England and Wales County Court (Family)

IN THE BARNET COUNTY COURT

		Regents Park Road London N3.1BQ
		12th June 2013

JUDGE LEVY:

1 Introduction.

1. These private law proceedings concern three children:

(1) "A" a boy born 17^th May 2001 (aged 12)

(2) "B" a girl born 29^th March 2004 (aged 9)

(3) "C" a boy born 24^th October 2005 (aged 7½)

I will refer to the parents as "the mother" and "the father" and together as "the parents"

Summary:

2. 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 and went to live with his mother. The children had staying contact with the father at his mother's home every weekend from Friday until Saturday evening and on Tuesday evenings. Over time this contact increased and 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 13^th November 2012.

Recent developments.

3. On 19^th April 2013 ancillary relief proceedings concluded after a contested hearing with an order for the sale of the former matrimonial home, and the division of the proceeds of sale. At the time of this fact finding hearing, the property was being marketed by an agreed agent, and the mother had started house hunting. In the course of the hearing the father filed an Appellant's Notice; his application for permission to appeal and, if granted, his appeal will be heard at the Principal Registry of the Family Division. He also made an application in respect of the disputed contents of the former matrimonial home, which he has agreed should be stayed pending the outcome of his appeal.

Contact.

4. Since the father left the family home, the children have staying contact with him at his mother's home every weekend from Friday at 4 pm to Saturday at 7 pm. The consent order made on 25^th October 2012 provides that this contact will be at the paternal grandmother's home only. As to future arrangements for the children, Mrs. Christina Lemonides, a Family Court Adviser, has prepared two reports. In the first, dated 1^st October 2012, she said that she could not advise the court about future contact until the mother's allegations that the father has been violent, controlling, abusive and cruel had been determined and the risks were known. She prepared a second, wishes and feelings report, dated 25^th March 2013. Mrs. Lemonides also wrote to the court in April 2013 expressing her concern about an incident on 30^th March 2013, which I will consider in due course (allegation 52). The London Borough of Barnet Children and Young Persons' Services have also been involved with the family and Jessica Yarrell, a social worker, prepared an initial assessment on 21^st August 2012. I understand that the local authority has closed its case on the family.

2 Issues and the Parties' Positions.

5. There are a number of live applications. The father has applied for a shared residence order, to extend contact so that he can return the children at 8 pm on Saturdays rather than at 7 pm, and for increased contact including holiday contact. The mother has applied to vary and extend the non-molestation order which was made on 17^th May 2012. She also wishes to vary the contact order made on 25^th October 2012 and she applies for enforcement of that contact order in relation to the times the children are returned, telephone contact and other inappropriate behaviour. I was told in the course of the hearing that she reserves the right to apply to reduce the children's contact with their father once I have given this Judgment on findings of fact and she has seen a further CAFCASS Report.

3 The Hearing.

6. The hearing took place over eight days between 13^th and 22^nd May 2013 and this Judgment is being handed down on 12^th June 2013. A further hearing is listed on 14^th June 2013. In preparation for the hearing I read two bundles of documents which had been filed in both the Family Law Act 1996 and Children Act 1989 proceedings, including each of the parties' eight witness statements.

Recordings

7. In the course of the hearing, because the parties gave different accounts of what had been said at previous hearings, which was relevant to the mother's allegations that the father has breached both the non-molestation order and the undertaking which he gave to the court, at the parties' request, I have listened to recordings of the followings hearings: 25^th October 2012 before District Judge Johns and 21^st November 2012 and 18^th February 2013 before District Judge Marin. The parties and counsel have also had an opportunity to listen to the recordings.
8. I have also listened to recordings made by the father of an argument with the mother on 23^rd September 2012, and of his telephone contact with the children, principally C, on 8^th January 2013. These are relevant to two of the allegations I have had to consider and to my overall impressions of the parents.

The mother's Diaries/Journals.

9. The mother first mentioned in her witness statement dated 3^rd July 2012 in the Children Act proceedings that she had kept a diary setting out details of a number of incidents, although no extracts from the diary were exhibited to any of her witness statements. [C37/10] The father told me that he was aware that she had kept journals, although he had never seen any of them; she said she had kept them well hidden. On the second day of the hearing the mother referred to her diaries in her evidence-in-chief. Counsel then read them and provided a small bundle of copy pages and applied for leave to admit them. The father did not object and the diaries were admitted. The mother has told me that she began to keep these records on advice in February 2009, although she does not now remember whose advice it was. One of the journals for the period August to December 2009 is missing. She says that she stopped writing a journal in December 2009 when the father left the family home but started again in about March 2012 when she realised that their reconciliation was not successful. She told me that she wrote notes about the incident on 23^rd February 2009 (Allegation 5) on separate sheets of paper, not in a notebook, on or before 26^th February 2009. She probably wrote all the entries about the holiday in Scotland in August 2009 on the last day of the week. She said she wrote the words that were said and her entries are broadly correct, but the accuracy of her recall depends on what was happening at the time; some incidents are clearly etched in her mind. The father says that the diaries were written with a view to compiling evidence in support of the mother's planned divorce petition and that her accounts of events are embellished or fabricated. He did not object to the diaries being admitted but he does not accept that they are a true records of the events described.

Witnesses.

10. I heard oral evidence from the mother and the father (over some five days) and from the father's brother-in-law.
11. At this hearing the mother was represented by Miss Taylor of counsel. The father was in person. He is a solicitor of some 20 years' experience whose practice relates to commercial property, so family law is not his area of expertise. At earlier hearings, which I was referred to, he was represented by counsel, I believe through the direct access scheme; at this hearing he chose to be in person. Although he is not familiar with the practices and approach of the family court, I am satisfied that he was well able to put his case.

4 The Law.

12. The parties make counter-allegations of domestic abuse and abuse of the children and seek findings of fact. The person who makes an allegation has to prove it on the balance of probabilities.
13. The father referred me to a number of authorities. The judgment of Lady Hale in Yemshaw v Hounslow London Borough Council [2011] 1 AER 912 defines domestic violence (in the context of the Housing Act 1996) as including physical violence, threatening or intimidating behaviour and any other form of abuse which directly or indirectly... may give rise to the risk of harm" (paragraph 28)..."although it must reach some minimum level of seriousness, which will depend upon context and particular circumstances" (paragraph 29) I accept that harm includes psychological damage.
14. In his judgment in A v A and another (Children)( Allegation of violence: fact finding hearing) [2010] EWCA 1282 (Fam) Mostyn J he provided guidance to assist a judge to assess the evidence at a fact finding hearing. At paragraph 54 he notes that: "the seriousness of the allegations for the alleged perpetrator must mean that the allegations are carefully pleaded and are the subject of clear evidence. In making factual findings the court must examine carefully any inconsistencies made by the complainant and where inconsistencies are exposed these must be clearly analysed and rationalised in the verdict. If someone is to be found guilty of domestic violence then fairness demands that it is clearly explained to him why his defence has been rejected and why the case advanced by the complainant accepted".
15. The father also referred me to the judgment of Black J in Re: A (Contact: risk of violence) [2005] EWHC 851 (Fam) in which she said that

"... the court expected and required the best possible evidence on which to make its decisions: this was a particular problem in cases involving allegations of domestic violence, which had to be proved rigorously."

16. The father relies on the judgment of Bodey J in Re P (A Child) [2009] EWCA (Civ) 908 in which he identified inconsistencies in the mother's evidence including her assertion that she was terrified of the father, which was not borne out by a DVD of an argument between them which had been recorded shortly before their marriage broke down.

5 Background/Chronology.

17. The parties met in 1988 during their first week at Bristol University. He is Indian and a practising Muslim; she is Australian and a practising Christian. The mother says that their relationship could not continue after they left university unless they married, which they did in 1991. In 1995 the father qualified as a solicitor and the mother qualified as a chartered accountant. In 2005 she was made redundant. By the time C was born, on 24^th October 2005, the marriage was in difficulty. Through 2008 the parents were sleeping in separate rooms and she was receiving support from the Domestic Violence Intervention Project ("DVIP").
18. The mother describes 2009 as "a year of extreme difficulty" [C2/4]. On 23^rd February 2009 she alleges that the father held a knife to her throat [Allegations 4 and 5]. It was around this time that she was advised to keep a note of incidents and began her journal. On 7^th March 2009 the mother left the family home taking the children and stayed with her sister-in-law for four days. I was told that when she returned to the family home she and the father agreed ground rules (which I have not seen).
19. On 21^st March 2009 the parents attended an introductory counselling session with Relate, who decided that they could not work with the parents because of the history of domestic violence and instead referred them to Women's Aid and Respect. On 9^th May 2009 the father received a letter from the mother's solicitors about divorce proceedings (Allegations 9 and 10). The mother says she left the family home with the children on police advice. The father then moved out for two weeks. In June the mother agreed to attempt a reconciliation on the condition that the father seek help in the form of therapy which she says he agreed to do, but did not do. She told me that she agreed reluctantly to a reconciliation for a month because at the time she was exhausted and she was affected by her father's terminal illness. In September 2009 the father went to see the family GP at the mother's insistence. The GP referred him to the practice counsellor with whom he could have had six sessions. After two meetings he decided that there was nothing more to be gained from counselling. On 14^th December 2009 the mother says she left the family home with the children on the advice of the police (Allegations 16 and 17). The father left in mid-December so that she could return with the children.
20. By the middle of 2010 the father said that he wanted a reconciliation and the mother made it a condition that he attend the DVIP. Correspondence indicates that in late 2010 the mother was a client of the DVIP Women's Support Service. The father says that he began to sleep at the family home possibly as early as October 2010 and by April 2011 was there three or four nights a week, or the children were staying with him at his mother's home.
21. The mother says that after two meetings at the DVIP the worker told her that they could not work with the father because he had not accepted responsibility for his actions. The father says that he attended two sessions (an introduction and an assessment) at the end of which he asked where they thought he stood and what his goal was; they refused to answer his question but said it was a programme and he should pay £2,500 to attend and see where it led him.
22. In September 2011 the father moved back into the family home. It appears he slept in the study until he left in October 2012. On 28^th December 2011 he suggested to the mother that they should attend marriage guidance counselling and if that did not work they should divorce. [B80] On 18^th or 19^th April 2012 the mother told the father that she wanted a divorce. He agreed and proposed that they should share their assets and the care of the children equally. The mother accepts that there were no further violent incidents prior to her without notice application to the court for a non-molestation order on 18^th May 2012.
23. In June 2012, following a referral made by the family's GP to the London Borough of Barnet Children and Young Persons Services, the children's school, St. Mary's CE Primary School in Dollis Park, Finchley, was asked to complete a Common Assessment Form [C64]. At this time the mother was very concerned that A and B were saying that they did not want to live. On 18^th July 2012 the mother signed a petition for divorce based on the father's unreasonable behaviour: he did not contest the petition. On 15^th June 2012 the father refused to allow the children to attend the Child and Adolescent Mental Health Service ("CAMHS") for counselling, but subsequently he spoke to a social worker and agreed that the children could attend, which they then did in October-November 2012.

6 History of Proceedings.

24. On 19^th April 2012 the father made an application for a residence order and a prohibited steps order without notice to the mother. He alleged that she had become increasingly abusive and irrational, that she bullied him, and was abusive to A and B which C had witnessed; she had threatened to remove the children from the family home and take them where he would not find them; she had removed them on several occasions. District Judge Karp made a prohibited steps order providing that the mother was not to remove the children from the jurisdiction and listed the application for further consideration on 23^rd April. The order was not served on the mother who only became aware of it when she made her application for a non-molestation order on 18^th May. At the hearing on 23^rd April, as the father did not attend, District Judge Gerlis discharged the order of 19^th April and struck out his application.
25. On 10^th May 2012 the father made an application for a shared residence order to prevent the mother from "running off with the children and strengthening her negotiating position in the divorce proceedings".
26. On 18^th May 2012 the mother made an application for a non-molestation order and an occupation order, without notice. The matter came before District Judge Karp who made an order in the following terms: the father by himself or acting jointly with any other person was forbidden to use or threaten violence towards her; send any intimidating, threatening or abusive letter or text or voicemail message or other communication to her; or make any intimidating, threatening or abusive telephone calls to her. That order was to remain in force until 17^th May 2013, but the application was to be considered on 12^th June 2012. At that hearing District Judge Gerlis set down the mother's application for an occupation order for hearing on 10^th July 2012 and gave directions in the Children Act proceedings, including the preparation of a CAFCASS report. [B53]
27. On 18^th July the mother signed her petition for divorce based on the father's unreasonable behaviour. I have seen the petition which was drafted in general terms without specifying any incident. On 27^th July District Judge Marin gave directions for the preparation of schedules of the parties' counter allegations and listed the application for an occupation order for hearing on 25^th and 26^th October 2012.
28. Meanwhile, on 8^th August 2012 Barnet Social Services received a referral from CAMHS at the Royal Free Hospital, who noted that both the school and the family's GP were concerned that the parents were going through acrimonious divorce proceedings and about the impact on the children's emotional wellbeing. Jessica Yarrell, a social worker, carried out an initial assessment and noted that there had been no police reports of domestic violence since 2009. Mrs. Lemonides noted in her report, dated 1^st October 2012, that the social worker considered that the violence was not a risk at the time. [D9]
29. On 22^nd August 2012 the father made an application for a prohibited steps order to prevent the mother from removing the children from the jurisdiction and from removing them from the family home without his consent. He said that she had taken them away on holiday without notice and for a period of time which included the first day of Eid. She was not to arrange medical or dental appointments without giving him seven days' notice. I note that the father had taken the children away to a Butlins' holiday camp, without the mother but with her agreement, for five days in the course of that summer holiday.
30. On 14^th September District Judge Johns ordered that the applications in the Family Law Act and Children Act proceedings would be reviewed together on 14^th September, but that hearing was further adjourned to 12^th October, when she gave further directions for filing evidence. The parties had made an agreement dated 12^th June 2012 which provided that: they would do their best not to involve the children in the proceedings; they would not make derogatory remarks about one another to the children; they would not encourage the children to keep secrets.
31. At the hearing on 25^th October 2012, on the basis of the 12^th June agreement, the parents reached agreement about the Family Law Act application and an interim agreement about the Children Act application. In the Children Act application a consent order provided: the father agreed and undertook to vacate the family home by 30^th October 2012 and not return. He agreed that the children should live with their mother until further order or agreement. She agreed to make the children available for contact, subject to B's wishes, for Eid and C's birthday, and for weekend staying contact on Friday after school until Saturday at 7 pm at the paternal grandmother's home only, the father collecting the children from and returning them to the family home. CAFCASS were to prepare a report updating the court and the parties about social services' assessment of the family, and the parties were to prepare a composite schedule of allegations and position statements for a hearing on 21^st November 2012 when the Judge would consider the need for a fact finding hearing.
32. The Family Law Act order made on the same date noted that the parties had agreed that the family home would need to be sold and that the division of the proceeds of sale would be the subject of negotiations or would be considered by the court. The court had not made any findings of fact. The parties had agreed arrangements for interim residence and contact, and the father had agreed to vacate the family home by 9 pm on 30^th October 2012 and, having done so:

"not to return thereto save for the purposes of facilitating the contact handovers between himself and the children … or otherwise only with the express written permission of the mother in writing."[B70]

The father's undertaking in these terms is included in the bundle [B72].

