A v S

This is an anonymised version of the judgment given ex tempore in private on 30 July 2025.

The names of the parties and the children are not to be disclosed in public without the permission of the court.

The court gives permission for the original judgment along with any documents referred to in it to be disclosed to the Home Office and in any appeal by the applicant against a decision of the Home Office.

Orders regarding disclosure following this judgment have been made separately.

This decision concerns the welfare of two boys, M, born November 2015, and L born on October 2019.

Their parents are A, born in 1987, and S, born in 1983.

Until the end of the closing submissions, both children were referred to with the same surname as A. It came as a surprise to me that the mother changed M’s surname in 2019 to her surname and registered L with that surname when registering the birth. Names are in important aspect of personal identity. The mother should have informed the court at the outset of these proceedings that the names of the children were wrongly recorded by the court. The father should have informed the court as soon as he knew. In any case, I am not dealing with any application for changing any names.

At the hearing I began by checking with the advocates the documents I am to consider in this case. These are:

I was told a witness template had been sent to the court but it had not reached me. We agreed a different witness template anyway.

I dealt with the following preliminary matters.

First, the father applied to adjourn the hearing for an addendum Cafcass report. The mother opposed this application. I gave an ex tempore judgment refusing this application at the hearing. In summary my reasons were:

Second, Ms Dunne said that the father sought to be named on L’s birth certificate and to have parental responsibility. The mother opposed this and opposed consideration of this at the hearing. I decided it was in the interests of justice to determine this at the hearing. There was adequate time to do so and the evidence of the issue of child arrangements would also be relevant this question. It was good use of court time, fair and in the best interests of the child to determine this without unnecessary delay.

Third, I raised the matter of immigration status. The father had said his status was “resolved”. I asked to see the document showing this. He provided a letter from the Home Office showing he had been granted leave to remain while these Family Court proceedings are ongoing as he seeks direct contact with his children. I explained that this was correct legally. The reason for this is that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 says:

In RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC), Mr Justice Blake, sitting with Lord Justice McFarlane and Upper Tribunal Judge Martin said:

The father’s immigration situation had not reached the stage of Tribunal proceedings. The Home Office correctly identified that the father has a right to remain in the UK until conclusion of these proceedings in the Family Court.

Fourth, I raised the issue of harm in relation to the mother’s proven allegations. Her allegations that were proven were dated (1) August 2013, (2) September 2013, (3) November 2013 and (5) January 2016. Allegation (4) was dated “2015” found to be proven in part. That part was: “the [father] attacked [the mother] in front of her parents”. Her statement dated this as 4 August 2016 and there was a video of this, though I do not know if anyone saw it in court.

Of the proven allegations, only number 5 and possibly the proven part of number 4 post-dated the birth of a child. I therefore explained that I needed to understand the issue of harm to the children in light of no proven domestic violence between at the latest, August 2016 until the father leaving the family home on 29 October 2019. I note that in fact both the August 2016 and 29 October 2019 are dates that have been resiled from by the mother and father respectively. I discuss this below.

I then heard oral evidence from:

The mother had the assistance of a Spanish interpreter. The father had the assistance of a Bengali Sylheti interpreter.

Both advocates then made closing submissions. These reiterated the position of the parties that:

The advocates agreed a legal framework I have slightly reordered for this judgment.

The children’s welfare is my paramount consideration. This is the first and most important principle of Children Act 1989 (the “Act”).

When I consider welfare, I must do so with reference to the checklist of factors at section 1(3) of the Act. These are:

I must make decisions to avoid delay, and I must not make an order unless it is better for the child to make one that not to make one. The court is to presume, unless the contrary is shown, that involvement of a parent in the life of the child concerned will further the child’s welfare, if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.

Each person involved in this case has a right to family life under the European Convention on Human Rights, and the Human Rights Act 1998. Any order I make will interfere with this right, and so my order must be both necessary and proportionate in its character. If there is a conflict between the rights and interests of the parent(s), and that of the child, the child’s rights will prevail.

