father’s significant level of challenge to the fact-finding and her professional assessment is recorded within [the ISW]’s report (twenty-six points raised), the twenty-one questions put to her thereafter, and the contents of his lengthy witness statement.

Ms M sets out in her letter the steps taken by the father in response to [the ISW]’s recommendations. In January 2025, he completed online modules of the Solihull Approach, an online course. At the end of January he completed an online course with the Freedom Programme, and has produced a seventy page document showing the answers he gave.

I have seen the documentary evidence relating to these courses. While I do not doubt the father’s determination to be seen to have responded to [the ISW]’s recommendations and nor do I underestimate the time that he will have devoted to these courses within a short amount of time, I regret to say that it is difficult to see from his responses, the evidence that he gave to the Court or the professional assessment, that any of this work has resulted in an ability to take responsibility for his actions, make a commitment to change his behaviour, or to start on that process.

It is of note that when the father sent an email to an organisation called ‘caring Dads’ in December 2024, the father stated, ‘justto be clear I have not been found to be abusive towards my children but seek the course information to improve my parenting skills.’

He was not able to demonstrate to me in his written or oral evidence that he has made any sort of change in his approach to parenting. It was stressed by him that for the past three years he has done maths homework with J every single Monday. Despite the findings made of direct physical and emotional abuse to J and both the children having witnessed the abuse of their mother, the father does not appear to have begun to think about steps he might have taken to try to repair his relationship. He has maintained a firm view with [the ISW] that the children need boundaries, which she does not dispute, but has raised concern that his focus is too much on boundaries and not enough on the emotional needs of his children. He has been hyper-sensitive to any of her observations and responded by criticising her views in the strongest terms.

Because the father has been found to be unable to regulate his temper and his behaviour when he perceives the mother and the children not to comply with the boundaries he sets, he presents a risk to them. I have not seen any sign that the father appreciates this risk, or has developed any kind of understanding or necessary techniques that might help him to behave differently in future.

Instead, the clear and consistent evidence is that the children find his parenting harmful and they do not want to see him.

A copy of a post-it note containing the handwritten details of car registration numbers was produced in evidence. The mother gave evidence that the father had been making lists of visitors to her home, recording their number plates, and asking the children about this. She has reported this to the police. When questioned about this, the father did not deny that he had done this, and said that he did it ‘to know how to avoid [the mother] and her family’. He said that the police had not found him guilty and that when he went in for a voluntary interview, ‘the police were embarrassed by it and did not even want to call in the interview’. However, the father has not denied that he has made these lists. He said to me, ‘how am I to protect myself in these circumstances?’ The mother found out that the father had lists of the registration plates because J brought them back from the father’s house, and because the father asked questions about their ownership within the financial remedy proceedings.

This evidence highlights to the Court the father’s continuing harassment of the mother, that he continues to expose the children to this and involve them in the parental conflict, that he refuses to acknowledge the impact of his behaviour upon the mother and children, and that instead, he asserts that his actions are in response to provocation from the mother and her family; he says he is merely protecting himself.

K and J told [the ISW] that they thought their father and his parents were ‘acting’ when they were with him. J said to [the ISW] that he did not want to go to his father’s house. In her report, she wrote:

J said that ‘he would not feel safe at all’, if he were to stay overnight with his father. K said that she was worried her father would take her away. They said their father did not like them mentioning their mother. K said that ‘if I cry for mummy, he says why do you always cry for her.’

J described feeling uncomfortable with his father and his father’s parents, and saying that having to go to contact when he did not want to go made him worried and angry.

K said she did not want to see her father because he wasn’t kind to J sometimes and this made her sad. She said ‘his parents are very rough with me. They shout a lot at me.’ When asked how often she would like to see her father if the judge said she should, she initially said for ‘three minutes’. If it was once a week, she said, ‘if I have to with J’. She was clear that she did not want to stay overnight. She could not think of anything that would make it better, but repeated again, ‘he’s a bit more gentle with me he’s a lot shouty with J .’

