England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 14 (Fam)

see also: [2010] EWCC 15 (Fam)

 

In the County Court

 

 

Before:

HHJ X

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Between:

 

	A Father	Applicant
	And
	A Mother	Respondent

 

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Hearing dates: 10-March-2010

 

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WRITTEN REASONS

 

Judgement

 

1. This is an application by the father, R, who seeks contact to his daughter, W.  W’s mother is S.  W was born on (date given).  The application is dated 8th February 2008.  Accordingly it is now over two years since this application was issued.

 

2. There was delay arising from a perceived need to have a preliminary hearing of allegations of violence.  That issue was compromised, as set out in an order of 16th May 2008 under which the father admitted that he had assaulted the mother in or about October 2005, that mother sustained injury as a result of the assault and that he was arrested as a result of the assault, and on the basis of those admissions mother did not seek the court to make any further findings in respect of the allegations contained in her schedule of allegations.

 

3. Father then complained that inappropriate pressure had been brought to bear upon him and sought to resile from those admissions.  As a result the matter came before Wood J.  By an order of 2nd December last year it was recorded that counsel and solicitors should consider their professional positions, and whether they could continue to act for the applicant.  The difficulties encountered by the respondent’s advisers in obtaining statements was noted.  Various directions were given to expedite the hearing of the matter and it was directed that there be a final hearing of the mother’s allegations of domestic violence and all welfare issues in a three-day hearing commencing on 8th March. It is that hearing which is before me today.  Accordingly I deal with the welfare issues and I also deal with the issues that are raised in the schedule of allegations.

 

4. The background to this matter is complicated.  Mother and father are cousins.  In March 2002 mother flew to the Yemen.  They are both Yemenis.  Mother’s parents had previously emigrated from the Yemen to the United Kingdom and she had been brought up in the United Kingdom and attended school in the United Kingdom.  When she went to the Yemen in 2002 she went for a holiday but at the same time it was recognised that she was going there for consideration of her marriage.  It was, in fact, contemplated at that stage that she be engaged to R’s older brother.  This was a marriage arranged by her parents and the parents of R and his brother.  In the event R asked if he could marry S and the family agreed.  Mother’s evidence is that she contemplated simply an engagement at that stage, but there is no doubt that they did, in fact, marry, and they married in the Yemen on 8th April within two or three weeks of having met.

 

5. Mother became pregnant relatively shortly after the marriage, but sadly that child was miscarried in September.  Mother became pregnant again and there was a further miscarriage.  Mother remained in the Yemen from March 2002 until January 2003 when she returned to the U.K.  Her husband, R, remained in the Yemen and it was following mother’s  return to the United Kingdom that she miscarried her second pregnancy.  R remained in the Yemen until May 2005 and on 21st May he came to live in the United Kingdom with his wife, S, and lived with her at her mother’s home in (address given). 

 

6. Mother became pregnant again in June 2005 and it is her case that father, R, was displeased at this news and required that she undergo an abortion, saying that at that stage he did not want responsibility for a child.

 

7. Mother complains of an assault in September 2005.  She alleges that father struck her in the stomach with his foot and that he pushed her off a bed on to the floor.  Mother alleges a further and more serious assault in October following her refusal to abort the child she was carrying.  She describes an assault in the course of which she was punched, and that he got on top of her and pressed down on her womb with his knee, causing her pain.  Her screams roused her mother and siblings, who intervened, pulled him from her, and called the police.

 

8. There is no doubt that a complaint was made to the police.  There is no doubt that father was arrested and there is no doubt that he subsequently left the area and moved to Newcastle.

 

9. In the event mother decided to withdraw the allegations that she had made.  Her evidence is that this was as a result of the pressure that was put upon her. Nevertheless the matter was still pursued by the police.  There was a failure by father to respond to his bail conditions and in due course he was arrested.  There is some issue as to whether or not father returned to the house subsequently and how frequently. Immediately following W’s birth in March 2006 there was no contact between father and his daughter.  There were two occasions, it is said, in the summer of 2006 and December of 2007 when he had the opportunity of seeing her.  It is mother’s case that he failed to take advantage of those opportunities.  Father’s case is that, in fact, there was no real opportunity and on the occasion when the child was in the same room the child was clearly distressed and he was not in a position to have any contact.  The reality of the case is that this is a father who has never had contact with his child. 

