Gloucester House, 4 Dukes Green Avenue
Feltham, TW14 0LR
B e f o r e :
|- and -
(2– 3) I & L
(by their Guardian ad Litem, NYAS)
Mr Francis Wilkinson (instructed by Direct Representation) for the First Respondent
Ms Victoria Haberfield (instructed by NYAS) for the Second and Third Respondents
Hearing dates: 29-30 January and 28 February 2019
Crown Copyright ©
HIS HONOUR JUDGE WILLANS :
1 Welfare of the child
(1) When a court determines any question with respect to –
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.
(2B) In subsection (2A) "involvement" means involvement of some kind, either direct or indirect, but not any particular division of a child's time.
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to –
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
(4) The circumstances are that –
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –
(a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).
Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic violence or abuse has occurred
35 When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.
36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
37 In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –
(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;
(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.
Directions as to how contact is to proceed
38 Where any domestic abuse has occurred but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for the child, the court should consider what, if any, directions or conditions are required to enable the order to be carried into effect and in particular should consider –
(a) whether or not contact should be supervised, and if so, where and by whom;
(b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking intervention (subject to any necessary consent);
(c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period; and
(d) whether it will be necessary, in the child's best interests, to review the operation of the order; if so the court should set a date for the review consistent with the timetable for the child, and must give directions to ensure that at the review the court has full information about the operation of the order.
Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supervised by a parent or relative, is not appropriate.
39 Where the court does not consider direct contact to be appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact.
The reasons of the court
40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.
1) Section 91(14) should be read in conjunction with section 1(1) which makes the welfare of the child the paramount consideration.
2) 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.
3) 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.
4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
5) It is generally to be seen as an useful weapon of last resort in cases of repeated and unreasonable applications.
6) 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.
7) In cases under paragraph 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.
8) 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.
9) A restriction may be imposed with or without limitation of time.
10) 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.
11) It would be undesirable in other than the most exceptional cases to make the order ex parte
The Procedural History
i) Throughout her judgments the Recorder was confident both parents were committed to their children and had a deep love for the children.
ii) The Recorder found the mother to be a 'credible, measured and reliable witness' in contrast to the father who she did not find to be a credible witness.
iii) The Recorder found the mother's 8 allegations of domestic violence proven. The allegations extended over 5 years of the relationship and are serious in nature with for instance the Recorder finding proven allegations of repeated kicking and the mother being throttled by the father and on one occasion thinking he was going to kill her. It is noteworthy the findings indicate the children were present on occasions and caught up in the incident as they sought to protect their mother. The Recorder observed that at least one of the incidents had a 'considerable impact on [I]'. The Recorder rejected the father's evidence and felt he was minimising matters and had little understanding of the impact his behaviour had on others.
iv) The Recorder rejected three allegations made by the father against the maternal grandfather as being made by the father 'maliciously' and in the knowledge they had 'absolutely no foundation in truth'. It is relevant to note the allegations included a connotation of sexual impropriety towards I.
v) The Recorder noted that having dismissed the father's allegations he subsequently raised the same allegations with the local authority local to the children (as he did additionally with the NSPCC).
vi) The Recorder did not consider the application itself was geared towards intimidating the mother but did find the proceedings were 'extremely stressful for the mother, that her concerns are genuine and that the situation in general terms is hugely pressurising for her' with the mother showing physical signs of the impact the proceedings were having upon her.
vii) In her first welfare judgment the Recorder observed the father was holding onto the allegations against the grandfather.
viii) The Recorder noted problematic communications from the father to those involved in the case with an email to the NYAS worker being 'unpleasant, condescending and offensive, though in my experience of reading emails sent by the father, fairly typical'. She cautioned the father that he would be well advised to moderate his communications, but not accepting responsibility for his actions and transferring blame to others was a personality trait of his.
ix) At the stage of the first welfare judgment the Recorder concluded the father was not a physical risk to the children or a risk of abduction but she was concerned as to the risk he might pose to the mother if they were in close proximity in an uncontrolled setting having regard to the father's lack of emotional containment.
x) She considered the central risk was of emotional harm to the children. She felt the father would not act intemperately to professionals involved during contact because he would not want to jeopardise his relationship with the children or do anything to make their experience of seeing him an uncomfortable one.
xi) The Recorder judged the father 'had no capacity to appreciate the effect of past violence on the mother…does not regard himself at fault…[and]…has limited capacity to appreciate the effect of future violence on either the mother or the children'.
xii) The Recorder judged the contact had to be supervised to manage the risks identified but also to support the mother in her role as primary carer by ensuring contact is safe and thus reducing her anxiety. The contact was not to be conditional on any further work given the father's opposition to the same and the view that the father would not prejudice his position by inappropriate conduct during a period of supervised contact.
xiii) The Recorder has noted that all subsequent contacts have been 'extremely positive' and 'glowing' but in the background there has been a familiar pattern of mistrust, accusation and misguided anger/frustration on the father's part. This led to the initial period of supervised contact collapsing after only two sessions. The Recorder observed the father focused on what he sees as the 'wrongs' such that he loses sight of the children's needs. On an occasion in July 2014 this had a plain impact on L who 'crumpled up crying' when told contact would not be happening in the most inappropriate of circumstances.
xiv) Within her second welfare judgment the Recorder voiced repeated concern as to the father's communication style and found it 'extraordinary…that the father continues to send emails of this nature knowing how distressing they are to receive, having been advised to moderate his email communications and whilst under the microscope of these proceedings'. She felt it a fanciful suggestion that the father and mother could between themselves make ad hoc arrangements.