33. The father told me that, in her Form E filed in the ancillary relief proceedings, the mother had said that she wanted the family home to be transferred into her sole name. He believed that she had made an application for an occupation order to strengthen her case. In the course of the negotiations at court on 25^th October she agreed that the family home would be sold and it was on that basis that he agreed to move out.
34. I have listened to the recording of this hearing. I note that District Judge Johns read over the undertaking and ensured that the father understood the possible consequences of breach. She did not, and nobody asked her to, clarify the meaning of the undertaking. At the end of the hearing the father's counsel raised his concern that he would not be allowed to go to the family home in connection with its sale. The Judge said: "if he needs to be there his wife will give him permission; he does not know whether he will need to be there". I have noted on 13^th November the mother was granted a Decree Nisi.
35. At the hearing on 21^st November 2012 District Judge Marin gave further directions for the preparation of evidence for a fact finding hearing which was listed before him on 18^th, 19^th and 20^th February 2013. I have listened to the recording of this hearing. The mother's counsel raised her client's wish to vary the contact and non-molestation orders. As regards contact, she did not want to reduce it but to vary it so that the children would spend Friday night or Saturday night with the father on alternate weekends. District Judge Marin was prepared to make an order if such a variation could be agreed but was not in a position then to determine a contested application. He asked Mrs. Lemonides to prepare a wishes and feelings report on the children's views of contact.
36. By that hearing the mother was concerned that the father was coming into the family home when he came to collect the children for contact, which she considered to be in breach of his undertaking. The father's counsel said that her client "had not appreciated that he would not be welcome to come into the house" and he agreed to vary the order. He asked if he could pick the children up in the entrance hall and not go into any other place in the house. The mother's counsel suggested the following wording: "Having left the former matrimonial home the father was not to re-enter, or try to re-enter, without the mother's prior written permission". District Judge Marin said that if the parties and their counsel could not reach agreement, the mother should make an application to the court.
37. On 7^th December 2012 the parties attended mediation to try to resolve financial matters, without success. On 24^th January 2013, the mother made an application to vary the non-molestation order to prevent the father from coming within 250 metres of the family home. She alleged that he had chosen to misconstrue the wording of his undertaking and had been intimidating, aggressive and argumentative when he entered the home to collect the children for contact. At the same time she made an application to vary the interim contact order to provide that she would drop the children off for contact and collect them; on two weekends out of four the children would spend Friday evening and Saturday with her, and go to their father on Saturday evening. She wanted an order to prevent the father from telephoning the children or contacting them via face time, she would encourage them to call him daily between 6 pm and 7 pm; she alleged that he called incessantly and asked the children questions which put pressure on them. On 4^th February District Judge Marin ordered that these applications would be considered at the end of the fact finding hearing.
38. At the hearing on 18^th February 2013 District Judge Marin suggested that a fact finding hearing could be avoided if some facts could be agreed. The mother's counsel said that the historical matters are very serious and go to the question of the father's emotional abuse of the children. Both parties wanted to add recent allegations to the schedule of findings sought, there was insufficient time, and the matter was therefore adjourned to 13^th May 2013 before me with a time estimate of seven days.
39. I have listened to the recording of this hearing. District Judge Marin said he could not vary the order until he had a clear view of the matter and knew the children's wishes and feelings. The mother complained that the father had returned the children late after contact on numerous occasions. He encouraged the children to ask her to vary their return time which put them in the middle of the dispute between their parents. The father would not then agree to the children spending some Friday nights with their mother, although the Judge suggested that they should do so on one weekend out of four. In fact, District Judge Marin said that he was gaining the impression that both parents were very entrenched and that the case might be moving towards an order for a s.37 Children Act 1989 report in respect of emotional abuse of the children.
40. With regard to the father's undertaking not to return to the family home, he offered to park outside when he came to collect the children. District Judge Marin said: "I am telling him that he should not be walking in and out of the family home if he is not living there." The order records the father's agreement not to enter the former matrimonial home when collecting or returning the children and during term time, to collect them from school, return them to their home, and remain in his car, which shall be parked outside or near the former matrimonial home. The order also set out outstanding issues with regard to interim contact as follows:

(i) arrangements for the father to collect and return the children;

(ii) whether contact should start on Saturday, rather than on Friday on one weekend in three;

(iii) regulation of contact by way of face time, texts and mobile phone calls;

(iv) overnight contact during the week;

(v) holiday contact including at Easter 2013;

(vi) moving the children's time of return from 7 p.m. to 8 p.m.

These issues and other outstanding applications were to be considered at the end of the fact finding hearing.

7 The Children

41. A is 12 and attends a private secondary school. B is nine and C is seven, and both attend primary school. All the reports I have seen suggest that the children are bright and loving and loyal to both their parents. They are integrated into both sides of their extended family and comfortable with their dual heritage. There are also suggestions that the way in which their parents' marriage has ended has caused particular difficulties for the children. I have noted that on 8^th August 2012 Barnet Social Services received a referral from CAMHS at the Royal Free Hospital. At that time the mother wanted the children to be referred to CAMHS because A and B were talking about death and not wanting to live. The father initially refused the referral but agreed to it in September.
42. In her initial assessment the social worker, Jessica Yarrell, noted that each of the children expressed his/her dislike of how their parents were acting towards each other in the home and they all suggested that they should live apart as they had previously. [D19] She said:

"Both [parents] report that it is their intention to put the children's interests before their own, however their current actions are putting a lot of pressure and stress on their children … affecting their emotional well-being."

43. By 10th December 2012 the children had attended at CAMHS together on three occasions. They were said to be relieved that there had been a change in the living arrangements after their father had left the family home on 30^th October 2012, and they were considered to be more relaxed by their final session. Helen Muller, a child and family psychotherapist, and Elan Hoffman, Consultant Clinical Psychologist/Family and Systemic Psychologist at CAMHS, based at the Royal Free Hospital, wrote to the family GP, Dr. Bangham, on 20^th November 2012. [C104-5] They noted that the children have to learn to negotiate differences in the parents' households, and that A may find this easier than B. They had tried to impress on both parents that respecting each other's authority will help the children's psychological adjustment. Both A and B were anxious to preserve an equal loyalty to each parent. The writers noted:

"The greater clarity the court can establish, especially with the minutiae of access and handover arrangements, the more reassuring it will be to the children."

They were aware that there were things which the children did not feel safe to discuss as they were concerned that the information would be shared with both their parents. They advised that the court should establish:

"a clear ruling that allows either parent to bring the children to see us again should either parent think it would be helpful."

They offered to see each parent individually to reflect on their parenting in the context of the separation. The mother took up this offer and told me that CAMHS had advised her to minimise her interaction with the father as much as possible and to encourage the children to "have a voice", and communicate their concerns direct to their father. [C101/33]

8 Impressions of the Witnesses

The Mother.

44. The mother gave her evidence in a calm, measured manner even when she was in the difficult position of being cross-examined by the father. She gave long and detailed evidence without reference either to her witness statements or her journal entries. She did not exaggerate. She admitted that she drove A without a seat-belt on 28^th March 2013.
45. She was not vindictive but was able to acknowledge positive aspects of and improvements in the father's relationships with the children. She told me that things are now much better between the father and B and she acknowledged that B enjoyed the holiday with her father and her brothers last summer, even though she was apprehensive about going. She said:

"The children do love and respect their father. If there are chinks in their relationship it is because of things he has done".

46. The mother told me that throughout her marriage and until she was supported by counselling, she deferred to the father. She did not tell anyone about the difficulties in their marriage until he "gave her permission" to do so after the knife incident on 23^rd February 2013 (Allegation 5).
47. I do not assume that an intelligent, educated woman must necessarily be confident and able to withstand pressure within a marriage and the mother explained her reasons for not taking action sooner and agreeing to attempt a reconciliation in September 2011. She told me that she and the children were happy with the arrangement which involved the father spending a lot of time with the children while living with his mother, but he was not happy. He had told her that if she issued divorce proceedings he would obtain custody of the children, as he had for a client. I note that the father told me that he has had very little family law experience and had acted for one client in a custody dispute, early in his career. The mother considers that subsequent events have proved that she was right to be scared of the consequences of taking divorce proceedings, because the proceedings have been very difficult. If she issued proceedings and he succeeded in taking the children from her, how would she care for them? She is disappointed in herself because she did not take action sooner and she attributes this to her wanting an ideal family, wanting the relationship to work and thinking that she could persuade the father "into some normality". Now, she feels stronger which she attributes to counselling which she has been having since 2010.
48. It is clear from the evidence that, at least by 23 February 2009, control was an open issue between the parents. The mother noted in her diary that when the father said he would not sign a letter to the insurance company until she had also written a letter to the bank she said: "Who do you think you are? You can't control me by saying I won't do this until you do that" and added: "I suggested he didn't have all the power here." [Diary p.1] It seems to me that the position with regard to the balance of power within the relationship was not straight forward.

The recording made on 23^rd September 2012

49. The father argues that the mother's attempt to portray herself as deferring to him and intimidated by him is fatally undermined by his recording made on 23^rd September 2012: he relies on the decision in Re: P (see paragraph 16 above).
50. On 23^rd September 2012 the father recorded a conversation with the mother, which developed into an argument, without her knowledge. (Allegation 23) He produced a transcript which I have read and I have also listened to the recording. The conversation took place on the eve of the children's meeting with Mrs. Lemonides, the Family Court Adviser. In the transcript the father explains that the reason for the recording was that he was trying to get the mother to admit that she had accessed an e-mail which he had sent to CAFCASS, without his authority. The mother said that he left the email open on an iPad. It seems that both parents were suspicious of Mrs. Lemonides. The mother complained that she had communicated with the father in a way in which she had not communicated with her. The father thought that there had been some inappropriate communication between Mrs. Lemonides and the mother.
51. Mrs. Lemonides had telephoned the mother to make arrangements to see the children at the family home after school. The mother would bring them home from school as she normally did on a Monday. The father did not have to be present because Mrs. Lemonides had said that she did not want either of the parents to be in ear-shot when she spoke to the children.
52. The father took issue with the use of the word "earshot", although it was clear that he knew that Mrs. Lemonides wanted to speak to the children privately, so there seemed no reason to take issue about the particular word that she may have used. It seemed to me that he was being unnecessarily pedantic and possibly goading the mother. The mother became very angry and said: "Oh god, you're completely mad! You're absolutely insane". Then her voice became very quiet and sad when she asked how the father had ended up like this and said that she pitied him.
53. The mother told me that the recording does not capture the whole conversation. The father approached her while she was lying in bed with B trying to get her off to sleep. She did not remember the exact words she used in response to him but she accepted that the transcript was accurate.
54. In correspondence with the mother's solicitors on 19^th and 21^st December 2012, the father noted that she had not dealt with his allegation that on 23^rd September 2012 she had abused him by saying that he was mad, and claimed that this was a failure to comply with District Judge Marin's order of 21^st November 2012. He did not send his transcript of the recording to the solicitors until 1^st February 2013. He told them that he proposed to produce the recording at court. In a letter dated 5^th February 2013, the solicitors took issue with his lack of openness and his attempt to engineer a conversation with the mother for the purpose of recording it. [D27]
55. The father chose to record a conversation with the mother, while she was trying to get B off to sleep. He had a purpose which she was unaware of; he did not (and does not) consider that it was inappropriate to do this at all and especially in the presence of the child. By recording the argument and withholding the recording and the fact of its existence, while insisting that the mother deal with his allegation in a witness statement, he was setting a trap for her. She denied that she had said he was mad, while he knew that she had done so. He now seeks to rely on this evidence to establish that the mother is not only "an abuser", but also a dishonest and therefore unreliable witness.
56. I do not take this view of the mother's evidence. She has said that she regarded aspects of the father's behaviour as abnormal; she wanted him to have treatment and she made it a condition of an attempted reconciliation. She has accepted that in the course of arguments, sometimes in the presence and hearing of the children, she has said that the father is mad. Similarly, the father has admitted that he made abusive comments to her, in the heat of arguments, in the presence and hearing of the children. I note that this argument, in which the mother was able to stand up to the father, took place almost 2 years after she started counselling and does not therefore undermine her case that throughout her marriage to the father and particularly in the period 2006 to 2009 he was the dominant partner. I will consider this evidence further when I consider allegation 23 but I can say that it lends weight to the mother's case and does not assist the father's case to any great extent.
57. I formed the impression that the mother did want a normal family life and that she did want the father to engage in therapy so that they could stay together. Even now, she genuinely would like a good working relationship with him for the sake of the children, a relationship based on trust which would allow for flexibility in making arrangements for the children.
58. It is also clear that she is very angry because the father has not complied with the contact order, but has brought the children home late after almost every contact without any regard for her wish, of which he is aware, to spend time with them on Saturday evening and because, in her view, he has wilfully misconstrued his undertaking to the court and the order made on 25^th October 2012 to enter or approach the family home unnecessarily. Nevertheless she got him a ticket to B's school concert on 4^th March 2013.
59. Overall, I found the mother's evidence to be measured, honest and reliable.

The Father.

60. The father is a solicitor whose area of expertise is commercial property. He told me that he is disappointed with his career; he has been passed over for promotion to partnership several times and on three occasions has had counselling because of his unhappiness at work. This has affected his health and since July 2012 he has worked three days a week.

Contact

61. I have noted that the father has brought the children home late after contact on almost every occasion except on the weekend which fell during the course of the hearing when I made it clear that the children must be home on time. The father told me that contact until 7 p.m. did not mean that the children had to be home by 7 p.m. When I explained that the order means what it says, he said that he had been advised by counsel that he could leave his mother's home at 7 p.m. which would mean that the children arrived home by 7.15. This did not explain why the children were usually brought home much later.