 

10. I heard a great deal of evidence.  Much of it relates to the feelings of the adults.  I have heard a great deal about how mother feels, about how her family feel, and about how father feels.  There has not been so much concentration on the needs of this child.  This is a child who, in fact, has no knowledge whatsoever of her father.  He is a complete stranger to her.  She is four.  This application has to be seen in that context. 

 

11. The feelings of the adults do, of course, complicate the matter.  All the adults are related and it is necessary to look at the family.  The maternal grandmother, N, is a divorced lady who lives at the house in (address given), together with her children and grandchildren.  She has two sons.  One of them, the oldest, does not, in fact, live with her.  He was born in October 1978 and is 31.  The children who do live with her are her son F, who is aged 28, and his wife, E, who is aged 31, and their three children, who are aged respectively twelve, six and under a year.  E, that is her daughter-in-law, is, in fact, the sister of the applicant father R.  S, the mother of W, of course, lives there, together with W.  Also in that house is S’s sister, Sa.  Sa is 20 years old and she has given evidence in this case.  There are two younger children, Na and A.  They are, respectively, 19 and 17. 

 

12. The applicant has a father who is alive but remains in the Yemen.  He is, of course, the paternal grandfather of W.  He has, including R, seven children.  He has made a statement in the matter and the sad fact is that he does not have a high opinion of his son R.  He describes how his son was always making problems for him, describes how he persisted in requesting assistance to be moved to the United Kingdom.   He expresses his reluctance to allow his son to have anything to do with his granddaughter.  He complains that no money was sent to him by his son.

 

13. Sadly, R seems to have fallen out with all the members of his family, certainly all those who have chosen to be involved in these proceedings. It is his case that there is no proper reason for this dislike of him, that he has never done anything wrong, that the allegations of assault are fabrications, that he has been set up and that he has been denied contact with his daughter for no good reason. 

 

14. The case of mother as represented by her and the witnesses called on her behalf, is that, in essence, the marriage was a serious mistake, that father, R,  failed to be the husband that was expected of him, that he has failed to provide the support for his wife and children that was expected of him, and in particular that he has failed to support her in her desire to have children, suggesting most recently that W be aborted, but perhaps most seriously has, as I have indicated, assaulted his wife.

 

15. The family are rooted in their objection to any form of contact between father and his daughter, W, and it is their case that he is only pursuing this application in order to secure permission to remain in the United Kingdom, and that the reality is that he does not have any great interest in her and that he represents a risk to her.

 

16. The history in respect of his immigration status is that he was initially given permission to enter the United Kingdom.  That came to an end.  His leave to remain in the United Kingdom came to an end on 31st May 2008, and it is mother’s case that his application which is dated 8th February of last year is brought in order to achieve a prolongation of his stay in the United Kingdom.

 

17. The current position of the Border Agency is that if a contact order is made in his favour he would be expected to return to the Yemen and then obtain the correct entry clearance for entry to the UK as a person exercising rights of access to a child who is settled here.  In the event that the Border Agency enforced that decision I note the expectation is that he would be required to leave the jurisdiction.

 

18. The issue is complicated by what are described as cultural issues, issues which are perhaps particular to the Yemeni community in the United Kingdom.  As will become apparent, I think it is less a matter of issues relating to the Yemeni community that become material and more a matter of issues within this particular family.  The reason I say that is that I have expert evidence from Professor H, who was instructed to provide expert evidence on the issues relating to the Yemeni community and Sharia law in relation to issues of contact.  It is apparent from that report that neither Sharia law nor the traditions of the Yemeni community would bar father from having contact.

