England and Wales County Court (Family)

IN THE CHELMSFORD COUNTY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF F CHILDREN

		7 June 2013

THE JUDGE:

1. I am concerned with three children, J, a girl of 9, she was born on 5^th March 2004; K, a girl, 7, who was born on 21^st September 2005, and G, a boy of 6, born on 23^rd March 2007. They are the children of CD, formerly CF and EF who were living together for many years, were not married, but who separated in 2009. This is the final hearing of the application of Mr. EF for a variation of a contact order which he started in February 2012. But it is fair to say that the proceedings have been ongoing since 2009, and this hearing is the conclusion of proceedings begun four years ago.
2. The parties are Mr. EF, Miss CD and the children by their guardian, Sue Haywood. This have been represented before me by Miss Harrington for Mr. EF, Mr. Green for Miss CD, and by Mr. Stafford for the children.
3. I have read two ring binders of documents prepared for the hearing which include the orders previously made, statements from each party – far too many indeed – reports from the guardian and the CAFCASS officer who reported last summer, police reports and reports of supervisors of contact, and a useful chronology. I have heard oral evidence from each parent, from John Weatherly, the current supervisor of contact, and from the guardian. I need to give a bit of background.

BACKGROUND

4. The parents started their relationship when Mr. EF was about 37 and the mother 16 or 17 as far as I can establish. Three children were born and then the parties separated in June 2009. Mr. EF had originally commenced proceedings in the Southend County Court in July 2009, then Miss CD made allegations of domestic violence against him and a fact-finding hearing was listed to take place at the end of that year, with supervised contact to take place in the meantime. Both parties applied for residence.
5. The case was then transferred to the Principal Registry and at the re-listed fact-finding hearing the case was compromised, probably unwisely in my judgment, because in my experience it does not work to leave these matters undecided. An unusual compromise was reached. The father undertook not to make any further application for residence without leave; the children were to live with their mother; the father withdrew all the allegations he made against the mother, and the mother agreed not to pursue any of the allegations she made against the father. A final order was made three months later, in June 2010, which allowed generous contact to Mr. EF including staying, holiday and birthday contact.
6. In the months following the final order there were various incidents, and it is pretty clear to me that the arrangements did not work well from the very beginning, and the children remained and have remained in the middle of conflict ever since. For example, the chronology shows and the police documents show that on 5^th November 2010 Mr. EF attended Miss CD's home whilst under the influence of alcohol and committed an assault. As a result of this and other such incidents as far as I can tell from the chronology contact ceased, but Mr. EF's response was to apply ex parte, and clearly inappropriately, for an enforcement order.
7. Miss CD responded by trying to vary the contact order. These applications were also compromised on 21^st December 2010. And so things went on. In November 2011 G was accidentally burnt by a cigarette which was in his father's hand during an altercation between the parents at the end of contact. Handovers were always particularly difficult. Social Services became involved and assessed G.
8. In January/February 2012 Mr. EF made an application to the court but it was not served properly. The court listed the case for another first hearing dispute resolution appointment in March 2012. In April 2012 Mr. EF was ordered to undergo a liver function test which he did not do, and he was ordered to do it once again by the court in June last year. By this time J and K were both making complaints about ill treatment by their father during contact. J was self harming at the age of seven.
9. Social Services became involved with J. There were many disputes around contact. Both parties called the police, but I am quite clear that Mr. EF called the police inappropriately on several occasions over matters to do with contact, which is complete mis-use of the police together with an unnecessarily stressful thing to do as far as the children and Miss CD are concerned.
10. The case was transferred back to Southend, although I am unclear what the application was at that time, but by this time a CAFCASS officer was involved, Lynne Wetner, and she filed her report on 8^th June last year. Her main concerns she set out in her report. She said:

"There is worrying information held by the police and, together with reports from the children of their father's behaviour whilst they are with him and his continuing use of alcohol and the reports of the police being called regularly to deal with issues of contact, lead me to believe the children's welfare could be at risk when having contact with their father".