PD12J is engaged as there have been findings made of domestic abuse. The following sections are highlighted to me:

In Re M and R (Child Abuse: Evidence) [1996] 4 ALL ER 239, [1996] 2 FLR 195, the Court of Appeal set out how the court should consider harm and risk of harm:

“The court must reach a conclusion based on facts, not on suspicion or mere doubts [..] in our view risk of harm means the real possibility of future harm”

I would add that Practice Direction 12J says at 4:

In the note on the law there are extracts from cases referred to in Re C (A Child) (No contact) [2024] EWFC 366 (B). The law of precedent requires me not to find cases that have similar facts and decide this case in the same way, but to find statements of law in courts of record and apply this. This is neatly summarised in Re R (No Order for Contact: Appeal) [2014] EWCA Civ 1664 where the Court of Appeal noted five key principles relevant to my analysis:

The declaration of parentage is sought under the Family Law Act 1986. ED v MG [2025] EWHC 1876 refers to a summary of the law at [23], which itself was set out by Mr Justice Cobb in paragraphs 19-21 of Re A and B [2025] EWFC 41. The relevant law is actually set out in paragraphs 17 to 22 which says:

Applications of this nature are determined in accordance with the child’s welfare. The court of appeal in Re H(Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151, CA, 158 has identified three particularly important factors for courts to consider, namely:

The list of factors are not exhaustive (Re RH (A Minor) (Parental Responsibility) [1998] 2 FCR 89, CA, 94. In addition, satisfying these criteria may not be necessary in the individual circumstances (Re M (Parental Responsibility Order) [1994] 1 FLR 504, 508.

A refusal to grant F’s application is rare and granting PR to F is seen to promote a positive image of him to the child which is relevant to developing the child’s own secure sense of identity (Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504, 508.

I find facts looking at all the evidence in the round, except that much of the relevant fact finding was already done in the Judgment of District Judge Jabbitt dated 16 November 2022. Before I turn to this, however, I make a general observation about the facts in this case.

When it comes to fact finding we lived in an imperfect world. The court determines facts based upon the evidence before it, which it considers in accordance with the law. The evidence for this case is more imperfect than is typical for three reasons.

First, both parties have been significantly reliant on interpreters, yet the witness statements they have used show no sign of having been prepared with this in mind. There is no evidence of them having been translated to the witnesses in a language they understood. It is self-evident that aspects of them have not necessarily been understood. An example of this is the mother relying on a date of a proven incident of domestic violence that is in the schedule of allegations rather than her own statement adduced in support of that schedule.

Second, there has been significant delay in this case. The delay has had three phases.

Phase 1 was between the incidents of domestic violence and complaints about them. It is well known that memories fade and are altered by time. There was a gap of over six years the mother’s last claimed incident of domestic violence at the fact-finding hearing, and her statement where she explained this dated 5 May 2022.

Phase 2 overlapped with the first. This was between the father walking out of the family home in 2019, and him seeking contact with his children through the courts on 20 January 2021.

Phase 3 was in these proceedings. They have been going on for four and a half years.

The result is that M has had no direct contact with his father, except on between one and five occasions in 2022, since 2019. I say between one and five because neither parent said there was only one contact, as Judge Jabbitt found. Whatever the exact number, L only had those occasions of contact.

Such delay means I am now looking at the welfare impact on the children of incidents that happened over a decade ago.

Third, I have a paucity of independent evidence on the current wishes and feelings of the children. My decision not to grant an adjournment for this purpose was correct because it would entail even more delay. But it does make the job of the court harder as I have to piece together information from multiple sources and draw reasonable inferences, rather than having the direct observations of an independent person.

Judge Jabbitt, at paragraphs 28 to 33 and 35 of his judgment made the following findings:

Judge Jabbitt went on to reject four allegations made by the father against the mother, and find proven four and a half of five allegations of made by the mother against the father. Those are described at paragraph 14 in the judgment as:

The half allegation that was found not to be proven was in allegation 4, that the father forcefully had intercourse without the Respondent’s consent on many occasions.