 

19. His expert opinion was that in Sharia law both parents have the right of contact with their young children.  His opinion is that jurists are unanimous over this.  It enables the bonds which God commands to be kept joined.  The family relationship, he opines, is lasting and has consequences in this world for maintenance and inheritance which are ordered by the Koran, and even in the life to come.  He quotes the relevant part of the Koran.  He states that anyone who seeks to cut off such relationships is strongly condemned, and he continues that neither in Islamic law nor by Yemeni tribal culture can a father be deprived of contact with his child under the grounds that are put forward, nor can deprivation of the right of contact be used as punishment for a parent’s misbehaviour towards the family.  It is his opinion that, if it is the only way to guarantee protection of a child, the right of contact may be temporarily halted until the protection of the child is guaranteed. 

 

20. The professor considers the extent to which the court could or should have regard to particular cultural considerations when considering how contact should be arranged, and, to be frank, it is not very different from that which would be looked at by a court in England and Wales in any event.  It refers to the need to obtain co-operation.  It refers to the need for such contact to be sparing, as he describes it, to start with, perhaps once or twice a month.  It refers to the fact that this could be increased or terminated depending on father’s behaviour and should not involve mother being present.  He refers to the applicant’s sister E being able to accompany the child.  In fact in the event E, on the information that I have, has indicated that she is not willing to participate. The thrust of the expert opinion is that even taking into account the sensitivity of the Yemeni community contact should not by virtue of that fact be barred, and he makes the point that it is necessary for there to be a degree of arbitration to the extent that the parties must understand that such an order is in obedience to Sharia law. 

 

21. The point is made  by the professor that at the present time W has the protection of her family, but there may be circumstances in which she will need the protection of her father.

 

22. The professor considered whether or not a contact order would have a detrimental effect on mother within the Yemeni community and he expressed the view that there would not be any bad effect.  Indeed, the Yemeni community would see compliance with an order for contact as obedience to the Sharia, and he states that the community would see such an order as something that is to be respected by all.

 

23. The tradition in the Yemeni community is for a father and then the elder brother to be the head of the family, and there is a tradition of obedience to the head of the family.  That has featured, and the extent to which the current head of this family, G, behaves is one of the issues that has arisen in this case, and the point is made that if the maternal grandmother and the maternal uncle, G, ordered mother not to comply with the contact order she would suffer distress, possibly detriment, if she disobeyed them and, indeed, if she was banished from the family that would put her in an intolerable situation because she is dependent upon her family.  She would not be ostracized by the community, and the professor does not know of any cases where a person has been ostracized by her family for seeking to comply with a court order.  But he notes that G would not accept a situation where he was seen by the family and the Yemeni community to be defeated by a husband of his sister without putting up some resistance. The professor makes the point that G and his mother have to be persuaded to accept a reasonable arrangement, to feel that power is still there to protect the child and the applicant’s behaviour.

 

24. All communities have different strengths and weaknesses in their traditions and certainly the family bond in cases such as this is a great strength.  It gives security. However the need to obey an older brother to the extent that disobedience might lead to a female member being banned from the family is, some might think, a significant weakness. However that does represent the thinking, certainly of G.

 

25.  G has given evidence and he is reluctant to come out and say specifically that he would disobey a court order, indicating that if a court order was made of which he disapproved there would be problems.  However he did express the view that he would remove W from her mother if he thought it right.

 

26.  Many people might think this was an outrageous attitude.  He is not in a position to make any judgment about the rights or wrongs of W’s mother’s behaviour.  He simply happens to be her older brother.  If the court made an order which mother attempted to obey and he attempted to obstruct her, the court would be driven to the view that steps would have to be taken to ensure that he does not prevent mother from complying. It is however a fact that mother feels the need to obey her brother and it is perfectly clear that her brother is potentially obstructive to any order for contact.

 

27. That, of course, is not a bar on the court imposing an order and if an order was right for the child the court would make such an order.  If the uncle of the child is unable to accept it, and acted in a way that has the effect of frustrating the order, he would take the consequences. 

 

28. Nevertheless it is a fact that, however undesirable that attitude may be, it is an attitude reflected by the family in which W is living.  It is an attitude supported by the maternal grandmother.  The maternal grandmother takes a view that R is entitled to beat his sisters, hitting them if he sees fit.  But she asserts that he never does.  In fact, he clearly did assault S.  The medical evidence for that is clear.  The grandmother did not want to recognise that and would not direct her mind to the evidence that S attended bruised, with a painful shoulder, and had had her head knocked against the wall by her son.  That was in 2001.  The brother seeks to minimise that behaviour and puts it down to a dispute between a brother and a sister, and in a rather unimpressive way fails to face up to what he did on that occasion. 

