IMPORTANT NOTICE
This judgment was handed down in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be contempt of court.

Case No. BT12P00045
IN THE BARNET COUNTY COURT
Regents Park Road
London N3 1BQ
Date: Monday, 27th January 2014

Before:
HER HONOUR JUDGE LEVY
(In Private) 
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B E T W E E N :

	The Father	Applicant	
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	The Mother	Respondent	
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Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Audio Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
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MISS M. TAYLOR  (instructed by Chapman Pieri Solicitors) appeared on behalf of the Applicant (Mother).

THE RESPONDENT (Father) appeared in person.
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J U D G M E N T
JUDGE LEVY:

	1  Introduction.

1	This judgment relates to the final hearing in private law proceedings concerning three children "A", a boy born 17th May 2001, age 12 years 7 months, " B" a girl born 29th March 2004, age 9 years 9 months, and "C" a boy born 24th October 2005, age 8 years 2 months.   I will refer to the parents as "the mother" and "the father" and together as "the parents".  

2	I have considered the practice guidance issued by Sir James Munby, President of the Family Division, on 16th January 2014 on transparency in the Family Courts and the publication of judgments, which takes effect from 3rd February 2014.  I have decided that it is in the public interest to publish this judgment in anonymised form. I invited the parties to make representations about publication: the father wishes the judgment to be published, the mother does not object.

3	This is my third judgment in this matter. My "first judgment" dated 12th June 2013 and my "second judgment" dated 15 October 2013 should be read together with this judgment. Neither has been published but they will now be anonymised and published so that all three judgments can be read together.

4	In the course of this hearing and in his written submissions the father has accused Mrs. Christina Lemonides, a Family Court Adviser with CAFCASS, and Dr. Gary John Wannan, a Consultant Child and Adolescent Psychiatrist jointly instructed by the parents as an expert, of gross professional misconduct. He has given notice of his intention to report them to their respective professional bodies. On the basis of his allegations, the father invites me to disregard their evidence in its entirety.  I have considered the most serious of the father's allegations. I have not dealt with every allegation the father has made, but have focussed on those necessary to enable me to determine his application and to be fair to Mrs. Lemonides and Dr. Wannan. As will become clear, I reject the father's criticisms of Mrs. Lemonides and Dr. Wannan and refuse his application. I will therefore refer to their evidence throughout this judgment.

5	In preparation for this hearing I read three bundles of documents. I have read the parents' 11 witness statements (each) and a number of reports which I will refer to. The hearing took place on 9th, 12th and 16th December 2013. The father and the mother filed written submissions, respectively on 24th and 27th December, which I received on 6th January 2014. I heard oral evidence from Mrs. Lemonides, Dr. Wannan, the father and the mother.  I have listened to two recordings which the father made of his conversations with the children during contact. I have listened to the recording of the hearing before District Judge Marin on 18th February 2013. 

6	The father was in person. As I explained in my first judgment, he is a solicitor of some 20 years' experience in commercial property.  Since the fact finding hearing he has been represented by counsel, through the direct access scheme, at some hearings; at the final hearing he chose to put his own case, which I am satisfied he is able to do. Miss Mary-Jane Taylor again appeared for the mother.  

7	By way of background, the parents married in 1991 but after some 20 years their marriage broke down.  Tensions increased throughout 2009 and in December 2009 the father left the family home.  The children had staying contact with the father at the paternal grandmother's home, where he lived, every weekend from Friday until Saturday evening and on Tuesday evenings.  In September 2011, after a separation of some 21 months, by agreement he returned to live in the family home.  The reconciliation was not successful and in July 2012 the mother issued a divorce petition. The father left the family home at the end of October 2012 and she obtained a Decree Nisi on 13th November 2012. The children have continued to live with their mother and to have staying contact with their father one night each week.

2  Findings of fact.

8	Following the fact finding hearing which took place over eight days between 13th and 22nd May 2013, I made the findings which are summarised below. The numbering refers also to the numbering of the allegation.

	Finding 1 - in 2006 the father attempted to solve a problem for  B (age 2½ ) in a way, which was insensitive, ill judged, and not child centred. 

	Finding 2 - in 2008 the father pulled a duvet over C's face (age 3); the child told the mother he could not breathe; the father said he was playing a game and did not pull the duvet tight.
	
	Finding 3 - in 2007 or 2008 the father held a lighter to the mother’s thigh in front of the children and said that he wanted to know when she would feel pain.

	Finding 5 - in 23rd February 2009 the father threatened the mother with a knife to her neck and forced her down the stairs at knife point in front of C (age 3); he threatened her with the knife until she wrote a letter cancelling their insurance policy. 

	Finding 6 - on 7th March 2009 the father insisted that B eat some food he had prepared. He told her that he would punish her so badly that she would never forget it. 

	Finding 7 - from late 2008 to December 2009 the father was emotionally abusive to C: (a) he repeatedly told C that his mother was never coming home; (b) he would leave him out of activities; and (c) he would tell him off unfairly.

	Finding 8 - the father told A that his mother was trying to kill him and that she was a bad person and a liar.  

	Finding 9 - on 9th May 2009 the father questioned B and A about which parent they wanted to live with; he grabbed A’s arm and called the police alleging the mother was abusing A.  The father barricaded himself and A in the kitchen.

	Finding 13 - in August 2009 during a family holiday, the father insisted that the family climb a mountain. The father had said he would buy C a toy wolf but changed his mind when C did not respond to him.  The father insisted the family continue to climb despite the mother's protests and B crying.  The father bullied C during the climb then ignored him for the rest of the day.

	Finding 14 - in September 2009 the father told the children that the mother shouted at him and made him feel like 'a worthless piece of shit'.  He tried to encourage the children to repeat this.  

	Finding 15 - in 2008 or 2009, when B did not answer the father's call for breakfast, he dragged her up by her arm.

	Findings 16 and17 - on 13th/14th December 2009 when the father's family were leaving, the mother ran upstairs into the bedroom out of fear.  The father followed her and tried to shut the door on her, but she wedged her body in the doorway to keep it open.  He reached his hand through the gap, pushed her throat and squeezed.  

	Finding 18 - in or around 2009, the father told C he would cut his fingers off.  He put C's fingers on the chopping board.  When the mother protested, the father said it was a joke and stopped.
	Finding 19 - In November 2011 the father told the children that he was unhappy and stressed at work and that he wished he were dead.

	Finding 20 - On 16th or 17th May 2012 the father followed B to the toilet in the middle of the night and insisted that she go to his room to talk about "their problems".  B was crying and said that he kept her there for an hour, although it was probably not that long.  

		Finding 21 - In May 2012 the father told the children that they must keep conversations with him secret from the mother.

	Finding 22 - On 16 June 2012 the father called B an "ugly loser".

	Finding 23 - on various occasions the father verbally abused and belittled the mother.  He has told her she is 'fat' and 'ugly'. He has also said, sometimes in front of the children, that she is "stupid", "fat", "evil", "a liar" and that she "will die sad and alone because in a few years' time the children will hate (her)".

	Finding 25 - on 23rd September 2012 in the presence of B, in the course of an argument, which the father provoked and recorded, without the mother’s knowledge, she said to him: "You are completely mad, you are absolutely insane, you need help".  The mother genuinely wanted the father to get some help and this was not calculated abuse.

	Finding 44 - It is accepted that A did not want to carry messages between his parents, and he should not have been used in this way.  The father said that the mother was a liar and an abuser.

	Finding 51 - The mother should not have carried A in her car without a seat-belt, which she accepted. The father should not have taken A to the police station to report this.  His actions caused the younger children concern and led to yet another visit by the police to the family home.  

	Finding 52 - on 12 May 2013 the father made A and B read the CAFCASS report dated 25th March 2013 and pressurised them to write letters to the "court lady".  Both children expressed concern the following day that the court lady would be cross with them for writing the letters.

9	The final hearing was originally listed on 18th and 19th September 2013 but 
I adjourned it when I learned that the father's application for permission to appeal my first judgment was listed for oral hearing on 17th September 2013. His application was refused by Lewison LJ but it appears that the father sought to re-open his decision. In his further decision dated 28th November 2013 Lewison LJ said:

"The application to re-open my decision to refuse permission to appeal is no more than a re-run of the arguments contained in the original Appellant's Notice and seeks once again to challenge the trial judge's findings of fact. I was satisfied that there was no real prospect of success in that challenge and I remain so satisfied. The fact that I did not, in my oral judgment, deal with each allegation individually does not come close to a 'corruption' of the legal process."

	He noted that the application was made over two months after the first application had been refused and very shortly before the final hearing in the county court. For the avoidance of doubt he stated that he did not direct an oral hearing and there is no right of appeal or review from his decision which is final.

10	The father indicated to me at a hearing on 1 October 2013 that he was considering a further appeal, I understood to the European Court of Human Rights. I ordered him to file and serve, by 18th October, a letter setting out the details of his proposed further appeal. [B250] I needed to consider what impact a further appeal might have on the revised timetable for the final hearing. The father did not comply with my order.

11	On 15th October 2013 I handed down my second judgment in which I refused the father's application for an order pursuant to Rule 16(4) of the Family Proceedings Rules 2010, making the children parties to the proceedings and appointing a guardian from the National Youth Advocacy Service to represent them.  I made further findings: 

	(i)	I considered that the mother is not intractably opposed to contact and had sustained it when others might not have done.[Second judgment, para. 28]

	(ii)  I do not consider that this is an intractable dispute in the sense that one parent is implacably opposed to the children having contact with the other parent.  The mother has concerns about contact but she has offered further contact.  She has repeatedly said that she will be guided by the professionals and the court.  [Second judgment, para. 38]

	(iii)	By contrast, and as a result of my findings, I have made the father's contact conditional upon his behaviour. In order to prevent the children from being drawn further into these proceedings, and to reduce the risk of harm to them, I required undertakings from the father. [Second judgment, para. 39]

	3  Outstanding Applications and the Parties' Positions.

12	These are as follows: 

	(i)  	The father's application that I disregard the evidence of Mrs. Lemonides and Dr. Wannan. 

	(ii)  	The father's application for four findings of fact against the mother, as set out in paras.11-16 of his tenth witness statement dated 6th December 2013 [C274-275].

	(iii)  	The mother's application for a finding that the father has denigrated her in front of the children.  

	(iv)	The father's application for a shared residence order on the basis that the children spend 60 per cent of their time with the mother and 40 per cent of their time with him.

	(v) 	The mother's application for a sole residence order and that the father's application be dismissed. 

	(vi)	The mother's application for a defined contact order reducing the children's direct and indirect contact with the father and a providing that contact be subject to conditions 

	(vii)	The mother's application for an order pursuant to s 91(14) Children Act 1989, for a duration of five years.  	

	(viii)	The father's application for prohibited steps and specific issues orders in relation to the children's medical and dental appointments and treatment and B's education. 

	(ix)	The mother's application for specific issues orders in relation to the children's health, including appointments with doctors and dentists and any treatment resulting from such appointments and any referrals to and treatment at the Child and Adolescent Mental Health Service ("CAMHS"), and their schooling.

	(x) 	The mother's application for an order that the father pay the whole costs of Dr Wannan's addendum report.

	(xi)	The mother's application for an order that the father pay her costs of the fact finding hearing, assessed as £28,844.00, such costs to be deducted from any monies he obtains from the sale of the former matrimonial home and to be paid by the conveyancing solicitor directly to the mother.

	4  Recent Developments.
	  	 
13	On 19th April 2013 Deputy District Judge Hopkins gave judgment following a two day hearing of the parties' applications for financial orders.  The father has told me that his application for permission to appeal her order was refused on paper and his application for an oral hearing, made in July, has not yet taken place.  The mother's solicitor has been told by the Principal Registry that there is no outstanding application for an oral hearing of the father's application.  
I will return to the order of Deputy District Judge Hopkins later in this judgment.  I refer to it at this point to indicate that it is an outstanding matter. 

14	In my first judgment I noted that the father accepted that he had persistently failed to comply with the contact order made on 25th October 2012, by bringing the children back late after contact on almost every Saturday.  He continued to return them late and in my order of 14th June 2013 I attempted to define contact further by making it conditional on the father's compliance with the terms of the order and permitting the mother to suspend contact if he were to breach any of the conditions.  I clarified issues with regard to handovers, including the return time of 7pm, and prevented the father from approaching the family home.  Indirect contact in the form of telephone and/or face time would take place on Tuesday and Thursday evenings between 7.15 pm and 7.45 pm.  The order specified that all such contact is to cease at 7.45 pm.  [para.5(c)]

15	I listed the final hearing on 18th and 19th September and ordered Mrs. Lemonides to file and serve an addendum report setting out her recommendations and the children's wishes and feelings with regard to shared residence and holiday contact. I listed a pre-hearing review on 2nd August 2013.

16	As result of events which I described in paragraphs 18 - 20 of my second judgment, the focus of the hearing on 2nd August 2013 was Mrs. Lemonides' risk assessment and her recommendation that the father's contact should be suspended immediately. This came as a shock to both parents. The mother who had said that she would be guided by Mrs. Lemonides made an application to suspend contact which I refused. [Second judgment, para. 21]

17	I was told that the father was not providing the children with a meal prior to returning them at the end of contact and that he was continuing to discuss the proceedings and issues relating to contact with the children.  My order of 
2nd August 2013 [B237] reiterated the order I had made on 14th June and provided that it would continue on condition that the father adheres to all of the undertakings given that day.  In the event that any of the undertakings were breached, the mother could suspend contact.   

18	The father gave the following undertakings:-

	(i)	Not to discuss the Children Act proceedings, or the case in general with the children, or any CAFCASS report. 

	(ii)	Not to discuss the issue of contact with the children and, in particular, holiday contact.

	(iii)	To return within 48 hours any belonging that either the mother or one of the children requests and that has been left with him and that he is able to locate.

	(iv)	Not to give the children anything resembling a weapon, even if its purpose be decorative. 

	The mother had raised her concern that the father was speaking of her in a denigratory manner to the children, and I invited the father to undertake not to do so.  My order recites that the father declined to give an undertaking not to make derogatory comments about the mother in the presence of the children.  