xv) At the same stage the father was holding onto the allegations against the grandfather as being 'absolutely factual' with the consequence that the children were potentially at risk whenever they are exposed to the maternal family.
xvi) The Recorder observed the contact was a happy, enjoyable and positive experience for the children. The mother deserved credit for supporting the children's relationship with the father and the father was due credit in circumstances where he could not have done more to make the contact a positive experience for the children. The children missed the father. The Recorder sadly noted she was faced by a difficult decision where the contact was very positive and demonstrative of an entirely appropriate relationship between father and children but one in which none of the risk factors previously identified had been ameliorated.
xvii) The Recorder maintained her view the risks were not of physical harm to the children or of abduction. But she was not satisfied the father would not seek to undermine the mother's relationship with the children or the grandfather. This issue remained a vivid 'concern' for the father and the mother had valid grounds for being concerned the father would misinterpret (deliberately or otherwise) something said by the children and capitalise on it.
xviii) Her conclusion was that the risks outweighed the benefits of unsupervised contact. An undertaking would not be sufficient to secure the children's emotional needs and would be impossible to police.
xix) The Recorder concluded the mother required some respite from the litigation and the opportunity to focus on her work. She could not predict how things might develop on the ground and how over time the children might develop self-protective strategies for coping with the risks of unsupervised contact. She was doubtful the father would take proper steps to address the safeguarding issues identified by the expert. She took these points into account in applying a 3-year bar.
Analysis and Conclusions
L: "I'm happy how it is" and he doesn't want anything to go wrong which would lead to him not being able to see his Dad as often as he does at present…he might like to see his Dad more often when he is older…he'd want Alison there if he went to Liverpool…Alison needed to be there so they can talk to her "if Dad says anything"
I: She likes contact as it is…having Alison along doesn't impact on anything…her being there "makes it safer"and if she wasn't there "Dad could say something about Mum"
Children: "We just like it working and we want it to keep working"and were concerned in case "Dad does say something and then it might have to stop, and that's a risk we don't want to take".
The children understand the concern is as to what their father might say. In this regard their concerns fit with the concern of the Recorder. Their concern is that without supervision things may be said and contact may be effected. As such the children are demonstrating a risk adverse approach because they place a high value on contact. I am less persuaded the children are of itself oppositional to contact developing although I note reticence around trips away. It seems to me only appropriate that I should subject these views to my assessment of actual continuing risk. Were I to assess risk as low than I should at least question whether there is benefit in the children having their fears confounded. In such a circumstances the alternative would be to leave the children in an unnecessary state of trepidation. Were I however to assess the risks as remaining unacceptable then it would seem to me inappropriate to act contrary to their wishes with the possibility that they may end up losing their contact. It will also be right for me to reflect possible versions of contact that might nonetheless meet the needs / fears of the children. In this regard I will need to consider whether the suggested proposal of either end supervision would itself provide appropriate protection whilst meeting the expressed wishes of the children. I am not of the view the children's views determine the issue, the position is more nuanced.
i) The next two contact (Easter and May) should include 4 hours of unsupervised time with 1 hours of supervision at each end of the contact. This will allow the father to engage in an activity and have lunch with the children alone;
ii) The summer contact (x2) will follow the same pattern but may be extended to two consecutive days to be determined by reference to Ms Austin. The supervised element will be as in May above on each day.
iii) The same principle will apply in the October Half-Term and Christmas holidays save that the supervision will reduce to 30 minutes at each end of contact.
I judge this proces of development is sufficiently gradual to give the children the confidence they need in their father. The extension into consecutive days follows the position of the mother.
iv) In February, Easter and May (2020) the contact can further develop such that the two contacts can be joined by an overnight session. However Ms Austin will remain as before. This contact is to remain in the London area
v) In summer the sessions will increase to 2 overnights. Ms Austin to be involved as above at each end of contact.
vi) For October Christmas and February (2021) there shall be 3 overnights per trip. Ms Austin as before.
The first overnight will therefore be in 1 years time. By this point the children will have experienced a significant amount of unsupervised contact. I feel the contact must remain in London to give the children extra confidence but I see no reason why it cannot proceed to overnight at that point. Thereafter as explained above the contact will gradually extend by to no more than 3 overnights 18 months from this point. By this time the children will be approaching 12 and 14. I do not extend overnight contact outside of London at this time. I fear it would complicate the process of development.
I accept during this period it would be wise for the father to begin the process of informing the children as to his life in Liverpool. I would suggest the father liaise with Ms Austin in this regard to seek advice and guidance.
vii) Skype shall continue as currently. I can find no basis for changing this given it is positive for the children and I consider it is likely to be negative to reduce opportunities for contact between direct visits.
viii) The matter will then be reviewed before me in March 2021. At that hearing I will expect to consider the following matters:
a) Can supervision now be removed, if not how should it continue?
b) Can contact now be increased to a position closer to sharing of holidays?
c) I would want position documents from each parent setting out their position as to how things have progressed and their position on the issues above. I would welcome a short letter from Ms Austin as to her view as to how things have gone.
i) The structure above is intended to be a comprehensive summary of contact over the period subject to agreement to the contrary reached by the parties. As such any application, which will be reserved to me, will need to clearly explain why I should be entertaining further interim consideration. I make it clear I will take a robust approach to any application which fails to understand this point. I may summarily dispose of the application if the situation justifies it. This is a significant factor and comes close to making a section 91(14) order.
ii) I accept there are a limited number of areas which may need resolution. There may be issues as to the location of overnight contact ~ I expect the father to take a pragmatic approach in this regard or as to dates (but this has not been an issue in the last period). If this is an issue then I make it clear I may resolve any issues in short order on limited submissions.
END OF JUDGMENT