The father had, until the first day of the hearing, maintained that he did not accept the findings. For example, in his statement dated 17 October 2023 he said:

On 3 July 2024, Elaine Gaskell met with the father with the assistance of an interpreter to prepare an addendum report for the end of the Caring Dads Programme. As relevant, this says:

The report then says the following, which I have mapped to the Allegations:

Allegation 3 is not mentioned at all. It is also notable that the dates of the allegations, is not reflected upon. This is evident from Ms Gaskell saying:

Allegations 1 to 3 as dated in the schedule of allegations predate the birth of any child. Allegation 4 is unclear on whether it was before or after M’s birth. Allegation 5 is said to have taken place when M was around 2 months old.

However, this is not the whole story because the date of Allegation 4 in the mother’s statement dated 5 May 2022 is completely different. She says the attack was on or after 4 August 2016. The judgment of Judge Jabbitt does not address when this actually took place. It matters because it affects whether M might have witnessed any domestic violence. I was told in closing submissions that the parties accept that the incident was as said in the schedule of allegations, which is 2015.

Furthermore, during the hearing, I remained concerned that the father did not know what he was admitting to. I therefore went back to the allegations in the mother’s statement dated 5 May 2022 ensuring that paragraphs 6, 10, 11, 13 and 15 were translated to him. They are descriptions of each proven allegation.

I went on to check with him about two further allegations. These had been made during the mother’s oral evidence. They were that the father threatened her with a knife in 2017 or 2018 and that he forced M to eat food that he had already vomited.

The applicant’s response to all this can be characterised as him saying that he cannot remember the exact incidents, but he accepts them and if they happened he apologises. It is a dramatic change of position from 17 October 2023. I find it probable that it reflects a change of viewpoint described by Ms Gaskell that he is willing to admit anything to see his children.

Specifically in relation to the allegations made during oral evidence, in closing submissions Ms Dunne said that the father did not recall these and therefore disputed them. I find that the unspecific allegations, made for the first time after a fact-finding hearing specifically for this purpose and with documents showing the father will admit to anything, is not credible. I consequently do not find on the balance of probabilities that these incidents happened.

Turning back to what M witnessed, I note that in the safeguarding letter on 1 June 2021, Eleanor Bailey reported that the mother said M was not present during any domestic incidents. When this was put to the mother her answer was evasive, variously blaming transcription error and translation error. Bearing in mind the timing of the incidents and evidence about them, on balance I find that M witnessed none of them.

I must consider why the father he wants to see his children so much. Judge Jabbitt already answered that question saying: “F is principally concerned with regularising his immigration status, in making this application.”

However there are two related countervailing points.

First, I find that mum was well aware that the father gained an immigration advantage as a result of his relationship with her. I particularly note that she went to work soon after M’s birth so that she would be a worker thereby trigger the possibility of the father being able to remain in the UK as an unmarried partner, which he ultimately did, under the Immigration (European Economic Area) Regulations 2006 and then 2016.

Second, Judge Jabbitt also found that: “M in August 2020 asked the Home Office to cancel his visa.” This was after the father had left her. She knew that what she had given she could take away. It is not the behaviour of a person who wants to promote contact. However, Judge Jabbitt also found that the mother did arrange for the father to meet the children in 2022 and tried to meet the father herself in 2020.

I note that the mother denied under cross-examination that she had agreed in 2022 to contact supervised by her in the community. This was bizarre because, not only had Judge Jabbitt found that she did so agree, there is a court order from 22 February 2022 recording her agreement to this where she was represented by Mr Majid who appears today. She came very close to putting him in professional difficulty. Her testimony on this was, I find, not true.

Following the fact-finding hearing a section 7 report was commissioned. Yvonne Stanley prepared it. It is dated 30 March 2023.

A number of points are relevant from this, with further input from Ms Lambert and explanation from the witnesses.

First, at the time of the assessment, the mother explained that she was in telephone contact with a boyfriend in America who wanted to marry her and have children. M referred to this man in the interview with Ms Stanley as his “good father”. That relationship has ended. The mother did not volunteer any explanation of how the loss of that relationship has affected M.

Second, it was not considered adequate protection for the children that the proven allegations of domestic abuse occurred three years before the father leaving the family home. Leaving aside the allegations from 2017 and 2018, which Cafcass have not heard, Ms Lambert’s view was that the father should attend an accredited domestic abuse perpetrators programme and then subsequent risk assessment before direct contact with the children would be safe. Ms Lambert did not agree with the recommendation of the father attending the Caring Dads programme because it is not accredited.