19	The hearing on 3rd September 2013 was listed so that I could consider the progress of contact and the father's application that the children be made parties to the proceedings.  I refused the father's application but ordered that he could renew it at the next hearing when I would be considering it in the light of the result of his application for permission to appeal my first judgment.  
I asked the parties to consider whether there was a need for an expert report from a psychiatrist or psychologist. The father applied for an order that 
I remove Mrs. Lemonides from the case and all her reports from the court file. I refused the application, indicating that it would not be appropriate to make such a decision when Mrs. Lemonides had not been given notice of the application and was not at court to answer it. I decided to use one of the dates 
I had vacated to hear Mrs. Lemonides' evidence.  Unfortunately, that hearing was put back to 1st October 2013 because of her ill-health. 

20	On 1st October Mrs. Lemonides' evidence was not completed. The mother offered additional contact on 31st October 2013 for Halloween and I was told that the parents had agreed to change contact so that the father would have contact with C on his birthday.  The father wished to renew his application, 
I invited written submissions (due to lack of time) and handed down my second judgment on 15th October 2013.

21	Throughout the period covered by these hearings the mother expressed continuing concerns about direct contact and this was recorded in the preamble to my order dated 1st October 2013. [B249]

5	  The Father's Case.

Findings of Fact.

22	The father does not accept the findings in my first judgment, as demonstrated by his applications to the Court of Appeal.  It is equally clear from his evidence, both written and oral, that he does not accept the findings which I made in my second judgment.  

23	The father repeatedly refers to the mother as a liar, who abuses, bullies and controls the children and seeks to undermine his contact with them.  In his seventh witness statement dated 30th September 2013 he said: 

"In the recent fact finding hearing it was established that she had lied and exaggerated in her previous statements". [C242, para. 2]

	I made no such finding against the mother, indeed I found that she did not exaggerate [First judgment 1, para. 44] and that she was not vindictive [para.45].  Overall, I found the mother's evidence to be measured, honest and reliable [para. 59] and, on balance, when there were factual differences between the parents' evidence I preferred that of the mother [para.65].  

24	The father's evidence as to his attitude to the findings was contradictory. He told me that they were wrong and unfair, and some of them were historic and not relevant to the welfare of the children in the future.  They relate to a period when his marriage with the mother was breaking up and the children were exposed to acrimony between their parents which was both parents' responsibility. He also told me that it was the mother's fault because she could have taken steps to remove the children from the situation.  He said that there are some findings which he does accept but some are wrong and also: "I accept there has been stuff which the court was right to consider and which I have reflected on and addressed". 

25	The father sets out his position plainly in his 11th witness statement:  

"It has always been my position that the respondent is controlling and abusive to the children.  The court has not yet accepted that position but that does not mean that it is untrue." [C290, para.3]

	It is clear that he does not like the mother. Mrs. Lemonides told me that the father's approach to contact is "clouded with angry feelings" (about the mother). The father spoke to Dr. Wannan about "the mother's faults" and his naivety in pursuing a relationship with her.  He does not like communicating with her because she lies and undermines him; she would be a better mother if she were true in her allegations; he would never communicate with her again.   

26	Dr. Wannan told me that he has observed that the father's criticisms of the mother are very largely unfounded.  Rather than accept criticisms and suggestions for changes he could make, he is critical of her.  

27	The father told Miss Taylor that his description of the mother as "controlling and abusive" is not negative, but a description of a character trait she has, and a position which he takes in court proceedings.  He told me: "I may not like it but she's their mother. … I have to put up with it … the children are strong enough to survive."

The Father's Allegations 

28	The father seeks four findings against the mother which arise out of his recent contact with the children.  By way of background, he claims that the telephone/face time contact is problematic because the half an hour allocated is rarely sufficient for adequate interaction with the children in the way that they want.  

29	On 22nd November 2013 the father says that he was having an involved and animated conversation with C and B on face time which went on beyond the 7.45 pm deadline.  He alleges that the mother asked A to record the conversation in order to prove to the court that he was talking to the children beyond the time specified in the court order. He brought evidence in the form of recordings he had made of his indirect contact with the children which he said supported his case. I turn to my consideration of the father's application to admit his recordings.

The Father's Recordings of the Children during Contact.

30	After Dr. Wannan left court at the end of the first day of the hearing, the father applied for permission to admit two recordings he had made of the children's conversations during contact. The first was of contact on 22nd November 2013 [C 273, para.11] although it transpired that this was not a recording of the contact but of a conversation he had with A about that contact, some days later.  The second was of contact on 3rd December 2013. He told me that he has tried to record every indirect contact with the children since December 2012.  At direct contact he switches on the recording function on his mobile phone if the children mention their mother.    He has not kept all the recordings. He had had the two recordings in his possession since 23rd November and 3rd December 2013 respectively, but he had not disclosed their existence. He emailed them to the mother's solicitors overnight.

31	The father argued that the recordings would be of assistance to the court in assessing the mother's character.  The fact that there has so far been no finding of emotional abuse of the children by the mother had "greatly skewed the proceedings". He relied on his account of Dr. Wannan's acceptance, in his oral evidence, that at least some of the mother's behaviour, as the father described it, would amount to emotional abuse of the children.  This was not my understanding of Dr. Wannan's evidence.  

32	The father said that the mother and the court had known since the fact finding hearing that he makes recordings of his interaction with the children; he had never been criticised. During the fact finding hearing I listened to the father's recording of his argument with the mother on 23rd September 2012.  I noted that the recording had been made without her knowledge. He had provoked an argument and set a trap for her, in order to produce evidence to the court that she is an abuser.  I found that what the mother said to the father was not calculated abuse.  [Judgment 1, paras. 176 - 177].  

33	The father insisted that Miss Taylor made an unsuccessful application to District Judge Marin on 18th February 2013 for an order preventing him from making further recordings, which was not appealed.  He said: "You made the application, you know you did, you know it was refused."  I listened to the recording of the hearing, during which Miss Taylor objected to the admission of the recording and the father's transcript. The mother was concerned that if they were admitted, the father would be able to continue to record telephone conversations with the children which put them in the middle of the conflict.    District Judge Marin decided to admit the recording, warning the father that such recordings sometimes backfire.  Miss Taylor did not apply for an order to prevent the father from making recordings. His assertion was untrue.  

34	I requested an addendum report from Dr. Wannan, which he kindly prepared over the weekend of 14th -15th December 2013, having listened to the two recordings.  [D123] In general, he is concerned about the recording of contact where this is not agreed, explicit and continuous.  It raises questions as to the children's knowledge that what they said might be used in the proceedings and whether they believe that they could share the information about being recorded with their mother. He noted that the father selects the recordings he relies on and contrasted this with notes of supervised contact which are made available to all the parties, whereas the father's approach to recording contact is unlikely to give this sort of rounded picture.  The recordings also raise the question of the father's level of perspective and Dr. Wannan notes: 

		"Despite the findings made against him and the advice offered to him, 			he is persisting in attempting to find evidence to criticise the mother 			
and her parenting abilities.  Rather than reflect on his own actions, and find a way forwards to a civil relationship with his ex-wife he appears to be using information that would seem, even to me who is not legally qualified, unlikely to persuade others of taking a favourable stance to him.  Sadly, it would seem more likely to be viewed negatively.  Rather than the father, who is an intelligent and articulate man, being seen to be pursuing a more holistic and child centred approach he has taken an overly specific and acrimonious one." [D124]

35	As regards the effect on the children Dr. Wannan notes: 	

"The more detailed an understanding the children have, the more likely it is that they will understand at some level that they are potentially being used to provide information that will play a role in the intra-parental acrimony.  This knowledge will not be pleasant for the children."

36	The father told me that since June 2013 he has not told the children that he was making the recordings so that they would not be stressed.  He assumes that they remain aware that he is recording them.  He told the children on 31st August 2013 that information they share with him may end up in court, they were entitled to pass on information to their mother and it works both ways.  
I return to the father's allegations.

22nd November 2013 - Father’s allegation 1.

37	The mother says that this incident took place on 14th November 2013.  At almost 8 pm she reminded the children that they still needed to know whether C was going to his friend's birthday party that weekend, when he would be with the father.  The father said he could not discuss this with the children "because your mother has insisted on a court order to stop me discussing these things with you".  She was very upset that the father blamed her for C not being able to attend the party.  She asked A whether they could record this and A's response was: "I don't know."  That was the end of the exchange: there was no bullying or pressure.  She reacted instantly because the father was breaching the undertaking he had given not to discuss the proceedings with the children and he had lied.  She did not ask A to record the conversation: she had asked whether they could record it.  

38	Dr. Wannan listened to the recording and noted that not all of it was distinct.  There appeared to be something of an interview of A by the father asking why the mother had asked A to record something: "How did you feel about being asked to get involved? … get evidence against me …" A changed the subject to C and a party.

39	I listened to the recording but could not hear all of it. I heard the father say: "You know the other day... I heard your mother say: 'Record this, record this' what was she asking you to record?"  A replied that she was asking him to record the conversation because she thought it was not part of the court order; if the court said it should finish at 7.45 it should be recorded, or something like that.  The father asked: "How do you feel about getting involved in court, basically to get evidence against me?"  to which A replied: "I don't mind because I know I can't record it."  The father said that if it could be recorded it would be used in court as evidence against him, and I replied that his mother had said that C should go to the party.  It was difficult to make out any more.

40	The recording does not bear out the father's account of this incident.  It was not made during contact but is a recording of a conversation which the father tried to have with A nine days later, in which the father suggested what the mother had said.  The father's written submissions include (para. 78) a transcript of the recording of his conversation with A, which was not made available either to Dr. Wannan or to me.  I do not accept his assertion that the mother showed no insight into the effect of her actions or a degree of dishonesty in denying her actions in the face of clear evidence.  The evidence which the father created is far from clear and does not support his. I do not make the finding.

  	3 December 2013 - Father’s Allegation 2

41	The father says that on this date in the course of indirect contact, A was upset because he had been unable to find his colouring pencils which he wanted to use in connection with his homework.  He asked his father if he knew where they were and they had a brief discussion about this.  The father said:

"I was amazed when, a few minutes later, the (mother) barged into the room and began aggressively and inappropriately berating A for asking me where his colouring pencils might be." 

42	He says this is a further example of the mother undermining his contact with the children, preventing the children from having proper homework interaction with him, and bullying the children.  He said: 	

"A was visibly upset by the mother's behaviour and he froze up not knowing what to say to me, so that even though we had been talking for a good 20 minutes by then, all he could manage to say to me was: 'So, how are you?'" [C275, para. 16]

43	The mother explained that some time before this call started A had asked her about his pencils and she said she had seen them and would look for them.  
A said that he would ask his dad where they were, but she told him not to do so because he would not know where they were.  As she was searching for them A talked to his father on the computer, in the same room.  She heard the father talking to A about the lost pencils, and was irritated because she felt that A did not appreciate her efforts. 

44	She accepted that she told A that he should not have asked his father where the pencils were because he had not lived in the house for over a year.  She did not think that she was aggressive, although she accepts that she was irritated.  She did not "barge" into any room but was looking for the pencils in the rooms where A brought the computer as he talked to the father.  When the phone call had finished they discussed what had happened. 

45	Dr. Wannan listened to the recording and noted that it began with the father speaking to B, much of which is "quite endearing", and that B had an exchange with C.  A then came into the recording looking for crayons/pens/pencils.  There is an interchange with the mother in the background, but this is not clear.  There is more discussion about homework.  B returned briefly.  

46	I listened to the recording and heard A ask his father whether he knew where the pencils might be.  I heard the mother say: "How would he know?  I've seen them.  There's no reason he should know, he hasn't been here in a year." She sounded irritated.  A then asked his father: "Anyway, how are you?" and their conversation continued for approximately 30 minutes. 

47	The father described the mother's intervention as "berating" A and told her: "You're a bully, you laid into him....that's the kind of person you are.  You laid into him. That's what you're always like, that's what A gets if he disagrees with you". 

48	The father invited Dr. Wannan's views of his account of this incident, before he disclosed the existence of the recording.  The father's account to 
Dr. Wannan was that the mother had said: "You have no right to ask your father.  How dare you ask your father?" which was not what I heard. 
Dr. Wannan said that he had never seen the mother aggressive or berating the children and he was hesitant to comment on something that seemed so out of character.  

49	The father suggested that the mother had made herself out to be somebody with insight who cares about her children, and had deceived Dr. Wannan.  
Dr. Wannan did not consider the mother to have been deceptive.  He agreed that, as an expert witness, it is vital that he remains open to new information and that he reconsider his opinion when appropriate.  But in view of the findings of fact made against the father, even if the father's allegation as put were true, in view of the many other pieces of information about the mother it would not fundamentally alter his opinion of her.  

50	This incident and Dr. Wannan's report having listened to the father's recording, form the basis for one of the father's complaints about Dr. Wannan.  In response to Dr. Wannan's comments that the interchange with the mother is not clear, the father asserts that it is "perfectly clear" and Dr. Wannan has either deliberately and dishonestly misled the court in claiming that the interchange is not clear or that he has failed to disclose an auditory impairment.  Even if Dr. Wannan could not make out what was being said, the tone of voice from the mother is abundantly clear.  Both recordings were made on the father's mobile phone, neither was entirely clear and A had to ask counsel and the father to clarify parts of them.  I do not accept the father's criticism of Dr. Wannan.

51	In his written submissions, the father sets out the exchange in a short transcript which was not available either to Dr. Wannan or to me, and which sets out more than I could make out from the recording.  The transcript, assuming it is correct, is not in the terms in which the father described it to Dr Wannan. The mother's intervention was brief and irritable, In my view she did not "berate" 
A, nor "lay into him" and was not abusive. The mother's intervention did not prevent the father and A from continuing a lengthy conversation.  The father's account to Dr Wannan was incorrect and his characterisation of the mother's behaviour is exaggerated. I do not make this finding.

28th November 2013 – Father’s allegations 3 and 4.