11. She also noted that the girls did not wish to stay over at their father's home, that the sleeping arrangements were inappropriate, and that Mr. EF thought it was indeed his right to call the police if there were any problems from his point of view with his contact. She recommended a risk assessment. As a result of the report the court suspended the contact in June last year, and appointed Sue Haywood as guardian for the children.
12. The results of the father's tests showed excessive use of alcohol by him. At around this time (I am not too sure of the exact details as the papers are incomplete) Mr. EF applied either two or three times for further enforcement orders.
13. On 3^rd September contact re-started under a court order, but it was ordered that it be supervised and it take place for four hours on alternate weekends at Mr. EF's home. On 28^th November contact was directed to take place in the community, not at home. On 18^th January this year it was ordered to take place for one hour at Mr. EF's home and for the rest of the time in the community.
14. After what the guardian has termed, and I agree, "an atrocious contact" on 21^st March this year, which did not move out of Mr. EF's home despite the efforts of the supervisor, contact was ordered on 2^nd April to take place on alternate Saturdays for two hours supervised by two supervisors, and that has been the position until this hearing.
15. At the conclusion of the evidence yesterday, Miss Harrington, counsel for Mr. EF, asked for time overnight for Mr. EF to consider his position. This morning, Miss Harrington told me that Mr. EF had accepted much of what Miss Haywood had said in her evidence, and now having heard the mother give evidence also understood how upset he had made Miss CD. Miss Harrington told me that most of the matters which Miss CD sought to be in the order and which were in issue during the hearing were now conceded. By that time I had heard two days' worth of evidence.
16. Mr. EF had asked for contact to revert to unsupervised and staying contact. He now conceded these points. Miss CD and the guardian both have asked for contact to be reduced to once every calendar month for three hours, supervised by two supervisors in the community with very clear conditions upon it, and that appears no longer to be in dispute.
17. Miss CD seeks, and the guardian supports, various non-molestation orders, continuation of existing prohibited steps orders and for an order under section 91(14). Formal applications have not been made for non-molestation orders or a section 91(14) order, but Mr. EF had been aware since the last hearing in April that a non-molestation and/or prohibited step order was being sought, and he was given notice of the section 91(14) application I think the day before this hearing began.
18. His position this morning was that if there were to be such a direction, it should be for a shorter period than the guardian had advised, which was four years, as he hoped to bring about changes in his behaviour by attending an anger management course and perhaps a parenting course, and he conceded the need for a non-molestation order.
19. The issues that I had to decide prior to this morning were:

what arrangements should there be for contact if any contact should take place;

what arrangement would most meet the children's needs;

how should it take place and should it be supervised;

if supervised, how should it be managed and paid for and where should it take place;

should anyone else be involved;

should there be indirect contact;

should a non-molestation order be made;

should that order include provisions in respect of the father's attendance at school;

should I make a section 91(14) direction; and

if so, for how long?

20. The issues now seem to me to be only the length of a section 91(14) order. It is very positive that Mr. EF has listened so carefully to the evidence and reached a clear understanding of what his children and former partner have been experiencing. However, I have decided that I must still go through and record my findings generally for the following reasons:

1 this has been a difficult and painful process for all concerned and potentially it would be wasted if my conclusions were not made part of the record. If things do not go well from now on, it would be most unfortunate if this all had to be re-litigated;

2 I very much have in mind that the fact-finding hearing in 2010 was compromised, with no findings being made and nothing clearly decided by the judge and, in my view, that has partly led to the litigation continuing for the next three and a half years.

21. I have to apply section 1 of the Children Act and it is each of these children's interests which is my paramount concern. As I am considering making non-molestation orders I must consider the Family Law Act. I am also asked to consider section 91(14) direction and I must consider that application in the context of section 1 as well.
22. At the opening of the case on the first day, Miss Harrington applied on Mr. EF's instructions for him to be discharged from the undertaking I have referred to not to apply for a residence order with regard to the children without leave, as he wished the court to consider such an application during this hearing. I dismissed that application summarily and expressed the view that making such an application showed that Mr. EF did not understand that the court was tasked this week with considering whether he could see his children at all. It simply did not arise in the circumstances of this hearing that the children could be sent to live with him; and it was not of assistance to his contact case that he was making such an application; and it meant that the hearing started on the wrong foot.
23. Turning to the witnesses and the evidence, I heard first from John Weatherley who has been supervising the contact for several months. This family is truly fortunate that such a sensible man with such experience and tolerance is able to assist them. He was a fair and straightforward witness, and I have no difficulty in accepting all he said in his oral evidence, and all he has reported. As a result, I have a great deal of information about contact in the past six months, and the following facts are clear.

