The Mother v KN & Anor

This is an application by the Mother (“M”) in respect of the child, B, who is aged 6. KN is the Father (“F”). There are three applications; to remove F’s parental responsibility (“PR”); to vary the child arrangements order (“CAO”) to cease all contact between the F and B, and for a s.91(14) order up to B’s 16th birthday.

The M was represented by Laura Hill, the F was represented by Kimari Storey and the Guardian was represented by William Horwood. The F also had the assistance of an Intermediary.

This case forms the next stage in some very long running litigation. I have given two previous judgments concerning the F, which directly covers B’s case and where I made final orders. I do not intend to repeat the contents of those judgments.

B was born in July 2018. The F’s first application was made in October 2019, so B and his mother have been in proceedings for most of the last 6 years.

As is set out in the earlier judgments there was a period when B was having regular contact with the F. A CAO was made in March 2021 giving the F direct contact and at this stage relations between the parents were relatively good. However, by December 2021 the position had changed and the M was granted a non-molestation order (“NMO”). From June 2022 there were orders that contact was only to take place in a contact centre. The F has always struggled with being at a contact centre and has never been content to accept such restrictions on his contact.

From mid-2022 onwards there were a number of occasions when the F posted things on social media in breach of court orders. In 2022 there were committal proceedings in respect of the F’s posts on social media. Both I and HHJ Williscroft did our utmost to explain to the F the consequences of breaching court orders in respect of posting material on social media. However, when the committal application came before HHJ Williscroft she found that he had deliberately breached the court order. On 31 May 2024 she made a suspended order for 3 months imprisonment by reason of the contempt.

On 3 April 2023 I held a final hearing and ordered that:

“1)

The non-molestation order dated 7th December 2021 shall remain in force as ordered until 3rd April 2027.

2)

The child shall live with the mother.

3)

There shall be indirect contact between the child and father. This indirect contact shall take place no more than 6 times a year and will take the form of letters or cards. Such indirect contact shall be sent via the maternal grandmother, assuming she is prepared to undertake the task.

4)

Section 91(14) order prohibiting the father from making any further Children Act 1989 application without prior permission of the court until 3rd April 2027.

5)

The father is prohibited from posting anything on social media in relation to the child until the said child attains the age of 16 years.

6)

There is no order in relation to the respondent’s enforcement application and this application is dismissed.

7)

Legal aid direction for costs.”

It would be fair to say that the F was very unhappy about that order. Between April and October 2023 he made four applications to the court. He says that he wanted to appeal the orders I had made but did not know how to do so, which is why he made further applications.

On 31 January 2024 the M applied to discharge the CAO made on 3 April 2023 and to terminate the F’s PR. Those are the applications now before me.

On 9 May 2024 there was a directions hearing before HHJ Williscroft in which the following is recorded in the order:

“1)

The father made an oral application to seek a different children’s guardian. This was refused.

2)

Father provided a speech and language assessment, it was encouraged to provide this to his solicitors dealing with the committal application.

3)

The father informed the court that he has been sending gifts to [B] via the paternal grandmother who has been posting the gifts.

4)

The father informed the court that he was not aware of the order made on 3rd April 2023 for indirect contact via the paternal grandmother which the court did not accept as he was present at the final hearing when the said order was made.

5)

The father refused to follow the order of HHJ Lieven (sic) and wanted to amend this order which was refused.

6)

The father was shouting and interrupting repeatedly during the course of the hearing and refusing to listen to the Judge meaning he was disconnected.

7)

The court requested a detailed statement from the mother setting out the reasons for her application so the father could understand why the mother is seeking the orders she does.”

There were a series of further hearings, including multiple adjournments to try to ensure that the F had legal representation.