52	The father alleges that B told him that she wanted help writing a script for a presentation she was giving at school about the singer Taylor Swift.  While they were discussing this, the mother told B that she was wasting time by talking to her father about these points, because the mother had already covered the same points with her.  The father accuses the mother of gross insensitivity and cites this as a further example of her undermining his contact with the children.  He says that B was visibly upset by the mother’s behaviour and would in future be reluctant to ask him for help with homework over face time.  He suggests that the mother's comments were intended to achieve that aim. [C274, para. 13]

53	The mother says that she and B had spent the afternoon talking about B’s speech.  By the time the father started talking to B it was past 8pm, B had not written her speech and said that she would write it at the father's home on the Saturday.  At 8pm when the father began to discuss this with B, she told B that it was a waste of time to discuss them again at that time.  The father ignored her and kept talking about what should go into the speech until about 8.15pm.  B was not visibly upset or, indeed, upset at all.  After the call she said that she did not feel able to stop her father talking about the project because she did not want to upset him. 

54	Dr. Wannan commented that if the indirect contact was about to finish he could understand that the mother might tell B that she was wasting time as a way of bringing the contact to an end.  He would not attach much weight, if any, to a parent telling a child not to waste time and did not agree with the father's characterisation of the mother.  He commented that on the basis of the father's allegation to describe the mother as "bullying, controlling and abusive" seemed to be taking a relatively small matter and making it into something much bigger.  I do not make this finding.

55	The father alleges that on the same day A told the mother that he wanted the father's help to design an entry for a competition and the mother told him to make sure that the father did not bully him or take it over, but to make sure it was his own work.  A told the mother that he was going to take a party invitation to show the father and she told him to make sure that he brought the invitation back because the father does not respond to texts.  The father characterises this as denigratory behaviour and alleges that the mother is determined to try to control A's interaction with him and limit his involvement in A's life.  

56	The mother says that she does not remember the incident.  She did not say to A: "Make sure he doesn't bully you", although she could imagine that she would have said: "Don't let him take it over, and make sure it's your own work” in the light of previous issues with A’s homework. She did recall telling A that he could take a bar mitzvah invitation to his father's but he had to bring it back because the father does not answer texts, which the father has admitted.  

57	When this was put to Dr. Wannan he referred to his observation of the father's quite involved style with the children over their calligraphy work. He noted that he was aware that the father did not respond to the mother's texts, so that he could understand that she might have some anxiety on that score.  He agreed that for one parent to say to a child: "Make sure your father doesn't bully you and that you own your work" would be denigrating, though he could understand that mother being frustrated.  Compared to my findings, some of which are very serious, he considered this a relatively minor matter.  I do not make this finding.

 	Films

58	The father alleges that the mother tried to control his contact with the children when she learned that he was proposing to take B to see the film "The Hunger Games: Catching Fire".   He accuses the mother of hypocrisy, saying that she also watches 12 rated films with the children.  The mother said that she had seen the trailer for this film with B at the cinema.  It included a very short scene of a flogging, which upset B, who said that she thought that the father would take her to see the film, but she did not really want to see it because she was worried about the flogging.  The mother had to respond and said that she was also worried about B seeing this film. She reminded her that if she didn't want to see the film she should tell her father so.  She told me that the children started watching 12-rated films with her when A turned 12.  She has not said that the children should not watch 12-rated films with their father, her objection is to the children being scared.

59	Dr. Wannan commented that in his experience of this matter the mother has promoted contact despite the difficulties she has found with it.  It would not be consistent with her previous behaviour for her to set out to undermine contact.  Even if she told B that she was worried about her seeing the film, it was not the greatest offence in particular when compared with my findings.  

The Blast Furnace

60	The father alleges that the mother has tried to undermine his contact with A by objecting to his plan to build a blast furnace in the back garden with A.  A told the mother about this in September 2013 when he explained that he needed a pipe to pump air into the furnace and had spent some time sawing the top off a metal canister in preparation for this work.  They intended to use the 
home- made furnace to melt metals at a temperature of 1600C.  She was not happy about the safety aspects of using such a furnace in the back garden. [C235, para. 19]  Dr. Wannan commented that in view of the allegations of violence against the father, he could appreciate why an intention to build a blast furnace could give rise to a level of concern.  

The Children's Education  

61	The father considers that the children's education has suffered because they have not been able to spend sufficient time with him.  B has not read a single novel since he left the family home and C has told him that he only reads very occasionally with his mother.  He has been unable to help A with his piano practice and suggests that this is the reason why he failed his Grade 5 piano examination.

62	The mother says that the children have not suffered educationally as a result of spending less time with the father and this is supported by their school reports for the year ended July 2013.  A failed his Grade 5 exam a month after the father left the family home and was unlikely to pass given the conditions at home before the father left.

63	The father wishes to tutor B, in particular for the entrance exam for her first choice of secondary school.  The mother considers that B does not require tuition.  The parents had agreed that A would not be tutored for the entrance examination, the examination has changed and B is making very good progress.

The Father's New Approach.

64	In the course of his evidence, the father told me that he had re-read 
Dr. Wannan's report and on reflection, in the preceding 24 hours, he had decided to change his stance on communication with the mother.  His approach to these proceedings thus far has been the fault of the court system, by which he means Mrs. Lemonides who recommended the fact finding hearing and deliberately misconstrued evidence.  He was prepared to "retract, climb down" and communicate with the mother and had been thinking about how to implement a shared care plan.  It has always been his position that she is controlling and abusive of the children.  Her approach to the litigation has not been reasonable and she needs to climb down, too.

65	The father proposes that the court should make a shared residence order which would provide that the children would spend 60 per cent of their time with their mother during term time and the holidays would be shared equally.  By a shared care plan he means that he and the mother should try to identify outstanding issues, putting aside questions of residence and contact, and try to agree those issues either broadly or specifically.  

6  The Mother's Case.

66	The mother says that the orders and undertakings have not been effective to ensure that the father puts the children's interests first when he has contact with them, and at other times, and does not denigrate her to them.  He focuses on the literal meaning of the undertakings, such as the meaning of “discuss” and “supper”, rather than their spirit.  He continues to denigrate her to and/or in the presence of the children.  The root of the problem is that the father has not succeeded in obtaining an order allowing him to bring the children back later than 7 pm.  Despite his agreeing "to feed the children supper before returning them at 7 pm", as recited in my order of 2nd August 2013, he has given them crisps and jaffa cakes, and cheese sandwiches, which they do not like.  When told to give the children a proper meal he has given them pasta or chicken and rice to eat in the car.  

67	The children told her, in August, that the father had talked to them about the judge's decision about the return time when he should not discuss the contact order with them. [C232, para. 9] She is also concerned that the father subsequently questioned the children when he realised that the conversation about the return time had found its way into the proceedings.

68	The mother is also concerned that the father continues to allow the children to go to bed very late when they stay at his mother's home at the weekend.  He does not respect the fact that the children need time with her at home at the weekend, and need to go to bed at a reasonable hour.  She notes that in his witness statement, dated 30th September 2013, [para. 6] the father refers to the return time as "arbitrary".  She suggests that his behaviour conveys the message: if you put controls on me, the children will suffer. 

69	The father uses the undertaking he gave not to discuss contact with the children, an excuse for not talking to them about contact activities to which they are invited and which they want to take part in.  He refused to discuss arrangements so that C could attend two parties. The father had previously complained that the children's piano playing has suffered because he was not there to encourage them but he did not allow them to take part in the concert organised by their piano teacher and refused to confirm either to the mother, or the piano teacher whether they could take part.   

70	The father suggests that the difficulty is in the court's order and the wording of his undertakings. With regard to the suggestion that he had discussed the contact return time with the children, the father said he explained to B and 
A that they could not be late back from contact and:

"It simply did not matter how upset they got or how much B cried but that I had to stick to the wording of the judgment even though there was no reason for having to stick to that particular minute of the day rather than any other time - it was simply an arbitrary minute in the day which had been picked as the time when I had to drop them with the mother." [C243, para. 6]

The children had difficulty understanding how the judgment could be concerned with the precise return time than with their happiness and at that point the father said: "In that case the Judgment seems stupid".  

71	A had blamed himself for the fact that the father's conversations with the children are being reported by the mother to the court.  He reassured A that he was free to tell anyone whatever he wanted and that they were in this position because of the court proceedings "… but that none of it mattered and everything would be better soon."  

72	I note that in the same witness statement the father asserts [para.11] that it is perfectly normal to have discussions with the children about what they are doing during their time with him and when and why.  

73	With regard to the children's meal before their return at the end of contact, the father challenged the assertion that he had agreed to give them supper, although it is recorded in the order of 2nd August 2013 and has not been appealed.  He told me that he does not know what "supper" means: it is an alien concept.  I pointed out that the order required him to give the children something substantial to eat before he returned them to their mother, whatever the meal was called.  The father said that he does feed the children properly, sometimes in the car which the children enjoy.  He complains that the children often eat later than 6 pm when with the mother, I note that then they are not constrained by the need to be somewhere else at 7 pm.  

74	With regard to the undertaking not to discuss contact with the children the father told me that the meaning was not clear and he was concerned that if he talked to the children about the parties or the piano concert, the mother would allege that he was in breach of his undertaking.  He thought a great deal about this but did not seek any advice. He had had an earlier conversation with 
C who had said some time ago that he would prefer to be with the father than go to a party and on this basis the father assumed that C would not wish to attend these two parties.  The children were anxious about the piano concert and therefore he decided that they should not attend, as he claims is his right when the children are with him.  He accepted that he did not respond to the mother's texts about these activities and said that he did not receive any communication from the piano teacher.  He rejected the suggestion that by refusing to communicate he had placed the children in the middle and blamed the mother for using them as messengers about these matters.   

75	The father accepted that on 3rd November 2013 he returned the children 30 minutes late and did not respond to the mother's texts.  He said that as he was driving he may not have heard the text tone, but then told me that the reason why he had not informed the mother that he would return the children late was that indirect contact had started 15 minutes late the week before without warning or explanation and he was annoyed.  He said: "She was unhelpful and I was unhelpful in return."  He was prepared to say "possibly I should have informed her".

Denigration.

76	I have found that the father has abused the mother to her face and in front of the children.  The mother considers that the father continues to denigrate her to the children.  The father denies this and I have noted that on 2nd August 2013 he refused to give an undertaking that he would not do so. 

77	The mother says that when the children returned from contact on Sunday, 3rd November 2013 they told her that C had become distressed with the father who said to him: "You're just like your mother".  C told the mother that he was upset because the father was being so mean about her. 

78	Subsequently, C told her that in the course of the same contact visit he had asked his father why he always refers to her as "your mother", explaining that when she talks about the father at home she calls him "dad" or "daddy".  The father then said that he would refer to the mother as "your uncle" and did so for the rest of the visit and subsequently. 

79	The father told me that referring to the mother as "your mother" is respectful in his culture and that calling her "your uncle" when C queried this, was a counter-factual joke. The mother's view is he is ridiculing of her to the children and therefore it is disrespectful of her and denigratory.

80	Dr Wannan advised that this matter of denigration is important.  He related it to the father's negative view of the mother and his abuse of her which formed the basis of my Finding 23. He said: it is upsetting for a parent to be denigrated by a former spouse.  It is damaging for the children because: 

 	(i)	it may take away some of their confidence and happiness in the care of the mother who is being vilified;

	(ii)	referring to the mother as "your uncle" could cause confusion, including about gender;

 	(iii)	In the long term, if the father's behaviour continues, the children may become uncertain about reality if they experience their mother as a warm, kind loving person but are told that what they receive from her is bad;  

	(iv)	Denigration can cause children to have split loyalties which they may manage by separating from one of their parents, a form of emotional defence.  

 	(v)	Denigration may set a child up to test out the other parent, by misbehaving, to see whether that parent really loves them.  

81	The father suggests that the mother's concern is based on a misunderstanding and she has taken his words out of context.  He offers an undertaking in terms that if the mother informs him of any words he has said to the children which she objects to, he will explain to the children that he did not intend to denigrate the mother and he will not repeat such words.  . 

Christmas Arrangements.

82	The mother is a practising Christian, who has been baptised and attends church with the children regularly.  The two younger children attend a Church of England school and at Christmas, which for the mother is one of the two central festivals of Christian faith, they attend a number of services and the children take part in nativity plays.  Christmas is also an opportunity for the children to spend time with their extended maternal family who do not gather together as often as the paternal family.  Christmas is important to the children and they expect to spend it with their mother. She respects the children's dual Christian/Islamic heritage and for that reason the children have been neither baptised nor confirmed.  In the course of these proceedings she has put forward proposals enabling the children to spend both Eid festivals with their father, she has not criticised his religious education of the children, nor has she denigrated his faith.  

83	The father objects to the children spending the whole of every Christmas with the mother.  They should spend part of it with him, because he has celebrated Christmas with them in the past, it is important to them and part of the culture in which they are being brought up. In addition, some members of his family are married to non-Muslims. He suggests that, if the children are to have a balanced cultural upbringing, it is vital that they understand and celebrate Jesus and Christmas from a British Islamic perspective.  The mother's proposal that the children can only celebrate Christmas with her is disrespectful. 

The Mother's View of the Father's New Approach.

84	The mother does not trust the father.  In the course of their marriage he promised to leave on two occasions but did not; throughout these proceedings he has called her a liar and an abuser and has accused her of bullying and mistreating the children.  His proposal that they reach an agreement "would be lovely if it were possible", but in her view the father wants everything agreed on his terms and she would rapidly find herself in court again.  He has recorded conversations with the children in order to gather "evidence which will be of assistance to the court in assessing the mother's character and the harmful things she does to the children." [C290]   This is not the behaviour of someone who genuinely and honestly wants to settle matters.  The mother points to other aspects of the father's recent conduct which cause her to doubt his sincerity.

Appeals. 

85	 The mother accepts that the father has a right to appeal any judgment or order in these proceedings, but says that his actions are also examples of his lack of insight into the impact of delay on her and the children.  

Council Tax.

86	I make no finding, nor am I asked to make any finding, in respect of this matter, but I refer to it because it is part of the explanation for the mother's distrust of the father.

87	At the hearing before District Judge Johns on 25th October 2012 the parties agreed that the family home would be sold and issues including the division of the net proceeds of sale would be the subject of negotiation or would be considered by the court.  The father agreed and undertook to leave the family home by 30th October 2012 and to continue to pay “the amenities” on it "as they fall due in full, until further order."

