SITTING AT NEWCASTLE-UPON-TYNE
B e f o r e :
Re CB (International Relocation: Domestic Abuse: Child Arrangements)
Daniel Pitt (instructed by Direct Access) for the Father
Hearing dates: 20, 26 and 28 June
Crown Copyright ©
The Hon Mr. Justice Cobb :
"I did not feel that it was the right time for you to seek talking therapy for your distress and worry. I felt these problems were appropriate given your difficult personal circumstances" (3.11.16).
The father attended a further appointment with Gateshead Talking Therapies in March 2017, at which a mutual view seems to have been reached that their service "would not be the best service to meet your needs at this time", and he was discharged.
"… [the father] watched CB play and had good eye contact with CB and she was happy to have eye contact with [the father] … she was very happy to cuddle up to dad and sit on his lap … CB was very calm and seemed to be happy in [the father's] presence. CB fell asleep in [the father's] lap."
The section 7 reporter described this visit as "significantly better" than those which had gone before, with CB "much more at ease"; "this was considered to be very positive progress".
Proposals of the parties
Section 7 reports
"a very enthusiastic parent who clearly loves his daughter and wants to develop a relationship with her … he has put a lot of effort into planning age appropriate activities to engage her during contact. He has also demonstrated some insight into how she might experience the situation… I consider that [the father] would benefit from further support and guidance around child development and he has stated he would be willing to participate in a parenting course ."
Ms. K went on to refer to the limited opportunities afforded to the father to play a role in CB's life since separation, and advised that CB and her father "need support in re-establishing their relationship", adding:
"whether or not this can be successful largely depends on [the father's] ability to accept advice and guidance on how he can adjust his behaviour to make contact a more positive experience. [The father] has been extremely reluctant to accept advice and guidance in this regard."
"I cannot identify any reason why [the father] should not have contact with his child. This should be supported by a third party to ensure that [the father] behaves in a manner that is appropriate and child friendly… It would be preferable for this third-party to be someone who CB knows and trusts."
And in relation to relocation, Ms. K says this:
"I believe it is in [CB's] best interests for her to remain in the care of her mother. I consider that [the mother's] application to relocate is reasonable and that her concerns regarding living in the UK are well founded. I consider that the benefits to relocation outweigh the negatives. This is because the evidence gathered within the chronology suggests that [the father] is unable to behave in an appropriate manner in the long term.… I consider that face-to-face contact is necessary for [CB] and her father to establish and maintain a close parent/child relationship." (emphasis by underlining added).
"In my report, I recommended that [the father]'s right to have contact with his child be upheld; however given the concerns around his behaviour and the need for support in re-establishing contact I recommended that contact be supervised by a third party"…
"Throughout Local Authority involvement [the father's] reluctance to accept advice and guidance has been evident. Whilst it is recognised that [the father's] situation has evoked feelings of upset, frustration and anger, it is his inability to manage his emotions appropriately that is of most concern. … [The father's] level of hostility and aggression towards professionals has escalated alongside his sensing a loss of control. The risk lies in [the father's] inability to control his emotions and subsequent unpredictability. This makes it difficult to identify how safe arrangements for contact can be implemented."
"… if [the father] is in a position to accept accountability for his behaviour and embrace the opportunity to develop both his personal and parental skills, then potentially such an order would be of benefit, with [the father] seeking such supports independently."
The applicable law
"Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child".
"the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance. … the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child."
And by Black LJ at 
"Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. … It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case."
"The ability of the other parent to continue contact with the child and the financial implications need to be explored. … There are, of course, many other factors which may arise in an individual case. … As in every case in which the court has to exercise its discretion, the reasonableness of the proposals, the effect upon the applicant and upon the child of refusal of the application, the effect of a reduction or cessation of contact with the other parent upon the child, the effect of removal of the child from his/her current environment are all factors, among others which I have not enumerated, which have to be given appropriate weight in each individual case and weighed in the balance. The decision is always a difficult one and has not become less so over the last 30 years".
"… a step as significant as the relocation of a child to a foreign jurisdiction where the possibility of a fundamental interference with the relationship between one parent and a child is envisaged requires that the parents' plans be scrutinised and evaluated by reference to the proportionality of the same." (emphasis by underlining added).
- "Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
- Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.
- There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
- The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
- The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
- All that said, at the end of the day the welfare of the child is paramount; 'the child's interest must have precedence over any other consideration."
i) Gnahoré v France (Application No 40031/98) (2002) 34 EHRR 38) "the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life";and
ii) Kosmopoulou v Greece (Application No 60457/00)  1 FLR 800, (paras 43–44) where it was made clear that these principles apply to public law cases and private law cases:"Art 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures" (para.44).
"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened",
Findings of fact on disputed evidence
i) The conduct of the father towards the mother, and separately towards professionals;
ii) The mother's willingness to promote contact in the past, and currently, and the implications of her attitude for the future;
iii) The mother's plans and reasons for relocation.