The Father's Negotiating Style.

62. On 21^st December 2012 the father forwarded to the mother an email which he had sent to her solicitors suggesting that she admit to being an abuser and a liar, which would render a fact finding hearing unnecessary. On the morning of Christmas Day he sent her a text telling her to consider her faults. He does not think his behaviour was inappropriate: it was an attempt to negotiate a settlement of their counter allegations and thereby avoid a costly and time-consuming fact finding hearing. He explained that he put his case as strongly as he could or, indeed, more strongly, but 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. It is not clear whether he took advice from counsel who represented him at the hearings in October and November 2012. The father then told me that he and the mother need to rebuild their relationship, to speak to each other and work out what is best for the children. He did not seem to see any contradiction between his positions.

His Attitude to the mother.

63. The father accepts that the children love their mother but he says that, to various degrees, they are terrified of upsetting her. He accepts that the children are happy with their mother but on her terms not theirs; she is emotionally abusive.
64. Having considered all the evidence I formed the view that when the father describes the mother as an abuser who makes the children happy only on her terms, he is describing a parent who does not concede to all her children's demands. As will become clear, I do not accept this interpretation. I note that the father has not always thought that the children should be allowed to do what they want in every situation.
65. On balance, when there are factual differences between the parents' evidence, I prefer the evidence of the mother.

9 Findings of Fact.

66. This matter was listed for a fact finding hearing on the recommendation of Mrs. Lemonides of CAFCASS that final orders should not be made with regard to the children while the allegations of domestic violence were outstanding.

In summary:

67. The mother alleges physical and emotional abuse of her by the father and emotional abuse by him of the children, including age inappropriate conversations, putting pressure on them and denigrating her to them. The father denies these allegations although he accepts that there have been arguments, some of them in front of the children, and that the police have been called on occasions. He alleges verbal, psychological and physical abuse of him by the mother and says the children are terrified of her.
68. This matter was listed before me for the first time for the fact finding hearing, when I was presented with a combined schedule of allegations containing some 50 matters. I indicated that this was disproportionate to the issues I have to consider and on the first day invited the parties to make proposals to reduce the schedule. Some of the allegations were combined, a few concessions were made and three new matters were added.

Allegation 1 - Mother

In 2006 the father made B (then aged 2½) mop up her urine after she had wet herself on the landing because he would not take her to the toilet.

69. It is common ground between the parents that at age 2½ (and for some years after that) B would cry uncontrollably at about 11 p.m., without waking up. Sometimes she would run around while still asleep. They realised that she needed to go to the toilet and would carry her there. She would wake up and then go back to bed and sleep, sometimes in her bed, sometimes in her parents' bed. Both parents describe this as a type of night terror.
70. The father says that he usually attended to B because the mother was busy with C (then aged one). She says that they shared the task of taking B to the toilet when she screamed. They did not agree how to deal with the night terrors. The mother thought they should just pick B up and take her to the toilet. The father thought that B had a problem which needed to be progressed and that it would be better for her if she woke up and said that she needed the toilet, thereby avoiding the night terror which must have been causing her distress. He considered that he was closer to B than her mother and was better able to judge how to resolve her problem. He did not seek advice from friends or the GP.
71. On this occasion the mother said she had been out with friends and returned shortly after 11 p.m. to find B crying on the landing and mopping up her urine with a box of tissues. The father was standing over her. He explained that she had started crying as usual, he had wanted her to say that she needed the toilet and as she had not said this he had not taken her there. She wet herself on the landing. He had shut her in a small junk-filled room until she woke up properly and was able to clear up the mess. He was outside the door of the room.
72. The mother said that this was a turning point in her relationship with the father: his behaviour was completely unacceptable and cruel. B had been made to wet herself unnecessarily which must have caused her distress and she must have woken up to be able to mop up her urine. When she raised this in a joint session with Relate, the father said that he believed in pushing the boundaries with his children.
73. The father told me that B's night terrors upset him. For several weeks he had been trying unsuccessfully to wake her up using various methods such as talking to her, slapping her gently, getting her to speak or making her walk to the toilet in order to reduce her distress and his. On this occasion as she was running around he shut her in the small room, but he was in there with her. He asked her to tell him what she needed. That did not work so he opened the door and B ran out on to the landing and wet herself. He asked her to help him clean up in the hope that that might wake her up and she would be able to connect the events, but it did not work.
74. The father said that he was trying different things to help B. He was treating her with sensitivity and delicacy and gently testing the boundaries. He accepted that it was inappropriate and a mistake, but not that it was cruel. It was a bad judgment call on his part which had no impact on B because she was asleep.

FINDING:

75. There is a contradiction in the father's account of B's behaviour and the distress it caused her. On the one hand he says that the night terror must have caused her distress and therefore he thought it would be better for her if he could find a way of waking her up. On the other hand he says that this incident had no impact on B because she was asleep.
76. I make the finding in these terms: in 2006 when B (then aged 2½) had a night terror and the father knew that she needed to be taken to the toilet he did not take her to the toilet because he wanted her to wake up out of the night terror. B wet herself on the landing and he made her wipe up her urine because he wanted her to wake up. He attempted to solve what he experienced as a problem in a way which was insensitive, ill-judged and not child-centred.

Allegation 2 - Mother.

In or around (late) 2008 whilst tucking C in, the father pulled the duvet over C's face. C later told the mother he could not breathe. (L aged 3).

77. It is common ground between the parents that after C's birth the father did not bond with him although, or perhaps, because he was very close to B. The father told me that he wanted to have an equal relationship with all three of his children. He told me: "If C said: 'A is your favourite' I would put him on the naughty step because it's the worst thing you can say to a parent." It was striking that he did not consider what C must have been feeling to make such a comment, but was only concerned about his own feelings. The father told me that he bought C a book called: "You're all my favourites" and read it to him many times; this was his way of telling the children that he loved them equally. He feels that since he left the family home the situation has improved and he is able to have an equal relationship with the children.
78. The mother says that at about this time the father would spend bedtime with A and B and exclude C. C had complained that his father did not cuddle him at bedtime. On an evening when she was going to a school governors' meeting - she was chair of the Finance Committee - she asked the father to tuck C in. The next day the child told her that when he called his father he came into the bedroom and said: "This is how I tuck in" and pulled the duvet tight on C's face. C said he struggled because he could not breathe - or "only a little" (she said those were C's words). When she confronted the father he said it was a joke and C had found it funny. She interpreted this as his way of telling her that she should not ask him to tuck C in and although she still had to attend meetings in the evenings she never again did so.
79. It was about this time that A reported to her that, when she was out, the father told C that she was never coming back. (See Allegation 7). She did not agree that this was A's favourite game. She accepted that there were occasions when the father threw C on the bed; C would say: "Don't do it, don't do it, do it!" It was fun, but she did not see that as a panic game.
80. The father told me that this occurred in about 2007 (therefore C was 2). He had played this game with A when he was young and it was one of his favourite bedtime games. He said it was not true that C could not breathe, he simply panicked a bit but he finds panic fun, and he likened it to a game with a sense of danger, like a funfair ride. He described to me the game that he played with A and B: he would stand at the end of the bed, lift the end of the duvet and let it fall on their faces; they would scream and enjoy it. He told me that on this occasion he held the duvet six or seven inches above C's head so that there was room above him and up the sides. The duvet was not held tightly at all, it may have fallen on C's face causing a sense of panic. He didn't do it again because C did not seem to enjoy it.

FINDING

81. I make the finding in the following terms: In or around (late 2008, while tucking C in, the father pulled the duvet over C's face. Next day C told mother he could not breathe. (L was 3) The father says that he was playing a game with C; he did not pull the duvet tightly over his face; he did not play the game again as he realised that C did not enjoy it.

Allegation 3 - Mother

In 2008, the father held a lighter to the mother's thigh in front of the children and said he wanted to know when she would feel pain.

82. The mother says in late July 2008 they were camping at the WOMAD festival, near Reading, with the children. It was raining and they were all in the main room of their tent; the children were sitting in a corner playing and she was lying on one side with her top leg bent over the other (which she demonstrated) watching and talking to the children. She was probably wearing shorts or a short skirt. The father was also lying on his side near her. Suddenly she felt a pain on the back of her thigh and jumped up. She saw that the father was holding a lighter. He said: "I just wanted to see how long it took you to feel pain." She said "I can't believe you did it", but she let it go because they were on holiday and she had to make sure things went smoothly. She did not suffer any burns. She had not noticed previously whether he had a lighter but if she had she would not have commented, he needs a lighter to light the camping stove, and also he likes to play with fire. She did not agree that there were strict rules about not having a naked flame in the tent, although she agreed that the sleeping bags and other items of equipment were highly flammable.
83. The father said that this never happened; it is a fabrication. He relies on weather reports for July 2008 which, it was accepted, showed that there was no rain at the WOMAD festival; it was described as "a scorcher". The family had been to WOMAD in July 2007 where there was so much rain that the festival was referred to as "WOMUD". They did not go to the festival in 2009 but they did go in 2010.
84. Further, he said that the tent is very flammable, especially at the entrance where there is mosquito netting and therefore they had strict rules about not having a naked flame in the tent or near the most flammable part of it.
85. He said he never plays with a lighter. There is an open fire in the family home where they often lit candles, when he lived there. The children were very curious about fire and he explained to them that the area next to a flame is not that hot but the closer you get to a flame, and the longer you are close to, it the more dangerous it is. He explained about the precautions that fire eaters take. He considers that it is important that children understand why fire is dangerous. Around that time, under his supervision the children put their hands through a candle flame without incurring any injury. It is better to explain something like this to the children rather than to say that it is forbidden which makes it more exciting.

FINDING.

86. The mother accepted that this incident did not occur in 2008, and cannot say for certain when it happened, but she was very clear that it did happen. It is an unusual allegation and I found her account of what had happened to her convincing. I find the allegation proved in the terms in which it is sought.

Allegation 4 - Father and Allegation 5 - Mother

These two allegations arise out of the same incident.

On 23 February 2009 the Applicant verbally, psychologically and financially abused the Respondent by telling him that he was an incompetent solicitor and would never be able to financially support the family and that she would continue to spend the family money on an insurance policy that they had both agreed previously was not necessary and should be cancelled.

and

On 23 February 2009, the father threatened the mother with a kitchen knife to her neck whilst she was sitting on the toilet and forced her down the stairs at knife point in front of C. He threatened her with the knife until she wrote a letter cancelling their insurance policy direct debit. The police were informed the following day but no charges were pressed.

87. It is common ground between the parties that the mother had taken out a policy on the father's life in 1994 in relation to the mortgage on the flat which they then owned. The premium of £11.74 per month was paid out of her bank account. The policy was no longer serving any useful purpose as they had repaid their mortgage. The father says that they had agreed seven years before this incident that the mother should cancel it; she said that she had not dealt with it sooner because she was busy with three small children. The insurance company required a letter signed by both her and the father to cancel the policy. She wrote a letter and asked him to sign it but he would not do so unless she also wrote a letter to the bank to cancel the direct debit. She said that she would go into the bank to cancel the direct debit.
88. The disagreement about how best to cancel the policy and the payment led to an argument. The father says that the mother called him an incompetent solicitor. She says that she has never said that he was an incompetent solicitor or that he would never be able to support the family financially: he had been doing so very capably for many years. She did explain that if he refused to sign the cancellation letter the monthly sum would be paid indefinitely.
89. While this conversation was taking place the father making humus and the mother accepts that he may have had a knife. When he refused to sign the letter, she tore it up and went upstairs. C woke up and she told him that she was going to the toilet.
90. The mother wrote a detailed account of this incident as follows:

"Sitting on toilet when I hear (the father) bound up the stairs. He storms into the bathroom with kitchen knife (Sabatier 20 cms) thrust it against my throat and says: 'Get downstairs now and write that letter again'. I say: 'Can I see to C first, because I can hear him crying?' He sticks the knife point into my neck and says: 'No, get downstairs and write that letter again now.' I say: 'Can I wipe my arse first?' He withdrew the knife slightly so I could get up. I walk out of the bathroom. He is behind me pushing the knife point into my back. At the top of the stairs I see C crying on the landing. I hear B start to cry. I say: 'Can I deal with the children first?' He says: 'No' and makes to push me down the stairs. I held on and said: 'Are you pushing me downstairs now?' He said: 'Write it quickly' and shouted to C to get back into bed. I had to go upstairs for a sheet of paper. He followed me with the knife. He stood over me with the knife while I re-wrote the letter. Then he signed it and went to the study. Actually, while I was writing the letter he said: 'Look what you've driven me to. Can you see you've treated me like shit all our married life?' 'Yes' I said. (The knife was in my face). 'Are you sorry?' 'Yes' I said. 'No, you're not. You're a heartless lying bitch' he said." (Diary p.2)

91. The mother told me that the knife did not break her skin. C was on the landing and saw what happened as they walked past him, he was three years old. B did not see what happened but she had heard their subsequent arguments. The next morning in front of the children the father said: "You've treated me like shit all our married life", and she probably said: "You didn't have to put a knife to my throat." After he went upstairs she collected all the kitchen knives and hid them and she went to bed but did not sleep. During the night he came into her bedroom, shouted at her and made her read about direct debits on the computer. The following day she went to the police. She thought he would be remorseful but he was not; he tried to justify himself. This was the first time she had been fearful in 18 years of marriage but she was not ready to have him arrested, she did not want that for the children. She told me that she is an idealist and always wanted everything to be perfect for the children. She said: "I so wish, even after the divorce that things could work perfectly. It's a fault, I keep trying to make it work."
92. I note that B spoke about this incident to her schoolteacher on 28^th February and again on 23^rd April 2009. A letter from the school, addressed: "To whom it may concern" says:

"On 28^th February 2009 B made the following disclosure to her teacher.

B: My dad has done something to my mum but I can't tell you.

T: You don't have to tell me if you don't want to.

B: But I do want to. My dad could have knifed my mum here (pointing to her throat) and hurt her neck, and I also can't sleep because there is lots of noise outside my room. There is lots of arguing."

The teacher told B that if she was ever worried or upset she can talk to her or another adult in the reception class. While she was talking about this disclosure with the mother, she became very upset, explaining how frightening the incident had been, how demeaning and humiliating (she was on the toilet when he came in and held the knife to her throat). She was also very anxious about how the children might react to this incident both in the short term and the long term. It was decided not to refer this matter to social services as the aggression appeared to be directed towards the mother and not the children.