There is a lot of love and affection between Mr. EF and his children.

Both Mr. EF and the children enjoy seeing each other. At times Mr. EF can give his children fun experiences, and they can share conversations which can make the children feel that they are important to him, and they can show him he is important to them.

Mr. EF cannot or will not exercise consistent boundaries for his children, and his approach is to indulge any whim they may have. As a result, contact can be and usually is chaotic, anarchic and unsafe.

The children are encouraged to ignore all rules of society, for example climbing over the fence into the animal enclosure, riding bikes into an area which says "No bikes" and not washing hands after touching animals. This results in confused behaviour at the time and afterwards, and could have physical repercussions.

They see their father ignore agreed arrangements such as where the contact should be, and see him getting angry at people they respect or love, such as John Weatherley, Angela Weatherley, and R, their half-brother, and with complete strangers such as the unfortunate woman at the play centre.

G is allowed to watch 18+ videos or video games which are wholly unsuitable and damaging to such a young child.

They witness their father speak of their mother in derogatory terms, even in front of John Weatherley, which is damaging and confusing. An example was noted by Mr. Weatherley on 29^th December when Mr. EF said, "We don't care what your mother does, do we?"

Mr. EF cannot or will not control his anger at times, and the children react in various typical ways. J will stand and scream uncontrollably, K will go and hide, and G will become angry and violent.