J’s teacher told [the ISW] that while J appeared to be happy on the surface, he looked as though he had ‘the weight of the world on his shoulders’.

I accept [the ISW]’s accounts of the children’s wishes and feelings as reliable. They are rooted in their own experiences, and memories that they have described. I accept the mother’s evidence that both children have been adversely impacted by their experiences of their father and that they do not feel anything has changed.

Their physical, emotional and educational needs.

I accept [the ISW]’s evidence that the father could meet the children’s day to day physical and educational needs, but that he is not in a position to safeguard their emotional needs. Rather, he is the source of their worries.

I accept [the ISW]’s expert assessment that the mother is a highly attuned parent to her children and can meet all of their physical, emotional and educational needs to a high standard.

The likely effect of them of a change in their circumstances

The children have experienced significant disruption and difficulty both during their parents’ marriage and since their separation.

They continue to live in a position of some uncertainty as they will not be able to remain in the family home, but will be moving.

If they relocate with their mother to [County C], they will both have to start at new schools. They would have to say goodbye to their current friends and teachers and start with new ones. They are both still at primary school where it is not uncommon for children to move and the disruption to education and friendships is less significant than if they were at secondary school and closer to taking public exams. At primary school it is usual to have a new class teacher every year.

J loves football and K loves dancing and acting. Their mother has found out that they can go to local clubs in [County C]. Again they would be sad to leave their current clubs, but again it is not at all uncommon for children of their ages to move from one football club or dance club to another. They are both young and have plenty of time to establish themselves in new clubs and make new connections.

The father said that the mother’s intentions in moving were putting her welfare needs, and her desire for a fresh start, before the children’s. When he said this, it betrayed again an attitude that seeks to blame the mother for changes in the children’s lives, and fails to see a bigger picture, which is that the impact of the father’s behaviour on the mother and the children has devastated her emotional well-being and while she has maintained her ability to care for the children, and meet all their needs, she is doing so under considerable strain.

The children are half-[their father’s nationality]. While it is important to them that they have the opportunity to be raised with an understanding of their [father’s nationality] heritage and identity and the richness of [the] culture, that cannot be at the expense of their physical and emotional safety. At the moment [Father’s home country] is represented to them by their father and paternal grandparents, who are not at the moment able to meet their emotional needs. The children do not feel safe or comfortable with them.

I consider these two factors together, because the risk of harm to the children comes as a result of the domestic abuse perpetrated by the father against their mother and them and his consequential inability to meet their emotional needs.

I accept [the ISW]’s professional assessment that the father has made little progress in addressing the issues identified in the fact-finding judgment. The father continues to minimise his own behaviours and its impact, does not appreciate the harm that he has caused to both the mother and to both his children. He continues to blame the mother for what he sees as the greater harm of preventing him and the children from having a ‘normal’ relationship. He has not shown insight into the children’s wishes and feelings, but insists that they are the product of malign influence from their mother, who he suggests is unable to govern her feelings of anger towards him.

I must have regard to paragraphs 35 to 39 of Practice Direction 12J.

When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.

In evaluating the risks the court must have regard to the checklist set out at paragraph 37 of Practice Direction 12J:

the effect of the domestic abuse on the child and on the arrangements for where the child is living;

These children have both been significantly impacted by the domestic abuse.

The children continue to be at risk of harm from their father. They do not experience him as a safe and secure care giver. They feel uncomfortable and would feel unsafe if they were to stay overnights with him.

The father’s primary case is that there should be a shared care arrangement. This shows a lack of insight into the children’s emotional needs, the challenges that he faces in meeting them, and the continued risk he poses to them as a consequence of his need for others to behave and respond to him in the way he needs them to, and his inability to manage his emotions and behaviours when he feels challenged.

There is no question that the children must continue to live with their mother. A shared care arrangement or overnight stays would not be in their welfare interests.

J’s concerns are heavily influenced by what he saw and experienced when his parents were together, but both children describe their ongoing feelings of worry, experiencing differential treatment between J and K, feeling that their father does not listen to them, that he can be unkind and shouty, that he is ‘acting’ rather than being truly attuned to their needs.