 

29. Dealing with the specific allegations.  It is perhaps easiest to approach the October incident first.   Father denies that he was violent in the way alleged.  He described himself as, in effect, being the victim in the incident.  He denies knowing that his wife was pregnant.  In his statement he describes coming home and having sexual intercourse with his wife, something which he said was wrong, that he had not had sexual intercourse.  His statement continues that having had sexual intercourse he was in bed and he was holding his wife when completely out of the blue she kicked him out of the bed on to the floor and then started to scream and so his family all came in and accused him of trying to kill her, and he describes this as a set-up that had been planned.  He said he was grabbed and while he tried to stand up he accidentally hit S with the back of his head, causing her lip to be broken.

 

30. He was cross-examined at some length about this particular incident, and he denies that the maternal grandmother came in.  He said this was a fabrication.  He said in respect of part of the incident, that he had only heard about it today whereas in fact he had previously denied it in his statement, and then he said that he had forgotten about that allegation. 

 

31. He suggests that rather than having had sexual intercourse with her she was in fact asleep and he did not try to wake her up.  She was asleep facing the wall and he just tried to hold her.  He denies the assaults.  In respect of the blow to her face he says that he does not really know what happened but he can recall hitting her. 

 

32. As I understand his evidence essentially nothing happened other than the fact that he was kicked out of bed and then all the family charged in.  The family have given evidence, in particular the maternal grandmother and Sa, the younger sister of S, and she comes in and describes seeing R on top of S, pressing his leg into her stomach, and she describes how she screamed out “The baby” and immediately grabbed hold of him and pulled him off.  Then she describes how some CDs and a cup, a glass cup was broken and he threatened S .  Other sisters came into the room, and the father made an observation to the effect that he did not want the baby.

 

33. This is in the context where mother says that before that, the previous month, when she was about three months pregnant, he started pushing her around and that he kicked her in the stomach, causing her pain, and in her statement she refers to her view that he was trying to cause her to have a miscarriage.

 

34. There is no doubt from S’s evidence that she does take the view that that is what he was trying to do, and she refers to the fact that he was trying to abort  the baby. 

 

35. Is there any independent evidence that helps me to come to a conclusion as to which of these versions is correct?  There is no doubt that the police were called.  We have the police report.  The police were called.  They give the date as being 1st October 2005, and they put the incident as occurring shortly after midnight, and the report that they took at that time is that following an argument he pinched her cheek, punched her to the face, grabbed both arms causing injury, put his knee on her stomach and pressed down.  Complainant is described as being 18 weeks pregnant.  There is no doubt that that complaint was made at that time.

 

36. There is no doubt that two days afterwards mother went to the police station and withdrew her allegation and the police report indicates that that information came through too late to stop the matter going to court, that father was bailed and left the area to go to Newcastle, or the north east as it is described in the report.  He failed to return to court and a warrant was issued.  It is clear that mother was spoken to again and did not wish to proceed. 

 

37. Of course, it can be argued on behalf of father that mother’s withdrawal of the statement indicates that it was not a truthful statement originally.  But it is a fact of life - as all those who practise in this area know - that partners are very reluctant to take perpetrators to a criminal court, and to give evidence.  Very often they have divided emotions.  In this particular case I have no doubt that mother felt deeply unhappy about the fact that this was going to lead to a public court hearing.  She is a private individual.  She is someone who is very conscious of the effect of what she does on her community and the status of her family within that community.  She is very concerned about the potential for losing that status within the community.  I do not find that her subsequent withdrawal is an indication that what she was saying to the police was untrue.

 

38. If father is right the family, for no reason which is capable of ascertainment at this stage, decided to set him up with a wholly false allegation, brought in the police, had him arrested.   