This places the father in something of a quandary because he has partially done what Cafcass recommended in 2023. Ms Stanley had said:

It seems unfair now to resile from the suitability of the programme that was originally recommended. I return to this later in my judgment.

However, Ms Lambert’s more serious concern was the recent and, in her view, insincere conversion to accepting the allegations.

Third, Ms Stanley reported M saying:

The mother denied denigrating the father in front of the children. I did not find her evidence on this convincing. She has had a longstanding opposition to contact and she has taken steps to prevent the father being able to remain in the country. Her oral evidence also showed an ongoing resentment at him for abandoning her while pregnant in 2019. On the balance of probabilities I find she does talk negatively about him in front of the children and M’s evidence to Ms Stanley reflects what he has heard from her rather than his actual experience.

The father did attend the Caring Dad’s programme. It involved 17 two-hour sessions from 22 November 2023 to 20 March 2024. The reports from this show him having general insight into parenting and maintaining good relationships. The issue was with him not accepting that he was a perpetrator of domestic violence. At the time of these sessions, the father had no leave to remain. He could not financially support his children.

The father has continued to send gifts and letters to the children fortnightly. The mother says the children are not interested in them because of their views of the father and the unsuitability of the gifts, mainly due to being age-inappropriate clothes or toys. She has taken no steps to try to guide the father towards more appropriate gifts. Rather, on 19 March this year she had her solicitors say:

It is not the behaviour of a person who wants to promote a relationship between her children and their father. On balance, I give little weight to her evidence as a person able to neutrally relay the wishes and feelings of the children.

There are open to me three options:

I must also look at whether or not to make a declaration of parentage and grant parental responsibility for L.

I evaluate each looking at the factors in the welfare checklist.

M has a negative view of the father. I have explained above why I find this to be reflective of the mother’s view.

If there were no contact that would accord with this current feelings of M as far as I know them. However when the section 7 report was compiled he had two dads. He currently has only one. I do not know whether long term he would prefer a relationship with his father or no relationship with any father. But there is a statutory presumption that involvement with a parent will further welfare. That does not mean direct contact, but it tends to point away from no contact at all. The evidence is not sufficient for me to find that no contact at all would accord with either child’s long term wishes and feelings.

Maintaining the status quo has similar issues. It is doing little to promote a relationship while the mother is negative about this contact. However, this could be improved. She could tell the father what would be more suitable for the children. Ms Lambert suggested that if gifts were unsuitable, letters would be something that could be kept for the children until they are ready to read them. This has the value of flexibility.

What both of these options entail, however, is the father not having a basis on which to stay in the UK. The reality of no direct contact now is no direct contact again until they are old enough to visit him in Bangladesh. I have no information about their views on never seeing him again during their childhoods.

A phased reintroduction of contact would involve M seeing his father. This is something that Ms Stanley said he was “worried about”. However I also observe that a reason for M’s perception of his father was, at least in part, abandonment. It might be that re-establishment of contact could alleviate that feeling.

L’s wishes and feelings about contact are unknown. Ms Lambert did say that in general terms it would make sense for the father to be named on his birth certificate so his identity matches with that of his brother.

No specific physical, emotional or educational issues have been identified. The obvious point that the children are boys growing up without a father, had not been relied on by either party. When I raised it, it was agreed to be relevant on behalf of the mother.

An end to contact or indirect contact only would effectively eliminate the possibility of physical, emotional or educational support coming from the father because of the immigration implications.

A phased reintroduction of direct contact allows the possibility of there being a second parent to provide this support. It is notable that between 2016 and 2019 the father did care for M. Until the hearing no issues were raised about this care. For reasons given above I reject those issues and give them little weight.

Changing to no contact at all would be a change in circumstances. As the mother is not a reliable voice of the children on their wishes and feelings, I have little reliable information on what effect such a change would have on the children.