Both children are worried about the risk of their father taking them away or taking them to [Father’s home country], which is a place at the moment which has negative associations for them.

J’s relationship with his father is particularly damaged. He feels that he cannot forgive his father for what he has done to his mother, and still feels vividly the impact of how his father treated him. Both J and K are conscious that J is the less favoured child. The father has not made any attempt to apologise either to J or K or to take steps to repair their relationship, or to show that he intends to change the way he parents his children.

There has been a thread of evidence through the fact-finding hearing and at the final hearing that the father favours K over J. When she interviewed the father, [the ISW] noted that his description of J was very negative compared to how he described K. He said that J ‘has to be reined in/steered or a red flag’, when asked to clarify the father said that J struggled with boundaries. The father described J as being a bully with his sister and threw things at her in anger, and for this reason routine and boundaries were important with J. [The ISW] noted that neither J’s school nor his mother described him in this way.

When discussing the children’s behaviour with the father, [the ISW] noted the father saying that the children ‘behaved better in public than at home’. In general he wants them to show manners, not to swear, and not to be physical with one another. ‘[the father] talked of J getting up and down during meals which he explained as his being so energetic. He said J also rocks on his chair and that there is a restlessness about him because his mind is everywhere, and he said he would like that to stop.’

[The ISW] at one point described comments made by the father about the mother as bordering on the misogynistic. There is some concern that the father sees his children in stereotypical ways and that this may impact his ability to parent them. In a discussion about meeting their needs as adolescents, [the ISW] described the following exchange:

I set out this evidence because it feeds into the concern that the father projects certain characteristics onto J and regards him as a child who misbehaves and needs to be ‘reined in’. Given the findings that I have made of the father causing injury to J, of the children’s experience of him being unkind and rough with J, of the father being unable to manage his emotions or behaviour when he has felt that the mother or J have been oppositional to him in the past, and of both children having witnessed their father physically and verbally abuse their mother over a period of years, I have a high level of concern in respect of both children. J is perhaps more vulnerable to direct physical or emotional abuse, but K is also at risk of being in a household where such abuse is perpetrated.

At this time the children are both compliant and behave very well in their father’s care, according to his report, but he also has a perception that they are less well-behaved at home with him than they are ‘in public’. Domestic abuse occurs behind closed doors. I have a significant level of concern about the father’s ability to regulate his own behaviours around his children.

The father’s parents are described by the children as ‘shouty’. Rather than being a protective factor, the evidence strongly suggests that they have reinforced and supported the father in his abuse of the mother, and consequently, upon the children.

There are no concerns children rely upon their mother and members of her family network as trusted adults. No issues have been identified about the mother’s ability to meet her children’s physical, emotional, educational and social needs and to safeguard their welfare. She has been well supported by her mother, father and other members of her family and friends. However, in her statements she has explained the emotional toll that she has been under for some years now, and the detrimental effect the abuse she has suffered has had on her. If she is not given some respite, then it will inevitably have a detrimental effect on her ability to parent her children.

I have significant concerns about the father’s ability to put the children’s welfare interests before his need to continue to be in a position of conflict with the mother, his need to continue to undermine her as a parent and to destabilise her.

The findings I have made in respect of the father’s conduct in the months following separation to manipulate the family finances so as to bring the mother to a position of financial peril show that he has consistently put his need to be in a battle with her and to seek to destroy her before the interests of the children. In my judgment I referred to a WhatsApp exchange between him and family members where he expressed satisfaction that far from being sent to prison for the assault, he had left the country and was taking a holiday:

Within the WhatsApp conversations the father repeatedly expressed satisfaction at the way he and his family were playing the ‘game’, saying, ‘we could not have played this much better so far.’ The evidence is that the father continues to seek to put financial pressure upon the wife.