93. On 23^rd April 2009 B made the following disclosure to a teaching assistant:

"B: I have a secret I can't say.

TA: Oh, a secret, that's special.

B: Yes, I can't tell you. My daddy did something rude to my mummy.

TA: Oh dear.

B: Daddy held a knife to mummy's throat. He always shouts at mummy. She goes to the gym at night because daddy makes her cry and fight."

The school noted that B did not seem concerned to talk like this in front of the other students and showed no signs of fright. [E6]

94. The father argues that this incident should be seen in the context of his chequered employment history and the distress it caused him. He explained that after a series of unsatisfactory jobs, in 2000 he was employed as a commercial property solicitor but was not happy at the firm (where he remains). In 2005/6 at the peak of the property boom he tried unsuccessfully to obtain a position with a larger commercial firm. In 2007 and thereafter when the banking crisis occurred he was worried that he would be made redundant, and would not be able to support his family, but the mother dismissed his concerns.
95. The father said that they had disagreed about how to cancel the insurance policy. The mother did not respect his professional experience and always preferred other people's opinions to his; she condescended to him and belittled him; she was very controlling. As they argued he thought: "It's not going to change, I've been married for 20 years. It's getting worse, it has to end." He told me: "I was in a blind rage." He did not know what to do, he felt trapped.
96. The argument was the culmination of years of abuse and anger which he had bottled up. He was making a sandwich and had a knife in his hand. He stormed upstairs to shout at the mother with the knife in his hand, although he was not conscious of it. She was on the toilet. He was saying: "You're always treating me like shit. Get the fuck out of my life." He was shouting about the policy, he accepts that the mother must have been terrified. He pointed the knife at her. He does not know how far away from her he was. He does not think he threatened her, but he acted in a threatening manner. He told me: "Her perception of the incident is entirely correct." He did not think he held the knife to her neck but: "most probably very close to her throat", he was distraught. He probably did tell her to write the letter again and follow her downstairs with the knife in his hand, which C saw. The father thinks that C does not remember this and is not affected by it. He agreed that the mother asked to deal with the children first, and he said "No" and may well have followed her back upstairs with the knife. He felt that everything he wanted was over. He was extremely upset. He did not remember clearly what had happened, although he remembers shouting a lot. Every one of his actions was unreasonable, inappropriate and wrong; it was his responsibility, but the allegation is historic and the triggers for his anger - the toxic marriage and his employment situation - no longer apply.

FINDING

97. The father has partially conceded his responsibility for this incident, but does not take full responsibility. He accepts that he was in a blind rage and does not remember exactly what happened. I do not make the finding in allegation 4. I accept that he had supported the family well for years and I do not believe that she criticised him for this. I make the finding in allegation 5 as sought.

Allegation 6 - Mother

On 7^th March 2009, the father tried to force feed B an omelette resulting in her crying and retching. The mother intervened. The father told B he would punish her so badly she would never forget it.

98. The mother's diary entry for this date says that she was in the shower and could hear C and B screaming and shouting: "Mama, Mama". She could not tell whether they were playing or upset, so she shouted that she was in the shower and could not hear them, if they needed her they should come and talk to her. It continues:

"By the time they got to the bathroom (the father) was upstairs and shouting at them, how dare they get off the naughty stair. Apparently he had made them sit on the naughty stair because they didn't like the look of the omelette he had made for breakfast. Shouting and crying continued. I got out of the shower and went downstairs in my towel. B was crying and vomiting on the chitai (mat), so I took her to the toilet so she could vomit properly. She was very distressed. C and A were eating properly. I took B back to her breakfast and gently offered her another mouthful. She couldn't eat it, she didn't like the mushrooms or the texture … (the father) said: 'You just wait, B, I'm going to punish you so badly you'll never forget it. I'm going to make you learn your lesson. Do you understand, B? I'm going to punish you so badly for this, you'll never forget it', and repeated this an hour later."

When the mother left the house with the children to visit her sister all three children said "goodbye" to their father but he did not acknowledge B. [Diary, p.4/5] I note that the diary entry does not refer to the father "force feeding" B.

99. The mother told me that after this incident she left the family home with the children and stayed with her sister-in-law, for a few days, but on the Tuesday the father persuaded her to return, which she did, against her sister-in-law's advice. They then agreed the ground rules to which I have referred, including that the father would not force feed the children.
100. The father explained to me that in Asian culture it is common for the children to eat sitting on a chitai, or mat. He described the Indian manner of feeding children: the parent takes food on the tips of his fingers and physically puts it into the child's mouth by pushing it in with the thumb which does not usually go into the child's mouth. He would sit with the children on the chitai and feed them one after another, they would not help themselves. In his family children are often fed this way until they are five or six, even though they know how to feed themselves.
101. The father told me that he did not force feed B with the omelette. He encouraged her sternly and reprimanded her when she did not eat. He told her that she should at least try one bite as she used to enjoy it when she was younger. She accepted the food into her mouth very reluctantly and then vomited it up. He was cross with the children for not eating the food he had prepared. He told me that punishing C with the naughty step persuaded him to eat the omelette properly. He said: "fussy eating can be solved". He was still very upset following the events of the previous month and may have said that he would punish B but he did not mean it and he did not punish her because he does not believe in ongoing punishment. He is aware that B remembers this incident and now has agreed that she eats whatever she wants, whenever she wants.

FINDING:

102. The expression "force feeding" suggests that the child was being held down and food forced into her mouth and I accept that this did not happen. The father concedes that he may have said that he would punish B, because he was upset, and I find that he did threaten to punish her. I make the finding in the following terms: on 7^th March 2009 the father insisted that B eat an omelette by putting a piece of it into her mouth in the Indian manner (as described by the father) resulting in her crying and retching. The mother intervened. The father told B that he would punish her so badly that she would never forget it.

Allegation 7 - Mother (as amended)

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, and

b. would leave him out of activities and

c. would tell him off unfairly.

103. The mother says that at age 3 C suffered from separation anxiety when she left the home, and would ask "when is mama coming home?" A told her that C cried when the father told him that she was never coming back. He would tell C off for jumping on the sofa, which was fair, but the rest of the evening he would not let C sit on the sofa, which was not fair. C also was blamed for anything that was broken. On one occasion she found him hiding behind the buggy in the hall because he had seen something broken in the garden and knew he would be blamed for it. The father was unpleasant to C if the child said that he wanted to drink his bedtime milk with his mother.
104. The father says that C was insecure and clingy, and he did not have a good relationship with the child. He acknowledged that C was not happy to be left with him and repeatedly asked: "Is she coming back?" He bought C a book called "Owl Babies" about a baby owl whose mother flies away but always returns, and read it to him several times. He also told C, two or three times, that his mother was coming back, but C did not accept this reassurance.
105. Therefore, in view of C's intelligence the father tried a method (which he thought of) of presenting C with a "counterfactual statement" i.e. saying "she's never coming back". He explained that this enabled C to reason for himself that this was an absurd proposition and his mother would always come back and his anxiety was cured. He described this as the action of a father desperately trying to find a solution. He tried to include C in activities but found it difficult because at the time B was very demanding. He did tell C that if he drank his milk with his mother he would miss out on story time with A and B with the aim of increasing their bond by making C to want to be with him, which he eventually wanted.
106. The father concedes that he made mistakes with C and treated him unfairly. He attributes this to the fact that both he and the mother were using the children as pawns in their personal battle and occasionally he would take it out on C. Looking back he is uncomfortable with some of his parenting decisions, but he tried to think outside the box and try different things.

FINDING:

107. I do not accept the father's excuse that he and the mother were using the children as pawns in their personal battle. In response to allegation 1 the father told me that he did not bond with C but was very close to B. I have noted his comment (also in respect of allegation 1) that he would put C on the naughty step if he said: 'A is your favourite', despite the fact that it was true and compounding the unfairness C.
108. I accept that the father may have wanted to improve his relationship with C but his methods seem strange and ill-judged and are likely to have caused C distress. I have seen no evidence, apart from the father's assertion, that his method worked, although C may well have grown out of his anxiety about his mother in time. I make the finding as sought.

Allegation 8 - Mother

In April 2009 during a holiday in Cornwall, the family was seated in a car. The father had not closed the passenger door on C's side. He asked A to un-strap his seatbelt and close it. After A closed the door the mother pulled out of the parking space. The father told A that the mother was trying to kill him by driving whilst he did not have his seat belt on. The father told A his mother was a bad person and a liar.

109. The mother told me that immediately before this incident she and the father had argued. The family had been on the beach, she had gone into a nearby shop with C and B, leaving A in his father's care. The father told A that she had gone off and left him and A was upset. The father said he did not know where the mother had gone, he was not near A but some 50 metres away from him. She had put A at risk of abduction. This is a particularly sensitive area for this family as a stranger had attempted to abduct B when she was a baby.
110. The mother says that she got into the driver's seat of the car. The father strapped C in but deliberately left his door open. Then he got into the passenger seat and asked A to undo his seatbelt and close the door by C. She heard the door shut and slowly pulled out of the parking space. She assumed that A had fastened his seatbelt. The father pulled on the handbrake, there was a jolt and A flew forward. The father said to A: "She's just tried to kill you, and earlier she left you on the beach to be abducted". He repeatedly called her a "bad person" and a liar. Cater she apologised to A who said: "Daddy just makes it worse."
111. The father told me that he did not ask A to undo his seatbelt in order to close the door by C; A's seatbelt was not fastened at the time. When the care had moved three feet, slowly, he pulled the handbrake on and A fell forward. He was very upset that the mother had pulled out into a busy car park without checking the seatbelts and, being extremely sensitive about car safety since the death of his brother in a car accident, said to A: "She could have killed you." He did not say that she was a bad person and a liar. The father told me that because he was not driving it was not his responsibility to check that A's seatbelt was done up.
112. The father explained that when he was 15, his 19 year old brother and a friend died as a result of a road traffic accident. The friend was probably not wearing a seatbelt. This is a very sensitive subject which visibly distressed the father. It is also relevant to Allegation 51. He told me that he had been angry and upset since the incident on 23^rd February 2009; he was distraught, fractious and lost his temper easily. He accepts that he probably did say something bad about the mother such as "she could have killed you", but he did not deliberately engineer the situation as the mother suggests.
113. I have considered this incident very carefully, in particular because I am aware that this is a particularly sensitive issue for the father. He told me that A's seat-belt was not fastened when he asked him to close the door by C. He pulled the handbrake on almost as soon as the car moved off, which suggests that he knew that A had not yet fastened the seat-belt. He did not tell A to fasten it and did not warn the mother not to drive before he did so. The mother was responsible for ensuring that A's seatbelt was fastened because she was driving. But I find that the father's culpability was greater because he had asked A to get out of the car and because he knew that the seat-belt was not fastened. Even allowing for the father's heightened emotional state and his traumatic experience of the death of his brother, his reaction was unreasonable and did not take account of the children's feelings.

FINDINGS:

114. I make the findings in these terms: In April 2009, during a holiday in Cornwall, the family was in a car which was parked in a car park. The father asked A get out of the car to close the passenger door on C's side. After A had closed the door and got back into the car, the mother pulled out of the parking space. Almost immediately the father pulled the hand-brake on. The father knew that A had not fastened his seat-belt. The mother had not checked whether A's seatbelt was fastened. The father told A that his mother was trying to kill him and that she was a bad person and a liar.

Allegation 9 - Mother and Allegation 10 - Father

On 9 May 2009 the father received a letter from the mother's solicitor stating the mother's intention to divorce him. The father tore it up. The father told the children about this and argued with the mother. The mother called the police as she was worried the situation would get out of hand. The father questioned B and A about who they wanted to live with and he called the police alleging the mother was abusing A. The father barricaded himself and A in the kitchen. No charges were brought.

and

On 9 May 2009 the mother grabbed A roughly by his arm when he was sitting with and talking to the father leading the father to call the police because of concerns for the children's safety and the mother's aggressive behaviour.

115. The mother says that when the father received her solicitors' letter he took the children into the kitchen and told them to tell her that they did not want this. A said to her: "We don't want you to get unmarried". The father repeatedly asked the children to choose who they wanted to live with, although she begged him not to do so and told the children that they did not have to choose. She called the police.
116. The father took A into the kitchen. She said: "If you make him choose he'll never forgive himself". He grabbed A's arm, she told him to let go but he refused. She told me: "He looked coldly into my eyes, called the police and said: 'My wife is abusing my son'." A was saying: "You're hurting me" and the father said to the police: "Yes, she's abusing him, she's always doing it." The mother left the kitchen to call the police again. The father closed the door and put a chair against it. She entered the kitchen by another door, took the children and waited in the car for the police to arrive.
117. The father accepted that he was upset. He tore up the letter and told the children that their mother wanted a divorce and that they would be separate families and it was not their fault; he would not always be able to play with them. He thought he was being sensitive appropriate but later he realised how upset he was and that it was not appropriate to talk about the future with the children then. He says he did not ask A and B who they wanted to live with, or barricade himself and A in the kitchen. The mother was not in the kitchen so she could not have heard his conversation with them. He says that he was telling the truth about the mother hurting A. Her journal entry at p.8 of the diary is not an accurate account and was written with a view to furnishing incidents for her divorce petition, although he accepts that the divorce petition contains generalised allegations which he did not contest.
118. I have read the CRIS Report 2410438/09 [E23] and note that there is no reference to anyone hurting A's arm. The officers noted that the father had received a letter from his wife's solicitors about divorce which caused an argument between them in front of the children. There were no offences on police arrival. The mother left with the children to visit her parents for the weekend. This was described as "non-crime domestic" and there was no further action.
119. FINDING: I prefer the evidence of the mother to that of the father. I make the finding as sought in allegation 9 and I find that it was the father who grabbed A's arm. I do not make the finding sought in allegation 10.

Allegation 11 - Mother

In May 2009 the parties were discussing reconciliation. The father told the mother that if he wanted to do her harm, he would not be discussing reconciliation and would just break into the house at night and kill her and then have the children all to himself.

120. The father accepts that he said this; it was not a threat but was meant as reassurance which led to an improvement in their discussions. She says that she experienced it as a threat. She agreed to a reconciliation because she was weary, she was afraid of losing her children and her father's health was rapidly deteriorating, and it seemed to her that the alternative to a reconciliation was that the father might come in the night and kill her.