 

39. I have had the opportunity of seeing all of the witnesses and although I have had considerable reservations about some of the attitudes expressed by the grandmother and the extent to which she feels her daughter should be subservient to her son, I do not find that she is lying in respect of the allegation as to what happened that night.  

 

40. She is clearly deeply disappointed in her nephew.  She refers to what she regards as his betrayal of her, the fact that he is an ungrateful young man, who has not appreciated what he has done.  She stated that she wanted him to be a man, but he turned out the opposite.  She is clearly of the view that he did want his wife to have an abortion and has no respect for her.  She has alleged he wants to bring someone else into the United Kingdom.  I have reservations about that and make no specific finding.  In so far as she describes what happened that night, I accept her evidence. 

 

41. The sister, Sa, I find to be a very truthful witness in respect of this incident.  She describes first in cross-examination how she screamed out, and I quote, “The baby”, because she was concerned about the baby and how she tried to pull him off her sister, how she was hit in the course of that struggle, and she describes her little sister, as she describes her, being scared and her suffering from epilepsy.  I find her evidence in respect of that to be accurate and truthful.

 

42. Father’s evidence was less persuasive.  Not only is he now putting before the court an account which is different from his original statement, but he is putting forward an account for which I can see no explanation.  This is a close family.  He is related to them.  His wife is pregnant.  She is about to give birth.  This should be a source of joy in the family.  Why are they going to all these lengths to get rid of him?  Why did he find it necessary to immediately leave the area and move to Newcastle?

 

43. The truth is, I find, that he did not want the child, that he felt too young for the responsibilities of fatherhood.  I am not persuaded that he was necessarily trying to effect a summary abortion of the child.  I do not think he was doing that.  But his desire to have the child aborted was known, and the family assumed that was precisely what he was doing. 

 

44. In the event I find as a fact that the allegations relating to that incident in October are proved, and when I have to compare, having made that finding, mother’s account with father’s account in respect of the earlier incident in September, I find as a fact that that is proved.  When she says in her account, in her chronology, that he was angry at the news that she was pregnant, because he did not want responsibility for a child, I find that to be proved.

 

45. There are other allegations in the schedule.  I do not think it is necessary for me to make specific findings in respect of those matters.  There has, in fact, been no cross-examination upon them.  The thrust of mother’s case is that it is those allegations in September and October which bite on the risk to W that are those in respect of which a finding is required.

 

46. The fact that he behaved in that way does not necessarily mean that he should be barred from contact with his daughter.  Reference has been made to Re L. and domestic violence and the effect to which that is relevant to issues of contact.  The court clearly has to assess the risk if contact were to take place both to the child, who may be the victim directly of violence, or to the child indirectly as a result of witnessing violence between his or her parents - in this case her parents - and the risk of violence to mother, who is likely to be involved in any arrangement for contact. 

 

47. The court also has to have regard to mother’s anxiety as to whether father might, having displayed violence to her in the past, use violence either to her or her daughter in the future.  The point is made that father in this case rejects the allegations.  He does not accept them.  He does not apologise for them.  He denies them.  And in that sense there has been no acceptance by him that such behaviour is unacceptable and must not be repeated. 

 

48. Therefore it is a fact in this case that we have, on my findings, a father who has used violence on his wife, in circumstances where she feared that the safety of the unborn child was being compromised, and which has caused her to have a fear of future violence both to her and her child.  That is a fact.

 

49. For father it can be said that this is a child who ought to know her father.  Is he serious in getting to know his daughter?  The Guardian tried to get under the skin of his personality and to understand his level of functioning in terms of his relationship and potential relationship with his daughter, and she accepts that it is beyond question that father does not recognise that he has done anything wrong, that he does not need to change, and her assessment is that he believes there should be a reconciliation. 

 

50. She gave this evidence which I think is significant.  She said: “He can’t understand why he doesn’t have the position he believes he should in a Yemeni family”.  She went on to say that he believes he should be treated in accordance with Yemeni laws.  I think by that she probably means customs. 

 

51. That is a significant assessment because, in my judgment, this is a father who believes that he should be head of his family, his family comprising his wife and his daughter.  He feels he should have their respect.  He does not have it at the moment.