During the final hearing the father has hinted that he regards these proceedings as only a stage in a longer-term battle. He has indicated his intention to move to [County C]. He has said that if an order was not made now for the children to stay the night with him or to travel to [father’s home country] he anticipated making applications in the future in respect of those issues.

The evidence in respect of the car registration plates also gave me significant concern. The father specifically drew attention to his actions within the financial remedies litigation, again giving rise to a concern that the father has used court proceedings as a means of perpetuating further control and intimidation towards the mother.

The children have continued to spend time with the father on a regular basis throughout these proceedings, and neither one of them has reported coming to physical harm. They have enjoyed a range of activities with their father and he has supported them in their interests.

However, there is a wealth of evidence to suggest that the father does have an expectation that they are on best behaviour with him and that they comply with his expectations. The children experience him as ‘shouty’ and they do not feel that he is genuine in the way he displays affection towards him. They have described him as rough and unkind. He has placed significant emphasis on the need for boundaries as a parent.

The children would rather not spend time with their father at all. They do not want to be on their own with him.

The mother has had to contend with exhausting arguments when the father has sought to put his interests before the children’s. An example is when J had a football match away to another club on a day he was due to see his father. The father did not want his contact to start later and so withdrew his permission for J to go to the match in a friend’s car. This took several emails to resolve.

[The ISW] is concerned the father has not shown himself to be receptive to advice. She said that she advised him to take a greater interest in J, but reports that the very next day the father was due to attend a football match with J but did not stay to watch, which caused J to be upset and worried. I note that this was subject of much debate in evidence and the father disputed that he was away for any length of time.

[The ISW] concludes that the father does not have insight into the harm that he has caused to the mother and the children. I have found that he has continued to deny, minimise, and to blame the mother.

The mother continues to be locked in conflict with the father and the indications from him are that he will continue to oppose her in all things even once the Court proceedings are concluded. His recent actions in taking down the number plates of visitors and threatening to follow her to [County C] if she were to be given permission to move there, gives rise to significant concern that he continues to present a risk of harm to her.

The father has shown no insight into his behaviours. In his oral evidence he made an apology for ‘the findings’, but he has not in any real way demonstrated that he takes responsibility for his behaviour.

I have regard to paragraph 36 of practice direction 12J. The court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made.

The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

It is the father’s case that there is no risk to the children’s emotional and physical safety in his care. For the reasons set out at length in this judgment, I disagree.

It is the mother’s case, following the advice of the independent social worker, and taking into account the evidence that the children have derived some benefit from spending time with their father, that the risks can be managed with the implementation of a package of measures around the contact as proposed. Those measures are fairly wide-ranging, but they do not include contact being supervised.

This leads to me to consider the last factor in the section 1(3) welfare checklist:

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

I consider this in conjunction with paragraphs 38 and 39 of PD12J:

Again, the mother does not propose any specific conditions attach to the contact.

Having regard to all the circumstances, to the evidence of the parties and the independent social worker, to each of the factors on the welfare checklist and to practice direction 12J, I am in no doubt that the children’s welfare needs are met by an order being made providing that they shall live with their mother and spend time with their father.

A shared care arrangement in this case or any order for overnight contact would not be appropriate in the light of the overwhelming evidence about the children’s particular needs, the father’s abilities to meet them, the longstanding and continuing abuse of mother, the father’s lack of meaningful acceptance of the risks and inability to demonstrate any meaningful change in his capacity to parent.

The question about the extent of time they should spend with their father, and whether any conditions should be attached to that, is more difficult to answer. On the one hand, the risks are clear and evident, and they have not lessened over the period of time of the proceedings. On the other hand, the children have maintained an established routine of spending time with their father.

The mother adopts the independent social worker’s recommendation for a reduction in the time the children spend with him, but still propose one mid-week contact after school and weekend contact on one day every other weekend.

[The ISW] does address the question of supervised contact in her first report at 6.117:

I am concerned that this analysis may be flawed.

Firstly, because, given the findings I have made of direct physical abuse to J in the past, the father’s lack of insight into that, his continued description of J in negative terms, and his continued express belief that J is a child whose behaviours need to be ‘reined in’, I am not persuaded that it can be said this father poses no physical risk to the children.