FINDING:

121. I can understand why the mother interpreted this as a threat, but I find that it was not intended as a threat.

Allegation 12 - Father

In July and August 2009 the Applicant verbally and psychologically abused the Respondent by calling him mad and saying that he needed psychiatric help, in front of the children.

122. The mother says that the father had been pushing C all week, which she said was abuse, and she told him that he needed to seek therapy as he had promised. His behaviour was not normal and she wanted him to get help so that they could have a normal family life. She may have called him "a madman" when they were on Cairngorm. [See Allegation 13] She accepts that on 5^th September 2009, following the father's inappropriate behaviour towards the children, she explained to them that he was ill and needed help but, in the circumstances, this was not verbal or psychological abuse.
123. I have noted that in September 2009, the father was referred by his GP to the practice counsellor who offered six sessions of counselling. He had told the mother that he was intelligent enough to work out what his problems were but he went to see the GP. After two sessions the counsellor reported to the GP that they had not been able to establish a working relationship. The father would benefit from seeing a counsellor as "he is certainly very unhappy with his life at present." [C2] The father told me that two sessions were sufficient to identify the problems (his marriage and his job) and solutions which he was going to work on. He had expected an overall strategy for the six sessions but that did not happen.

FINDING:

124. The mother accepts that at time she referred to the father as "mad" in the context of her concern about his behaviour, much of which he accepts was inappropriate. It is an unfortunate aspect of the breakdown of this marriage that both parents have, at times, used insulting and abusive terms about the other, sometimes in front of the children. I have noted social services' concern about the children's response to the acrimonious relationship between their parents. I do not propose to make a finding about any individual incident of this nature.

Allegation 13 - Mother

In August 2009 during a family holiday in Scotland, the father insisted that the family climb a mountain on foot despite the advice of the mountain rangers. 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.

125. I note that at this time the children were aged eight, five and three. This was a week's holiday following a reconciliation after the father had left for two weeks in May 2009. It is clear that the relationship between the parents was no better.
126. The mother says on the last day of their holiday in Scotland they agreed to climb Cairngorm. There are two routes; a zig-zag route which most people take, and a steep route known as "the windy ridge path" which is more scenic but also much more strenuous. The father insisted on taking the "windy ridge route", which was a tough rocky climb with no well-worn path. Throughout the week he had been telling C that if he did various things, e.g. go down a slide, swim without arm-bands, he would buy him a toy wolf.
127. The climb to the hill station where the cable car terminates and there is a shop and restaurant took between two and two and a half hours. She had done that part of the walk earlier in the week with A. She was walking and carrying C part of the way. They had a sandwich lunch sitting outside, during which the father offered C a sandwich and, when he did not respond, said: "I'm going to teach you a lesson, you are going to climb the mountain and you are not going to get the wolf."
128. The children did not want to climb to the summit and there were signs warning of wind-speeds of up to 70 mph, but the father said the children did not have a choice, just as they had no choice about the divorce. The mother recorded this in her diary:

"So now he was saying: 'Who decides what things we don't discuss with the children? Is it you or is it me?' I said: 'It's a reasonable man'. He said: 'You wouldn't know a reasonable man if he came up and slapped you in the face'. The kids were crying, I was saying ' I'm tired, I don't want to do it'. B was crying, they'd all grabbed hold of me. I was calling him a madman. He said I was unhinged."

She told me that the father dragged B off, crying, and she had to follow with A and C. When they reached the point where the last part of the climb evened out just before the summit he said they did not need to go any further but by then the children wanted to continue to the summit. He called A and B to be in the photograph but she had to ask him to allow C to be in the final photograph. They walked back to the hill station. The father was still saying that C could not have the toy wolf, so the mother said that she would buy it for him, instead of buying hot chocolate drinks for all the children. Eventually the father bought the wolf. He then would not allow them to take the cable car down from the hill station, although the children were very tired. He had brought T-shirts to put over the children's faces and gave them to A and B, but did not give C his T-shirt, nor would he give the mother her scarf until she had begged for it. All the way down when C asked to be carried or for chocolate, the father ignored him, but he gave chocolate to A and B. The mother said that the whole climb took six hours, including a stop for lunch. She accepts that, although it was an awful experience, the children did get to the summit and are now proud of their achievement.

129. The father said the whole family were eager to climb Cairngorm mountain. The rangers said that the route they had chosen was the most scenic but could be windy, however, it was not a windy day. They checked out of their hotel at round 11 a.m., he took the photos at the summit just before 2 and says that the whole walk took three and a half hours, with a break for lunch. They had taken the children on long walks in other parts of Scotland and on Dartmoor, and the children enjoyed the challenge. This was their longest walk. C wanted to go because he had been promised the wolf. The mother always argued against his plans because she wanted to be in control and wanted everything to be perfect. She put negativity into the children's minds and scared them. He did not drag B, he took her by the arm, as he often does when he wants the children to do something; she went along reluctantly. He had promised to buy C the wolf but then C started to misbehave by ignoring him at lunch and so he said that C could not have the wolf. He did not bully C or ignore him for the rest of the day. He accepts that he was unfair to C in comparison with is treatment of A and B. He did not accept that the children were tired and crying on the way down. They were quite able to continue to walk down. That was his judgment which, in retrospect, was correct because the children greatly enjoyed reaching the summit in the clouds and it remains one of their fondest memories.
130. I was referred to a document about Cairngorm printed from the "walkhighlands" website. It describes a different, circular route but there is some overlap between that and the windy ridge path. The family climbed the section described as "stage 6" which refers to a steeper section at the bottom of the path just above the bottom station. The father accepted that there was a steeper section just after the hill station. The route profile shows that the altitude rises from 600m to 1000m over a distance of 1.33kms but I am unable to comment on the gradient or its suitability for children of this age, save to say that the photographs indicate that some parts of the climb were quite steep in addition to the lowest section.
131. I was also referred to the photographs which the father took on the walk. I can see that there are paths, but the route is rocky. At E80 A and the mother look cold, C has his hood up. In some photos [E81, 83 and 84] the children look tired; in one B's hair suggests that it is windy. In the final photograph taken of the children on the summit they are smiling but A looks tired.

FINDING:

132. This was a challenging day at the end of a holiday when the parents' marriage was coming to an unpleasant end. The family could have reached the summit by the zig-zag route but the father wanted to take the more difficult route. He appears to have decided that this would be good for the children and that the end (reaching the summit by the difficult route) justified the means. Any concerns expressed by the mother were attributed to her negativity and wish to control: he did not consider that she might have genuine, justified concerns about the children's wishes and welfare.
133. I found the mother's evidence that the father said the children had no choice, just as they had no choice in relation to their parents' divorce convincing. I find that he was imposing his will and controlling the situation as he had not been able to do in relation to the divorce. In the process he was unfair and unkind to C; ignoring the child and his requests for assistance/chocolate was an unreasonable punishment in circumstances that did not justify any kind of punishment.
134. I do not know whether the rangers had specifically advised against taking this route with the children.
135. I make the finding in the following terms: In August 2009 during a family holiday in Scotland, 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.

Allegation 14 - Mother

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. The father desisted when the mother threatened to call the police.

136. I have noted that the mother had said that the father needed psychiatric help before there could be any reconciliation. He told me that he cannot remember what he said on this occasion but it is possible that he said what the mother. I note that she recorded in her diary that she had said to the father that he was not a bad father, at least not to B and A, although he did treat C badly sometimes. [Diary at p.20]

FINDING:

137. I make the finding as sought.

Allegation 15 - Mother

In late 2009, when B did not answer the father's call for breakfast, he dragged her downstairs by her arm in a manner which resulted in her head accidentally being banged against the banister.

138. A was four years old at the time. The mother says that she was upstairs in her bedroom and saw what happened. The father called the children down to breakfast, B was re-arranging her toys and did not go down. He got cross and came upstairs. He picked B up by one arm, something he used to do in play, and then he pulled her by the arm and she accidentally hit her head on the bannister. It did not require a visit to the hospital. She cried because of the pain both to her head and her shoulder.
139. The father says that this occurred in 2008, so B would have been four. He pulled her up by the arm gently intending to carry her downstairs and she banged her head accidentally. He then carried her downstairs to breakfast, he did not drag her down the stairs - if he had she would have been banged on every step. He said that B remembers the bang on her head, but does not remember being dragged down the stairs.

FINDING:

140. If the father had dragged B down the stairs as suggested it seems to me that there would have been more damage than an accidental bang on the head, justifying a visit to hospital. I make a finding in the following terms: In 2008 or 2009, when B did not answer the father's call for breakfast, he dragged her up by her arm in a manner which resulted in her head accidentally being banged against the bannister.

Allegation 16 - Mother and Allegation 17 - Father

On 13-14.12.09 the father's family attended the home at the mother's request. The mother called the police about the father's behaviour. When the father's family were leaving, the mother ran upstairs into the bedroom out of fear. The father followed the mother and tried to shut the door on her, whilst she tried to keep the door open. The father reached through the gap and started to squeeze the mother's throat with his hand. The mother tried to pull the father's hand away and screamed for help. The police attended and the parties made counter allegations. No charges were brought.

And

On 13 December 2009 the father went into the bedroom where the children were sleeping and the mother forced open the door and grabbed the father, leaving marks. The father called the police during this attack.

141. The mother says that during the day on 13^th December 2009 the father went with her and the children to visit her family in Colchester. They had an argument on the return journey and she suggested that they divorce. He took her car keys and said that he had cancelled her driving insurance.
142. On their return home she became nervous and called her brother-in-law, the father's brother, and asked him to come to their home. Late in the evening the father's brother arrived with his mother and his brother-in-law. The father was then upstairs and refused to come down. She later discovered that he had emptied their joint account. The family suggested that the paternal grandmother should stay, but she said that she could not help the mother if something happened and she should call the police.
143. The father came down and agreed to talk to his family for 10 minutes in the kitchen, he set the timer on the oven. He told his family that the mother was a danger to the children. They said that was not correct and reminded him that he had just been away on Hajj for two weeks, leaving the children in their mother's care. He said that she had the advantage and he needed to get the advantage back. When the 10 minutes were up the father said: "You go, I'll deal with her". The family started to leave, although she was crying and begging them to stay.
144. The mother told me that she was terrified and made a dash upstairs where the children were asleep as was the safest place for her to be. She was worried that the father would take the children because he had taken her car keys. He came after her, got past her at the bend on the staircase and got into the bedroom where the children were sleeping and tried to close the door on her, but she managed to prevent this by wedging herself in the doorway with her back to the door. She accepted that she could have scratched his arm in the process. She was trying to prevent the children from being locked in the room with their father.
145. The mother told me that the father grabbed her by the throat and started squeezing. She can remember his hand on her throat and thinking: "Am I going to get out of this?" She shouted and the father's brother came up the stairs. The father took his hand off her throat and put it on the door frame. The father's brother saw his hand on her throat but told her he would not give evidence against his brother. She did not think that there were any marks on her neck but no one checked.
146. She took out her phone, intending to call the police, but the father took it from her. She had concealed a second phone in her bra and the father looked shocked when she took this out. She used it to call the police but they arrived immediately. She did not know that the father had called the police. When the police arrived the father's brother was half-way up the stairs. The father climbed into bed with the children and said to the officers: "Look, I'm just trying to sleep with my children, she's the aggressor."
147. The father says that his family were not leaving, they had agreed to stay until the police came, which they did. The mother was not scared of him; she tends to make a fuss and pretends to be concerned but she is an overpowering personality. She did not run upstairs out of fear; she could have stayed downstairs or left the house with the other adults if they were leaving. His family were not there at his invitation and he did set the timer for 10 minutes and ask them to leave. He went upstairs first and into the bedroom. She followed him, forced her way into the room and attacked him. He had scratches on his arm and hand which he showed the police. He pushed her away with his hand and called the police. He did not squeeze her throat. He grabbed the phone from her and called the police and then returned the phone to her. She was in the doorway trying to get into the room. He pushed her back with his hand just below her neck. She did shout. He did not try to strangle her, there were no marks on her neck. The whole incident lasted about a minute. Her brother-in-law did not see anything, but he did say that whatever happened he would not give evidence against his brother.
148. I have read the CRIS report no. 2429382/09 [E42]. The police received a call from the mother at 00.50 and a second call at 01.14 and were inside the house within 30 seconds of that second call. They found the father's family present downstairs, the mother in her bedroom, the father in the bedroom with the three children. There was no sign of a disturbance and the parties were calm. They spoke to the father's brother who said that no assault had taken place. The police officer noted:

"believed that mother was scared of how her husband would react and speaking to him he is a very controlling person and I believe that he was trying to influence a custody battle for the children; he was more interested in making the point that he is a solicitor than in discussing what had happened. (His) family were more supportive of mother than of father, which compounded our belief that he was trying to turn her into an aggressor after discovering that she had called the police." [E45]

The officer also noted that the mother had told them that he had said he would fight her for custody even if he had to play dirty. [E46]

FINDING

149. I accept that the mother was afraid. The suggestion that she pretended to be afraid, after the incident on 23^rd February 2009 (allegation 5) and all the arguments between them throughout the years, strikes me as disingenuous. The father's family clearly took her concerns seriously as three of them came to the house late in the evening. The father's brother-in-law gave evidence that he had told the mother that he was always available if things got out of hand. He told me she had asked him not to leave and she was anxious and looked disturbed.
150. In the circumstances the mother's claim that she was frightened for herself, that the safest place to be was with the children, and that she feared that the father might remove the children, is persuasive.
151. The father has given no reason for going up to the children's room before the mother went up the stairs. No one has suggested that the children were awake or aware of what was going and they seemed to have been able to sleep without a parent in the bed.
152. I have considered the evidence of the father's brother-in-law and have taken into account his experience and his work with public bodies, charities and tribunals (of which he has provided detail). It is clear that he tried to keep this family together because he believes that that is in the children's best interests. It is an important part of his culture. I accept that he cares about the children and their mother. He gave her shelter in the past and offered her his continuing friendship from the witness box. I believe that the father's brother-in-law gave evidence to assist the court. However, I have come to the conclusion that the father's brother-in-law is mistaken when he says that the father went upstairs before the mother. There were other points on which he was not clear or which he could not remember. The mother gave good reasons for her decision to go upstairs as the father's brother-in-law and the other family members were leaving, which is what he says they were doing, albeit slowly. There was no particular reason why the father needed should go into the room where the children were sleeping.
153. I find the mother's account of this entire incident persuasive. The door may well have scratched the father's arms arm as she wedged herself in the doorway. He accepts that he pushed her away with his hand just below her neck and that she did shout. There may not have been any marks on her neck if he reached through the doorway and squeezed her throat briefly before she shouted and his brother appeared.

