England and Wales Family Court Decisions (other Judges)

Case No: MA12P00714

 

 

IN THE FAMILY COURT SITTING AT THE

CIVIL JUSTICE CENTRE MANCHESTER

 

Date: 23/05/2014

 

Before:

 

HHJ HERNANDEZ

- - - - - - - - - - - - - - - - - - - - -

Re E (A Child)

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

 

Ms Grundy for the Father

Ms Cavanagh for the Mother

Ms Watkinson for the Guardian

 

Hearing dates: 17,18,19,20 March 2014

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT

 

 

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

 

 

HHJ Hernandez:

Introduction

1.                  Mr P and Ms S are the parents of a little girl named E. She is 9 years 9 months old. Her paternal grandmother is G. I shall refer to the parties by their initials or as father and mother.

2.                  Her parents are married however they are in the process of divorcing and they have been involved in a long running battle over the arrangements which are to be made for the day to day care of E and ancillary financial arrangements upon the completion of their divorce.

3.                  E was made a party to the proceedings and is represented by a guardian Ms Sheila Jessup of CAFCASS. Ms Watkinson of counsel has appeared at this hearing to represent the child.

4.                  The mother has been represented by a solicitor throughout most of these proceedings and at this hearing by Counsel, Ms Cavanagh. The father has had solicitors representing him but for a number of hearings he has been a litigant in person. However at this hearing he has had the benefit of representation by Ms Grundy of Counsel.

5.                  The matter has been listed for a final hearing on 17, 18, 19 and 20 March 2014. At the conclusion of the evidence the matter was adjourned for written submissions and for the father to obtain information from Y Contact Agency and then judgment.

The Applications

6.                  At the commencement of these proceedings the following applications were  before the court:

i)                   The mother’s application for a non-molestation injunction issued on 10 December 2012;

ii)                 The father’s application for shared residence order or a defined contact order issued on  2 October 2012;

iii)               The mother’s application for an order pursuant to s 91(14) of the Children Act 1989 deemed to have been issued on 20 September 2013;

iv)               Mother’s application for a prohibited steps order issued on 13 August 2013;

v)                 Father’s application to discharge the children’s guardian issued on 5 February 2014;

vi)               The mothers’ and guardian’s application for an injunction prohibiting the father from publishing material about the case on any social networking site or to the press.

vii)             The paternal grandmother’s application for leave to apply for a contact order issued on 7 January 2014. It was listed for directions on 17 March 2014.

viii)           The mother’s application for costs.

The Issues

7.                  At the conclusion of all the evidence the issues for the court to determine were as follows:

i)                   The father does not accept that he has been violent to the mother. However he states that he would be willing to give an undertaking to the court not to molest the mother limited to a period of 6 months after the final hearing of the Children Act 1989 or Ancillary Relief proceedings whichever is the later without the need for any adjudication. The mother relies on the father’s conduct during these proceedings and in particular to an incident which occurred on 9 December 2012. The issue therefore is should the court make an injunction or accept the father’s undertaking and if so for what period of time?

ii)                 The father has withdrawn his application for a shared residence order and has agreed that the child shall reside with her mother. I have made a residence order in favour of the mother.

iii)               The father has agreed that there shall be an order for indirect contact for the time being. However he seeks an order which would allow the possibility of direct contact but he accepts that it will depend on the wishes of E. The guardian and the mother have submitted that the proceedings should be brought to a conclusion with final orders being made for indirect contact only. The issue therefore is what if any order should be made in respect of direct contact?

iv)               The mother and the guardian submit that there should be an order pursuant to s 91(14) of Children Act 1989 for a period of 3 years. The father does not consent to the making of such an order. The issue therefore is should the court make an order and if so for what period of time?

v)                 The father has not pursued his application to discharge the children’s guardian. I therefore dismiss his application.

vi)               The mother and the guardian seek an order preventing the father removing the child from the jurisdiction until further order. The father consents to the making of a prohibited steps order preventing his removal of the child from the jurisdiction but he submits that it should be for a period of 12 months. The issue therefore is should the order be for 12 months or unlimited in time or for some lesser period?

vii)             The mother and guardian seek an injunction preventing the father from publishing material throughout the child’s minority. The father consents to the making of such an order.

viii)           The grandmother has sought and obtained the court’s leave to withdraw her application for contact to the child. The parties having agreed arrangements for her to have contact with E.