HHJ Williscroft ordered a cognitive assessment of the F to be undertaken. This was carried out by Dr England and is of considerable benefit in understanding the challenges that the F has in his communication style, and at times controlling his behaviour. Although this is a useful document it does not give me any information about the nature of the F’s difficulties, and his presentation that was not fairly apparent from my previous interactions with him or the written evidence. I say this not to diminish the usefulness of the report, but because Ms Storey submits that the report is a material change of circumstance which would justify instructing an Independent Social Worker (“ISW”) to assess the F. However, in my view the report does not raise new issues or understandings that could possibly justify such a course of action. It does provide information on F’s difficulty with his working memory which may explain the fact that he denied being advised to undertake therapeutic work, in particular in relation to anger issues.

The matter came before me on 1-2 May 2025 as HHJ Williscroft was unwell. The first day was held with the F, his Intermediary and Ms Storey in person, and all other parties remote. The M finds being in court with the F unbearably stressful. Also, the F has on previous occasions been seriously threatening in court and becomes very heightened. He is extremely hostile to the Guardian and becomes very angry when she speaks. In those circumstances HHJ Williscroft had allowed the other parties to attend remotely.

Although the F obviously found the process very stressful he did manage to stay in court for most of the hearing. It was agreed that day two would be held entirely remotely, for final submissions. The F became very angry during the second day on the Teams link, and at one point I had to exclude him from the hearing because he kept interrupting. But he was present for most of it. Although the hearing was difficult, and the F undoubtedly found it difficult, I am confident that he had a fair hearing. I should pay tribute to the Intermediary and to Ms Storey, both of whom worked very hard to keep the F calm and focused.

The M’s application is based on her evidence as to the F’s conduct and the degree to which she feels intimidated and in fear of him and the impact that has on her and, through her, on B. The M gave her evidence remotely. She was highly emotional and at one point became very upset. She recounted an incident in a local supermarket where she had seen the mother of the two children who the F does currently have contact with. She was extremely upset by this incident and is clearly in genuine fear of the F removing B from her care, even if that fear is not objectively justified.

The M says, in summary:

There is some of the M’s evidence I do not accept or consider exaggerated. However, it was very clear that she finds the court process and having any interaction with the F extremely difficult and upsetting. The M herself has mental health issues and presents as being very vulnerable. In all the hearings she has been very unwilling to come to court, or even to see the F on screen. I accept that she is in genuine fear of the F and feels very intimidated by him,

The M has another child by her previous boyfriend (“MC”). She is therefore looking after two young children, one of whom, B, having considerable challenges. B has been diagnosed with autism, and when he becomes dysregulated he can become very difficult to control and at times violent. He has had significant problems at school having been excluded on a number of occasions. He currently seems somewhat more settled and is doing better. However, he is a child who needs a particularly high (and calm) level of parenting.

Until fairly recently the children have been subject to Child in Need plans. This seems to have been largely because of the M’s ex-partner and the risks that he posed to the children. The M herself said that she did not leave the children alone with MC. This is relevant because the F says that when he called the police it was because he was so concerned about B being in the house with MC.

The F gave oral evidence. He found this tremendously difficult, finding it impossible to make eye contact and quickly became angry and upset. I accept, both from my own experience of being in court with the F on a number of occasions, and from the cognitive assessment, that the F finds these proceedings incredibly stressful. That leads him to become angry, aggressive and threatening. It is apparent that the F is incapable of controlling himself when another adult says something he disagrees with or makes a decision he does not like.

I have no difficulty in understanding the M’s level of fear, and desire to ensure the F plays no part in her, or B’s life. However, I accept what the F says, that he does not behave like that around children. When he feels himself becoming heightened when there is a child there, he leaves the room.

The F strongly relied upon the fact that he now has considerable contact with two of his children with a different mother. One of the children, R, has been living with him and his parents for the last 2-3 months, and the other, P, who he has twice weekly contact with. Apparently the Local Authority are aware of this situation and have not sought to take any action. He says this shows that he can safely have extensive contact with young children, with no issues arising.

In a previous judgment I made the following conclusions about the F:

“55.