Changing to direct contact has unpredictable effects. On one hand, it might lead to re-establishment of a parental relationship to the benefit of both children. On the other hand, the worries of the children may prevail leaving both children harmed by the contact. As a result, only a staged and managed reintroduction of contact is suitable so that it is to their benefit.

The existing indirect contact arrangement could be improved with engagement from the mother. That can only be positive. As Ms Lambert said, if the children do not want to look at letters, they can be kept for when the children do want to.

The children are now 9 years old and 5 years old. They are boys without a father taking a meaningful part in their lives. They are Muslim. Both their parents are of Bangladeshi origin but from different parts of the country. Their mother has a more interesting route to her current circumstances, having spent most of her childhood in Spain. They benefit from this diverse heritage living in a multicultural city. Yet neither parent has really paid much attention to what each of them can offer to the children as result of their backgrounds.

What is clear is that no contact means loss of the connection to the father’s background and loss of a male role-model. Ongoing indirect contact somewhat ameliorates this. Direct contact has the greatest potential to ameliorate this.

I am not satisfied that either child witnessed any actual abuse. I am also not satisfied that there was domestic abuse at any stage after M was two months old. To put it another way, he lived in a household without domestic abuse but with both parents for over three years.

There is also little evidence that the mother’s parenting was in fact impaired by the abuse she earlier suffered. As Judge Jabbitt said, she was never seriously injured, though that in no way means she was not a victim of abuse.

Turning back to the specific incidents, Ms Lambert noted that the use of a knife is particularly serious. That is entirely true. But it also long predates the birth of any child.

Denigrating comments also long predated the birth.

The gambling, which was theft and abuse of trust, but not typical domestic abuse, predated the birth.

After these incidents, I was told at the hearing that they decided to get married anyway on 31 May 2015 because they were in love. I note, nevertheless, that by this time the mother was also pregnant. I also note, as Judge Jabbitt did, the observation that some individuals will continue a relationship despite abuse and exploitation.

The next incident was in 2015 on an uncertain date involving an attack in front of the mother’s parents. The “attack” has no specific description whatsoever. It is not in the judgment or in the mother’s statement. I have difficulty working out what harm it might cause M because I do not know what it involved.

In January 2016 is the more specific incident of pinching cheeks viciously, slapping on the face, pushing into the wall and humiliation by saying the mother has a physical impairment to perform activities. This, I find, is an incident of domestic violence after M’s birth. It of course harmful to the mother and child.

But viewed in context it appears on balance to be the last incident. There then followed a period of over three years of cohabitation without incident. For most of this period the father was the primary carer of M.

Looked at this way, I am unable to find that domestic violence has actually put either child at risk or would do so in future. There is a risk from parental conflict, which requires the parents not to be caring for the children together. But that is a correct characterisation of the situation and it is the characterisation given by the father. In saying this I particularly note that the mother’s evidence about why she did not want the father to have contact with the children did not relate to any risk of violence to her or to them. She said that it was because he abandoned her while she was pregnant.

What does that mean for the three options I am considering?

Ms Lambert’s strongly held view was that contact without a Domestic Abuse Perpetrators Programme and risk assessment first was unsafe. In context, I do not agree. Contact was safe for three years and could safely resume, subject to reintroduction at a rate that is reasonable for the children. I agree with Ms Dunne submission that Ms Lambert has, through no fault of her own given the imperfections in this case, relied on a generic approach to risk when dealing with a proven perpetrator of domestic violence without understanding the full facts of this case. It is correct to say that the mother has not suggested she would be at risk of harm – that was evident in 2022 when she arranged contact. It was Cafcass which suggested the risk.

No contact and indirect contact of course eliminate any direct risk of harm. However they also prevent the upside benefit of the relationship.

However, there is another form of harm that had not been addressed. This is the motive of the father for wanting contact. As his motive is immigration, might he regain direct contact for immigration purposes and then disengage?

When I raised this in closing submissions on behalf of the father I was told that the father had been pursuing child arrangements for benefit of children. Only one goal in proceedings was to resume direct contact. It was submitted that he would be committed to it. He is willing to do anything to rebuild the relationship. On behalf of the mother it was submitted that he only seeks an order for contact and then will not engage.