88	At the conclusion of the ancillary relief hearing on 19th April 2013 Deputy District Judge Hopkins ordered that the family home be sold and made consequential orders in relation to the conduct of the sale, the payment of costs and the division of the net proceeds of sale.  Paragraph 2 of her order provided that the father shall: 

"until completion of the sale of the property … continue to abide by his undertaking  given to the court on 25th October 2012, to pay the amenities on the former matrimonial home as they fall due."

89	Until the order was made in April 2013 the father paid the Council Tax (and other amenities/outgoings on the family home) out of joint funds.  On 26th November 2013 he wrote to the local authority requesting that they remove his name from the council tax account for the property and refund the payments he had made since he left the property.  He provided a copy of the order dated  25th October 2012 and confirmed that he left the property. The mother told me that the money which had been paid out of their joint funds until 19th April 2013 was reimbursed to the father's sole account.  She received demand notices for a total of £2,905.36.  

90	The father told me that he sent the local authority a copy of the first page of District Judge Johns' order.  District Judge Johns made two orders on 25th October 2012, one in the Children Act proceedings, and the other in the ancillary relief proceedings.  The orders overlap, but differ: the order made  in the ancillary relief proceedings recites the father's agreement and undertaking to continue to pay the amenities and the undertaking, signed by the father, is attached to it. The Children Act order makes no reference to it.  The father told me that he did not send the local authority the full order because they only asked for proof of the date on which he moved out.  He did not know whether he sent them the undertaking.  

91	Deputy District Judge Hopkins' order also recites the parties' agreement that the mother is entitled to retain a motor car as her own, and that the father shall deliver the certificate of registered keeper endorsed in her favour to her.  The father has refused to transfer the car to the mother.  He says that this provision of the order is also subject to his appeal, although it appears to have been made by consent.  

Child Maintenance. 

92	The father told me that he did not pay child maintenance until March 2013 because the mother did not make an application. He has recently cancelled the direct debit for child maintenance, and has paid less than the sum he was previously assessed to pay because he has reduced his work pattern from five to three days per week. 

93	The father accepts that his actions with regard to the Council Tax and child maintenance have an impact on the mother but asserts that he is within his rights.  He became angry as he said to Miss Taylor: "It may impact on your client and the children - it's not my problem.  If she doesn't like the fact that she can't get free money, it's her problem.  I do what I do in accordance with the law and it's all I can do."

94	Whatever the merits of the parents' respective positions, the mother is concerned about the impact of additional financial demands on her and on the children.  She has financed her legal representation whereas the father has represented himself at most of the hearings including the fact finding hearing and the final hearing.  She has no access to the capital tied up in the family home until it can be sold.

The Effects of the Litigation on the Mother.

95	In her witness statement dated 6th December 2013 the mother describes the effect of these proceedings on her.  She notes that the father has carried out his threats to withdraw financial support from her.  He has tried to distort events by portraying her as an abuser, and carried out his threat to apply for a residence order in respect of the children.  He pursued findings against her which had no merit and did not concede the findings which were made against him, which would have prevented the necessity of an eight day hearing.  He has appealed those findings. She adds: "Within the course of the proceedings 
I have had to endure being cross-examined by the father over incidents of violence and abuse.  I have been put in the position of showing information that the children have told me in confidence to ensure that the court and the professionals involved have complete insight into what the children are experiencing, despite the conflict this has caused me." [C267, paras.72 - 73]

96	The mother has found all of this extremely arduous, both emotionally and financially, whilst working full-time and working for three children.   

The Children's Health.

97	The mother is concerned that recently C had been showing signs of obsessive compulsive disorder, repeating words and actions until he gets them "just right".  This may have been triggered by stress but, as C has told her that he would like to talk to someone about it, she has spoken to his teacher and his doctor, both of whom have said that they can make a referral to the Children and Adolescent Mental Health Services.   In the course of the hearing the father agreed to this referral.

7  Evidence of Mrs. Lemonides, CAFCASS Officer.

98	This part of my judgment should be read together with paras. 12-20 of my second judgment in which I refused the father's application that I disregard Mrs. Lemonides’ evidence in its entirety.  I have now had an opportunity of hearing Mrs. Lemonides' evidence in full.

99	Mrs. Lemonides was a court welfare officer for 10 years and has worked as a family court adviser since 2001.  During that time she has undertaken further training, including in relation to domestic violence, she reads research and uses tools such as the Table of Risk and Benefit of Contact developed by 
Drs. Sturge and Glaser, as recommended by CAFCASS.  

100	As regards the process which led her to prepare two reports both dated 22nd July 2013 and the decision not to serve the second report on the parents, Mrs. Lemonides told me that in view of her conclusion that the father’s contact should be suspended with immediate effect, she was concerned about the children who were due to have contact on the weekend of 24th July 2013. Her service manager decided that she should file separate reports. In 22 years she had never separated her analysis and recommendations into two reports

101	Mrs. Lemonides began her evidence on 1st October 2013 and concluded it on the first day of this hearing.  I decided that she should do so as though it were the beginning of October and, as a result, she did not read Dr. Wannan's report.  I was by then aware of the father's objections to Dr. Wannan's report and did not wish this factor to have any bearing on Mrs. Lemonides' evidence. 

102	In her report dated 25th March 2013 Mrs. Lemonides considered the children's wishes and feelings at length. She had met them separately.  C told her that he enjoyed playing with his cousins. He worried about his parents' arguing, although this has stopped since their father no longer came into the house.  He was worried about where they would live in the future.  He did not think his parents needed to change arrangements to make things better for him.  [D34/35]

103	Mrs. Lemonides used the CAFCASS workbook "How it Looks to Me" to discuss A's wishes and feelings.  He told her that contact was going well, he liked the contact arrangements as they were and enjoyed home life better since his parents separated.  He worries about what will happen with the family home and finds the court proceedings the most stressful aspect of his life.  Mrs Lemonides noted:  "He feels that his father uses (contact) as an opportunity to upset his mother" and gave as an example the father's purchase of an X-box and allowing the younger children to watch 12-rated movies. He worried about his parents arguing: even though they had stopped seeing each other face to face the arguments continue through emails and court proceedings.  He does not like his father returning them late from contact and explained that his father takes a flippant view of this (Mrs. Lemonides clarified that "flippant" was her word) being: "We can go back whenever we want."  He prefers to return at 7 pm to allow time to relax.  He was worried about his father constantly ringing him.    He indicated that he knew that his father might find it difficult that he was asserting his views.  He wanted contact to run smoothly and the court to make decisions about contact arrangements in the future.  [D35/36]

104	Mrs. Lemonides also used the CAFCASS workbook with B, who indicated that she felt more settled at home and said that she enjoyed spending time with her paternal family.  She said that her parents argue when her father comes to collect them but this has been resolved by his collecting them from school, although he was often late.  She was not happy that her father brought them late from contact. Her father had told them they can leave any time they like.  Her father sent texts to her mother which upset her and she wanted him to stop doing this saying: "If my mum's happy, I am happy."  B said that she had received texts from her father that upset her.  He had written: "If she's bullying you, you always have a voice."  He had said: "Mum lies and bullies me. It's not right, she doesn't bully me."  She expressed that if her father texts her she wants him to write "normal things".  She was worried about her father's response to her honesty and feared that he would shout at her, but she felt that it was important enough to express this so that he could make things better for them. [D36/37]

105	The father made A and B read this report and put pressure on them to write letters to the "court lady". [Finding 52]  

106	In first of her two reports dated 22nd July 2013 [D42] Mrs. Lemonides explained [para.19] that the children had previously told her that they were feeling anxious and stressed. She had advised in April 2013 that the parents needed to take heed of the children's expressed feelings which was: "clearly rejected by the father" (a reference to the incident which is the basis of my finding 51) and noted that the children will "inevitably also be aware of their mother's feelings and observe her feeling stressed and frustrated by the father's actions."  She did not interview the children again because she had interviewed them twice and they had made it clear that they wanted to live with their mother and have contact with their father.  A further interview would add further pressure. [Para.19]

107	Mrs. Lemonides was required to carry out a risk assessment if she had cause to suspect that the children were at risk of harm. [s16A Children Act 1989]. She noted that the father had demonstrated that he could behave in a bullying intimidating manner towards the children in the presence of the mother and expressed her concern that he presents a higher risk to the children when they are alone with him. She wondered what would happen when they displeased or challenged him, given that he had shown that he was unable consistently to sustain the prioritisation of their needs.  He did not take full responsibility for his behaviour, he refused to explore these issues and had not been assessed by professionals.  In her view my findings show that he has a limited ability to respond to all his children's needs and has shown that he has and continues to respond to them in a destructive, damaging way. [Para. 21]

108	Mrs. Lemonides' assessment of risk is informed by the report of Drs. Sturge and Glaser [2000] Fam Law 615.  In her view if contact were to continue with father making no changes, it would be likely to impact on the children in the following ways: 

•	It could escalate the climate of conflict around the children which would undermine their general stability and sense of emotional well-being. This could affect their relationships with both parents.  They might behave in unhealthy ways to meet their need to resolve the conflict.

•	It could expose the children to physical and emotional abuse by the father using contact as a means of continuing or escalating the "war" with the mother, for example, by engendering secrets and making derogatory remarks in an attempt to undermine her. 
•	It could cause further emotional abuse by increasing distortions in the children's perceptions and understanding of reality, for example when the father asserts that the mother is unreasonable in not allowing the children to come home from contact later than 7 pm.  Contact is not wholly child centred, but is also motivated by the father's need to get at the mother.

•	It would continue unhealthy, inappropriately dominant or bullying or controlling relationships, through subtly or blatantly maintaining or initiating fear, or through other means (for example, bribes, emotional blackmail).

•	It could undermine the children's sense of stability and continuity by deliberately or inadvertently setting different moral standards or standards of behaviour which could affect their understanding of right and wrong and give them the means to challenge or defy their mother. 

109	In order to reduce these risks the onus was on the father to demonstrate a willingness to make changes to his behaviour which would involve a much fuller acknowledgement and acceptance of his violence and its inappropriateness. She recommended that he complete a parenting programme and a Domestic Violence Intervention Project (“DVIP”) perpetrator’s programme before direct contact with the children is reinstated.  His refusal to do this work is evidence that he does not wish to deal with issues which have had an impact on the children, and is an example of him failing to put the children's long term interests first.

110	Mrs. Lemonides warns that there is a danger that: 

"… we could be drawn into minimising (the father’s) actions in order to promote contact and his relationship with the children, particularly because contact is current and the children want it and love their father."

111	She recommended that the court should make final orders at the hearing then listed for 18th and 19th September 2013.  She advised that the mother should contact the DVIP women's services for assistance and support in decisions she makes in relation to contact and in communicating with the father. 

112	Mrs. Lemonides' second report, also dated 22nd July 2013 [D56] summarised and reiterated the views expressed in the longer report and set out her conclusion that contact should be suspended , at the hearing listed on 2nd August 2013.  The only contact she would consider as safe was indirect contact by way of emails and letters.  

113	Mrs. Lemonides attached to her second report a table headed: "Quick Reference Guide to CAFCASS Policy and Procedures" and "Court Guidelines on Domestic Violence and Benefits and Risks of Proposed Contact, Indicators and Contra-indicators."   This derives from the article by Drs. Sturge and Glaser published in Family Law in September 2000, and Mrs. Lemonides uses it to analyse evidence and her own observations in order to make recommendations to the court. 

114	In the father's written submissions which I considered in my second judgment, he described Mrs. Lemonides as "entirely unreliable and unprofessional" and unable to distinguish between facts and assumptions or opinions. In the written submissions which he provided after the final hearing, he repeated those concerns, with particular reference to the risk assessment table.  To give an example, he noted that in the section headed: "Indicators for Beneficial Contact" in response to the question: 

"Child would benefit from being special focus of love, attention and concern, and of loving and being concerned (needs realistic assessment of whether this would occur)"  

	Mrs. Lemonides "incorrectly" said: 

	"He has not shown that he has been able to focus on them on his own.  Children derive love, attention and concern from his family who are present with him during contact. "  

	The father says that when challenged, Mrs. Lemonides accepted that she knew when preparing her report that that statement was false because she knew that the father's family were not always present during contact.   On this basis the father accuses Mrs. Lemonides of knowingly misleading the court, which he describes as an issue of gross professional misconduct, if not contempt of court.  [Paras. 71-72 of the father's written submissions]

115	The father did not give a complete account either of Mrs. Lemonides' entry in the analysis table, or of her response to his question.  The complete entry includes the words: 

"... but father's concerns are more pre-occupied with getting back at the mother and showing the children he is a better parent to live with.  He has not shown he has been able to focus on them on his own.  Children derive love, attention and concern from his family who are present with him during contact."

	In response to his question Mrs. Lemonides said: 

	"What worries me is your behaviour and being preoccupied with the mother and undermining her parenting.  You told me the children were on their own with you.  When they were on their own with you, you chose to deal with an issue which you weren't happy about" (a reference to my Finding 51), and "In other words, issues you have overrode the children's experience of contact."

	She accepted that when she prepared her report he had told her that his family were not with him at all times during contact. 

116	It is clear that the father's family are present for much of the time during contact, indeed, that is one of the reasons why he suggests contact  should be increased.  Seen in context I consider that Mrs. Lemonides' response is valid whether the father spends all or some of his time alone with the children.  
I find that Mrs. Lemonides did not attempt to mislead the court (and I was not misled) and that this did not constitute gross professional misconduct or contempt of court.  

117	To take another example: the father alleges that Mrs. Lemonides accepted that she had "embellished her report" when she described the mountain as "dangerous".  [Finding 13]  Mrs. Lemonides did not accept the father's suggestion that she had embellished her report, on the contrary she said: "I do not think I have embellished my report".  

118	The father raises a question as to whether Mrs. Lemonides has been properly trained in the use of the risk assessment table and complains that her approach was inconsistent.  Mrs. Lemonides explained that the table is a tool which helps a family court adviser evaluate risk and in doing so she looked at evidence for and against beneficial contact. She has been using this analysis tool for some years, but recently CAFCASS officers have been encouraged to attach it to their reports.  The father's criticism of Mrs. Lemonides suggests that he believes that her analysis and conclusions are limited to my findings, whereas she is required to make her own observations and her own analysis, taking into account my findings but not limited to them.  