[KN] had a very concrete way of seeing things and had very little (if any) insight into the impact of his behaviour, and equally little empathy as to how it affected others. He quickly becomes agitated, aggressive and loses control when not getting his way. I thought Ms Vine’s [the Guardian then and now] assessment was very accurate. I suspect that [KN] can provide appropriate care for one child when he is calm and all is going well. However, I can also fully accept that when he becomes agitated he cannot control his emotions. He became upset when I gave my interim ruling and became angry and found it very difficult to control himself. There is copious evidence of him ringing or contacting people on multiple occasions if they do not do what he wants, and he simply will not take no for an answer. He had no insight into the impact this behaviour has on other people … He had accepted that he did at times become frustrated and aggressive, but he said he never did this in front of children. However, I do not consider that [KN] has any self-control over his feelings of anger and frustration.”

The evidence before the Court in the present case suggests that those conclusions remain wholly applicable. If anything, my view would be that the F’s presentation has got somewhat worse, and he has even less self-control. This is unsurprising as all the litigation and the stress of the last three years must have taken a considerable toll on him.

I note that the Guardian said that the F had phoned her 82 times in a short period when he did not agree with her recommendations. He has also been extremely abusive to her, as he was throughout the hearing. The social worker had to block his contact with her after numerous calls, but he then took to calling the Local Authority switchboard so they could not operate. During the remote part of the hearing he kept filling in the MS Teams chat bar. The F made the point that he had had no problem with the first Cafcass officer, Mr Donohue, who advised on the 2021 case. But that case was largely agreed and Mr Donohue made recommendations that the F agreed with.

In respect of each of the allegations made against him, the F has an explanation. He says he contacted the school because he had a right to do so, but when told he could not attend the sports day he did not do so. He was entitled to wait outside the school, and he did not approach B. I am prepared to accept these explanations, although they do show that the F has a consistent pattern of pushing against the boundary of orders, and trying to achieve the outcome he wants.

The F says that he thought he was entitled to send the gifts via his parents. The tracking device was a standard app and he did not deliberately put it on the iPad to track the M, it was simply an old iPad that had the app on it. I note that the F accepted to the police that he had sent the iPad because he did not think he was breaching the order.

He denies putting the unpleasant responses on the M’s social media posts. He says this was not him because his profile is in Japanese (to evade an earlier order I had made) and this was MC pretending to be the F in order to get him into trouble.

I do not find it necessary to determine all these factual issues. The issue here is much more the impact on the M, and therefore on B, than on any detailed forensic fact finding. There is a text message that indicates strongly that the F intended to find and then contact B. I also think, from all the material and the earlier proceedings, that the F will not accept the authority of the Court and will go to almost any lengths to find a way round orders. Examples include putting his profile on Facebook in Japanese so that he could say he had not identified B; continuing to make multiple applications despite the s.91(14) orders and making numerous phone calls/emails to the Guardian, the social workers, and any other professional who does not do what he wants.

I accept that he was legitimately concerned about MC and has some justification in feeling that he has been treated very differently from MC. However, I do note that when the F was initially asked about the referrals to Social Services his first response was something about the M not buying B school clothes, and not the more legitimate concerns about MC. It may be that MC has become something of an excuse, but also that the F has a strong sense of injustice that MC sees his child, but the F does not. Whatever the rights and wrongs of that situation it does not justify the F’s actions in making urgent referrals to Social Services, which he must have realised would cause the M and B great distress.

In respect of sending the iPad with the tracking app, I am confident that the F did know that his parents should not be the conduit for sending gifts. More importantly it was totally inappropriate for the iPad to have a tracking app on it, and a link to contacting the F. The tracking app was locked to the F’s phone. I do not think this was an oversight by the F, but rather that he was deliberately trying to find and get into contact with B.

The Guardian has been involved in the F’s applications since 2022. She supports the M’s applications. She said that initially she had a good relationship with the F, but once she didn’t agree with his viewpoint he has become increasingly hostile to her. Her written report dated 3 July 2024 focuses on B being a highly vulnerable child and the impact that the F’s behaviour has on the M and through her on B. Given B’s vulnerabilities he particularly needs a stable and calm home.