 

52. Is he seriously interested in his daughter?  There is  evidence that it is thought by the maternal grandmother that he is simply using this as a way of getting permission to stay in the United Kingdom and that once he has got it he will not persist.  In my judgment Mrs G, the CAFCASS officer, has hit upon an important part of his functioning in this regard.  He does have a genuine interest because he feels he should have a status and he does not, and he wants to achieve it.  That may not necessarily be a reason for granting contact, but it does address the issue of whether or not he is serious.  In my judgment  he is serious in wanting contact with his daughter.

 

53. There are aspects of his approach to W, however, which do give rise to concern.  On a number of occasions he expressed the desire not just to see her but for her to go with him to the Yemen.  He put it in context, having said this he was asked to develop it a bit more,   He said he wanted to see his daughter and if they allowed him to take her, he would take her to the Yemen.  He mentioned on a number of occasions in the course of his evidence of his desire to take W to the Yemen.  He said in one part of his evidence: “If they give me my daughter I would go back to the Yemen tomorrow”, and in another part he said: “I’ve spoken to my solicitor.  If they gave me my daughter I would go to the Yemen”.  He also said that his understanding of his entitlement that at the age of eight she should come to him as the father.  He stated that under Sharia law, the child, as he put it, can stay with the mother until eight and then at eight she must come to father.

 

54. In so far as I have assessed father’s motivation I reject the submission that he is simply making this application in order to remain in the United Kingdom.  I think his motivation is more intense.  I find as a fact that he has a desire to attain a status as the head of his family comprising his wife and his daughter and that he has an aspiration that she should come into his care at the age of eight and that  at the moment his wish is, then to take her back to the Yemen.

 

55. Now, that, of course, causes very real fears for mother.  Having regard to those fears, which, in my judgment, are justified, if there was to be direct contact the contact would have to be supervised.  At the present time any contact that was unsupervised would cause mother - apart from the difficulties  that she might have with her family - real anxiety, and that would not be in W’s interests, and for reasons I am going to develop that supervised contact would be wholly impracticable on the facts of this case.

 

56. This is a little girl of four.  She has never met her father.  She has no idea what he looks like.  He is a complete stranger.  The idea that someone should take her to a room and just be introduced to him as her father and expect her to greet him with delight is fanciful.  It is totally unrealistic.

 

57. In considering whether or not I should make an order for contact the court, of course, has regard to the welfare of the child.  That is the paramount consideration.  It overrules father’s entitlement to have contact.  She has an entitlement to a family life, as does he, but where those are in conflict, the child’s welfare must be of paramount consideration.

 

58. I have to have regard to her ascertainable wishes and feelings. She cannot have any informed views about her father because she knows nothing about him. She has no feelings for him. She certainly has no desire to see him.  That is not necessarily his fault but it is a fact that he is simply a stranger. 

 

59. I have to have regard to her physical, emotional and educational needs.  At the present time those require her to be with her mother in her present home.  Although there are aspects of that arrangement which some people might find less than wholly attractive there is no doubt that it is meeting her physical and emotional needs.  There is no suggestion she is other than thoroughly well looked after. 

 

60. I have to consider the likely effect of any change on her, and any change that caused her to be taken away from her mother or placed in a position of uncertainty would be damaging. 

 

61. I have to have regard to her age (she is only four); and her sex (she is female); and her background (she comes from a Yemeni family); and any characteristics of hers which the court considers relevant .The primary consideration is that she is part of this family, she is wholly ignorant of her father and her welfare depends on her remaining in that family.  I have to have regard to any harm which she is at risk of suffering.  She has not, in fact, suffered any harm, although it may be said that her health was not improved by the father assaulting her mother and it may be said that her welfare has not been improved by the fact that she has not had an opportunity of knowing a father, but there is a risk of her suffering harm if anything were to happen to interfere with the bond between herself and her mother.  I have to have regard to how capable each of the parents is of meeting her needs. Her mother meets her needs and her father did not want to be a father at the time when she was conceived.  For reasons I have indicated, he now does want to be a father.  But he has no experience in fathering her, he has no experience in caring for her.  It is simply unknown whether he has any capacity to meet her needs, even for a relatively short period of time.