119	The father took Mrs Lemonides through the table, examining many of her entries in detail. She did not agree that she had completed it incorrectly.  In relation to an entry against the question: "Child has persistent and uninfluenced negative memories of the parent", Mrs. Lemonides wrote: "Children have experienced emotionally abusive unkind behaviour from father."  The father suggested to her that the children may not remember his behaviour and appeared to be suggesting that if the children did not remember the incidents which formed the basis of my findings, they would not have suffered.   Mrs. Lemonides was able to refer to my findings to support her view. She thought it likely that the children did remember at least some of what they had experienced.  This does not support the father's view that she did not understand the distinction between a memory and an experience.  

120	Mrs. Lemonides told me that she is aware that the children want to see their father, but she has to put their safety first and, in her view, the risk to them of harm from contact with their father is greater than any benefit they might derive from it.  Her recommendation that contact should be suspended is unusual but she considers that the risk to the children is high.  She is concerned about emotional harm to the children to the mother which could impact on her parenting capacity and about physical harm to the mother.  

121	Mrs. Lemonides has explained to my satisfaction the reasons for her filing two separate reports, both dated 22nd July 2013; she has explained how she used the analytical tool and why it was attached to her report, and how she qualified her responses to the questions set out in the table to reflect her concerns.  
I note that she was concerned about the allegations of domestic violence from the outset and proposed in October 2012 that there should be a fact finding hearing.  She has to take my findings into account in formulating her advice to the court. 

122	I found Mrs. Lemonides to be reasoned in her reports and measured in her oral evidence, in the face of detailed cross-examination by the father. She has highlighted the risk of minimising the father’s actions in a case where he argues that my findings are either historic, and therefore irrelevant, or of no significance.   She has kept the children’s needs clearly in mind, while acknowledging their wishes and feelings and made a difficult recommendation in the interests of their welfare. Her recommendation is supported by 
Dr. Wannan, who came to a different conclusion but said: "There is a reasonable case that the children should not have contact with their father". [D121]  

123	For all these reasons, I dismiss the father's application to disregard Mrs. Lemonides' evidence. 

8  The Evidence of Dr. Wannan.

124	Dr. Wannan, a Child and Adolescent psychiatrist, was jointly instructed by the parties as an expert to assess the children and the parents and provide a report, in accordance with the letter of instruction dated 8th October 2013.   His CV is at D123. He has been a member of the Royal College of Psychiatrists since 1998 and a consultant since 2002.  He works full-time in the NHS and prepares reports as part of the multi-disciplinary team at Parkside Clinic, which is run in collaboration with the NSPCC.  Most of this work relates to public law proceedings where there are child protection concerns.  He also trains and supervises others outside his team in the preparation of court reports.  In addition to his NHS practice he undertakes some independent work and produces approximately 10 reports each year in relation to public and private family law matters.  He has "particular experience in contact disputes where there is intractable hostility between parents." 

125	The letter of instruction to Dr. Wannan, to which both parents contributed and which I reviewed, included requests to: consider whether any of the children suffer from psychological or psychiatric conditions, and comment upon any harm which any of them may have suffered in respect of psychological intellectual, educational, emotional, social and behavioural development and assess the cause of any such harm. [D83]

Approach.

126	Dr. Wannan concentrated on themes and what he considered to be relevant detail [D84].  Where some of the questions, such as the assessments of the children, could be interpreted as suggesting a very considerable assessment he  interpreted them in a more general way and did not subject the children to a more in depth or prolonged series of meetings with him.  Where information was readily available he did not wish to probe the children over upsetting matters, such as domestic violence, unless he thought it was specifically necessary in order to come to the conclusions in his report. [D84, para. 5]

127	He found both the parents and children, amenable in terms of arranging appointments with them.  He liaised with the children's school and met the paternal grandmother.  He met the father three times and observed his contact with the children.  He met the mother twice, and observed the children with her.

Themes

The father's approach to the findings:

128	Dr. Wannan encouraged the father to reflect on matters that it is within his power to change and spoke about his approach to the judgment following the fact finding hearing, the use of interventions such as the DVIP and the possibility of changing his application so that the proceedings could become less acrimonious.  The father explained that the family justice system is disorganised and incompetent, the DVIP is incompetent, the Judge had spoken about the balance of probabilities but had failed to make a finding in his favour to the effect that he was abused, and that the mother is a liar.  He had changed himself, without attending the DVIP.  

129	When Dr. Wannan raised the subject with the father of his appearing relatively isolated in the stance he was taking in court, and whether this had ever suggested to him that he might be misguided in his positions, the father explained that there had been things that he should not have done but he has moved on and would not repeat his mistakes.  

Routines.

130	When Dr. Wannan suggested to the father that, in view of the uncertainties and difficulties the children had experienced in their lives, it may be that they would benefit from routine and certainty, in particular consistent routine between their parents' homes.  The father said that he had made up his mind about this matter. 

Communication with the mother.

131	Dr. Wannan raised the incident when the father had returned the children half an hour late after contact on 31st October 2013, without letting the mother know when they would be back.  The father explained that it had been necessary to calm C down before returning the children to the mother, and that he did not inform the mother of the position because he did not like communicating with her, her lies undermine him, he would never communicate with her again.  After some discussion he said that he would communicate with the mother by letter and if he were late returning the children he would ask A to contact the mother. 

The Father's approach to these proceedings.

132	The father told Dr. Wannan that the proceedings will not stop. [D91,para. 32]  While the mother criticises him he has to make allegations against her. [D95, para 43]   There would always be proceedings ongoing in relation to the children and he would not give up unless the mother stopped making allegations, as otherwise he would feel exposed. [D97, para.49]

Observation of Contact.

133	Dr. Wannan observed the children with their father at the father's home.  He had suggested that the father organise an activity and he had organised calligraphy. Dr. Wannan told me that the session was largely instructional. He noted that: 

"Although clearly interested in his children and apparently wishing to assist me in the assessment, the father took a somewhat controlling and uni-directional approach to them, showing less emotion and attunement than might be hoped for, although he did begin to warm up somewhat as the session progressed. ..  The father ... gave them very specific instructions as to how they should write and draw.  A, whom I had always seen as calm and compliant in his dealings, became exasperated with his father's instructions and said: 'Alright!'." [D97, para.51]

He noted some positive aspects of the father's interaction with the children, including praising B for her drawing of a bird, and stroking C's hair.

134	Dr. Wannan would have hoped for a more "flexible and child orientated approach" from the father.  [D98, para. 53] When the father explained that the children asked him to teach them calligraphy and enjoy it, Dr Wannan told me: "Now I understand how this came about, but it does not change my view".

135	Dr. Wannan also met the father's mother whom he found to be emotionally warm, thoughtful and very child orientated.  She said with some regret that she does not communicate with the mother these days.

136	Dr. Wannan told the father some of his concerns and explained that it was unlikely that he would recommend a shared residence order. He suggested that choices, including accepting the judgment and varying his application, remained open to him.  

Dr. Wannan's Impressions of the Father.

137	Dr. Wannan was aware that he may not have seen the father at the best time in his life due to the divorce, the restrictive contact with his children, and the difficulties he had experienced at work, and noted that, at happier times, he may have been able to be more spontaneous, creative and lateral in his thinking as well as in his interaction with the children. Nevertheless he set out a number of concerns.

138	In general the father's view of matters is that the judge, the mother and the CAFCASS officer are all very largely wrong and he does not need assistance with matters, saying instead that he has resolved what had been minimal issues. 

"Whereas there has been considerable concern in court that the father has been abusive to the mother, as well as to the children he has taken the diametric position that he has been the one abused, including by the mother and also by the court, effectively driving a wedge between the separated couple."[D99, para 58]

139	Dr. Wannan noted that if the father could simply acknowledge straightforward matters such as texting over a late arrival time, or instigating an agreed bedtime plan between the houses, not only would this be very much in the children's best interests, it would also promote civil communication with the mother. [D99-100, para. 58]   However, the father's mindset has made an agreement such as this unrealistic and that there are several ways in which his thinking has impeded progress.  Rather than reflecting more on the mistakes he has made and what is within his power to positively change, he has construed matters in such a way in his mind that people around him are against him, often through their incompetence or victimisation of him, including being lied to and abused. 

140	Other concerns include:

•	The father's lack of insight. The incident of him holding the knife to the mother's throat [Finding 5] and it being witnessed by a child has not 	made him realise that the mother and children are likely to be frightened of him doing this again in the future.  

•	In his experience "it would be very unusual for a person to commit such an act as this and, solely on the basis of internal resources, find a way to sufficiently ensure that violence does not take place again." [D101, para 61]
•	The father appeared to find it difficult to consider matters from the children’s perspective. 

The Mother.

141	Dr. Wannan found the mother to be pleasant, organised and child focused, with a "relatively high capacity for insight".  He was concerned about her failure to report the knife (to the throat) incident and suggested to her that this had effectively been abusive to the children and very likely led to a delay in matters being resolved, that court orders or threats in general are "toothless without consequences."  She was able to acknowledge this. 

142	She told him that things had been better since there had been a greater defining of contact but she still had a considerable number of concerns was also concerned about the cumulative effect on the children of the stresses they have endured.

143	She considers that the best outcome for the children would be for them to live with her and be happy at contact every second weekend and one weeknight with the father.  She hoped for a civil relationship with the father.  The worst outcome would be the children not being allowed to see the father, although potentially it could be for the best.  She would like advice as to what is best for the children. 

144	Dr. Wannan observed the mother and the children undertaking a group activity: a group painting using a roll of blank wallpaper and assorted paint. He noted that the children looked happy and interested, and there was a large amount of appropriate organisation, interactions between family members felt naturally emotionally warm and positive, including C cuddling his mother.  The mother used many encouraging comments. 

Impressions of the Mother.

145	The mother presented to Dr. Wannan as: 

"… a caring and committed parent who is thoughtful about her children.  She has what would appear an increasing capacity to have insight into the situation, has reflected on matters and made use of professional support and advice which, in my opinion, has worked to promote the children's welfare." [D107, para 84]
	
 	He added: 

	"It appears that the mother has taken an undue and misguided level of responsibility for others in her thinking and rather than let the appropriate consequences happen, she has chosen to take the inappropriate responsibility of trying to please everybody by juggling conflicting demands and expectations." [D107, para. 84] 	

146	Despite his concerns, Dr. Wannan noted: "considerable evidence of good parenting" and said that at the observed contact it was: 

"… a pleasure to see how well the mother stimulated the children, balanced their different needs and also maintained a calm and orderly environment." [D107, para85]

Meetings with the children/their wishes and feelings.

147	Dr. Wannan talked to the children together, but separately from the mother.  They told him that they sometimes discussed the difficulties there had been.  After some discussion they agreed that contact is better when their cousins did not come and they were able to spend more time with the father.  They said that when they are left to play with their cousins, the father speaks with the adults.  Dr. Wannan met A, B and C separately at his clinic.  

"A".

148	Although initially shy, A became more and more forthcoming as the interview progressed.  They talked about the contact which Dr. Wannan had observed at the father's and A explained that his father is into calligraphy and accurately drew the figures that he and his siblings would be expected to reproduce. 

149	A agreed that his father is a very important person in his life.  He said of his mother: "She is very capable, but she does worry", and talked about some of her current worries.  He does not like to see her upset. 

150	A raised the problem of late bedtime during contact and said that the father has attempted to persuade them over the amount of contact they have with him, saying that earlier bedtimes would only be realistic if they had more time with him during the week.  A feels that the current arrangements are a "good amount of contact".  He was not sure if midweek contact with his father would lead to a timely arrival at school. The father does not understand that there are things the children want to do with the mother at the weekend and he was also concerned about having sufficient structure at his father's to enable the completion of homework.  Phone calls with his father are better as they are less frequent.  

151	Dr Wannan noted that: 

"A was also pleased that his father appeared to be winding-up his mother less, but gave the example that when he was speaking to his mother to explain that they would be late back from the cousins in Farnham, his father deliberately put the music volume up in order to make it difficult for mother and son to speak.  The father justified this as the mother had stopped the telephone calls between him and the children earlier this year." [D110, para. 93]   

The father told me that this incident had occurred early in 2013 but it seems that A did not tell Dr. Wannan this. 

152	Presently, A feels okay, life is good.  He feels easy and relaxed and there is nothing to worry about. A's head of year at school told Dr. Wannan that he is doing well and there are no concerns about him.  

153	Dr. Wannan formed the impression that A: 

"… is a delightful, articulate, interesting and interested young man, who found it relatively easy to discuss matters in some depth for over 40 minutes in a rather adult fashion." 

and who has good perspective over the actions of those around him.  However, Dr. Wannan also noted that the responsibility and anxiety for his family that he would expect A to take on as the eldest child appeared to be exaggerated, and he suspected that A has been "prematurely adultified" in terms of his emotions and thinking about his life experiences. He suspects that A has been very aware of the upset and distress his mother has experienced and may be hesitant in talking to her about things that concern him. He would be assisted by a civil relationship between his parents and the end of these proceedings. A is likely to benefit from some type of talking help. [D111, para. 99]

"B".

154	B spoke about school and her teachers.  She chose to do some drawing and Dr. Wannan noted that the quality of her work was excellent.  She spontaneously put her family's names, including "dad" on the picture.  When they spoke about contact B said that she does want to see her father.  There are some problems, but she did not want to speak further about them.   Contact can go well, and does more often now.  She wants to stay living where she is.  [D112, para 102]

155	Dr. Wannan had the impression that B was a delightful child ... who smiled,  lovely social interaction and appeared at ease in adult company.  Her spontaneously putting her father's title on her drawing suggests indirectly that he is an important figure in her life and that she sees him as a definite part of her family and of her identity.  A prompt resolution of the issues he had highlighted could only be good for her in terms of her emotional health.  

156	The head teacher at B's school explained that both B and C present as well cared for, and both appear happy to come to school and be at school.  There are no significant behavioural issues, they are making good academic progress and are often in top groups. 

"C".

157	C presented as a sturdy boy who was clear in his manner but had a cute and mischievous smile.  He appeared interested to check Dr. Wannan out and work out how much he should or should not say to him.   C was clear that though he wanted to see his father there were problems sometimes, although fewer than there had been previously.  