FINDING:

154. I make the finding in these terms: on the night of 13^th-14^th December 2009 the father's family attended the home at the mother's request. The mother called the police about the father's behaviour. When the father's family were leaving she ran upstairs into the bedroom out of fear. The father followed the mother 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. She shouted for help. The father's brother came up the stairs and saw the father's hand on her throat. He declined to give evidence against the father. The police attended. No charges were brought.

Allegation 18 - Mother

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.

155. The mother said she did not know how this conversation started. She was aware that one of C's cousins had an extra digit on her hand, and that it had been removed. There was a knife and although it was a joke it was horrible and C was scared. The father told her that once he had started he had to see it through.
156. The father said this happened in 2010 when C was four or five and followed on a discussion about his cousin who had been born with an extra finger which had been cut off. At that time C would often say: "I'll kill you" and the father tried to play along with him and got it wrong. There was no knife involved. He does not remember there being a chopping board. C was aware that this was said as a joke it was one of the surreal sequences that they shared as jokes. He knew that his father would not chop off his finger because he does not have an extra finger and therefore he was not scared. The father said that he would not do it again and he denied having said that once he started he would see it through.

FINDING:

157. As sought.

Allegation 19 - Mother

In November 2011 the father told the children they behaved so badly they made him wish he was dead. He then said to B that he would not kill himself as it was against the rules of Islam but that he went to work and everyone hates him, and that he did not expect to come home to find his children hate him as well.

158. The father says that he was unhappy and stressed at work, and he expected the children, as a matter of courtesy, to greet him when he returned from work. He did not tell them that they had behaved badly because they are very well behaved, but he asked them to show him a little more affection as they used to do because they are all he lives for and he had had a very hard and stressful time at work. He inadvertently used the phrase: "I wish I was dead" which he immediately apologised for. He did not make any reference to the children hating him.

FINDING:

159. In November 2011 the father told the children that they should greet him when he returned from work where he was unhappy and stressed and that he wished he were dead. He told B that he would not kill himself as it is against the rules of Islam.

Allegation 20 - Mother

On 16 or 17 May 2012, the father followed B to the toilet in the middle of the night and insisted she go to his room to talk about their 'problems'. B was crying and said he kept her there for an hour. She came back to the mother's room.

160. The mother says that from September 2011 (when the father returned to live in the family home) he thought there was a problem in his relationship with B. She was then eight years old and did not want to cuddle him as much as she used to. The mother thought she was growing up and therefore suggested that the father should be gentle and not push her. By May 2012 there was a problem because B was not keen to be left alone with him. The mother said that B and C used to come into her bed at night as they still do and the father would try to persuade them to go into his bed instead. B told her that on this evening she woke up and wanted to come to her mother but she could not tell her father that so instead she said that she wanted to go to the toilet. The father said that they had to sort things out.
161. The father accepted his. He said that B had agreed to sleep in his bed that night and he talked to her only for about 20 minutes and then she fell asleep, and when she woke up again later she went to her mother's bed. He was upset that B was not as affectionate as she had been, and was desperately trying to improve the situation. He now understands that this was because of the tension between the mother and him, and that his efforts to mend his relationship with B were mistaken. Since he and the mother separated his relationship with B has been repaired.
162. I have seen a note made by Karen Malyali, the Child Protection Officer at B's primary school. She said that having spoken to the mother on 12^th June 2012, she spoke to B who said she did not want to say anything against her father but she did not want to go into his bed, she felt frightened. The mother was sure that there was nothing sexual behind the requests. [E78]

FINDING:

163. On 16^th or 17^th 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. She came back to her mother's room.

Allegation 21 - Mother

In May 2012 the father told B and C that they must keep any conversations had between them and their father a secret from their mother.

164. The father accepts this.

FINDING:

165. I make the finding in the terms sought.

Allegation 22 - Mother

On 16 June 2012 the father called B an 'ugly loser'.

166. The father says B had been calling C 'a loser', C was very upset, and he was trying to protect him. The father had been drafting a number of phrases for a novel he was writing, such as "ugly little loser" and "dirty little freak", and he used this phrase without realising it. When the children told him the following day that he had said this, he apologised. He told me that his behaviour was unjustifiable. Normally he calls B his "pretty little baby daughter".
167. The father also told me that the word "loser" is very much part of B's vocabulary. On the previous Friday she had written the word in permanent marker on his back and made him let her take a photograph of it to show her friends. He appreciates that the children want to have fun and he plays along with it.

FINDING:

168. I make the finding in the terms sought.

Allegation 23 - Mother

On various occasions the father verbally abused and belittled the mother. He has told her she is 'fat' and 'ugly'.

The father has also said, sometimes in front of the children, that the mother 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]".

169. The mother says that the father regularly called her these names, including during the holiday in Scotland in 2009. He also called her "evil" in front of her mother at Christmas 2011. When he told her that she would die sad and alone, A was seven or eight, and B was five, and they were upset and came to cuddle her.
170. The father said this happened in the course of arguments in May 2009 when the marriage had broken down. The comments were not intended to undermine her, they were not directed at the children, but they heard and that was wrong.
171. On one occasion, in May 2009, he said that the mother would die sad and alone like her maternal grandmother, because her controlling behaviour would end up alienating her children, not because they would hate her. It was an inappropriate comment to make in front of the children.

FINDING:

172. I make the finding in the terms sought.

Allegation 24 - Mother

On various occasions the father threatened the mother by waving a hot iron or a knife at her, saying: "I'm the one with the hot iron" or "I'm the one holding the knife".

173. The mother said this happened on various occasions prior to 2009. She described it as a very historic allegation referring to various warnings to her given before and after the children were born. She could not remember the last time it happened but it has not happened since February 2009. She told no one about it at the time as she did not then have permission to talk about what was happening within her marriage.
174. The father denies the allegation.

FINDING:

175. These allegations are historic on the mother's own account, and vague. The evidence does not support the making of a finding.

Allegation 25 - Father

On 23 September 2012 and other occasions in the presence of B the mother said to father: "You're completely mad, you're absolutely insane. You need help". Mother has often similarly abused father in this manner.

176. I have considered this incident at some length. The mother says that the recording does not capture the whole conversation, but she does consider that some of the father's behaviour is not normal and she really wanted him to get help. In the heat of some arguments she may have said that he was mad, but it was not abuse, it was not calculated.

FINDING:

177. On 23^rd 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.

Allegations 26-32 (consolidated) - Mother

On a number of occasions between 31.10.12 and 28.12.12 the father accepts that he entered the former matrimonial home when collecting the children for contact. The mother says he did so in breach of the undertaking he gave on 25^th October 2012.

On entering the home he:

wandered around

removed papers

ignored the mother's protests that he should not be in the home

shouted at her in front of the children

The father's behaviour caused the mother to be harassed and intimidated and the children to be distressed to witness his behaviour.

The father admits that he entered the former matrimonial home but says it was for the purpose of facilitating contact handovers.

178. I am considering these allegations together with the father's allegations numbered A33-42, which also arise out of the parties' different understanding of the meaning and ambit of his undertaking.

Allegations 33 - 42 - Father

On 28 December 2012 in the presence of the children the mother said to the children "He forced his way into the house guys" when he had not.

In the presence of the children the mother said to the father as he was walking up the stairs in the former matrimonial home "You're breaking the court order", when she knew he was not.

The mother:

asked the children "Who made the scene?" [35]

said to the children they should act as witnesses to disputes between her and the father despite the clear recommendation of CAMHS. [36]

said in the presence of the children: "You forced your way into the house when you're not allowed to. Everyone in that court told you not to do it". [37]

said in the presence of the children: "You forced your way into my house". [38]

mentioned the non-molestation order in the presence of the children. [39]

asked the children how many times the father had twirled his index finger at the side of his head, thus asking them to take her side in a dispute with the children [40] and suggesting that he had abused her by making an insinuation as to her mental condition. [41]

stopped A from speaking to the father and suggested to the children that the father was not sufficiently involved in their care to be worthy of being informed of a treatment that the children were having in respect of their head lice infestation. [42]

All the above are emotional abuse of the children.

179. As allegation 45 also relates to an incident at handover for contact, I will consider it with other similar matters.

Allegation 45 - Mother

On 11.01.13 during handover the mother sent the children outside when she saw the father approaching the house to prevent his attempt to gain access to the former matrimonial home. Requests were made by the father via the children for additional clothing.

On 12^th January 2013 B returned from contact and told the mother whilst she was fetching their clothing and they were outside the father had recorded a conversation with them and said something like "Your mother is not letting us into the house and it is so cold out here, doesn't it bother you that she is making you stay out in the cold? And also "I mind because you will all get ill because your mother has made us stay out in the cold."

A said that on Friday 11.01.13 she tried to listen to the recordings on the phone and told her mother there were a lot of them and one of them was called "Court".

180. I have considered what the mother and the father thought was the legal position following the hearing on 25^th October 2012. Her understanding was that the father would come to the house to collect the children but not into the house. The children were usually ready and if they were not quite ready he should wait outside. The father says that he thought he was entitled to come into the family home to ensure the children had everything they needed, and he asserts that the mother knew that the court order allowed him to enter the family home to facilitate handovers for contact. There had been no objection to his retaining his keys to the house. When he came to the house he rang the doorbell before opening the door, and he also took the opportunity to pick up his post without asking the mother's permission and without her objecting. He considers that:

"Her unjustifiable attempt to control my entry to the former matrimonial home follows her pattern of abusive controlling behaviour throughout our marriage and is another example of the domestic abuse for which she needs help and from which the children need protection." [C109/19]

181. I have set out the history of the mother's Family Law Act application and the father's undertaking, and I have noted that he moved out of the family home on 30^th October 2012.
182. On 31^st October 2012 the father came to the house with his two nieces. The mother let them in, they waited briefly in the entrance hall before "we all left together for C's Halloween birthday party".[C96/11] Although the mother did not object to the father's presence on this occasion this incident was included in her schedule because she considered that he had entered the home in breach of his undertaking.
183. On 2^nd November 2012 the father let himself in with his key, wandered around the house, including the kitchen, and made the mother feel uncomfortable. She did not say anything that might lead to conflict. He says that she did not object and the children were happy and relaxed. He may have been there for about 10 minutes. This was the beginning of a new arrangement, the children were getting used to thinking about what they needed, they ran around getting their stuff, he waited calmly, sat in the kitchen or strolled up and down the hallway talking to the children. The mother told me that at the appointment on 7^th November 2012 in the ancillary relief proceedings her counsel had raised this with the father's counsel and made it clear that his coming into the home was unacceptable. [B29/13]
184. On 9^th November 2012 the father entered the family home while the door was open, despite the mother requesting that he not do so. He went upstairs to the study and removed a large pile of papers; he prevented her from checking whether any of the papers were hers and said that she would have to make an application to the court. The father says the children were not ready. She did not object to his being in the house until he went upstairs which he did because he needed a camera charger for C. He did not find the camera charger but, in the process, he decided to remove some of his papers and took a pile of personal papers downstairs. He objected to the mother going through them. He said he had been upstairs in the house on previous occasions to take pillows and a duvet for the children who were staying overnight, and some of his clothes and the mother had not objected.
185. On 16^th November 2012 the mother's solicitors wrote to the father about the incident on 9^th November. With regard to financial matters they requested the immediate return of any documents belonging to her, lists of the documents removed and an opportunity for her to examine them. They objected to his purchase of a new car, television, DVD player and printer without notifying the mother, his counsel or the court, and required an undertaking that he would not further deplete the matrimonial funds.
186. With regard to the Family Law Act and Children Act matters, the solicitors asserted: "You are not permitted to enter the former matrimonial home", [D2] and that his breach of his undertaking given on 25^th October 2012 would be raised at the hearing on 21^st November. They raised issues about telephone calls, allowing the children to watch age inappropriate films, and returning them late after contact. They noted that, as a lawyer, he is obliged to act in an honourable manner at all times and that he should take their letter seriously and provide further undertakings.
187. Also on 16^th November, when the father went to collect the children for contact they arrived home a few minutes late with their mother, he tried to enter the home but she refused him access. B tried to give her mother a goodbye hug but her father pulled her away.
188. The father said that the mother stood in the doorway shouting: "You're not coming in here, you don't have my written permission". B was upset and cuddling her mother; A had a piano lesson at 4.30 p.m. so he told B to hurry up and said that it was time for her to spend time with her father. He left B to calm down, took A and C to the piano lesson and returned to collect B at 5 o'clock without problems.
189. On 21^st November 2012 the father wrote to the mother's solicitors. He disputed their interpretation of his undertaking. He said if it had been the intention of the court that he should not enter the former matrimonial home at all during handover, the words: "save for the purposes of facilitating contact handovers between himself and the children" would not have been included. He noted that the mother had not objected to his entering the house on 31^st October, 2^nd November or 9^th November, and on 9^th November only objected when he went upstairs. He considered his objection to his entering the home "groundless and unreasonable". It was reasonable for him to enter "to ensure the children have everything they need". [D4] In the father's view his "strongly worded" letter to the mother's solicitors seemed to resolve the issue particularly because the solicitors did not reply.
190. The father accepted that at the hearing on 21^st November 2011 the mother made it clear that she did not want him to enter the house and he therefore agreed to remain in the hallway, but he did not agree not to enter the house. On 23^rd November he let himself in when the children did not answer the door quickly. On 30^th November, he entered the house when A opened the door, remained in the hallway for a short time and left with the children.
191. On 14^th December the father entered the house and remained in the hallway because the mother blocked his way.
192. On 24^th December the father sent the mother his witness statement in these proceedings ostensibly because her solicitors' office was closed until the New Year, and also forwarded to her his email to her solicitors dated 21^st December in which he suggested that a fact finding hearing could be avoided if she admitted that she had abused him on 23^rd September 2012 and that her abuse of him had been responsible for aspects of his behaviour which she considers inappropriate. He suggested that if the fact finding hearing went ahead the court would find that she "is an abuser and a potential risk to the children" and that would be likely to alter significantly CAFCASS' recommendations with regard to contact and residence. [B83]
193. On 25^th December 2012 the father sent the mother on Christmas morning as she was opening presents with the children. It made her cry in front of them. She had been upset by the witness statement which she had received and the children may have heard her saying to her mother: he is telling me to admit being an abuser. The father explained to me that he wanted the mother to reflect on the words of the Archbishop of Canterbury in his Christmas Sermon, to the effect that she should look into herself and ask herself difficult questions. He thought this might lead her to draw a line and move on. He was trying to persuade her that they were both at fault, that a fact finding hearing was unnecessary, it would build up acrimony, they should agree to a shared residence order and move on. It is perhaps not surprising that the mother did not want the father to come into the house when he collected the children on 28^th December 2012.
194. I note that before the father collected the children at 4 o'clock on 28^th December he had contacted A and B to check what time he should collect them. There had been an argument about the fact that the mother was treating the children for head lice without consulting him. I indicated in the course of the hearing that, in my view, a parent does not need permission to treat the children for something as common as head lice and I wanted to hear no more about it. I do not make the finding set out in allegation 42.
195. The mother told me that she made sure the children were ready on time, they were sitting in their coats in the front room with their bags packed waiting for their father. When she opened the door he pushed past her. She told him the children were ready, and when she asked him to leave he said: "Make me". He shouted in her face: "You're making a scene" and said that he was facilitating contact. He rifled through the children's bags. She pointed out that there is a non-molestation order, and said to the children: "You can see who's making a scene". She told him to get out of her house. He called her a liar and an abuser in front of the children. She felt goaded into reaction and she did twirl her finger to indicate that the father had called her "mad". The children giggled at this. She said the children were ready to go and if the father had left with them none of this would have happened. She accepts that she should not have shouted, it was not good for the children.
196. The father made reference to the incident on 23^rd September 2012 and said that she had lied about it in her account. She then got drawn into an argument with him about the fact that he had lied when he claimed that A's favourite bedtime game was to have the duvet pulled tightly over his face. The father eventually left with the children, stating: "Come on kids, let's leave this abuser to herself."
197. The father told me he did not understand why the mother arbitrarily decided that he could not come into the house, although he knew that she did not want him there. In his view she was annoyed that he had filed a witness statement setting out her abuse and decided to block his entry and make a big scene. If there was an issue about whether he was or was not allowed into the house she should have made an application to the court. He squeezed past her, the children were not in the hallway ready to leave. He had asked A to bring batteries, which he could not find so he went upstairs to the study to look for them. He did not yell at the mother but she yelled at him, she was aggressive and bullying. The children did not giggle when she twirled her finger at the side of her forehead, they were shocked and speechless.
198. On 31^st December 2012 the father wrote to the mother's solicitors indicating that she must make an application on notice to vary the non-molestation order, that he would contest any such application and seek to have the order discharged. He described her as an abuser who has refused to admit or take any responsibility for her actions and is a danger to her children. [D10]
199. On 7^th January 2013 the mother's new solicitors wrote to him asserting that his entering the family home was a breach of the non-molestation order for which he would have been arrested if she had called the police, but she had chosen not to do so out of consideration for his profession and because she did not want the children to witness his arrest. They were instructed to issue an application to vary the non-molestation order to prevent him from coming within 250 metres of the family home.
200. The mother says that she felt intimidated when the father came into her home, and that it made the children nervous because they knew there could be an argument.
201. The father says that when he first attended to collect the children she did not object to his going into the house and the suggestion that she was intimidated is a fabrication. In a letter to her solicitors dated 31^st December he reiterated that the court order allowed him to enter the family home at handover, for contact. I have noted that at the hearing on 18^th February 2013 District Judge Marin made it very clear to the father that he should not enter the family home and recorded in his order the father's agreement to remain in his car when he collected or returned the children for contact. Since that hearing the mother says that the father has not entered the family home, but on 22^nd February, 3^rd March, 29^th March and 12^th April, he came to the door and stood on the threshold, although he had agreed to remain in his car.
202. As regards the incident, which is the basis of allegation 45 the father agreed that this occurred. He made a comment about the mother not letting the children into the house to collect their clothes. He did not make a recording.