"I taught him [Mr. B] a lesson … I pulled the wool over his eyes … the social workers were being cheeky with me. I blew up with him; I did not swear, but I was pacing. I wanted him to know what he had done. It was an opportunity for me to tell them how difficult… it took 10 mins. Then there was silence".
"I don't have an anger problem. I thought about this myself. I organised some counselling. I thought that I may be going down a route I could not cope with myself. My vicar helped me. I have tried to look after myself. I have a fantastically clever GP. I cancelled the counselling. Everyone confirmed in me that I was frustrated, depressed and tired. None of them expressed concerns …"
i) CB is only 16 months old; since the separation of the parties in October 2016, she has seen the father only five times, under supervision;
ii) When the father has been observed in supervised contact with CB, he has been able to demonstrate some good and loving interaction with her;
iii) The father has in my finding abused the mother; he has a conviction for harassing her; he has been aggressive and hostile to professionals working with the family to the point that the professionals are extremely reluctant to work with him;
iv) The mother is clear that if granted permission to relocate permanently, she would offer no direct contact to the father for the time being.
"… we would not make a final decision until [the section 7 reporter] received clarity relating to the Local Authority's position. If the outcome of this was that contact was deemed too unsafe, then we would definitively say that we would not accept the referral to supervised contact at our centre.… We may consider the referral again; but we would require copies of the Local Authority's section 7 report and their records of observation from their supervised contact sessions… The decision in this instance would be made at the time based on updated information; though I was very clear that we may still choose not to facilitate contact if the evidence suggests that [the father] does pose a risk to staff."
Discussion and conclusion
"… the evidence to date suggests that [the father] has no intention of working with the Local Authority in any constructive manner. [The father's] aversion to working effectively with the Local Authority is clearly documented by the father himself in numerous parts of his own statements to the court… Furthermore, [the father] has made several threats towards professionals involved with this case … It is the view of the Local Authority that a Family Assistance Order would not be appropriate in these circumstances and therefore not in [CB's] best interests due to the substantial evidence which indicates that [the father] has no intention of conducting himself in a manner that would enable assistance to be effective and also due to the fact that [the father] continues to present as a risk to the safety of professionals within the Local Authority."
Given these firmly held views, which seem to me to be justified on the evidence which is available at this stage, I recognise that it would not be appropriate to require this authority to make an officer available for this purpose.
i) I shall accept the father's undertaking which he has offered, set out at  above; this undertaking will remain in place until 5 December 2017;
ii) For the avoidance of doubt, the non-molestation order made on 18 January 2017 (see  above) will continue to be of full force and effect to protect the mother until 18 January 2018;
iii) I shall adjourn the mother's application for permanent leave to remove CB from this jurisdiction and the father's application for a Child Arrangements Order; these applications will be re-listed on 4 December with a time estimate of 1-2 days;
iv) I shall vary the Prohibited Steps Order currently in place (23 January 2017) by providing that the mother have interim leave to remove CB from the jurisdiction to travel to Portugal for two periods not exceeding 6 weeks each before the final hearing on 4 December; she is to notify the father and the court of the dates when she will be out of the jurisdiction;
v) I would like to make an order under Section 11A/B (1), (1A), (2), (3)-(5) CA 1989 requiring the father to take part in a domestic violence prevention programme or other "programme, class, counselling or guidance" designed and delivered to help him to manage his behaviours, with a view to helping him to "establish, maintain and/or improve" the quality of his involvement in the life of CB; I cannot make that order without specifying the activity and the person providing the activity (section 11A(4)). In any event, I shall direct that the father submit his proposals for treatment to the mother, the Local Authority and the court within 21 days; the mother and Local Authority must by 25 July submit any comments on the proposal in writing; I will give a ruling on the form and nature of the order on or before 28 July;
vi) Contact between CB and:a) the father shall be supervised and limited, and shall be only as the section 7 reporter considers appropriate if/when the father has demonstrated to the satisfaction of the Local Authority social worker (by the production of a report) that he has engaged sufficiently with, or (better still) completed, the programme of work to which I have alluded, in the circumstances outlined in  above;andb) the paternal grandmother shall take place on at least 2 occasions between now and the final hearing. This contact may take place in the presence of the mother.
vii) I shall direct that the parties shall file statements of evidence in readiness for the adjourned hearing in December; the mother's statement should provide greater detail of her planned relocation (with supporting evidence), and specifically her proposals for future contact;
viii) I regard it as 'necessary' for there to be some medical evidence (from treating general practitioner or physician) filed by each parent addressing issues relevant to their current mental and/or physical health;
ix) I shall further direct Ms. K, or such other social worker as Gateshead MBC shall identify, to prepare an updated section 7 report to the court on the issue of future contact between the father and CB, and on the issue of relocation; for this purpose she shall further interview the parties;
x) I shall give leave to the parties to disclose this judgment to:a) Gateshead MBC;b) Impact Family Services;c) Cafcass (for the purposes of requesting that they assist in making a referral to a domestic violence prevention programme, or similar);d) Such providers of specialist domestic violence prevention programmes, or other therapeutic or counselling professionals as the father may consider appropriate in the context of participating in the activity contemplated by my order.