Secondly, risk to the children includes emotional harm not just physical harm. Both children have clearly expressed a view that they do not feel safe in their father’s care. There is overwhelming evidence that they are justified in feeling that way as a result of the experiences they have had. They have been given no reassurance that things will be different in the future, their firm belief is that the father is the same as he always was and is incapable of change.

Thirdly, the need for supervision does not depend only on whether there is a risk of abduction.

Fourthly, the fact that a situation has persisted for a long period of time does not necessarily mean that it should continue. The children have been in a routine of seeing their father very regularly, but it has not in fact brought about any greater sense of stability or safety for them. Their father has not taken any steps to change his parenting or to try to repair his relationship with them, to the contrary, he does not identify any need for change. The ongoing court proceedings may also have acted as a form of protection, but this is not factored into consideration.

Fifthly, the analysis does not consider specifically the questions put by paragraphs 35 through to 39 of Practice Direction 12J.

On behalf of the mother it is said that the package of measures proposed could provide the necessary level of protection for mother and children, so as to reduce risks to a manageable level and enable regular, unsupervised contact to take place.

I shall proceed by considering the various orders sought by the mother, making determinations where I can, and then return to the question of arrangements for the children to spend time with their father.

The mother’s plans are clear and settled. She has researched and obtained offers of places at good local schools and found a viable tenancy. She has found out about football and dance classes for the children so that they may continue their interests.

Both the mother and the children have been subject to the father’s controlling behaviours. The mother has set out the clear reasons why she and the children need a new start, and that to continue living in [the town where the family have lived] would continue to severely and adversely affect her mental well-being, which in turn will impact upon her ability to care for the children. In those circumstances, the court should be slow to prevent a move, and would not do so without good reason.

She is not proposing to move very far away, the father would be able to drive to spend time with the children.

The children have been asked their views about a move and while they would of course miss their school friends, neither of them is daunted by a change in school at this point and do not see any great challenge in it. They are both bright and able children who have no difficulty in making friends. Their mother is an attentive and loving parent who would be able to support them through the transition to a new home and to new schools.

The children would be moving schools at a time when there would be minimal impact on their education or on their ability to make friends. J is going into year six in September, so would be in a good position to visit secondary schools and to establish friendships with classmates who are likely to make the transition to secondary school with him. K would be moving into year three.

Having regard to all the circumstances, I have concluded that the mother and children should be permitted to relocate to [County C].

I find that the mother should be permitted to change the children’s schools now, with a view to the children moving at or around the start of the summer term. The information she has provided about [prospective primary school] suggests that it is a good school for the children, and the father was able to acknowledge this in his evidence. I give permission for her to accept school places at that school.

There is no good reason for the move to be delayed and every good reason for it to take place as soon as is reasonably practicable. Once the children know they are moving the best thing for them is to have the opportunity to say farewell to their classmates and to be supported to make the transition to a new school. A further period of uncertainty as to when they were going to move and living in limbo as they were living life in anticipation of a move is unlikely to be conducive to their welfare.

The order sought by the mother is in the following terms:

In circumstances where the father has been found to act in a way that is coercive and controlling, and continues to battle with the mother, there is an argument that the opportunities for future conflict over the children should be reduced. I found that the children had been used by the father as a means to undermine the mother as a parent.

The father is combative, has a history of bombarding the mother, her family and friends, and professionals, with emails challenging decisions that have been made and creating conflict and difficulty.

On the other hand, orders must be clear and enforceable. The mother’s proposals are for the father to spend time on a regular basis with their father. If the children were with their father and the proposed order were in force, he would not be able to exercise his parental responsibility in the interests of the children, for example if one of them became ill or sustained an injury in his care, the terms of the above order suggest that he may find himself constrained in the actions or decisions he could take in their best interests.