Discussion

203. There are two orders regulating the father's behaviour. The non-molestation order made on 18^th May 2012 and the order of 25^th October 2012 which recites his undertaking. That was amended on 21^st November 2012 when the father agreed not to go beyond the entrance hall of the home when he collected the children, and further amended on 18^th February 2013 by the order which recites his agreement not to leave the car when he was dropping the children off. The parents understood the effect of his undertaking differently. She considered that he was not entitled to enter the family home without her prior written consent. He says he thought the order said that he could enter the family home to facilitate contact with the children. The mother accepts (in counsel's submissions) that the father's undertaking did not say that he could not enter the family home and therefore technically he was not in breach of it.
204. The history of these proceedings shows that by 21^st November 2012, at the latest, the father knew that the mother did not want him to enter the family home. The District Judge did not have an application before him and the father was only prepared to offer to go no further than the entrance hall. It seems to me that he was asserting his right to be in the family home, even if only symbolically. The mother should have made an immediate application and asked for it to be heard on short notice. The application was not made until 24^th January 2013.

FINDING:

Allegations 26 - 32

205. Ms Taylor for the mother has conceded that in entering the family home between 31^st October and 28^th December 2012 the father was not in breach of the undertaking he gave on 25^th October 2012. The mother was irritated and annoyed, because she understood that the father should not enter the family home without her permission but I find that this was not harassment or intimidation and did not constitute a breach of the non-molestation injunction.

Allegations 33 - 42

206. As to the incident on 28^th December 2012, I agree with the mother that this would not have happened if the father had not insisted on entering the family home. I accept that she had got the children ready precisely because she did not want him to do so. It is most unfortunate that the children had to witness such an unpleasant scene. I make no further findings in respect of the father's allegations.

Allegation 45

207. On 11^th January 2013 during handover the mother sent the children outside when she saw the father approaching the house to prevent his attempt to gain access to the former matrimonial home. Requests were made by the father via the children for additional clothing. The father accepts that while the mother was fetching the clothing and the father and the children were outside he said something like "Your mother is not letting us into the house and it is so cold out here, doesn't it bother you that she is making you stay out in the cold? And also "I mind because you will all get ill because your mother has made us stay out in the cold." He intended to record the conversation on 13^th January 2013, but he did not know whether he had done so.

Allegation 43 - Father

On 25^th December 2012 the mother told A and B that the father would always win because he would lie to the court and get away with it, thus emotionally abusing the children.

208. The mother denies this allegation. I have noted that on Christmas Eve the father had sent her his witness statement because, he said, her solicitor's office was closed until 2^nd January. As a solicitor, he knew that he should not send documents to the mother when she was legally represented, and there was no reason for him to do so. I have also noted the message which she received from him on Christmas Day morning, and her response to that.
209. On their return from contact on 29^th December A and B told their mother that the father had said he had wanted to ruin their mother's Christmas, and they would definitely spend next Christmas with him because he would win in court because he tells the truth. The children were upset by this and B said that she had responded that her mother thinks he lies.
210. The father has explained his reasons for sending the text to the mother on Christmas Day morning as his attempt to persuade her to agree to a shared residence order. He said that on Christmas day he called or 'face-timed' the children two or three times for 10 to 15 minutes each time because he, his sister and their cousins wanted to speak to them. He did not see why this was unreasonable on Christmas Day. I did wonder whether he would be happy if the mother were to do that on the first day of Eid. He said the children told him that the mother said that he would lie in court and get away with it and he was very upset. He told them that, if anything, she had lied about what she had said to him on 23^rd September 2012. He told them this because he had to defend himself, and also that as they had spent Christmas with the mother, they would spend the following Christmas with him because that is the way it usually works.

FINDING:

211. I do not accept the father's evidence. I do not make this finding.

Allegation 44 - Mother

Following various occasions when the father has used A as a conduit to try and negotiate greater contact, A told the mother on 29.12.12 that he was fed up with being a messenger for his father. A said that his father said that he had to be the messenger because the mother is a liar and an abuser. A was very upset and asked his mother if there was someone at court he would be allowed to talk to, to stop him being put in this position.

212. The father accepts that A said that he was fed up being used as a messenger. He says that he had said that the mother shouts at him but he did not say that she was an abuser; he had not used this phrase to the children.

FINDING:

213. It is accepted that A did not want to carry messages between his parents, and he should not have been used in this way. I find on the balance of probabilities that the father did say that the mother was a liar and an abuser; that has been his position throughout this litigation, that is what he thought he had proved on 23^rd September 2012 by provoking an argument with her and recording it, and he accepts that he told the children about that.

Allegation 46 - Mother

On 13.01.13 the father began calling the children's mobiles at 7.15 p.m. There were 5 missed calls on A's phone and 3 missed calls on B's phone. The children were having dinner and watching a film. B answered the next call from her father and during the course of which she was being asked to state what she was doing, what time it was and what time she went to bed. The father then asked to speak to A, during the course of the conversation the father made several attempts to get A to state the time. It became apparent to the mother that the father was recording his conversations with the children and the mother terminated the phone call.

214. The mother complains that the father calls too frequently and too late and she therefore turns the children's mobile phones off at 7.30 p.m. and does not answer when he calls her. He is frustrated that he cannot talk to the children as often as he would like, and that they often do not answer when he calls at earlier times. He said that he prevents the children from calling their mother when they are with him. [C99/23] I listened to the recording on the father's Blackberry of a conversation he had, mostly with C, on 8^th January 2013. He was asking the child questions about his first day back at school. There was no reference to bedtimes or other times. He told C that he had bought him some swimming goggles. He complained that A did not answer his phone. He checked whether C had his phone with him. He had a quick word with B.
215. The father told me that he recorded conversations with the children because the mother was saying that he called late and upset them, and he wanted to be able to prove that he had called at a stated time, spoken to the children and they were not upset. He was collecting evidence. It seems, the parties have agreed that the father will phone the children twice a week, or contact them on face time, and that they can call him whenever they like. I will make no finding, but I would add that the children should be able to call their mother if they wish when they are with their father.

FINDING:

216. This matter does not require a finding.

Allegations 47-50 - Father

217. The father's sister had arranged a birthday party for her eight year old daughter.

On Saturday, 19^th January 2013 the mother sent a text message to the father saying "I made the exception for the birthday. If they stay today then I won't make an exception for her next party" which is punishing the children for using their voices and is emotional abuse of the children.

The mother questioned A about his desire to spend time with the father and tried to make him feel guilty and/or uncomfortable for doing so which is emotional abuse of the children and is a breach of the undertaking that she gave to the court to encourage the children to spend more time with the father. [48]

On Saturday, 19^th January 2013 the mother questioned C inappropriately about why he wanted to spend more time with the father. [49]

On Saturday, 19^th January 2013 the mother argued with A and belittled his use of logic and reason and made him feel uncomfortable about spending time with the father and tried to make him and C return to the former matrimonial home earlier than they had to for no logical reason. [50]

218. On 16^th January 2013 the mother's solicitors wrote to the father about contact on 19^th January. She was aware of the birthday party and noted that the children should be returned by 7 p.m. but, as a goodwill gesture, she agreed that they could stay at the party until 9 p.m. when she would collect them from his sister's home; this was not a general derogation from the court order. On 18^th January her solicitors clarified that B would attend her friend's party at 6 o'clock and the mother would collect her just after 9 p.m.
219. The birthday party was cancelled because of the snow, so on the morning of 19^th January the mother sent a text to the father asking him to return the children at 7 p.m. He ignored the text, but at 6.47pm sent her a text stating that he was not going to return the children until 8.30 p.m. She telephoned A to make sure that he was content to stay and then agreed to this. At 8.40 p.m. on the father's instruction, A telephoned her and told her they had not left and C did not want to leave because he was making a video with his cousins. This was the first she had heard of the video. She did not bully or quiz C, she told him it was late and time to come home. She did not belittle A's suggestion that their father should drop them back later, but said that she did not think it would work. When she called the father at about 9 o'clock he refused to tell her where he and the children were and hung up. She eventually secured the return of the children to her care by driving to Hendon and collecting them from a BP garage at 9.05 p.m.
220. The father took the CAMHS' recommendation that the children learn to use their voices out of context; as I have noted this advice referred to the children learning to use their voices against him. Overall, she does not agree that the children should decide when they go to bed. They go to bed at 11p.m. on Fridays when they are staying with their father, and C is only seven.
221. The father says that there was a smaller party, they were making a video and the children wanted to stay. The mother was unreasonable and, in particular, emotionally abused A.

FINDING:

222. The mother was flexible about the children's return time when she was told that there was going to be a family party. When it was cancelled she wanted to revert to the arrangement set out in the agreed order. She had made it clear at the hearing before District Judge Marin on 21^st November 2012 that she sought a variation of the contact order so that she would have some Saturday evenings with the children, but the father would not agree to this. He had shown no flexibility, he had not complied with the order to return the children by 7pm. In the circumstances it is not surprising that the mother was less generous than she might otherwise have been. In my view, the father has done little to build a relationship of trust with the mother which is essential for a flexible approach to contact arrangements. There is no "give and take". He suggests that the weekend arrangements should change to fit in with his family's plans. I do not make the findings sought.

Allegation 51

On 30^th March 2013 the father took A to the police station in order that A could report to the police that on 28.3.13 mother had driven him in the car without a seatbelt. This caused all three children to be anxious and upset, resulting in them crying. The children also worried that the mother would be arrested as a consequence.

