RA v PK

In issue in this case is the father’s application for a child arrangements order following an application under article 21 of the Hague Convention 1980, in relation to the parties’ child, K, and the mother’s cross applications for a section 91(14) order and orders restricting the father’s parental responsibility.

The mother sought at the beginning of this hearing to make further applications for a change of K’s names (a change in spelling of her first name and a change of her second name). She had prepared no formal application but had very shortly before the hearing filed a statement to provide evidence to support her case for the changes. I ruled that issue could not be fairly dealt with at this hearing and have adjourned it to be heard at a subsequent hearing. That hearing will take place after the father has had an opportunity to consider the mother’s evidence on this issue and provide any evidence he wishes to put before the court on it, and the Cafcass Officer, Ms D’Silva, has had an opportunity to consider the application and (as she has told me she considered appropriate) take into account the child’s views on this issue.

The father has been represented at this hearing by Ms Miller instructed by Hanne & Co. The mother has been represented by Mr Landman via Advocate on a pro bono basis. I am grateful to both counsel.

The only live evidence I heard was from the Cafcass Officer, Ms D’Silva. She was extensively cross-examined by Ms Miller and more briefly examined by Mr Landman. Neither party gave live evidence. I read their statements. Both parties attended remotely and the father had a translator to enable him to follow the proceedings. I had full written and oral submissions from counsel.

The parents are Ukrainian. The father is 39. The mother is 36. They married in 2016, having met in 2008 and lived together since 2014. K was born in 2016. They separated in 2017 or 2018. The mother had moved with K to France for work in 2017 and then moved back to Ukraine, she says under pressure from the father. (I made no investigation into this.) Divorce proceedings started in 2018. It was not an easy separation. I will set out more on this below.

In 2020 the mother and child came to this jurisdiction to take up a job. In that same year the father made an application for summary return of the child to Ukraine pursuant to the Hague Convention 1980. In June 2021 Moor J refused a return on the grounds that the mother has established an article 13 (b) defence.

I shall set out below paragraphs from Moor J’s judgment describing events which occurred during the separation which were central to the arguments before me.

The headline points that I take from this passage is that:

The father was refused permission to appeal Moor J’s decision and the mother and child remained in London. The father continued to pursue contact orders through the Ukrainian court, successfully in terms of court orders, but there has been no contact between him and the child.

The mother is in a relationship with another man, with whom she has had two other children. K looks upon this man as a father figure and they form a family the mother tells me.

In December 2023 the father moved to Scotland. Following the war in Ukraine he first moved to Poland and then moved on to Scotland under the Ukrainian Sponsorship scheme. He has been repeatedly moved while in Scotland. He too is living with a new partner.

In June 2023 he received legal aid to make an application for contact under article 21 of the 1980 Hague Convention. In February 2024 he completed a course called the Freedom Programme in relation to domestic violence. In March 2024 his solicitors contacted solicitors acting for the mother to make proposals. No progress having been made he applied in January 2025 for a court order.

That has led through directions hearings and a DRA to this hearing, and the appointment of a Cafcass Officer. I note that it was agreed at the DRA that a ‘lives with’ order could be made in favour of the mother.

It is in the context of the findings recorded by Moor J that the mother argues that, save for one letter, which I shall detail below, there should be no contact between the father and the child, that he must get through the section 91(14) filter before making any further application, and that he should have his parental responsibility severely restricted.

The Cafcass officer’s recommendations agree with the mother’s position.

As to the letter, this was a suggestion of the Cafcass Officer. It was her suggestion that the father might write a letter to K in which he offers her an apology to her for his behaviour and offers her his love for the future. She wanted that letter to be approved by the court. It would be a matter for the mother when she considered it would be appropriate for her to give the letter to K. She thought that it should be when K starts asking about her father. The mother agreed with this.

As to the duration of the 91(14) order, the Cafcass Officer said to Ms Miller 3 years, and then revised her position with Mr Landman to last until K is 16. The mother supported the longer duration.