8.                  The following issues arising from the evidence require consideration:

i)                   The father has admitted submitting in evidence before the court a signed statement purporting to come from Dr C knowing it to be false.  In addition the father has admitted submitting a signed letter purporting to come from Dr C knowing it to be false. As a consequence of his actions the court has to consider whether there should be a referral to the DPP for them to consider what action if any to take.

ii)                 Dr C in evidence admitted certain failures to follow the guidance of the GMC in respect of child safeguarding procedures. The court has been invited by the mother and the guardian to consider referring the doctor’s conduct to the GMC.

The Background

9.                  The father is 51. The respondent mother is 32. Both parents are Jewish but differ in the degree to which they adhere to the tenets of the faith. E attends a local primary school. Both parents are in employment. The mother has qualified as an engineer. She went abroad to obtain a degree [for a period of 9 months in mid 2008]. The mother is employed as an electrical engineer. The father is involved in the management of a Children’s Nursery.

10.              The parties married in October 2003. The parties met on an internet dating website when the mother was living abroad. She moved to [area redacted] to live with the father in July 2003.They lived together at an address [area given], a three bedroom detached house in the name of the father. The maternal grandmother came to join her daughter in 2004. 

11.              E was born in 2004. The mother complains that problems developed in the relationship soon after E was born. She complains of the father’s controlling behaviour which escalated to emotional abuse and physical violence. She says that she moved out of the family home in July 2010, moving into rented accommodation with E and applied for a divorce. However in January 2011 there was a reconciliation and she withdrew her application for a divorce.

12.              Unfortunately the situation did not get any better. The mother moved out in July 2012 to live, in what is accepted to be over crowded conditions, at the maternal grandmother’s home taking E with her.

13.              Upon separation the parents came to an agreement whereby the father had contact with E every other weekend from Friday after school until Sunday at 6 pm. and every Wednesday after school until Thursday morning.

14.              The mother complained to the police about the father’s physical abuse of her in June and July 2012.  She made an application for a non-molestation injunction and sought an order excluding the father from the matrimonial home. The non-molestation order was granted but the father remained in the family home. The father was charged with assault pursuant to s 39 of the Criminal Justice Act 1988, otherwise known as common assault. The matter came to trial before the Magistrates Court on 6 February 2013. The father was found not guilty. The mother has elected not to re-litigate those matters before me.

15.              The father issued an application seeking a shared residence order and a defined contact order issued on 2 October but dated 18 September 2012. The mother alleged that the father declined the opportunity to attend mediation. He asserted in his C100 Application that he and the mother had previously had an informal shared care arrangement but this had broken down; that his time with the child had been restricted by the actions of the mother with the result that he now has only occasional overnight stays and his contact with the child has been severely restricted.

16.              It is said that the father sought to manufacture evidence to bolster his case. In the days before he issued his application in September 2012 he took E to Dr C, a doctor at the family GP surgery. He was not their regular doctor. The father accepts that he did so on a number of occasions in order to obtain evidence that the mother was ill treating E. It is admitted that he took her to the GP on 12 September; 20 September 2012; 3 January 2013; and 16 January 2013. I will have to return to these visits later in this judgment.

17.              In November 2012 there were difficulties over contact. The father removed E from school in breach of the contact arrangements. On another occasion the father attempted to remove E from her gymnastics class. The police were called. He was asked to leave the premises. There was a similar incident at the gates of the school.

18.              The mother made another complaint of violence which occurred on 9 December 2012 when it is alleged that the father assaulted her when returning E from a contact visit.

19.              Following this incident the mother, acting in person, issued an application for a non-molestation order against the father in the [location redacted] County Court. This was a without notice application. It was considered by DJ Turner on 10 December 2012. He granted an injunction inter alia preventing the father from using or threatening unlawful violence towards the mother with a return date on 18 December 2012.

20.              The father’s Children Act application for residence came before DJ Brazier sitting at [location redacted] County Court on 17 December 2012. There were a number of recordings made one of which recited that:

“It is agreed that as from E’s return to school on 3 January 2013 the previous arrangements shall continue (namely each Wednesday from school until school on Thursday Morning and each alternate Friday after school until Sunday at 6 pm) with Father and with Mother at all other times. Handovers on a Sunday evening will take place at McDonald’s in [location redacted] and will be facilitated by the mother’s parents.” Further it was recorded that it was agreed that “the allegations of domestic violence should inform the arrangements for handovers but do not mean there should be no contact.” 