223. The mother accepts that on 28^th March 2013 she drove A without a seatbelt. She told me that they were going to the cinema with some other children, there were not enough seatbelts for all of them and it had been agreed that A would walk and meet them there, but they left late and A travelled in the car without a seatbelt. The drive took three to five minutes. After the film A walked home. She discussed with him crossing the major road near the cinema. She watched him walk past three youths safely, it was a 20 minute walk. She says that she is safety conscious; her father was a road safety officer. Recently C told her that when he was collected for contact by the paternal grandfather he had his four year old cousin on his lap because the seatbelt was not working.
224. On 30^th March the father had taken the children to his sister's home in Farnham. They left late and he dropped B and C home at 8.30 pm. They were half asleep and went straight up to bed. C was lying on the bed crying because he was worried about A. The children told her that when they got in the car at the beginning of the return journey, (which took an hour and ten minutes) the father told them that he was going to take A to the police station. She tried to call him and A but their phones were switched off. She called her solicitor and the police. The father called her and left a message to the effect that he was taking A to the police station to report a crime that she had committed. When A came home the police were at her home. She did not question him because he had been through an ordeal. Later he told her that he had been worried about how she would feel.
225. The father told me that he was devastated when he found out that the mother had carried A in the car without a seatbelt because of the road traffic accident in which his brother and a friend had died. A told him that he did not want to get in the car and was worried about it, but his mother had persuaded him. He felt powerless to protect A. He reported it to the police so that it was on record and A's safety could not be ignored. He did not think that the police would arrest the mother and told A so. The children were not upset and crying on the car journey home. He dropped B and C off at home and told them to tell their mother where he was taking A. At the police station the officer said that it was potentially distressing to bring A to the police station but if he had not done so they would not have believed him, so on balance he considers it was the right thing to do.
226. Mrs. Lemonides wrote to the court to express her concern about the father's disregard of the contact order in relation to time-keeping. She had highlighted his lateness in her report dated 25^th March 2013 as causing the children distress.
227. She noted in particular that if it is true that the father took A to the police station to report the matter of the seta-belt, this was inappropriate and likely to have been experienced by the children as a distressing and stressful event. Under the heading: " Features that exacerbate risk" she notes that these children are most at risk of being exposed to emotional harm at handover and that "It is crucial that the terms of the current order are adhered to and the return times from contact are respected. Ongoing inconsistencies of this nature are likely to result in heightened distress for the children which may eventually outweigh the benefit of contact". Her letter was copied to the father.

FINDING:

228. The mother should not have carried A in the car without a seatbelt and it seems that A was concerned because he told his father about it. Even allowing for the father's particular sensitivity to this issue he could and should have dealt with it differently. He could have written to the mother's solicitors requesting an acknowledgement, an explanation and an undertaking that she would not do this again. He could have reported it to Mrs. Lemonides or social services. His actions caused the younger children concern and led to yet another visit by the police to the family home.

Allegation 52

On 12 May 2013 the father made A and B read the CAFCASS report dated 24^th 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.

229. I have read both children's letters. B wrote:

she knows that her father comes late and why; she knows the headmaster is not happy about it but she is not uncomfortable.

she does not fear that her father will shout at her, he may say: "That's not right" in an annoyed voice.

the father has learned not to send her mother texts which upset her.

she does not mind what time she leaves (after contact) as long as her mother is happy with it.

she is scared of showing her honesty and does not think the father will mind as he has changed "a bit better".

On the back of the letter there are drawings of hearts and "I love me" and "to the judge".

230. A's letter is more ambivalent. He hopes that it is not disruptive and apologises for the disturbance. He says his father has shown him a section of the report. He takes issue with some of the words attributed to him in a way which is reminiscent of the father's objection to the use of the word "earshot". He did not say "hates" but said he "didn't like". He has never heard of the word "flippant", and he did not use the word "relax".
231. The father told me that he talked about the report to A, and said: "I heard you told the CAFCASS officer that my attitude to the time I return you to mum is 'flippant'." I asked him what that meant so he thought he should discuss the report with him. A week or two later B spoke about her meeting with Mrs. Lemonides. On 11^th May 2013 he sat B down and said: "We're going to court; the judge is going to make decisions about your future. It's an important reason why you may want to write. You don't have to." He asked her to read the section about herself and she also asked to read the sections about A and C. He said to her: "You can tell the judge what you think about it", and she wrote in bullet points and added doodles. She was relaxed. He was surprised to see the points that she picked up were not those that she had talked to him about. He did not dictate her letter.
232. He had a similar conversation with A who was more equivocal and asked whether he could do it the next week. He said that it might be too late, so A wrote a letter correcting some of the words used by Mrs. Lemonides. The father did not agree that by showing the children the CAFCASS officer's report he was bringing them into the middle of the dispute. He is firmly of the view that the children had a right to read it, and Mrs. Lemonides should have told the children that they could read her report and write to the judge.
233. The father referred me to two CAFCASS publications in support of his view that he was entitled to discuss the CAFCASS report about their wishes and feelings with A and B. The first is "My wishes and feelings: Guidance for practitioners" a practice model which provides a framework to ensure that children's needs, wishes and feelings are always explored and supports children to express themselves and to be more actively involved in the whole family court process. The final page of the model sets out principles of good practice for working with children and young people including at paragraph 8: "Children have a right to know what is recorded about their wishes and feelings".
234. The second document is "Private Law Consultation. How it looks to me" published in January 2010. I note that Mrs. Lemonides was well aware of this approach as both A and B completed the "How it looks to me" workbook when she met them [internal page 3 of the report at C5]
235. The father referred in particular to the following results of the consultation:

some young people like to talk to the judge

most young people found it difficult to ascertain whether the CAFCASS worker had informed the court of their views

some children were not satisfied that their wishes and feelings had been made known to the court

236. I am not sure whether the father had read either of these publications before he decided to encourage A and B to read the sections of the report which set out their wishes and feelings, and in the case of B, to read the sections about A and C, too. I suspect that he had not, because he did not ask Mrs. Lemonides to discuss her report with the children, nor did he ask her to talk to the children about the possibility of seeing the judge. He also took the opportunity of discussing the report with A and B without consulting or informing the mother and with the intention of bringing the children's letters to court, as evidence.
237. The father could have asked the advice of counsel who had represented him in these proceedings from time to time. If he had done so he would have learned about the Practice Note of April 2010 which sets out the Guideline for Judges Meeting Children who are Subject to Family Proceedings, produced by the Family Justice Council and approved by the President of the Family Division.
238. The preamble to the guidelines notes that it is CAFCASS practice to discuss with a child, in an age appropriate manner whether he wishes to meet the judge and to pass that wish to the judge, with an explanation of the purpose of the meeting, from the child's perspective and to advise whether such a meeting would be in the child's interests. The parties are entitled to make representations as to any proposed meeting before the judge decides whether a meeting shall take place.
239. If a child meets the judge he is usually brought to the meeting by the CAFCASS officer. The parents are not present but the judge explains that a judge cannot keep secrets and will (unless there are exceptional circumstances) tell the parties what has been discussed.
240. The purpose of such a meeting is not to gather evidence, which is the responsibility of the CAFCASS officer. It is to enable the child to have some understanding of what is going on and to be reassured that the judge has understood him/her.
241. This procedure was available if the children had wanted to see me but it was not followed.
242. However, having seen the children's letters as evidence relevant to allegation 52, I note that A did not retract or correct his comment that "...his father lets them do activities that he knows his mother disagrees with and this has an impact on them as his mother gets upset when she hears about it. He feels that his father uses this as an opportunity to upset his mother. An example is that he bought an "x box" and allows his younger siblings to watch 12 rated movies." (internal page 4 at C6)
243. The mother said that the children had private discussions with Mrs. Lemonides. She did not ask them about them. They knew that their parents would see the report and they did not expect to be questioned about what they had said. If the children had wanted to discuss the report with her that would have been different.

FINDING

244. I make the finding in the terms sought.

The dagger.

245. There is a further matter which was raised in the course of evidence, although

I have not been asked to make a finding about it. This relates to the ornamental dagger which father bought for C during contact in the course of the hearing (Saturday, 18^th May). The mother told me that when C returned from contact he told her that his father bought him a dagger to wear at Eid. Both C and B showed her little scratches which they said were caused when one of them tried to get the dagger from the other, caused by the cover which they said was sharper than the blade. C asked his father to send photographs of the dagger, which he did, and which the mother saw, and which I saw in court. She said when the father had face time with the children on Sunday evening they were discussing whether or not he should buy B a dagger, too. This upset C who shouted: "I'm going to kill you" three or four times. C said if the father bought another dagger he wanted it and B could have his because it was a little bit rusty. B then shouted at her father: "I hate you", and he replied quietly: "You hate me". The mother thought the conversation was inappropriate so she disconnected the computer and explained to the children that they should not talk that way to their father and about a dagger which she did not think either of them should have. In her view children need to have boundaries. They should not be allowed to talk that way and they should not be bought such an inappropriate gift.

246. The father told me that C often says: "I'll kill you" in the same way as B uses the word "loser": he does not mean it. He plays with toy arrows and foam swords. The blade of the dagger is blunt, and the point is less sharp than that of a pencil. He decided that it was safe for the children. It is designed for display, is delicate and would break easily. He knows that C will not use it in a dangerous way because he is responsible and has never attacked anyone with an implement. Playing with the dagger means that C would show it to his cousins and then put it away.
247. The father agreed that a year ago he bought an axe to chop firewood in the family home. C wanted an axe and the father said that this was C's but he was not allowed to play with it or touch it, and C never has touched it although he has been allowed to hold it in his father's presence for a minute or

two just so that he can say that that he has an axe.

10. Summary of findings.

248. I wish to add some views I have reached, having considered all the allegations and the evidence as a whole.
249. I have made three findings that the father has been violent to the mother, at the WOMAD festival, in 2007 or 2008, on 23^rd February 2009 and on the night of 13^th – 14^th December 2009: the most recent violent incident occurred three and a half years ago. Although the marriage was in difficulty by 2005, as far as I am aware, the first of these incidents seems to have been unrelated to any other event and was an unprovoked assault. The other two incidents occurred in the course of 2009, when the tensions between the parties came to a head. Taken together the incidents which occurred throughout that year provide a graphic account of the end of a marriage, which does not excuse the father's actions. There was a subsequent failed reconciliation but there were no violent incidents during the reconciliation nor have there been any since then. The father's focus seems to have shifted to the children and his wish to share their care equally and possibly also the financial position, although that is not my direct concern.
250. I accept that the father loves his children and they love him and want to see him. A number of aspects to his care of them emerge as themes from my consideration of the allegations. On a number of occasions the father has been concerned about a problem of, or with, his children, e.g. B's night terrors, C's separation anxiety, his lack of a bond with C, B's less affectionate behaviour towards him. The father considers that these problems must be solved and this requires his intervention; he must wake B up so that she does not have night terrors, even though he observes that she remains asleep throughout; he told C that his mother would never return as a counter-intuitive way of letting the child work out that this was an absurd proposition and therefore the opposite must be true; he and B must discuss their problems at length (even on his evidence) at night. In none of these instances did the father seek professional advice. He either did not discuss his approach with the mother (e.g. telling C she was never coming back – which she learned from A) or he ignored her views (e.g. that it was not necessary to wake B from her night terrors) because he knew best. In each of these cases, in the course of the fact finding hearing the father conceded that he had made "a bad judgment call" because he was "thinking outside the box" and "trying something different". In my view the father was more intent on solving the "problem" than with the child's welfare and this led him to behave in a way which was not child-centred and was sometimes insensitive and unkind. As with the climb on Cairngorm, the end justified the means.
251. The father is inconsistent in his approach to the children. He wants to have fun with them but he is also capable of being very strict. He put the children on the naughty step when they did not want to eat the omelette he had prepared and told me that the problem of fussy eating can be solved, as C then ate the omelette. B did not eat it and now she is allowed to eat whatever she wants, whenever she wants. He called her an "ugly loser" and now she is allowed to write "loser" on his back and photograph it to show her friends. The father concedes that on occasion he has been unkind and unfair to C. A striking example of this was his evidence that he put C on the naughty step when the child said that B was the father's favourite, which was true. The father was more concerned with his feelings, than with C's. Now that his relationship with C is repaired the father seems to give in to C's demands e.g. to own a decorative dagger, to hold an axe, believing that it is his.
252. These examples suggest that the father does not set and enforce appropriate boundaries with the children. On the contrary, when the mother attempts to do so (appropriate gifts, reasonable bed-times) the father asserts that the children are only happy with her on her terms and are terrified of upsetting her. The children have been seen, in private by CAMHS, a social worker and Mrs. Lemonides and their school has taken a close interest in their welfare. There is no evidence whatsoever that the children are frightened of their mother or of displeasing her.
253. It is a matter of concern that A identified to Mrs. Lemonides that his father allows them to do things which he knows the mother will not approve of and that he does so to upset her. If A is correct, the father is using the children to cause the mother distress. He does not seem to realise that this also distresses his children.
254. The father accepts that, following the order of 18^th February 2013, he did leave the car and approach the family home because, he says, the children were not ready and had not answered his telephone calls. He accepts that he has persistently failed to comply with the contact order made on 25^th October 2012 by bringing the children back late after contact on almost every Saturday. I have noted that the father brought the children back on time when I explained that the contact order means what it says and that he should bring the children back on time so that they have certainty and do not become distressed or anxious about an argument between their parents, and in order to build a better relationship with the mother for the children's sake. However, the mother alleges that he returned them half an hour late on Saturday, 1^st June, during the period of the adjournment, and returned again and banged on her door. His response to her solicitors' letter of 4^th June 2013 does not address this point and I have ordered him to file and serve a response
255. I have noted that Mrs. Lemonides, in her letter to the court following the incident on 30^th March 2013, pointed out the possible consequences of such behaviour.

11. The application for an extension of the non-molestation order

256. The mother gave the following reasons for applying for an extension and variation of the non-molestation order:

The father always pushes at the boundaries and tries to intimidate her.

She has had a non-molestation order since she said that she wanted a divorce and she fears that because there is no prospect of a reconciliation, he may become violent again.

On 4^th March 2013 at a concert at the children's school, for which she obtained a ticket for the father, he sat behind her and the children which she found intimidating. He also stood close to her while she was waiting for B, talking to A and C: "in my space, my time, my interaction with the children", and she found that intimidating.

The manner in which the father has failed to adhere to his undertaking and the court order that he return the children at 7 p.m. after contact, shows that he is, in counsel's words: dishonest, disingenuous, untrustworthy, unreliable, unable to adhere to undertakings and orders, unreasonable because he wants to be in control.

The father has filed an appellant's notice in respect of the ancillary relief order. As a result the sale of the family home will be delayed and she will probably not be able to move home before the start of the new school year.

She has not issued notice to show cause why he should not be committed for breach of his undertaking, but she needs protection.

For all these reasons a non-molestation order is necessary for at least a year and should include an order that the father should not come to her new home when she moves.

257. The father says that the non-molestation order was made without notice and prohibited him from doing things he was not doing at the time. The mother did not obtain a non-molestation order in 2009, and the most serious allegation (23^rd February 2009) is now four years old. The suggestion that she was or is intimidated by him is not consistent with the recording he made on 23^rd September 2012. Extending the non-molestation order would send the wrong message: they should be encouraged to co-exist without a non-molestation order.
258. In view of the partial information I have received about an incident on 1^st June 2013 I will defer my decision about the non-molestation injunction until the hearing on 14^th June 2013 when I will also give further directions.
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