24. The contact on 21^st March this year is definitely one of the worst I have read in very many years of doing this work. I will return to the effect on the children when I consider the evidence of the mother and the guardian. Mr. Weatherley was clear that contact needs to be supervised and by two people. I accept that evidence and I think Mr. EF now agrees.
25. I then heard from Mr. EF. The court last year had ordered an assessment to be carried out by Dr. Dowd which was to address various issues identified by Miss Wetner and by the guardian. This assessment did not happen. It was meant to be paid for equally between the children's public funding certificates, the mother's public funding certificate, and by Mr. EF privately. Long after it was ordered, Mr. EF decided he could not pay his share. The legal aid agency were not prepared to pay his share. I have no doubt that at that time Mr. EF could have paid his share. Child support authorities have assessed him this month. He has been liable to pay £500 a week for his children back-dated to the end of December last year as they assess his disposable income at £2,000 a week.
26. Mr. EF is a businessman and has during the last months employed a driver and a housekeeper, and during the relationship he owned about 50 properties. Miss Harrington told me today that Mr. EF's business is in receivership and that when he sells his home shortly he will have to move into rented accommodation. If this is the case it is regrettable, but I have seen no evidence of it and I am sceptical, and at this stage the best evidence I have is that which says that Mr. EF has a disposable income of £2,000 a week.
27. It is most unfortunate that that direction for Dr. Dowd's report was discharged. It would have been better, in my view, to suspend contact until that work was done. In such circumstances I must look to the evidence I do have, and I am satisfied on the balance of probability that Mr. EF is an alcoholic. I have the evidence of his convictions, I have the mother's evidence of the extent of his drinking during their relationship, and I have the results of the liver function CDT test which shows biochemical evidence of excessive alcohol; but the report of Dr. Sarah Saidi that his alcohol is within allowed limits is unfortunately worthless. As Miss Wetner pointed out, Mr. EF has been banned from driving for 14 of the previous 15 years because of drink driving offences.
28. Miss CD also alleges that Mr. EF used to have a cocaine habit when she lived with him. I am unable to make any conclusions about drug misuse now. What is clear is that some of Mr. EF's unpredictable behaviour and inability to control anger could be related to using drink or drugs. The children have referred to their father drinking and how it makes them scared. J recently told the guardian that it made him "cuckoo-ish"(?), that is a fair description by a child. But Mr. EF downplays his use of alcohol at the moment, does not see it as a problem.
29. Mr. EF's use of alcohol is now very long-standing. His first drink-related offence in this country that I am aware of was in 1997. It may be, as is often the case, that such long term alcohol abuse has affected his cognitive abilities. Mr. EF's evidence to me was tainted throughout by very obvious untruths, and appeared to me somewhat paranoid. It may be that it was less dishonest than as a result of long term alcohol abuse, I do not know, as I do not have a psychological report. But two examples come to mind:
30. Mr. EF sought to explain the disastrous contact on 21^st March as resulting from Miss CD's unreasonable behaviour. He seemed to say that two days before that contact, which was to be a birthday celebration for his daughter, he had arranged for bags and bags of the children's clothes to be delivered to Miss CD's home, and it was Miss CD throwing these away which led to the children being distressed on 21^st March. But the records show that the clothes, such as they were, were delivered some two months before and had absolutely nothing to do with the events on that day or with Miss CD.
31. Mr. EF sought with his most recent statement and in his oral evidence to persuade me that the guardian was dishonest and, for reasons which he did not explain, that she was seeking to mislead the court and destroy his relationship with his children. I sought to warn him about this approach, but he did not heed this, and his evidence on this point which came up a lot was, frankly, ridiculous. He invented things which he said the guardian had said or done, none of which were remotely credible. There was one example about what he said happened when there was an incident where, after G had had some altercation with another child at a play centre the guardian described Mr. EF angrily berating the mother of possibly that child. Mr. EF gave a wholly incredible account which contradicted everything the guardian had said in her report and then in oral evidence, and the guardian told me that Mr. EF had actually accused her, prior to this hearing, of planting that mother there and that the mother was, in his eyes, a friend of hers.
32. Mr. EF rejected all criticism made of him – all criticism. He was prepared to accept that he might bear some responsibility for things that had gone wrong, but when pressed the examples he chose all blamed others. He realised that I took an extremely dim view of the obscene text messages which he has repeatedly sent to Miss CD, and when the point was pursued he appeared to accept that he should not have sent them, and told me that he had stopped when Judge Murfitt had told him to in April this year. When it was pointed out to him that he had sent another one in May calling Miss CD "a heartless shit woman", he told me it was sent for his children's benefit.
33. He accepted no responsibility for the way his children behaved during and around contact. He refused to accept that he was either unable or unwilling to control their behaviour, and to my mind was wholly unable to see the damage he was causing his children by encouraging them to behave badly, failing to recognise that the children would take that behaviour away into their home and into their schools.
34. Miss CD's evidence was quite brief but helpful. I was left in no doubt that this mother has always been committed to contact and remains so. It is well worth Mr. EF reflecting that if Miss CD had come to court and told me that she was at the end of her tether and she could no longer deal with the fallout from the contact it would have been a reasonable position for her to take and may well have been very persuasive. It is very likely that I would have ended contact. Many mothers in her position would have chosen that path. The fact that Miss CD does not and still asks me to order contact makes me confident that she has done her best to see that contact has happened and that she will do her best in the future as long as she believes that it remains in her children's interests for contact to continue.
35. The enormous stress of dealing with the situation, the damaging contact, her children's distress and emotional difficulties, the constant abuse, Mr. EF turning up and causing difficulties at the family home, particularly on the children's birthdays - all this has led to Miss CD suffering a great deal, and she is clearly only just coping.
36. She is an impressive mother, with insight and compassion for her children and indeed for their father. I accept her evidence and, in particular, I note her evidence of the effect on each of the children of the contact which has ranged from self-harming, bed wetting, soiling, behavioural problems at school and general distress. I accept her evidence that Mr. EF's lack of proper care with regard to K's medication could have been fatal if the medicine had not been changed shortly before. This must have added to anxiety.
37. The evidence of the guardian is most helpful. Her particular experience, training and expertise has brought into sharp focus what the children have suffered and what they need, and I accept all her evidence. I accept her evidence which was not in her report, that the school has connected the children's behavioural problems at school with when they have had contact with their father. Miss Haywood has found it difficult to decide between a recommendation for "no contact" and "some contact", and has come down on "some contact". She recognised the positives which occasionally are apparent in contact such as the love and affection between the father and the children. Overall, however, she said and I quote:

"I do not think the children are emotionally attached. There is an insecure attachment. They are so worried at how angry he may get they seek to please him. It is poignant. 'If I don't go weekly, how might he be?' says J. K tells me she does not like him and does not feel safe, and that was a huge step for her to be able to say that. Their behaviour reflects their understanding that the more they do to make him feel good about himself, the less he will be angry".