21.              A report from CAFCASS was requested and the matter was listed for a pre-hearing review on 13 May 2013 with a provisional final hearing on 27 May 2013. It was further recorded that in the event that the non-molestation proceedings were not concluded on 18 December the father’s solicitors were to notify the court and seek a transfer to [location redacted] County Court.  This subsequently took place on 10 January 2013.

22.              On 18 December 2012 the application for the non-molestation order came before DJ Pickup sitting in [location redacted] County Court. Upon the transfer of the Children Act proceedings to [location redacted] a new timetable was set with a final hearing fixed for 5 March 2013.

23.              On 6 February 2013 the criminal allegations against the father were heard by the Magistrates Court. The father was acquitted of all charges.

24.              The father made a referral to X Social Services in February 2013. He complained about the quality of care provided to E by the mother. An email was sent to Dr C asking whether he was making a referral to social services. He said that he was not.  An Initial Assessment was undertaken by Ms W who concluded that there were no concerns and the case was closed.

25.              On 4 March 2013 the father sought to vacate the final hearing because of his ill health supported by a short medical report, (he suffers from pulmonary chronic sarcoidosis). This assertion was challenged by the mother. Deputy DJ Beattie decided that the non-molestation hearing be re-listed on 16 April and ordered the mother to pay the father’s costs assessed in the sum of £600.00 inclusive of VAT at £100.

26.              On 8 March 2013 there was an incident at the C Theatre. E was attending a school outing. The father sought to remove E. The theatre security guards had to be called to escort the father from the premises. He then attended the school and there was an incident involving the father and the school teachers. Father accepts that he sought to remove E in order that she could be taken to be examined by a psychologist without the knowledge of the mother or authorised by the court.

27.              On 8 March 2013 E’s head teacher made a referral to the local authority stating that the father has been taking E out of school to attend different appointments e.g. GP. The head teacher noted that E’s attendance had dropped to 92% and that her non-attendances corresponded with father taking her out for appointments.

28.              On 12 March 2013 the mother issued an application without notice seeking to restrict the father’s contact arising in part out of the medical evidence filed in support of his application for an adjournment.  She sought to impose conditions on the father’s contact namely that he should not drive with E in the car; that he should have another relative present during contact including overnight contact;  requesting him to give an undertaking that he will notify her in the event that his health deteriorated. DJ Shaw refused her application and directed that all matters should be considered as previously listed on 16 April and 7 May 2013.

29.              In March 2013 there were a number of incidents. The maternal grandmother and the mother were allegedly assaulted by strangers. It was alleged that the father was in some way responsible. The father denied any involvement.  The father declined to consent to E going abroad with her mother resulting in the mother losing the costs of her flights.  On 23 March 2013 the police were called to the grandparent’s home at 2 am. It had been alleged that E had been home alone. There was no truth in the allegation. It is alleged that the father made the referral.

30.              On 4 April 2013 the father issued an application for a defined contact order.

31.              On 16 April 2013 DJ Turner made a non-molestation order by consent until further order or the making of a final order in the ancillary relief proceedings or Children Act proceedings whichever was the later. The father was represented by Counsel the mother was acting in person. Directions were given in relation to the Children Act applications.  The parents were referred to a Separated Parents Information Programme; the contact arrangements were repeated with conditions in particular the father was told that he shall not take the child to any unnecessary medical appointments and shall notify the mother of all attendances at the GP. The father undertook to make certain payments to the mother and agreed to her returning to collect items from the family home upon which the mother’s application for an occupation order was adjourned.

32.              On 12 April CAFCASS made a referral to X Social Services stating inter alia the following:

“During an interview with E on 10/4/13 she disclosed that she is a bit scared of both her parents and her maternal grandmother because they all hit her when doesn’t do as she is told…..E also disclosed that her father has been telling her what she should say to the lady from CAFCASS i.e. that she wants to live with him. This is clearly not what she wants. She has expressed the view that she wants to live with her mother wants stay with her father every Wednesday night and every other weekend as per current arrangements.

….. I am concerned that E may be suffering emotional harm due to the pressure she is experiencing and the concern she has expressed in relation to retribution from her father.”