The father does take a keen interest in the children’s education and welfare. The steps he has taken to address the issues raised by the fact-find at the moment do feel that they have been taken more as an attempt to produce evidence for the Court of change, than out of any sense that change is needed. [The ISW] described the father’s presentation to her as like ‘a sales pitch’. However, it should be acknowledged that he has at the least made that commitment to the children. After the initial few months after separation when he left the country to spend time in [country name redacted], the father has been committed to spending time with the children and has not missed any contact sessions.

A ‘lives with’ child arrangements order contains on it warnings that give some clarity as to the steps the parent with whom the children live with may or may not take, without requiring the permission of the other parent. They can travel abroad with the children for up to one month. They cannot change the children’s names or religion. It is well-established that a parent who is caring for their own child can make routine decisions without needing the consent of the other parent.

The father has not taken issue with the school that the mother proposes the children attend, if they are to move to [County C]. He did say that the mother had always made good choices about schooling.

Sharing responsibility with the mother over decisions of where the children go to school is an opportunity for the father to continue to take an interest in their education and to show he is able to listen to, and I hope to support, their wishes and feelings.

In my judgment, an order prohibiting him from exercising his parental responsibility over choice of school is not justified in all the circumstances of the case.

However, I do consider that the mother should not have to consult the father in respect of what clubs or out of school activities the children do, or in routine matters in respect of their education, for example permission to go on school trips, or trips associated with their extra-curricular trips, including residential stays, to take part in sports tournaments, dance shows or plays.

The father should be allowed to receive information from the children’s schools in respect of their education.

It is my view that the headteacher and the designated safeguarding lead at any school the children attend should be shown the judgments and orders of the court. The documents should not be shared more widely, but should enable the teachers to have a full understanding of the children’s history so that they can act to safeguard their welfare. This in my view is a more proportionate and would be a more measured way of responding to the risks identified, without preventing the father from exercising his parental responsibility in respect of the children’s education entirely.

I do not consider that a prohibited steps order should be in place so as to prevent the father from attending the children’s school at all. It is a matter for the headteacher’s discretion. However I do not regard it in the children’s welfare interest for the father to collect them from school in order to take them to contact. School is a safe and neutral space for the children and should also be a place where the mother is free to exercise her parental responsibility in the children’s best interests without fear of being undermined by the father.

I consider the mother can and should be able to make routine decisions about the children’s medical treatment in their best interests without consultation with the father. This includes taking them to GP or other medical appointments and consenting to basic treatment such as prescriptions for antibiotics, x-rays, scans or treatment for a fracture injury. In each of the instances of providing consent I would expect the father to be informed as soon as is reasonably practicable about this.

I would not be expecting the father to be responsible for taking the children to medical appointments as he will be spending time with the children less often. However, in the event that one of the children is in his care and needs urgent medical treatment then he must be allowed to exercise his parental responsibility to them in their best interests. As the mother would be expected to, he must inform her as soon as reasonably practicable.

Allowing the mother to take the children to live in another part of the country or to another country altogether without consulting the father or requiring his permission or the permission of the Court would in my judgment be a disproportionate curtailment of his parental responsibility and an unacceptable breach of his article 8 rights.

Similarly, allowing the mother to make decisions in respect of the children’s religion or their names cuts across the provisions of the Children Act in a way that I do not regard to be justified in all the circumstances of this case.

The children are both worried that the father may remove them from their mother’s care, or from someone to whom she has entrusted their care. The children are also worried about being taken to [father’s home country], which at the moment is a place that has negative associations for them, given the findings of the father having assaulted the mother in the children’s presence in [father’s home country], and the difficult relationship they have with their paternal grandparents.

The father has not threatened or previously sought to remove the children from the mother’s care. However, he does have a history of acting impulsively and in ways that have disregarded the children’s welfare. For example when he abandoned the mother and children in [town C], and again when he abandoned them on holiday on an impulse and went to Paris.

In my judgment the children and the mother would derive significant security from an order preventing the father from removing the children from the care of their mother or any person to whom she has entrusted their care.