As to the restrictions on parental responsibility by a combination of specific issue orders and prohibited steps orders the mother proposed that in essence the father should have no effective parental responsibility save that she would cause him to be notified if the child (i) was diagnosed as suffering from a life-threatening condition, (ii) was receiving emergency medical care. She envisaged he be notified by the medical practitioners and made clear she could not manage the notification herself. The Cafcass officer did not descend into that level of detail but agreed with the principal of taking effective parental responsibility away from the father.

The father’s position was that contact should be restarted, first by the suggested letter (which should go straight to K), then further letters and gifts, but with the hope of moving through the stages of contact including in time ‘live’ indirect contact to direct contact. He does not propose a timetable, and is happy to go slowly with reviews but wants to get something started.

He opposed a section 91(14) order on the basis he had not brought an application in this country since the failed Hague application. He pointed out that he had taken a measured approach since obtaining legal aid. There was no reason to think that he was unduly litigious.

He saw no reason to interfere with his exercise of parental responsibility given that he had taken no steps to interfere in the child’s life and the mother’s exercise of parental responsibility since the failed Hague Application.

The arguments in relation to some form of contact between the child and the father can be summarised as follows:

The arguments in relation to a section 91(14) order can be summarised as follows:

The arguments as to restricting parental responsibility can be summarised as follows:

The actions of the father as recorded by Moor J were violent, threatening, and put the mother and child at very significant risk. It is entirely to be expected that they would traumatise them both.

It is right, as Ms Miller said to me, that the child was very young when the incidents occurred and that the mother had said, at an early stage, that the child had little memory of them. I do not draw from that, as Ms Miller would have me, that the memories that the child now relates of those incidents to the Cafcass officer are a consequence of the mother feeding her an account of what happened so as to turn her against her father. Ms D’Silva said she could not be sure what was an independent memory and what had been communicated to the child by the mother’s family (aunts and grandmother as well as mother). It is entirely natural that the consequence of having a Cafcass Officer making enquiries will be to bring to the surface memories that might otherwise be left out of the thoughts that play a part in daily life. It is also entirely to be expected that events such as occurred here will form part of the story that the family members will tell each other about their history and how they come to be, in this case, living in England and for this child, not with her father. Ms D’Silva was forceful in her presentation to me that K’s memories were powerful – however they have come to be formed.

Ms Miller put to me that there was no current and expert evidence that the mother and the child were traumatised. Mr Landman pointed to the historic Ukrainian evidence to which Moor J referred. I do have the evidence of Ms D’Silva both orally and in her report. For instance she tells me (para 18), ‘The impact of the domestic abuse on K has been profound and enduring’, and in relation to the mother, (para 21) ‘Her current sense of safety is fragile and contingent on the absence of any arrangements which she views as a protective factor.’

I am clear that they were and remain traumatised.

In the light of that finding re-introducing the father into their lives puts K at very significant risk. She will find it psychologically very hard, so will her primary care giver, her mother. I agree with Ms D’Silva when she says (para 22) that ‘Any reintroduction of indirect or direct arrangements risks destabilising her [K’s] progress and reactivating trauma responses and would require careful clinical oversight and safeguarding’. There is no suggestion of any available clinical oversight or safeguarding.

Ms Miller contended that Ms D’Silva and indeed Moor J did not put enough weight on decisions of the Ukrainian court (made after the mother had moved to London) that the father should have time with K and continue to have parental responsibility. She says that the Ukrainian court were in the best position to assess the weight which should properly attach to the domestic violence. Moor J did know that the Ukrainian court had ordered contact in 2020 – he comments on that in his judgment. It is right however that he did not have the reasoned judgment from the relevant Ukrainian court, because that was delayed in being produced.