38. She said that with a lot of work being done Mr. EF can accept some of the advice she has given or Mr. Weatherley has given, but she retained doubts as to whether such change could be maintained. She said that the undermining of the relationship between the children and their mother is so significant and is such a risk to the children that such a risk cannot be taken again. He cannot be moved from that approach in the guardian's view, and hence she cannot see a time at this stage when supervision will not be necessary.
39. Although it was made quite clear at the hearing in April, the guardian was effectively in charge of contact so that it was beneficial for the children and not damaging, and although Mr. EF was made aware at court in April that the guardian wanted him to leave first at the end of contact, Mr. EF resisted this from then on, and argued about it repeatedly. This is an illustration of Mr. EF not respecting perfectly sensible advice because it did not please him. It was clearly the most sensible way of dealing with the ending of contact, because Mr. EF's way of dealing with the end of contact was making it a trauma for the children each time and very difficult for Mr. Weatherley to handle. This shows that Mr. EF was unable to put the interests of his children before what he considered his rights.
40. The guardian considers that Mr. EF has a particular difficulty with women. I do not know if that is the case, but that is something for Mr. EF to think about after this hearing and to raise in any therapeutic programme he enters.

THE CHILDREN ACT, SECTION 1

41. I am going to say a bit about section 1 of the Children Act. I have already said that the children's welfare shall be my paramount consideration. Their wishes and feelings are mixed. G is the only one who is clear that he wants to see his father, but even he has some concerns when he talks about the contact.
42. The children's needs are now to live in a stress-free, calm and peaceful way, to be able to do their best at school, and to have positive relationships with their family members and in particular with each parent. They need to be relieved of being involved in litigation. They need to be able to access the therapy which has been set up for them, and to make the most of it.
43. Any changes and the effects on them. I am satisfied that to remove Mr. EF from their lives is likely to cause them a different sort of anxiety, and it seems to me on balance to be right to see if it is possible to keep Mr. EF in their lives but in a different way from up until now.
44. Their particular characteristics. These children have endured four years of great difficulty. I do not know what life was like prior to the separation, but I doubt it was easy. The children are of mixed heritage and keeping Mr. EF in their lives will allow them to experience some of the Turkish Cypriot side of their heritage and, I hope, to enable them to be proud of all that that means.
45. As for harm, each of these children have suffered significant emotional harm, I am in no doubt about that, and each is at risk of suffering more if what has happened in their lives so far continues, and I do not think the harm has been caused by their mother's actions.
46. I shall make the contact order as sought and drafted by Mr. Green. Contact must be supported by two supervisors in the community at a location or facility which has been agreed in advance with the supervisors and take place once each calendar month for the three hours.
47. The father is to bear the cost of supervision and related costs of contact. Contact cannot take place at any office or home of the father. No-one else can attend the contact except the paternal grandmother if she wishes to. K shall not attend the contact if she expresses a view that she does not wish to attend. The supervisors shall be as set out in the draft order. In addition to what has been drafted, it will say that the father may not drive the children.
48. It is to be noted that the mother agrees to continue to encourage K to attend contact.
49. I have been asked by Miss EF, and the guardian agrees, to make the order under section 91(14). Although this is not a case of particularly high numbers of applications there have been inappropriate applications made by Mr. EF and these children have been involved in proceedings for much of the past four years.
50. There is overwhelming evidence which I have dealt with that the children and their mother are suffering from stress and the stress arises from the father's behaviour and from the proceedings. What these children need in circumstances in which I am not confident that the father's attitude and behaviour will change without a lot of work, is peace and calm and the ability to be happy and relieved of stress. Miss CD's evidence was significant as her distress at what she and the children have had to go through for years now showed itself as she broke down.
51. It is clear to me what has to change before there can be any development of contact, and there will be no point in the court looking at these matters until that point. Miss Harrington submitted that perhaps after Mr. EF had been on an anger management or similar course the contact should be looked at, but I do not agree. There will need to be evidence of change and progress, and that will take Mr. EF some time to establish. There would have to be a very good reason for the court to re-open the contact matters in the future. At this stage the reasons I can envisage are:

1 that Miss CD needs to bring the matter back to court because Mr. EF continues to cause emotional harm. If she succeeds in showing this it is likely that contact will cease completely;

2 secondly, at some time in the future Mr. EF will be able to show sufficient change, which will mean that the conditions of contact can be relaxed; and

3 at a time when the children or one of them are older and has a view which the court will need to consider.