The children would of course benefit from learning and experiencing more about their [father’s] heritage. However, they can still do this through contact with their father and grandparents, they do not need to go away with their father to maintain that link. The risk to the children of being taken away to [Father’s home country] or anywhere abroad by their father and the harm that they would be at risk of suffering as a result of being separated from their mother and spending time with their father and family members who at the moment they do not feel safe with, outweighs any potential benefit to them of travelling there.

For these reasons I will make prohibited steps order preventing the father from removing the children from the care of the mother or from any person to whom she has entrusted their care, and preventing him from removing them from the jurisdiction of England and Wales.

I find that the court should extend the time period for the non-molestation order.

The conditions for making a non-molestation order are still made out. The father’s admission that the has taken down notes of registration plates of vehicles parked outside the mother’s house gave cause for significant concern.

During the proceedings there have been significant issues with the father pushing at the limits of the orders in place, demanding to attend events at the children’s schools or clubs on top of the prescribed contact arrangements, and threatening to move to [County C] if an order permitting relocation were granted. The father’s evidence about the car registration plates and his inability to see the impact of his actions upon the mother was significantly concerning.

In all the circumstances I find that the mother has established evidence of continued harassment and molestation so as to justify the intervention of the courts.

I am satisfied that the applicant and the children need protection.

Finally, I am satisfied that nothing less than an order is required to control the respondent’s behaviour.

The respondent has not so far showed any ability to take responsibility for his behaviour nor to make changes. While it is positive that he had some therapy and did some online courses in January and February of this year, it was not obvious to me that he has continued with that work or built on it, or that it has so far had any material effect in bringing about meaningful change in his attitude.

By the time of closing submissions, the father’s position on the non-molestation order had shifted from it not being necessary to one where he accepted that it could continue but doubted the need for it to extend beyond a year. Further, he asks that any restrictions on him accessing the former matrimonial property are lifted.

The father has moved out of the former matrimonial home and arrangements were negotiated a long time ago for him to take his belongings from it.

Arguments about timing and who should have conduct of the sale should take place within the financial remedies proceedings. If necessary the non-molestation order can be varied to make adjustments for any orders in respect of that.

Pending those arguments, my view is that the order should continue to provide that the father is not to attend at the former matrimonial home.

In my judgment the order should continue as requested by the mother, for a further three years.

I have considered carefully all the circumstances, all the factors on the welfare checklist and the provisions of practice direction 12J.

I have paid attention to the evidence of both parents and of the independent social worker [the ISW].

In my judgment the progress the father has made since the fact-finding hearing is essentially superficial and presentational. I consider that the mother and the children continue to be at risk of significant domestic abuse from the father.

[The ISW] has set out her concerns clearly, but ultimately I have been troubled by her conclusions that the children’s contact with their father should continue at a high level of frequency and that it should be unsupervised.

I am minded to depart from her recommendation. I am minded to consider that fortnightly or monthly may be more appropriate in all the circumstances. My reasons are as follows:

It is my duty to make the order that I consider best meets the children’s welfare. However, I must also afford the parties the opportunity to make submissions to the Court before I make any orders.

The mother has followed [the ISW]’s recommendations and has asked the Court to make an order for unsupervised contact once midweek and on one day on alternate weekends.

Anything less than that would no doubt be strongly opposed by the father.

In the circumstances, while I hesitate to extend these proceedings for a moment more, and I appreciate that each of the parties and the children are desperate for finality in this case, I have reached the conclusion that I must afford the parties the opportunity to consider this judgment and to make further submissions to me on the question of the extent of time the children should spend with their father, and whether or not the contact should be supervised, having specific regard to the provisions of Practice Direction 12J.

The need for a section 91(14) and its duration may be impacted by my decision in respect of the time the children spend with their father.

I propose therefore to revisit this at the time I hear submissions on that question.

I will also consider the question of publication of judgments in these proceedings.

I hope that the parties will be able to produce working draft orders which reflect the decisions that I have made. I will consider any submissions in respect of the wording of those orders at the further hearing.