 

 Taking the longer view - and I do not think any of the parties have done this - they have to consider the consequences of their proposals on this little girl.  At the moment she does not know her father, she does not know anything about her paternal family, other than where it coincides with her maternal family through intermarriage.  At the age of four, in this primary female household, perhaps it does not matter very much. However, there is going to come a time when as she matures - and she is living in the United Kingdom, she is not living in the Yemen - that she will go to school, she will meet  people and she will ask herself why does she not have a daddy, and why her friends do have daddies and talk about them and she does not.  It is said that her grandmother performs many of the roles of her father.  Well, she may do, but she is her grandmother, not her father.  It is said that her uncle may perform them.  Well, he may do, but he is not her father, and to suggest he is would be a lie.

 

62. There is going to come a time when she will need to know about her father and she will need, for her own self-esteem, to have a picture presented which is not unfavourable.  The suggestion that she should be told that her father did not want her can be dismissed immediately as short-sighted and unimaginative.  Anyone with any thought who considers that proposition would know immediately what the effect would be on a child to be brought up with the idea that she did not see her father because her father did not want her.  Just think about the effect on her self-esteem.

 

63. This is a child who, in her long-term interests, must be taught that she has a father and although the maternal family do not have a high view of him, she - that is this little girl - must be presented with an image which is at least in part favourable, even if it has to contain an element of dissimilation in the sense that he cannot be there because of some explanation, but not an explanation which diminishes him in her eyes.

 

64. This family quite clearly cannot do that.  Many families would co-operate.  She needs to have something like what, in a different context, would be called a life story book, she needs to have some material so she can at least have a picture of her father, and it has to be done sensitively, delicately and without it becoming a big issue for her.  That may lead, in years to come, to direct contact.  But it is not something that could work at the moment and it is not something, I suspect, that can work in the foreseeable future. 

 

65. If I could have some assurance from mother that she would set that up, I would be happy to rely upon mother to do that.  But on the facts of this case I cannot.  The hostility is simply too great. 

 

66. In the circumstances I have come to the view that the only way that this little girl’s future in this respect can be safeguarded is by appointing a Guardian for her - and in fact that is Mrs G - who can facilitate indirect contact simply by enabling her to receive cards, perhaps a present from time to time, and money if he chooses to send it, a photograph if he chooses to send it, which she can use, if they be appropriate, to enable her to have some awareness of the absent father.

 

67. It follows, therefore, that the order will be that there be indirect contact by way of cards and letters, to be facilitated by the child’s Guardian, Mrs G, at a frequency within her discretion.

 

68. I do not envisage that this should happen immediately.  Mrs G will have to speak to her and in her wisdom and experience slowly introduce such documentation as she has to enable W to have an awareness of her father.  There may come a time when she asks to see him.  That may be difficult for mother, but if she does, then the court will then consider if that time has come.  It may be that she will not ask to see him.  If father finds it takes too long, he can make his own application to the court.

 

69. This solution - and no solution on the facts of a case like this can be anything other than the least bad solution; there is no perfect solution - has the advantage of putting the burden on father to demonstrate commitment.

 

70. I have given an indication of what I think is motivating him at the present, but if he is serious in his determination that in time he wants to see his daughter and have a relationship with her, he has the opportunity of writing to her and of sending her presents so that she becomes aware of him, that he becomes a figure, albeit a distant figure in her life and one which in the future she may want to meet.

 

71. If he fails to respond to this, then he will simply be confirming mother’s case, that he has no real long-term aim other than simply to use her as a method of remaining in the United Kingdom. 

 

72. A further advantage of this approach is that if he is, as is suggested by the documentation of the Border Agency, required to leave the United Kingdom, he can maintain the contact with his daughter by post, and if the time comes when he wishes to make an application to have face-to-face contact he can make that application and then he can apply for permission to enter the country for that purpose. 

 

73. Accordingly I appoint Mrs G as the child’s Guardian.  As I have said, I direct that there be indirect contact by way of letters, cards and presents at her discretion until further order.