She accepts that when the F did have direct contact with B the sessions seemed to go well. However, she says that B has suffered no harm from direct contact with the F being stopped. B is young, and he has poor communication skills, but there is no evidence that he knows his father or has any real relationship with him.

She accepted that she had written her report before Dr England’s cognitive assessment was produced and that report would have informed her report and its conclusions. In particular, Ms Storey highlighted those parts of the report about the F’s communication problems, his difficulty in understanding instructions and orders unless they are very clearly explained and his very concrete thinking. The Guardian accepted that the report was relevant, but there was nothing to suggest it would have led her to change her conclusions.

She was of the view that unless contact is stopped and PR removed, the F will continue to intimidate the M and that will have a highly detrimental effect on B. She felt that the F would push against the boundaries of any contact order and would seek to exercise any PR to control and intimidate the M.

The legal test for terminating parental responsibility was helpfully summarised by MacDonald J in D v E (Termination of Parental Responsibility) [2021] EWFC 37 at [31] to [35]:

“31.

Where, as in this case, the father has acquired parental responsibility pursuant to s.4(1)(a) of the Children Act 1989 by being registered as the subject child's father, his parental responsibility may only be removed by an order of the court pursuant to s.4(2A) of the 1989 Act. Having regard to the terms of s.1 of the Children Act 1989, when deciding whether to terminate a father's parental responsibility, the child's welfare is the court's paramount consideration (that question being a question with respect to the upbringing of a child pursuant to s.105(1) of the Act) but is not required to consider the factors set out in s.1(3) of the 1989 Act, as an order terminating the father's parental responsibility is not an order specified in s.1(4) of the 1989 Act. However, in Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166 the Court of Appeal made clear at [12] that:

"[12] When a court is considering an application relating to the cessation of parental responsibility, the court is considering a question with respect to the upbringing of a child with the consequence that by s 1(1)(b) of the CA 1989 the child's welfare will be the court's paramount consideration. By s 1(4), there is no requirement upon the court to consider the factors set out in s 1(3) (the 'welfare checklist') but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned. Given that the cessation of parental responsibility is an order of the court, the court must also consider whether making such an order is better for the child than making no order at all (the 'no order' principle in s 1(5) of the CA 1989)."

32.

With respect to the factors to be taken into account, in Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048, Singer J held as follows at p.1052:

"I start from the proposition that parental responsibility – both wanting to have it and its exercise – is a laudable desire which is to be encouraged rather than rebuffed. So that I think one can postulate as a first principle that parental responsibility once obtained should not be terminated in the case of a non-marital father on less than solid grounds, with a presumption for continuance rather than for termination.

The ability of a mother to make such an application therefore should not be allowed to become a weapon in the hands of the dissatisfied mother of the non-marital child: it should be used by the court as an appropriate step in the regulation of the child's life where the circumstances really do warrant it and not otherwise.

I have been referred in outline to four authorities as to the circumstances in which a court will make an order for parental responsibility on application to it under s 4, notwithstanding maternal opposition and, more particularly, as to the criteria and considerations which are relevant. The authorities in question are: Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151, sub nom Re H (Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214; Re C (Minors) (Parental Rights) [1992] 1 FLR 1, in the Court of Appeal, and Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504, also in the Court of Appeal; and, finally, a decision of Wilson J, Re P (A Minor) (Parental Responsibility Order) [1994] 1 FLR 578.”

Such applications for parental responsibility orders are governed by the considerations set out in s 1(1) of the Children Act, namely that the child's welfare is the court's paramount consideration. I can see no reason why that principle should be departed from in considering the termination of a parental responsibility order or agreement.

Key concepts to the consideration of the making of an order are evidence of attachment and a degree of commitment, the presumption being that, other things being equal, a parental responsibility order should be made rather than withheld in an appropriate case."