Ms D’Silva’s response was that she had to recommend what she thought was in this child’s best interests on the basis of the findings of fact as recorded by Moor J and the investigations that she made of the parties and the child. If Ukraine might take a different approach that did not make it right. That response is adopted by me. I am not here enforcing a Ukrainian order. I am considering what is the appropriate order guided by the evidence and the Children Act 1989. I do note in that context that the decision was made by Moor J not to return K to Ukraine.

As to the father’s reflection on the incidents in 2019 Ms D’Silva and Mr Landman do both point to the fact that the father does not fully accept the findings of fact. In particular he denies that he had a gun, or threatened the mother with a gas cannister. He does accept that he put them through ‘hell’ (as reported to Ms D’Souza). This, I am told by Mr Landman, is minimisation. I agree with that. The threat to life which a gun holds is a striking part of what happened to the mother.

In relation to the Freedom Programme course I am told that this is an online course which involve reading and filling in forms. It does not involve assessment. The father has completed it but we are, I am told by Ms D’Silva, not in a position to take significant comfort from that. Ms D’Silva contrasts it with the now unavailable D.A.P.P. programme in which an individual would need to engage rigorously and would be assessed. From such a course she tells me I might derive comfort.

Ms Miller asks what more is her client to do? If he cannot get on a D.A.P.P. he is stuck. I fear that her conclusion maybe right. He cannot do the impossible. That does not mean however that I can assume that he has developed an understanding into domestic abuse which fundamentally alters this case.

I agree with the father, as section 1(2A) of the Children Act requires me to, that unless the contrary is shown the involvement of both parents in a child’s life will further the child’s welfare. In this case the issue that I need to resolve is whether that generality withstands the particular circumstances.

On these facts the trauma argument against contact prevails. It is not in K’s best interest to take the very significant risk that she and her mother will be re-traumatised. The general argument in favour of a relationship with both parents needs to yield to the particular circumstances of this case.

I record for completeness that I do not consider there is a strong argument that father presents a risk of fresh domestic abuse. What is proposed is indirect contact. That could be managed, say as an email to a dedicated account. The harm that will be caused here is the impact that having to engage with him will have on the mother and K in the light of what he has done in the past.

In relation to the letter I note that there is a concern expressed by the father that if it is left to the mother to choose when to deliver it then it will remain undelivered. The counter risk is that the letter retraumatises the child if given to her at an inopportune time. I consider that Ms D’Silva’s suggestion that it be held by the mother to be given to K when she asks about her father is the right one bearing in mind that the hope is that the letter will be a positive step in K’s thinking about her father. An apposite moment is needed rather than certainty of prompt delivery.

I have been reminded by counsel of section 91A which provides that the circumstances in which a court may make a section 91(14) order include that a further application would put the child or another individual at risk of harm.

I have been reminded that a 91(14) order, interfering as it does with being able to litigate matters, should be used with great care and sparingly.

I have heard argument about how applications in Ukraine show a litigious tendency on the father’s part. I do not consider those arguments compelling. Partly because some of that litigation is brought by the mother appealing orders obtained by the father, but mainly because this application for contact comes some four years after Moor J’s decision not to return K. That is not the time frame of an overly litigious man.

I do however think that another application does involve a risk of significant harm to the mother and possibly to K. Inevitably it would involve them remembering again the terrible events of 2019. That argument prevails with me and I am going to make a section 91(14) order.

I turn to consider for how long. K is 9 now. If I make the order till she is 16 it effectively means there will be no possibility of contact as it would require exceptional circumstances to make an order once she is 16. I bear in mind that the mother has agreed to give her the father’s letter if she expresses an interest in him. Further, as K becomes older she will be developing her own view of herself and becoming more of her ‘own person’. It seems to me that the filter process of section 91(14) should last until she is 13 years old.

I do not encourage another application then, but it would not be unreasonable for the father at that stage to enquire whether, for instance the letter has been delivered to K and whether she has expressed any interest in hearing from him.