33.              The assessment noted that E was fed up of the conflict between her parents. She disclosed that her father asked her to request more contact when she speaks to professionals. E repeated that she wished the arrangements in respect of where she lived and her contact with her father to remain as they were.

34.              The Initial Assessment was completed by 30 April 2013. The report concluded that there were no grounds for concern and it supported the recommendations of the CAFCASS officer, namely, that the proceedings should be concluded as soon as possible with a residence order in favour of the mother and contact to the father.

35.              In June 2013 there were further difficulties over contact. The father was banned from the school premises on 18 June 2013 because of his behaviour towards the school staff. The father wrote to Michael Gove MP and to the Department of Education complaining about the way he was being treated.

36.              The final hearing of the Children Act application came before Deputy DJ Murphy on the 24 July 2013 the father was assisted by a Mackenzie Friend, the mother was represented by counsel. The father’s evidence caused Mrs Jessup, then the Family and Court Reporter, to change her recommendations as to the duration and frequency of contact and recommended that it becomes supervised. A transcript of that evidence has been obtained. The matter was adjourned part heard until the 9 September 2013, as referred to below.

37.              On 13 August 2013 the mother applied for a prohibited steps order. The order was made as requested by Deputy DJ Pickup on 16 August 2013 having read statements from both parties and a letter from CAFCASS in which it was suggested that the child might be removed from the jurisdiction of the court.

38.              The father then made applications to the court on 15 August 2013 and 3 September 2013 seeking leave to call his GP, Dr C, to give evidence at the request of the doctor. He stated that:  

“The doctor had presented two letters to the court. Neither have been noted by the court. He has evidence that E has been abused by her mother and maternal grandmother both physically and emotionally. He says he is mortified why the court is not concerned and why I am being blamed for it.” 

Permission was given for him to call Dr C. The letter from Dr C dated 15 August 2013 had been altered by the father unbeknown to the doctor and the doctor’s signature forged by the father.

39.              On 9 September 2013 the father sought an adjournment of the September hearing as Dr C had not apparently been notified of the hearing and was unavailable. It subsequently became apparent at this final hearing that the doctor did not know anything about any of the hearings. The application was granted.  There were a number of recitals the most significant being that the mother had notified the court of her suspicions that the father had intended to use the press as part of his “campaign”. The court warned both parties explaining the terms of s 97(1) of the Children Act and reminded them of the consequences of publishing material which could identify the child. The mother stated that she wished to make an application for an order pursuant to
s 91(14) of the Act. Reference was made to a recording of E’s comments by the father about her treatment by her mother which had since been destroyed. The matter was then transferred to the [location redacted] County Court to be heard by a Circuit Judge. Provision was made for contact between father and child. The mother’s application for the father to pay the costs of the hearing on 24 July and 9 September because of his litigation conduct was adjourned.

40.              On the 16 September 2013 Mrs Jessup wrote Deputy DJ Murphy sending a section 16A risk assessment letter identifying that she had received a referral from the local authority setting out the information as contained in paragraphs 70-71 below and inviting the court to only permit contact if it was professionally supervised. Upon receipt of the letter, and of his own motion, Deputy DJ Murphy made an order that contact be supervised by a professional agency.

41.              The supervised contact provided for did not take place as father stated he had become more religious and consequently could not attend for contact on the Sabbath, the only day that contact at the contact centre could be arranged. There was then correspondence between the parties with the mother’s solicitors seeking to clarify what orders the father was seeking.

42.              The final hearing was listed on 9 December 2013 with a time estimate of 5 days. However that hearing had been adjourned in the previous week and the matter was listed for directions because it was not clear whether the father was seeking to withdraw his applications and because the father had not attended for any observed contact visits to the child.  The judge felt unable to hear the final hearing and recused himself.  The father produced a statement from Dr C upon which he wished to rely.

43.              The father was again warned not to publish material without the leave of the court. The child was made a party to the proceedings and was represented by Mrs Jessup as her guardian. Provision was made for CAFCASS to make a referral to a service provider to promote assess and supervise contact between the father and E and to report to Mrs Jessup. Y Contact Agency  was the service provider and they successfully supervised 4 sessions of contact until the incident with the [name of newspaper given] referred to below. The matter was then listed for a final hearing before me on 17 March 2014.