33.

Within this context, in CW v SG (Parental Responsibility Consequential Orders) [2013] EWHC 854 (Fam), [2013] 2 FLR 655 Baker J (as he then was) endorsed the approach taken by Singer J in Re P (Terminating Parental Responsibility). In CW v SG (Parental Responsibility Consequential Orders) Baker J held as follows at [59]:

"As in Re P, I find that, if the father did not have parental responsibility, it is inconceivable it would now be granted to him, and that this is a factor I should take into account when considering this application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make up parental responsibility which this father could, in present or foreseeable circumstances, exercise in a way which would be beneficial for D."

34.

The decision of Baker J (as he then was) was upheld by the Court of Appeal in Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166, in which Ryder LJ (as he then was) held as follows at [13] and [14] with respect to the factors to be taken into account on an application to terminate parental responsibility pursuant to s.4(2A) of the Children Act 1989:

"[13] The paramountcy test is overarching and no one factor that the court might consider in a welfare analysis has any hypothetical priority. Accordingly, factors that may be said to have significance by analogy or on the facts of a particular case, for example, the factors that the court considers within the overarching question of welfare upon an application for a parental responsibility order (the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order) may be relevant on the facts of a particular case but are not to be taken to be a substitute test to be applied (see Re M (Parental Responsibility Order) [2013] EWCA Civ 969, [2014] 1 FLR 339, at paras [15] and [16]).

[14] An unmarried father does not benefit from a 'presumption' as to the existence or continuance of parental responsibility. He obtains it in accordance with the statutory scheme and may lose it in the same way. In both circumstances it is the welfare of the child that creates the presumption, not the parenthood of the unmarried father. The concept of rival presumptions is not helpful, although I entirely accept that the fact of parenthood raises the welfare question, hence the right of a parent (with or without parental responsibility) to make an application under s 8 of the CA 1989 without permission (see s 10(4)(a) of the CA 1989). There is also ample case-law describing the imperative in favour of a continuing relationship between both parents and a child so that ordinarily a child's upbringing should be provided by both of his parents and where that is not in the child's interests by one of them with the child having the benefit of a meaningful relationship with both. A judge would not be criticised for identifying that, as a very weighty, relevant factor, the significance of the parenthood of an unmarried father should not be under estimated."

35.

Within the foregoing context, it is also important when considering an application to terminate the parental responsibility of an unmarried father to have regard to the shared nature of parental responsibility when the same is conferred upon both parents. In this context, in Re W (Direct Contact) [2013] 1 FLR 494 at [80] McFarlane LJ (as he then was) observed as follows:

"Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the "responsibility" which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case."

With considerable sadness I have come to the conclusion that it is in B’s best interests to remove the F’s parental responsibility, and the very high test set out in the caselaw is made out. I accept the F very much loves B and is desperate for a relationship with him. I also accept that the F, certainly with the help of his parents, can be safe with a small child and can have positive interactions with him. If this was the issue in the case then I would retain the F’s PR and allow contact.

However, the M is B’s primary carer and always has been. She finds any interaction with the F incredibly stressful and she is extremely worried about him finding her or contacting her. It is not possible to say her fears and the level of her worries is unreasonable. There is copious evidence that the F is incapable of controlling his behaviour. Although he may be able to do so when around young children, as soon as he is challenged by an adult he becomes angry, aggressive and loses control. I have set out evidence of this in the earlier judgments, including an occasion when he assaulted police officers and a time when he became angry and aggressive in court when I made a decision he did not like. He has bombarded the Guardian and social workers with emails and phone calls.

I am confident that if the F retains PR he will use that to try to find B and the M. I am not sure the degree to which this is about coercive control of the M, I think it is more about wanting a relationship with B, but being wholly indifferent to the impact on the M. The F is utterly impervious to the impact of his behaviour on others. In any event, the effect on the M is the same. The M has significant mental health issues, and even if her fears were not objectively justified, that makes little or no difference to their impact upon her.