158	Dr. Wannan found C a delightful child to be with, who appeared more confident and emotionally open than his siblings but who is, like them, clever and able in many respects.  C's play and drawings suggested that he is sending a message to the adults in his life that he wants them all to be able to get on.

Analysis 

159	Dr. Wannan noted consistent themes that emerged from the considerable amount of information he had to analyse.  He said: 

"It is my opinion that the children are still being harmed by the inter-parental acrimony:  I am particularly concerned over aspects of the historical facts, such as the father putting a knife to the mother's throat, as well as future scenarios that include the not unlikely prospect of inadequate communication between the parents, and contact arrangements and the like returning repeatedly to court." [D115, para. 112]  

160	He noted that the parents are taking different approaches to learning from the past, prioritising the children's needs and focusing on what they could now do differently. The father's position does not appear flexible: "not only has he not grasped the consequences of his previous actions and remedial action that is required, he has prioritised his own feelings and sense of injustice above the children's needs." And: "despite opportunities to use the experience and thinking of a variety of sources, he has not used these."  

161	There are some very simple matters that the father could change, such as: agreeing to text his children's mother over their children's immediate care and by doing so he would lessen any allegations that might be made that he is prioritising his pride.  However, if the father should be intransigent in his position then Dr Wannan is pessimistic about the future because: 

"intractable hostility and prolonged proceedings, especially if the mother does not follow through with fully protecting the children, to the best of her ability, is likely to lead to further harm to these three children."

162	Dr. Wannan noted: 

"As is evidenced through the breaching of court orders by the father ... the father is not subjecting himself appropriately to boundaries placed on him.  Being legally qualified, I am sure this comes not from ignorance, and may instead suggest more general difficulties in submitting to authority." [D117, para.115]

163	By contrast, the mother's insight and her determination to protect the children, especially after her discussions with Dr Wannan, seem to be increasing.

164	He noted that each of the children was clear that they wanted contact with their father but each in their own way, including in their accounts to Mrs Lemonides, demonstrated their concerns over contact, although there was acknowledgement that the current arrangements were superior to those previously.  He suspects that it is particularly upsetting for the children to see their mother upset by the father's actions and their conflict of loyalties will be heightened by the father denigrating the mother in their presence. [D117, para.116]

165	Dr. Wannan found that "Each (child) has not been so emotionally damaged as to show a significant level of distress at school" which, in his opinion, is encouraging.  However, he is concerned at the harm perpetrated against them having witnessed domestic violence, and more persistently having been exposed to the father's apparent attempts to undermine the mother and the court, thereby not prioritising their welfare.  

Recommendations.

166	Dr. Wannan recommends that the mother remains the children's main carer.  She has parented them well and is supportive and flexible; she has not undermined the father's contact; she has the children's interests in mind. In view of the level of harm perpetrated by the father, the stability of a primary, permanent residence with the mother is likely to be better for the children.

167	The father's capacity to care for the children is uncertain.  Dr. Wannan hopes that he is able to gain increased perspective and appreciate he needs to clearly place the children's needs above his own.  The change he requires to make to more fully safeguard his children is more considerable than that which the mother needs to make, as she has demonstrated a high and increasing capacity to safeguard the children now and into the future.  She must be prepared to enforce the court's orders.

168	In his report, Dr. Wannan discussed contact in detail.  He noted that having had a considerable amount of good parenting, no doubt some of it from the father, will have made the children more resilient and therefore more able to manage the rough and smooth of paternal contact, especially as there have been improvements.  However, the father has continued with an intransigent stance.  The children desperately want to see their father but a significant part of them is wary about contact.  He was particularly concerned that B said (to Mrs. Lemonides) that she is concerned she will get into trouble if she criticises her father to professionals which is likely to make contact less safe.  He notes that the father appears to have been more respectful of boundaries placed on him, the more restrictive the court orders have become, which could be an argument in favour of further restriction of contact until he is able to demonstrate appropriate compliance.

169	Direct contact has both advantages and disadvantages for the children but on balance the advantages outweigh the disadvantages, even allowing for the father's inappropriate behaviour.  He noted that it would be a considerable wrench for the children to be denied paternal contact but supervision of contact, either by professionals or by the paternal family, is not a realistic option. In view of this, if the father, does not comply with orders or if he gives the children inappropriate information or continues to denigrate the mother, then it should be possible to terminate direct contact.[D120, para 123] The mother has promoted contact and if she were to decide to stop it, it is unlikely that she would do so prematurely or without careful thought.

170	If contact were suspended, Dr. Wannan imagined that all the children would be upset, although there may be some feelings of relief for the children.  He noted that it is very likely that the children are concerned about their father and are likely, even if contact has its challenges, to be reassured by seeing him.  He also thinks it possible that A would find his own ways of having contact with his father if contact were suspended and might become even more a messenger between the father and the younger children.  

171	Dr. Wannan observed that there is a considerable case that the children should not have contact with the father until he has demonstrated an appropriate change in his stance.  But, for the reasons he outlined including the children's wishes, contact should continue, albeit on a decreased and reviewable basis. 

172	He recommends direct contact fortnightly, on a weekend day, from 10am to 5 pm.  This would be a substantial reduction from the current level of contact but Dr Wannan told me that he does not think it is good for the children to spend an excessive amount of time with the father.  Contact should be reviewed so that the father can demonstrate compliance i.e. that he does not persistently bring the children back late; does not give them inappropriate information and does not denigrate the mother to them.  If the father does not comply with these requirements, there could be a sufficient case for contact to cease.

173	He recommends indirect contact on religious festivals and birthdays. The parents could agree to additional indirect contact. 

174	Dr. Wannan initially recommended a further review of contact but he told me that he could see advantages of conclusion and clarity as repeated returns to court are harmful to children, they distract the parents, cause stress and drain finances.

175	He recommends that the parents conclude legal matters in as clear and as civil a way as possible, ideally leading to a position where they can work together effectively to promote their children's welfare.   The father should consider taking a less adversarial approach along the lines suggested.  By contrast, the mother should consider a greater follow-through of court orders.  She will benefit from continuing counselling. 

176	The father should reconsider the use of DVIP and complete a relevant course.  He should consider approaching his GP and requesting a psychiatric assessment to exclude the possibility of undiagnosed mental illness.  

The Father's Application to Disregard Dr. Wannan's Evidence.

177	In his application to disregard Dr. Wannan’s evidence, both written and oral, the father asserted that “Dr. Wannan has acted in manner that amounts to professional misconduct and that he deliberately and selectively edited information such as to deceive the father and the court.

178	In Meadow v General Medical Council (Her Majesty's Attorney-General Intervening) [2006] EWCA Civ 1390[2007] 1 FLR 1398 the Court of Appeal defined serious professional misconduct and noted that it might include “acts of bad faith or other moral turpitude ... incompetence or negligence of a high degree.... purporting to act or speak in an expert capacity, while going outside the area of expertise.”  Whether such conduct amounted to ‘serious professional misconduct' would depend on the circumstances and ...only rarely would a person be held to be guilty of serious professional misconduct in the absence of bad faith.  Where the relevant conduct of an expert arose out of evidence given to a court ..., it was important that the body fully understood and assessed that conduct in the forensic context. Of great importance were the circumstances in which the expert came to give the evidence, the way in which it was given, and the potential effect, if any, it had on the proceedings and their outcome." 

179	The father alleges that Dr. Wannan acted in bad faith by knowingly lying to the court with the intention of misleading the court.  He asks the court to refer Dr. Wannan to the General Medical Council, failing which he will do so.  He notes that if his complaint is upheld Dr. Wannan will have been unfit to practise as a doctor at the time he gave evidence. The father's complaints take up 15 pages of his final submissions. I will consider those which I consider the most serious, although all are serious.  

	(i)  	Dr. Wannan copied sections of Mrs. Lemonides' report and re-arranged them in such a way as to deliberately misrepresent the father. 

180	In his report, under the heading "Background" Dr. Wannan summarised information contained in the documents he had read, including my first judgment.  In the section about the father, Dr. Wannan set out his background and referred to the findings that I made against him and to Mrs. Lemonides’ reports [D86, paras 11 and 12]   

181	The father alleges that Dr Wannan "copied sections of Mrs. Lemonides report and re-arranged them in such a way as to deliberately misrepresent" what the father said. [Father's written submissions, para 41] The part of Dr. Wannan’s report he refers to clearly contains a summary of comments contained in paras. 7, 8, 9, 11 and 13 of Mrs. Lemonides' report, dated 22nd July 2013 [D42 onwards], which were familiar to me from my earlier reading of her report. It forms part of the background and introduction to Dr Wannan's report on his work with the parents and the children, his analysis and conclusions.  It is common practice for experts to preface their work in this way, but the father, who is in person, may not have been aware of this. I do not accept this criticism.

 	(ii)	Dr. Wannan gave evidence about observing contact with the father when they were practising calligraphy when he did not understand anything about calligraphy.

182	I have referred to Dr. Wannan's observation of the children with their father and his comments on the father's parenting style in paras 156-7 of this judgment.  He noted positive aspects of the calligraphy session, the father complimenting B and stroking C's hair but concluded: 

"… even allowing for the stress of a visit from a relative stranger, and being observed, I would have hoped for a more flexible and child orientated approach from their father." [D98, para.53]  

183	The father's criticism of Dr. Wannan, which he also put in the course of his cross-examination, is that whereas he has considerable knowledge of calligraphy, Dr. Wannan knows little about it and is therefore: "not qualified to use (this) as the basis of his evidence." 

184	The father's criticism misses the point.  Dr. Wannan had asked him to arrange an activity which he could observe and he chose to give the children a lesson in calligraphy. It seems to me that the father cannot reasonably complain when Dr. Wannan comments on his observations of the activity which the father chose to demonstrate his contact with the children.  When the father challenged Dr. Wannan, he said that understanding how the calligraphy lesson had come about did not alter his views. Dr. Wannan's comments included positives and negatives and I found them to be balanced and fair.  I do not accept this criticism.

 	(iii)	The father suggests that Dr. Wannan may have an auditory impairment which he should have declared to the court.  Alternatively he failed to have regard to material facts or he deliberately lied to the court when he said that what the mother said in the recording which the father made of his indirect contact with A was not clear. 

185	I have considered this criticism when I reviewed the father's recording of the children during contact and Dr. Wannan's report at paras 46 and 51of this judgment.  I do not accept it.

 	(iv)	Dr. Wannan's description of the impact of the children of domestic violence. 

186	The father claims that Dr. Wannan said that there was no evidence of any impact on the children on any of the historic events mentioned in his report.  The most he could say was that he would be surprised if there was no impact.

187	By "historic events", from the context of his complaint, the father has in mind my findings of his violence to the mother. (Findings 3, 5 and 16 and 17)  In his complaint the father reiterates his "repeatedly stated" assertion that many of the allegations made by the mother are minimal and historic and should never have been considered by the court at all.  He may, therefore, have in mind other findings.

188	Dr. Wannan's summary of the findings I made is set out at para. 11 [D86] of his report.  He identifies that the father was found to be abusive to the mother and the children; in addition to the physical violence he had threatened the mother and had emotionally abused her by her calling her names; he had acted in a variety of controlling and aggressive ways to each of the children, and had been emotionally abusive to them by giving them inappropriate information, being abusive to their mother in their presence, and telling them to say or do demeaning things.

189	This summary sets out Dr. Wannan's understanding of the findings which formed the background to his inquiries. Dr. Wannan noted that I had found that the father loves the children and they love him, but that I had been concerned at the father's overly direct interventions with the children, including what he had said to them, and that in my opinion often the ends would justify the non-child centred means which he used, often appearing more concerned with his own feelings rather than the children's.  This understanding formed the background to Dr. Wannan's assessment.  

190	I have set out Dr. Wannan’s concerns for the children at paragraph 164 of this judgment but it is worth noting here his reference to “...  the harm perpetrated against them having witnessed domestic violence and more persistently been exposed to the father's apparent attempts to undermine the mother and the court, thereby not prioritising their welfare."  All the children had experienced harm and : 

"Experience would suggest that domestic violence is a particular source of harm, and some of the children's communication did suggest their knowledge of this."  

191	It is, therefore, not correct, as the father asserts, that Dr. Wannan said there was no evidence of any impact on the children of any of the historic events mentioned in his report.  When cross-examined by the father, Dr. Wannan said, with reference to the "knife incident" (Allegation 5): 

"In terms of level of violence it is one of the most significant findings.  It would be significant even if the children had not seen it.  That level of violence is very significant."

192	 The father suggested to Dr. Wannan that there was no evidence of any impact of domestic violence or other abuse on the children, and Dr. Wannan replied: "In view of the findings of fact as to what the children have seen and heard, even a lay person would be very surprised if there were no impact on them."

193	Dr Wannan had considered the situation both historically and currently.  In his report, he makes it clear that the children have benefitted from some good parenting.  He notes that they present well at school but that does not detract from his view that the children have suffered harm as a result of their experiences both of the matters as to which I have made findings and because of the continuing inter-parental acrimony. I do not accept the Father's criticism.

 	(v)	Dr. Wannan's incorrect use of the term "emotional abuse".

194	Dr. Wannan makes several references to emotional abuse in his report (as the father notes) and also refers to "ongoing emotional abuse"  [D120, para 122] The father describes this reference as "startling", but it follows from Dr. Wannan's earlier opinion, under the heading: "Analysis": "It is my opinion that the children are still being harmed by the inter-parental acrimony." [para. 112]

195	During his cross-examination of Dr. Wannan the father asked him for a definition of "emotional abuse".  Dr. Wannan said that, with warning, he would have brought a definition to court.  He said: “It is a more complicated form of abuse to define.  It would involve actions of care givers of children who often purposefully or accidentally cause undue, unnecessary distress in a child."

196	The father asked: "Is that your own definition that you've just come up with?"  I reminded the father that Dr. Wannan was giving evidence as a jointly instructed expert child and adolescent psychiatrist and that he had therefore accepted Dr. Wannan's expertise and experience, as set out in his CV.  