52. But before we get to that stage, there needs to be a lengthy period of recovery for this family; for the work at Fledglings to take place; and for the children to be able to build on that work; for the children and their mother to experience normal life without stress and pressure; and for Mr. EF to make changes. So, I shall make an order under section 91(14) until 17^th June 2017, at a time when J is 13. So that Mr. EF is clear, I am not saying he cannot make an application. I am saying that he can only do it with leave.
53. In order for Mr. EF to persuade me (as I shall reserve the case to myself and that should also be in the order) that he should be given leave prior to June 2017 or in order for Mr. EF to persuade me in 2017 that the restrictions on contact can be relaxed, it is likely that he will need to produce evidence of the following:

an up to date liver function and CDT test result showing no abnormalities or at least no recent excessive alcohol intake if the abnormalities are permanent;

an up to date hair strand test showing that Mr. EF does not use cocaine;

no more drink-related offences;

no breaches of the non-molestation injunction or the prohibited steps orders which I will be making;

that he has ceased calling the police in relation to his children or their mother or anyone else in her home;

an improvement in his ability to manage his children's behaviour during contact;

adherence to the conditions put on contact.

54. The order must contain references to this part of the judgment so that Mr. EF can be in no doubt as to what is required of him in the future.
55. The guardian has suggested that Mr. EF should attend parenting courses, which are available free of charge. Such attendance may well assist as well, but it is evidence of change which is likely to be most important.
56. At the end of this hearing I may be asked to make a contact activity direction. If I do make such direction for Mr. EF to attend DVPP course then I will expect him to attend it.
57. The previous prohibited steps orders about not removing the children and not removing them from the jurisdiction shall be repeated and must have penal notices attached. In addition, also with a penal notice attached, I shall order that Mr. EF must not drive the children or any of them. I am most concerned that otherwise he will drive the children when under the influence of alcohol. I do not want Mr. Weatherley to be put in a position of having to try to stop him.
58. As for the non-molestation orders, I shall hear at the end of my judgment whether there have been any discussions about the change that I have in mind, and particularly about how communication shall take place in the future, but I have in mind an order that Mr. EF is forbidden to use or threaten violence, intimidate or harass the applicant and must not instruct or encourage any other person to do any of those, and not to telephone, text, email or otherwise contact or attempt to contact her. He must not go to enter or attempt to enter any property where he knows or believes her to be living, or ** Z Street in Southend, and either not go within 100 metres of that address or not to go along Z Street. I will hear any points people want to make on that. He must not between the hours of 8.30 am and 4 pm go to enter or attempt to enter the …… school or any other school attended from time to time by any of the children, or go within 100 metres of such school during the hours of 8.30 and 4 pm except by prior written personal invitation from the school authorities.
59. The non-molestation order will be effective forthwith and personal service on Mr. EF will be dispensed with, as Mr. EF is present in the court and the terms of the order have been read out.
60. Finally, I shall order a transcript, the costs of which I think I was asked to say shall be shared equally. The parties may disclose to Fledglings or any other therapeutic resource a copy of the transcript and the guardian's reports and copies of the contact notes. A copy of the final order should be given to Mr. Weatherley and Angela Weatherley. Mr. EF has leave to disclose the transcript to any provider of a DVPP programme or anger management provider, and I shall make a contact activity direction if asked.
61. In addition, I was going to say and I think it is probably necessary to spell it out, that there shall be no other contact save that Mr. EF may send the children by post birthday cards and presents and I am not sure if it was to be Christmas cards and presents, or Eid, I will have to hear on that, but otherwise there is to be no other direct or indirect contact unless agreed in writing between the parents.