There was some discussion as to whether I should set out what might be expected of the father if he were to make another application during the currency of the section 91(14) order. This centred on whether or not he had undertaken a D.A.P.P. Given that seems to be impossible I do not think I can set out any expectation of him taking such a course. I would however caution that given my view is that an application will cause harm then I would expect there to be good reason before another application is made.

The restrictions the mother seeks are as follows:

I note that she conceded during the course of the hearing that, in my words,

I make clear too that I am not going to take any steps to relieve the mother of the duty to obtain the father’s consent in relation to the matters set out at section 13 of the Children Act 1989, that is, a name change or removal from the jurisdiction save as allowed in that section without his consent.

I further note that although it was said against the father that he has previously cancelled K’s passport this was in the context of the mother taking her out of Ukraine without his consent. Such a step would not be considered unreasonable if a child were to be removed from this country without both parents’ consent. It is not appropriate then to consider that step as one which of itself warrants a prohibited steps order.

What is really in issue here then is the day-to-day management of K’s life, the father’s obtaining of information from schools and hospitals, and the prohibition of removing her from the mother’s care.

I have set out above the arguments for and against. I accept that, other than the Hague application, there is no history since their location in this jurisdiction of the father causing trouble through exercising his parental responsibility. He has just left matters up to the mother. I do however also accept that it is not reasonable for the mother to have to henceforth negotiate with the father as to how to exercise parental responsibility given what has happened in the past, and that it is reasonable to give her the reassurance of knowing K won’t be taken from her or that the father might in the future interfere with her passport.

Further, the father’s request to be party to information held about K at her school or at her GP’s will be likely to be harmful to K as she will then see her school and her health care as potentially in league with her father.

Unusually then in these extreme circumstances I see good reason to restrict the father’s access to that information. Ms Miller makes an argument that I could rely on the no order principle – there has not been a problem so far, so why make an order. The answer to that is that having indicated he wants to be involved in decision making and in receiving information the mother now has good grounds to be worried for the future. (On receipt of this judgment in draft Ms Miller put to me that the father has not indicated he wants to be involved in decision making, but just receiving information. I do not consider that alters my reasoning, though it might reduce the scope of the disagreement.)

I accept the criticism made by Ms Miller that these restrictions come close to writing the father out of his child’s life. Given what he did and the trauma caused by it, I conclude that this level of restriction is in K’s best interest.

I will however extend the obligation on the mother to inform the father of not merely life threatening but also significant life changing conditions (even though in most circumstances they would already be covered as an emergency or life threatening). And I will require her to ensure that the father is contacted in these circumstances – so if the health practitioners refuse to contact the father then she will need to get someone else to tell him.

I heard no argument about the duration of these orders. I do accept that they are extreme and I should not make them longer than is necessary. Given the need to provide security to the mother and child I consider that they should last till K is 16.

I ask counsel to tailor the various prohibited steps and specific issue orders to achieve this effect.

I have reached these decisions informed by the approach set out in section 1 of the Children Act, but it is appropriate that I cross check my decisions against the particular circumstances set out in section 1 (3). I note that K, albeit aged only 9 does not want contact with her father. Her needs would normally require a relationship with both parents, but here they require care to avoid retraumatising her and her mother. The change in her circumstances that is being considered here is the risk of a relationship with her father. I have held her age in mind, particularly when fixing the duration of the section 91(14) order. The harm that she has suffered has been at the forefront of my considerations. The mother’s capacity to cope with the father has similarly been at the forefront of my considerations. I have also considered the powers available to me.

Having conducted that review I do not consider I need to revisit my decisions as set out above.

This matter needs to return to me for the determination of the name change issue. It will be convenient at that time to consider with the benefit of Ms D’Silva’s expertise the letter that will be written by the father for K.

I ask counsel to liaise with my clerk to fix a date for that hearing and agree directions for that hearing and to agree a draft order reflecting this judgment.