197	Dr. Wannan said that there are well accepted definitions of emotional abuse, but he does not carry them around in his mind and had spoken from his experience. The father then attempted to test Dr. Wannan's definition of emotional abuse by asking his opinion about a situation in which an adult popped a balloon behind a child which he suggested came within Dr. Wannan's definition. Dr. Wannan pointed to examples from my findings of the father's behaviour which he said was emotionally abusive, threatening the mother (Finding 5), calling her names (Finding 23) giving the children inappropriate information, (Finding 7a) and telling the children about the mother's solicitor's letter (Finding 9).  It was in this context that he agreed that in some circumstances bursting a balloon behind a child could be abusive.

198	In the course of the father's cross-examination of Dr. Wannan it became clear that the father considered that Dr. Wannan's opinions should be limited by my findings.  This approach is apparent from para. 50 of the father's submissions where he suggests that because the expression "ongoing emotional abuse" is not in my first judgment,  Dr. Wannan has to justify his words by relying on a definition of emotional abuse. As an expert, Dr. Wannan is required to give his opinion about the significance of those findings and their effect, or likely effect, on the children, taking into account his own observations and analysis and based on his experience and expertise.

199	Dr. Wannan did not say in the course of his evidence that, in carrying out his assessment, he relied on a definition of emotional abuse which is not widely accepted, as the father asserts.  He was clearly aware of other, longer, more comprehensive definitions but had not memorised them.  There is no evidence and I do not accept, as the father asserts in para. 53 of his submissions, that Dr. Wannan relied on a definition that is not supported by peer review or widely used by his colleagues.  He produced in court, without notice, a short definition while making it clear that he was aware of other longer, more comprehensive definitions. That there are other definitions is clear, but the fact that Dr. Wannan could not produce one, without notice, does not in my view detract from his assessment in this case.

200	I find that the father has tried to elevate a short section of cross-examination into a critique of Dr. Wannan's experience, the work he did in order to carry out his assessment, his report and his oral evidence in a way which is entirely unjustified.

201	This section of the father's criticism of Dr. Wannan also includes an allegation (at para. 54) of "bias towards the mother").  Dr. Wannan notes both positive and negative aspects of each parent's care of the children.  He supported his recommendation that she should continue to be the children’s primary carer with a detailed analysis of both parents. In my view there is no evidence that he has been biased towards her in his approach to or his preparation of his report.

 	(vi)	Dr. Wannan's factual errors and his failure to revise his findings when these were corrected and fabricating a finding against the father.

202	In the course of the father's cross-examination of Dr. Wannan, he pointed out some factual errors, e.g.  Dr. Wannan had said that the mother received support from the DVIP in 2008, whereas, in fact, this was in 2010 [Judgment 1, para. 20]  Dr. Wannan said that he was happy to correct errors if they are pointed out to him.  He accepted a correction to his summary of my findings and corrected it. These corrections did not alter his opinions.

203	This forms the basis of the father's allegation that Dr. Wannan fabricated a finding against him.  Having read the report and having heard Dr. Wannan's frank admission that when reading a great deal of documentation it is possible to make a mistake, which he corrected, I accept that this was a genuine error.  

204	Similarly, the father alleges that at para. 23 of his report Dr. Wannan incorrectly said of B that she: "Fears that her father will shout at her though in view of her honesty".  This comment originates with Mrs. Lemonides in her report dated 25th March 2013. [D37]  The letter which B wrote to the "court lady" is the subject of my finding 52. In framing this criticism of Dr. Wannan the father ignores the substance of the finding which I made against him. 

205	The father alleges a further factual error made by Dr. Wannan, namely that he "incorrectly recorded whether the children had witnessed any domestic violence, and made a big issue of this in para. 61 of his report."  Paragraph 61 of Dr. Wannan's report highlights the father's lack of insight and gives as an example the incident of the knife to the throat.  I found that the father forced the mother down the stairs at knifepoint in front of C.  Dr. Wannan did not say that this was insignificant.  He said that it would have been significant even if the children had not seen it and that level of violence is very significant.   

206	I have noted that the father told me that on re-reading Dr. Wannan’s report he had decided to take a difference stance in the proceedings and put forward a more conciliatory approach, which somewhat undermines his criticisms.

207	There is nothing to suggest that Dr Wannan was anything less than fair to the father: he acknowledged that he may not have seen him at the best time in his life and took into account the considerable amount of stress for the father. [D99, para. 57]  He discussed his impressions with the father and encouraged him to take a different approach.  He carefully balanced the children's wish to spend time with their father with the need to reduce some of the harmful aspects of contact. [D118, para. 118] I find that Dr. Wannan has carried out a difficult piece of work with great care and skill. His report demonstrates familiarity with the most important issues and events, accurate observation and a careful and thorough analysis.  He gave his evidence in court in a calm, professional manner and provided a full explanation for his opinions and recommendations.  He was well within his area of expertise. There was nothing at all to suggest bad faith. The father's application that I disregard Dr. Wannan's evidence is dismissed.  I also refuse (even if it were in my power) to make a referral to the General Medical Council.

9  The Law.

208	The parties' applications are made under the Children Act 1989 which provides that the children's welfare is my paramount consideration.  In considering the various applications before me I have regard to the matters set out in s.1(3) of the Children Act: 

	(a) 	the ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding); 

	(b) 	their physical, emotional and educational needs; 

	(c) 	the likely effect on them of any change in their circumstances; 

	(d) 	their age, sex, background and any characteristics which the court considers relevant; 

	(e)  	any harm which the child has suffered or is at risk of suffering; 

	(f) 	how capable each of his parents is of meeting his needs.

209	The father applies for a shared residence order which the mother opposes.  It is not necessary to show that exceptional circumstances exist before a shared residence order may be granted.  What is required is a demonstration that the order is in the interests of the child in accordance with the requirements of s.1(1) of the Act. (See C v D (Shared Residence Order) [2001] 1 FLR 495.)  The fact that parents cannot co-operate is not a bar to a shared residence order where in all other respects this would be the right order.  (See Re R (Residence: Shared Care: Child's Views) [2006] 1FLR 491, and Re W (Shared 
Residence Order) [2009] 2 FLR 436, [2009] EWCA (Civ) 370. )

210	The mother accepts that there are authorities which suggest that a shared residence order may be appropriate where the parents are incapable of working in harmony (See Re G (Children) [2006] UKHL 43, [2006] 2FLR 629 and A v A (Shared Residence) [2004] EWHC 142, [2004] 1 FLR 1195.)  Miss Taylor referred me to the decision in the case of Re M (Residence Order) [2008] 1 FLR 1087.  

211	In relation to contact, the father referred me to the decision in the case of Re A [2006] EWCA (Civ) 1609.  This was an application for permission to appeal by the mother of two children arising out of an order for visiting contact with their father.  The court had decided at an early stage that the interests of the children, did not require a fact finding hearing. There had been contact and the mother could identify no harm that the children had in fact suffered or were at risk of suffering. [Para. 10]  

212	Wall LJ (as he then was) referred to the guidelines laid down in the case of Re L which include:  

"1.1 In every case in which domestic violence is put forward as a reason for refusing or limiting contact the court should at the earliest opportunity consider the allegations made and any answer to them and decide whether the nature and effect of the violence alleged by the complainant or admitted by the respondent is such as to make it likely that the order of the court for contact will be affected if such allegations are proved."

213	In this case District Judge Johns decided in October 2012 that a fact finding hearing was necessary.  Wall LJ noted at para. 31:

 	"… The father must recognise that his conduct in the past has had a profound effect on the children's mother and that if he wishes to enjoy a fruitful relationship with his two children by her, he must behave immaculately and appropriately and demonstrate that he is not a risk to either her or the children."

He added at para. 32:

	"Frequently, as happens in this case, communication between the parents is difficult if not impossible, but the father can show, I think, by giving the children happy periods of contact, that he is not a risk to the children and that the children are safe with him."

In this case Mrs. Lemonides, Dr. Wannan and the mother do not ignore the fact that the children have had unsupervised contact with the father.  They consider that it has not always been safe, that it carries risks for the children and the mother as a result of which they have considerable reservations about the benefit of frequent contact.  
  
214	The mother seeks an order pursuant to s.91(14) of the Act which the father opposes:   The guidelines were set out in Re P (A Minor) (Residence Order: Child's Welfare) [2000] Fam 15, [1999] 3 WLR 1164 and were summarised by Butler-Sloss LJ at 37–38, 1184 and 592–593 respectively: 

"Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.

The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

 	(iii)	An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

	(iv) 	The power is therefore to be used with great care and sparingly, the exception and not the rule.

	(v) 	It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.

	(vi)	In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

	(vii)	In cases under para (6) above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

	(viii)	A court may impose the restriction on making applications in the 	absence of a request from any of the parties, subject, of course, to the 	rules of natural justice such as an opportunity for the parties to be heard on the point.

	(ix)	A restriction may be imposed with or without limitation of time.

	(x) 	The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

	(xi)	It would be undesirable in other than the most exceptional cases to make the order ex parte."

10  Further Impressions of the Parents.

Father.

215	The findings which are set out in my first and second judgments remain.  Many of them taken individually are most serious and all of them, whether taken individually or together, are far more serious than any allegation the father has made about the mother at this hearing, all of which I have refused to make.  My findings form the basis for my consideration of the outstanding applications.  

216	I have considered whether the father has changed.  The mother says that he has not but Dr. Wannan told me that there was limited evidence that, with greater restriction and clarity in the court orders, the father has shown better compliance, although that level of change is not necessarily significant.  A significant level of change, which would make it more likely that he would comply with court orders, co-operate with the mother and put the children's interests first consistently, is unlikely because, having had the opportunity to read my first judgment and to discuss matters with a variety of professionals, he has not so far been able to make change over simple matters such as sending texts to the mother when he is returning the children late, and replying to her texts.  Despite his encouraging the father to review his situation and 
consider ways in which he could change it, Dr. Wannan observed that, sadly,  the father has not done so and therefore the chance of change within these proceedings is rather low.  

217	The father says that he has changed a great deal. He has been assisted by the passage of time, sessions of counselling (two, I believe), his attendance at two sessions with the DVIP and by reducing his stress by separating from the mother and reducing his working hours.  He has reflected a great deal and acknowledged that there are things that he should not have done.  He has put in place measures to ensure that he does not behave in that way again, including reducing his working hours and separating from the mother.  He considers that violent behaviour is wrong, but notes that the most recent finding of violence is some four years old.  With regard to the children, he recognises that in some situations he may react too quickly and he has seen how that can lead to his making a bad judgment call.  He is now more careful.  Throughout the period from 2010 to 2012 when he and the mother attempted a reconciliation unsuccessfully, they continued to argue but there was no physical violence because he had changed to ensure that there would be none.  

218	Dr. Wannan and Mrs. Lemonides share the view that the father will not change substantially until he does work, such as that which is offered by the DVIP in their perpetrators’ programme, and acknowledges his past behaviour and the impact on the mother and the children.  They have also suggested a parenting course to assist him with the children.

219	The father has no intention of attending a DVIP programme or a parenting course. He says that no-one has explained him what a DVIP programme would achieve. In any event he has attended for two hours and in that time learned what might take others 12 weekly sessions. Similarly he had two sessions of counselling and learned all he needs to know.  

220	I share the concern of Mrs. Lemonides and Dr. Wannan that the father has not fully acknowledged the violence of the past and nor has he apologised, either to the mother or the children.  He does not acknowledge that even now he fails to put the children's interests first consistently.  To the extent that he accepts any responsibility for past behaviour, he seeks to share that responsibility with the mother.  As regards his conduct in the course of these proceedings, he blames Mrs. Lemonides, Dr. Wannan, the family justice system, the court, for the way in which he has been obliged to conduct his case. 

221	The father asserts that as long as the mother criticises him he must make counter allegations against her supported by the best evidence, such as recordings made of the children during contact.   I considered the father's negotiating style in my first judgment (para.62) when I noted that: 

"The father explained to me (with reference to his texts to the mother on Christmas Day 2012) that he put his case as strongly as he could or, indeed, more strongly, but he did not expect her to meet his case.   He was right to call her an abuser with the intention of negotiating to a position somewhere in the middle.  He is a commercial lawyer and that is how he negotiates."  

	At this hearing he told me: "The way I see it, people come to court ready for a fight and then settle."   The father has not changed his approach to this family litigation, although I have suggested that it is not constructive, and I expect that when he has chosen to be represented, he has been similarly advised.  

222	The father has continued his barrage of criticisms of the mother as an abuser, liar, bully, a controlling woman who seeks to undermine his contact with the children.  As I observed in my first judgment, he does not have anything positive to say about her. This attitude, combined with his dislike of her reported by Mrs. Lemonides and Dr. Wannan and his obvious anger in the course of the hearing, lends considerable weight to the mother's concern that he continues to denigrate her to the children.

223	The father has made a number of statements in the course of this hearing which have caused me concern.  He asserted that my findings of fact establish that the mother had lied and exaggerated.  I found that the mother did not exaggerate [Para.44]   and that her evidence was measured, honest and reliable. [Para.59]  

224	The father cross-examined Dr. Wannan on the basis of the allegations in respect of which he sought findings, without disclosing that he had made recordings which were relevant to two of the allegations.  He told Dr. Wannan that the mother had said to A: "How dare you ask him".  The father had the recording of this exchange and had transcribed it.  No one else knew of its existence.  The father knew that the account on which he invited Dr. Wannan to comment was not true.  

225	The father insisted that on 18th February 2013 Mrs. Taylor made an unsuccessful application to District Judge Marin for an order prohibiting him from recording the children during contact.  At the end of this hearing the father questioned the basis on which I could make an order preventing him from recording the children at contact during the interim period prior to handing down this judgment.  The father was at court on 18th February 2013 and he was represented by counsel.  He is a solicitor. He pays careful attention to detail and, in my view, he knew that no such application had been made. 

226	In his complaints against Mrs. Lemonides and Dr. Wannan I found that the father's allegations contain some inaccurate and incomplete accounts of their evidence and in some instances what they said or wrote was taken out of context.  I have rejected them all.

227	The father is the applicant in these proceedings.  He seeks a shared residence order, which is not agreed and, in the course of his evidence, suggests that once a shared residence order is made, he and the mother will be able to build a communication bridge.  He has not been civil to her in the course of the hearing.  He has put his allegations to her in an aggressive manner.  He has not been able to be civil outside the hearings, for example by texting to tell her that he was bringing the children home late.  He has not dealt with the children's invitations to parties and their piano concert in a civil, polite manner. In the course of his evidence for the first time the father suggested a more conciliatory approach, provided a shared residence order is made.  It came as no surprise that the mother did not trust this sudden change of heart. This late, and rather grudging change of approach goes to the father's credibility.