That must be a risk – he did walk out on the family before after he had an EEA Residence Card. But this was not put to him during cross examination either. The EEA Residence Card was also issued on 23 November 2018, 9 to 11 months before the end of the relationship. There is not a direct correlation between the grant of immigration status and the end of the relationship. Furthermore, the mother also then prevented contact in various ways already discussed.

On balance, even if immigration is a motive for the relationship with the children for the father, it is not a reason why the children should be denied that relationship. The father knows well now that he needs the relationship to continue in order to maintain his status but also, and importantly, his status means he can continue that relationship with them. If the relationship is beneficial to the children, the immigration advantage makes it mutually beneficial.

The court has the most straightforward powers when looking at no contact or indirect contact, both of which I can order without complexity.

The option of direct contact is more difficult.

The father’s proposal has four stages.

First is the reintroduction of the children to him. He thinks that M would remember him and would recognise him. When he met L they became friends after he showed photos. He says there was no issue with the relationship within 10 minutes.

The mother refused to respond to this submission. She refuses to countenance contact at all, point blank. By doing so she refuses to inform the court about the feasibility of the father’s proposal. This is poor conduct, but particularly poor conduct given that the father applied for a child arrangements order in 2021. Her approach is very very far from being child focussed.

On the other hand, the father’s proposal appears to me to be naive. M expressed to Cafcass his own concerns about the father. However ill-founded these are, I accept they are genuinely felt. It would be reintroduction without the support of the mother. As a victim of domestic violence, it would be inappropriate to compel her to supervise the reintroduction. I am concerned that an unmanaged re-introduction after three years for children of this age, even in a supervised setting, carries a risk of emotional harm and, equally importantly, sets the contact arrangements up to fail. However this is a risk only and is only a factor in the balance.

The second stage is ongoing supervised contact. I can order this.

Progressing to unsupervised contact depends on the success of the supervised contact. I was presented with two options for this:

Neither option is ideal. The first fails to achieve finality and works in more delay in the proceedings. That is delay on top of significant delay that has already been experienced. The second fails to take the opportunity to ascertain the wishes and feelings of the children after they have had a chance to be with their father. It is not properly allowing consideration of an aspect of their welfare, and my paramount concern.

The only sensible and feasible way forward within the court’s powers would therefore be to have ongoing supervised contact at a contact centre until either the parents agree another arrangement or an application is made to the court to vary it. The latter course would, of course, happen if, for example, the father feels the contact is going well but the mother disagrees.

Having looked at all the factors, and without repeating them, I find this to be a finely balanced choice between the options of continued indirect contact and commencing direct contact as I have just set out. I reject as appropriate an order for no contact as it has no positive points when analysed against the welfare checklist. It is essentially a preference of the mother because of her desire to erase the father from the lives of their children.

The question is which viable option to choose.

This is a decision which will affect the children and their parents for the rest of their lives. The mother’s repeated concern, as also found by Judge Jabbitt, is that the true motive for the father seeking contact is an immigration advantage. She has thrown accusations of wanting to abduct or kill her or the children. These have been without foundation.

The father’s request will require him to prove his commitment over a significant period. It will allow the children to restore a relationship which, for the reasons I have given, would be to their benefit.

On the other hand, the status quo is not actually harmful to them. No concerns have been raised by any professional or any other adult who spends time with them. Restoring contact may be turbulent and difficult. It will affect the mother, as a victim of domestic violence, and thereby potentially affect her parenting. However the status quo will also affect the father, leaving him without a basis on which to remain in the UK and therefore effectively severing the possibility of resumption of a meaningful role in the lives of the children. That does not benefit them long term.

On balance therefore I conclude that an order for direct contact should be made. This should be for monthly supervised contact at a contact centre funded by the father for 18 months for up to two hours. This is a final order. I hope that the result will be agreement by the parents as to contact after this period, or even before its end. If either parent cannot agree to this, either will of course be able to apply to the court to change it.

I grant the application for a declaration of parentage and parental responsibility, placing both children on equal terms with each other.

The children continue to live with mother.

Father should continue to send letters and photos at intervals between the contact.