These factors alone would not be sufficient to remove PR. The additional matters here are the level of B’s vulnerabilities and the very limited nature of his relationship with the F. B is a young child and it is difficult to be confident as to how he will develop. However, he has been diagnosed with autism, and has serious communication difficulties. He easily becomes highly dysregulated. He is already really struggling at school. All of that means that he desperately needs the most supportive and calm parenting that is possible. That will not happen if the M remains tied in endless cycles of litigation and is constantly worried about the F contacting her and finding B.

The other factor is that B has a very limited relationship with the F, and will not in reality miss him. I am very conscious of s.1(2A) Children Act 1989 and the presumption that a child should normally have a relationship with both parents. The F would doubtless feel that the limited relationship is the fault of the court and the M. However this is not a situation where the parents were in a relationship when B was conceived, or where the F was part of B’s early childhood experiences. There is no evidence that he is suffering any immediate detriment in not having contact with the F.

I asked the Guardian to consider how there could be some method of ensuring that B would know who his father is and some life story work. In my view it is proportionate that the F should have indirect contact once per year via a PO Box, letter contact so that he can send B a card and a photo. I appreciate that this is very limited, but it will at least allow B to know who his father is and, when he is older, and hopefully can understand the situation, choose whether he wishes to initiate contact.

Turning to the welfare checklist, B is too young to be able to express wishes and feelings. But I have explained that there is no evidence that he has any positive wish to see his father. In terms of his emotional needs, in my view these will be much better met by the M being able to provide calm parenting than by his having a relationship with the F. The position is even clearer with his educational needs where the current emotional turmoil is plainly negatively impacting upon his ability to manage school.

The present and immediate impact of the F’s PR being revoked will be minimal. In the longer term there may be some impact. However, given his autism I am not convinced that there would be very much long term impact.

The Guardian and the Local Authority believe that the M can provide good enough care. She appears to listen to advice and she can put B and his sister first. I was concerned about the M’s relationship with MC, but I place reliance on the Local Authority assessment and the fact that the children are no longer on Child in Need plans. In contrast, the F is very fixated on his own wishes and emotional needs. His inability to control his behaviour, although doubtless a product of his neurodiversity, ultimately indicates that he cannot meet a child’s emotional needs.

Finally, I have considered whether a lesser order of not removing PR but limiting it in various ways would appropriately meet the needs of the case. However, I am concerned that the F has shown himself to be astute at trying to get round court orders. The ultimate need in this case, to meet B’s best interests, is to allow the M to be confident that the F will not contact her or B. Any “chink” of parental responsibility will remove her confidence and is likely to be wholly counter-productive.

For these reasons I will vary the CAO to limit the F’s contact to once per annum letterbox contact via a PO Box.

I will remove the F’s PR, being confident that this is in B’s welfare interests.

I will extend the non-molestation order for another 12 months, as I accept there is some evidence of the F seeking to harass the M, and the order merely prohibits him from doing what he should not do in any event.

There was an oral application for a Prohibited Steps Order placing further restrictions on the F. I do not think the evidence is sufficient to make such an order. Where the F clearly understands an order and it is in very clear terms the F appears to obey it. I do not wish to lay legal traps for him, so I do not think such an order is justified.

I will make a s.91(14) order in respect of future applications until B’s 16th birthday. I will ask that this order is served on Derby, Nottingham and Sheffield Courts. I take into account the caselaw that it is not necessary for the making of such an order that the F has made multiple applications, but in any event, he did make four applications in 2023. For reasons that I have already explained it is of the utmost importance to B’s welfare that the M can focus on his needs, and not be carrying the worry and anxiety around the F making multiple applications to the court.

There was also an application for the F to be made a vexatious litigant, or subject to a Civil Restraint Order. In the light of the fact that I have made a s.91(14) order, I do not think it would be proportionate to also make a Civil Restraint Order.