228	For all these reasons I find that I can have no confidence in the father's evidence.

The Mother.

229	My impressions of the mother have not changed from my first and second judgments.  She has promoted contact throughout this case with the exception of the 2nd August 2013 when she was shocked to receive Mrs. Lemonides' recommendation that contact should be suspended and made an application in those terms.  Since then she has suggested further contact for Eid, and has agreed to change contact arrangements so that the father could spend C's birthday with the children.  I repeat what I said in my second judgment: the mother has supported contact when many others would not have done so.  

230	She has continued to be fair to the father.  She acknowledges that there has been some improvement and that the children enjoy contact, while recognising that sometimes it is difficult and they have issues about it.  I find that the mother has tried to do her best for the children throughout these proceedings. 
I accept that it is for that reason that she has not always sought to enforce breaches of my orders, and note that after discussion with Dr. Wannan she takes a different view.  

231	Initially the mother did not support my suggestion that I obtain a report from Dr. Wannan: she felt that the children had seen a lot of professionals and this could be harmful to them.  However, it is clear from his report, and her response to it, that the mother found Dr. Wannan's advice of great benefit.  She acknowledged that the children had enjoyed meeting him and felt able to accept his recommendations.  In my view the mother has come to her final position reluctantly and after giving the matter a great deal of careful thought. 

232	I accept that these proceedings, which began in April 2012 with the father's application for a residence order and prohibited steps order, have caused the mother a great deal of anxiety.  It has been obvious from her demeanour in the witness box, especially when questioned by the father, that she has found the hearings arduous and the subject matter distressing. 

233	In my first judgment, I found the mother to be an honest and reliable witness. Where there were factual differences between the parents' evidence I preferred her evidence.  I have reviewed my findings of fact and my further findings very carefully. I have no reason to alter my views.  
 
234	In addition, having considered all the evidence I find that the father has continued to make derogatory remarks about the mother to and/or in front of the children.

11  Discussion and Decisions. 

235	In considering the outstanding applications I have kept in mind the welfare of the children and the matters set out in the welfare checklist.  This has been a difficult case, marked by parental acrimony which is due largely to the past, recent and current behaviour of the father. I do not doubt that, as in most cases, there will have been faults on both sides, but here there are serious findings and other concerns about the father which he does not acknowledge. He seeks instead to criticise the mother and blames the family court system and everyone else involved in proceedings in which he is the applicant. The system is far from perfect, as current reforms acknowledge, but the father is an intelligent, educated man who has chosen an approach which has exacerbated an already difficult situation. 

236	I accept that the children love their father, as they love their mother, and that they want to see him. They have reported to Mrs.  Lemonides and Dr. Wannan that family life has been better since he left the family home and that contact has recently improved.  Nevertheless there are problems: late returns after contact; the father’s refusal to communicate with the mother and the consequential involvement of the children, especially A, as messengers; his interpretation of his undertakings which have had the effect of preventing the children from taking part in social activities; his insistence on his right to adopt a different parenting style when the children are with him, despite the children’s protests; his derogatory comments about the mother which distresses the children and her distress which adds to theirs.

237	Mrs. Lemonides told me that the father "hasn’t got the basics right" but he could, if he chose to.

238	I accept that a final order is in the interests of the children in the hope that it will bring this litigation to an end.
 
Residence and Contact.

239	At the hearing on 25th October 2012, the parties agreed that the children would live with the mother and the order made then has remained in effect until now.  The father does not take issue with the mother being the primary carer but he says that a shared residence order will give the children stability and certainty and tell them that they have two parents who love them.  He proposes that the children spend 60% of term time with the mother but that holidays are shared equally. 

240	The mother seeks a final order granting sole residence of the children to her. She believes that the father would use a shared residence order to continue to try to bully and control her.  She says that this is not a case about a lack of harmony or even just acrimony but a campaign by the father to undermine her ability to care for the children.  She has accepted Dr. Wannan’s recommendation that the children’s contact with the father should be reduced.

241	I accept the recommendations of Dr. Wannan and Mrs. Lemonides as to the children's residence.   Having considered all the evidence I find that in the circumstances of this case a shared residence order would not be in the interests of the children as the father would use it to try to undermine the mother's care of them. The children will remain living with the mother under a sole residence order.

The father proposes that the children should spend 40% of their time during the school term and half the holidays with him. He has referred me to Re: A which I have considered and which I distinguish from this case because here there are findings of domestic violence and emotional abuse, the father has not recognised the effect of his behaviour on the mother and the children and he has not behaved in such a way as to demonstrate that he is not a risk to the children. The mother accepts the recommendations of Dr. Wannan as to contact. I prefer his views about contact to those of Mrs. Lemonides because he has seen the children recently, has analysed the effects of contact on them and has considered the balanced between their wishes and their needs. I will order that the children be made available for contact for visiting contact with their father, from 10 am to 5pm once a fortnight.  The first such contact will take place on Saturday 1st February 2014. The children will spend both Eids with the father from 9am until 9pm on terms which will be set out in my order.  In these circumstances I find that the children should spend Christmas with their mother with the result that if Christmas falls on a Saturday, the contact will take place on the following Saturday, 1st January.

242	The father proposes that all restrictions should be removed from indirect contact so that the parties and the children can find their own balance.  However, if indirect contact is to be defined, there should be a guideline of 45 minutes with flexible timing between 7 pm and 8 pm.  The restriction on the father discussing contact with the children should be clarified.  The mother proposes that the father have indirect telephone/face time contact with the children on their birthdays and his birthday for a period of 45 minutes from 7.15 pm to 8 pm.  In the event that direct contact falls on the children's or the father's birthday there will be no indirect contact, nor will indirect contact take place if the children are on holiday away from their home.  I have noted the difficulties that have arisen during and in relation to indirect contact and agree that it should be limited as Dr Wannan recommends and the mother proposes. Both direct and indirect contact will be subject to conditions similar to those set out in my order of 14th June 2013. The detail will be contained in the order I make following this judgment.

243	The father’s undertakings as to contact and other matters remain in force. The undertaking not to discuss contact with the children does not prevent him from talking to them about their activities during contact.  In view of the evidence 
I have heard about the father’s practice of recording the children during contact, I order that he shall not do so.  For the avoidance of doubt this order does not prevent the father from recording the things that parents typically like to keep, such as a child performing in a school play or concert or a birthday party when the child would know that a recording is being or has been made.  It is intended to prevent the making of recordings to be used as evidence.

Applications for Prohibited Steps and Specific Issues Orders 

244	The father seeks specific issues and prohibited steps orders in relation to the children's medical care and education.  In particular, he wants to attend C’s appointments at CAMHS and he wants B’s progress in English and maths to be assessed with a view to her receiving tuition. The mother seeks an order giving her permission to determine issues relating to B’s tuition, the children’s education, their health, including doctor and dentist appointments and treatment and their attending CAHMS without providing the father’s consent, but on the basis that she provides him with relevant information within a reasonable time.

245	 I find that the mother’s application if granted would be an unreasonable restriction of the father’s parental responsibility but also that the father’s application if granted would enable him to try impose his preferences on the mother.  A balance must be found. The mother shall be able to make routine medical and dental appointments for the children which the father does not need to attend.  She may request that a child be referred to CAMHS. Whether the father should attend C’s appointments with CAMHS is a matter for the therapist, who will also decide whether s/he needs to see the father. If there is medical or other emergency, the mother will have to respond to it immediately and inform the father promptly. If the children require serious treatment, the father should be informed and consulted.  I would expect both parents to act in accordance with medical advice and the children’s welfare.

246	I have seen no evidence that B requires an educational assessment: her teachers and head master can advise and the mother will act on their advice and in her best interests. The father should be consulted about the children’s schools in advance of a decision being made.

247	Both the father’s and the mother’s applications are refused.  I will include the indications set out in paragraphs 240 – 214 in my order.

Mother's application for an Order pursuant to s. 91(14) Children Act 1989. 

248	The mother seeks an order for a duration of five years. The father opposes the application but provided the children's time is split broadly as to 60 per cent with the mother and 40 per cent with the father, he would agree to an order which would apply to both parties, would run to 31st July 2015, but would not apply to issues relating to B's education or medical treatment. 

249	Dr Wannan told me that if a final order is made, it will be a weighty responsibility for the mother to police the contact arrangements but she has acted responsibly by promoting contact and has prioritised the children's need above her own. An order pursuant to s 91(14) of the Act would be sensible.  

250	I have considered the guidance set out in Re: P and acknowledge that an order requiring the father to obtain leave to make an application is draconian, although it is not an absolute bar to further applications. The father told Dr. Wannan that he will not give up while the mother criticises him. In other words, unless she accepts his behaviour without criticism or complaint, these proceedings will continue. The history I have set out in this judgment together with that declared intention, in my view, takes this case beyond the common situation. I make an order pursuant to s 91(14) but for a duration of 3 years during which time I hope the parents will be able to develop a co-operative approach to parenting.

The European Convention on Human Rights.

251	I have had regard to Article 8 of the European Convention on Human Rights which protects the rights of the father and the children to a family life. They will continue to have direct contact and on that basis I consider that my decision does not violate their rights.

The Costs of Dr. Wannan's Addendum Report.

252	The parties agreed to share the costs of Dr. Wannan's addendum report, which was prepared in relation to the father's continued recording of the children at contact.  The father could have disclosed the existence of the recordings and applied for them to be admitted as evidence prior to Dr. Wannan giving his evidence, and Dr. Wannan would then have been able to consider the significance of those recordings in the course of his evidence; there would have been no need for an addendum report.

253	I have refused the father's application to disregard Dr. Wannan's reports and evidence.  I order that the father will pay the whole of the costs of the addendum report in the sum of £1,700, those costs to be paid within 21 days of the date of my order.

The Mother's Application for the Costs of the Fact Finding Hearing.

254	The mother applies for an order that the father pay £24,844.00 (80 per cent) of her costs of the fact finding hearing. The father says the application is an abuse of process.
255	I first considered this application at the hearing on 14th June 2013 but adjourned it when the father said that the mother had been awarded her legal costs of the entire proceedings at the hearing before Deputy District Judge Hopkins on 19th April 2013. The transcript of her judgment was not available at the time. The mother's application was further adjourned pending the father's application for permission to appeal my first judgment.  

256	The decision that there should be a fact finding hearing was made by District Judge Johns on 25th October 2012 on the advice of Mrs. Lemonides. 

The Law. 

257	I note that the Family Procedure Rules 2010, at Rule 28, provide that a court can make such order as to costs as it thinks just and that although family proceedings are exempt from the normal rule in civil proceedings that costs should follow the event, it can provide a helpful starting point.

258	I acknowledge that costs orders in Children Act cases are unusual. In his judgment in the case of Re: J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350, to which both parties have referred me, Wilson LJ discussed the decision in the case of Re: T (Order for Costs) [2005] EWCA Civ 311. He observed that the fact finding hearing in that case: 

	"had contained a feature which was relevant to costs and which differentiated it from a conventional hearing under the Act in which both parties submit rival proposals for the optimum arrangements for the child". 

In Re: J a separate fact finding hearing was necessary and:

	"the optimum outcome of the contact application could be determined only by reference to the findings made ...the effect was ... that the costs incurred by the mother in relation to that hearing can confidently be seen to be wholly referable to her allegations against the father". [para. 17]  

	The hearing was devoted exclusively to the court's consideration of serious and relevant allegations against the father; over two-thirds of the allegations were true and those that were not established were not found to be untrue. The father was ordered to pay two-thirds of her costs of the fact finding hearing.

 	The findings.

259	I considered 52 allegations. In respect of the mother's 32 allegations I made 22 findings. The father denied the allegations or made only partial admissions and I had to hear full evidence. I did not find that any of the mother's allegations was false. In respect of the father's 20 allegations I made none, bearing in mind that the mother accepted the part of finding 51 which related to her and that 
I also found (in summary) that the father's response to this incident was inappropriate. 

260	The findings I made in respect of the mother's allegations include three findings of serious violence by the father towards her in 2009: holding a lighter to her thigh, in front of the children (Finding 3), threatening her with a knife to her neck and forcing her down the stairs at knife point in front of C 
- then age 3 - (Finding 5) and pushing her throat and squeezing it (Findings 16 and 17).  Although it does not form part of the finding, the last of these incidents took place at the door to a bedroom in which the children were sleeping (First judgment, para. 144).

261	The findings which related to the children included behaviour by the father which I considered insensitive, ill-judged, not child-centred and emotionally abusive. 

Deputy District Judge Hopkins' Judgment. 	

262	I have read the transcript of Deputy District Judge Hopkins' judgment dated 19th April 2013. In the context of her decision that there should be a clean break and in view of the finance available, she considered that each parent would require £525,000 to purchase a new home and a capital sum. The mother had proposed a sum of £37,000 which allowed for legal fees and the purchase of a car. I note that the father had purchased a new car for £8,700 and he accepted that the mother needed a car. 

263	On the basis of the available assets DDJ Hopkins calculated that the mother should receive £557,840.72, i.e. 68 per cent of the total. This would enable her to purchase a house and "leave her with some capital to pay the identified expenses that she has". (Costs bundle at B29) DDJ Hopkins did not say that the mother's capital fund was intended to cover the whole of her legal costs. She could not know what those costs would be.  I note that if the mother were to pay £525,000 for a new home and purchase a car of similar value to the father's car, she would have less than £25,000 towards her legal fees which 
I understand are in the region of £65,000.   

264	I find that the mother's application that the father pay part of the costs of the fact finding hearing is not an abuse of process. The fact finding hearing was necessary: my findings provided a basis for the work of Mrs. Lemonides and Dr. Wannan and I could not have determined the issues at this final hearing without having made them.  I find that it is fair and reasonable that the father should pay 65 per cent of the mother's costs of the fact finding hearing.  
I cannot translate that percentage into a figure as I did not carry out a summary assessment of the costs but I am prepared to do so, on the basis of written submissions, to avoid the delay and expense of a further hearing.

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