44.              During the course of these proceedings the father on two occasions threatened to tell his story to the press. On two occasions two judges, DDJ Murphy and HHJ Allweis warned him not to do so. However on [date in early 2014 redacted] 2014 an article appeared in the [name of newspaper given] in which the father’s account of his battle for residence and contact are repeated alongside a pixilated photograph of himself and E. Although the names were changed it was not too difficult for anyone in the relatively small local Jewish community to identify the parties. He gave the reporter details of her school so that the head teacher was interviewed. Her mother was also approached by the reporter.

45.              In his statement the father acknowledged that what he did was wrong. The consequences for him have been stark as E has now refused to see him and the future of his contact is now uncertain.

46.              The parties took the opportunity to have discussions at the commencement of this hearing with the result that the issues in dispute have narrowed.

47.              In his position statement filed at the beginning  of this hearing the father confirmed that his position was as follows:

i)                   He was no longer seeking a shared residence order;

ii)                 His application was for contact subject to the wishes of E;

iii)               He noted that there had not been any adjudication in respect of any of the allegations made by the mother and that the criminal courts had found him not guilty of the s 39 offences and the CPS had declined to prosecute in respect of the 9 December 2013 incident. He noted the observations of DJ Stockton that “the allegations of domestic violence should inform the arrangements for handovers but do not mean there should not be any contact.”

iv)               In respect of the alleged ill treatment it was asserted on his behalf that his allegations were based upon his belief at the time of his referrals and that he believed he had acted reasonably in making referrals about  E to his GP and to Social Services;

v)                 He made no allegations of current mistreatment;

vi)               He maintained that that E was hit by a hairbrush by her maternal grandmother and that he has an 8 second portion of the recording which supports his allegation. He asserts that the mother had admitted that she had  also tape recorded E;

vii)             The father accepted that he had behaved unwisely in attempting to remove E from a school trip to the [C Theatre] in an unplanned and angry manner;

viii)           That he was wrong to publish the article in the [name of newspaper given] in the face of a court order preventing such publication.

ix)               He has tried to build bridges with the school so as to permit appropriate communication to take place;

x)                 He accepts that in the light of E’s current wishes and feelings due to the publication of the article that she is upset by his actions. He did not accept that there should be no direct contact because there is the evidence of four positive contact sessions taking place before the direct contact ceased and historically there had been a close relationship between father and daughter.

xi)               The father complained that the mother had exacerbated problems by bringing E to the former matrimonial home when she was collecting her belongings so that E witnessed an unpleasant incident at which the police attended; he relied upon the matters raised by the doctor following the referrals to the GP; he complained that the mother ill-treated E by smacking her and keeping her from her paternal family and the Jewish faith.

The Allegations

48.              The mother and the father have each made allegations that the other has lied and that the other has ill-treated E both physically and/or emotionally.

The father’s allegations:

49.              Until day four of this hearing the father had sought to prove his allegations. In his statement filed on 17 March 2014 the father alleged that the mother had ill-treated E. He states that although he had not witnessed these incidents, E had complained to him that her mother had:

i)                   locked her out of the house in the cold and the rain if she is naughty;

ii)                 pushed her around and so to has her maternal grandmother;

iii)               made her  eat food she dislikes and if she did not eat it she would be sent to bed hungry;

iv)               forced her to cross a main road on her own when she was naughty;

v)                 prevented her from having contact with friends outside school except for a couple of parties recently to show good character;

vi)               caused a bruise on her arm where she  had been hit;

vii)             refused to allow her to have a drink in the evenings;

viii)           refused to allow her water at night;

ix)               refused to allow her to shower after she has been to the swimming baths;

x)                  did not trim her nails with the result that they are long and filthy;

xi)               failed to provide medication for her asthma; instead she has told  her to “shut up and stop it” when she was wheezing;

Further, that her maternal grandmother had thrown a hair brush at her.

50.              The father has complained that CAFCASS and Social Services have ignored his complaints about the mother’s behaviour; the court has been unsympathetic and the paternal grandmother has been prevented from having contact with E without a good reason.

51.              The father complained that the CAFCASS officer Mrs Jessup is biased against him because she made a judgment that he had emotionally abused E. On 5 February 2014 he made an application to have Mrs Jessup removed as guardian because she had referred him to LADO and Ofsted.

52.              He has complained that the head teacher and class teacher had turned against him; that he was not invited to parent’s evening nor allowed to see her school report. He made a complaint to the Department of Education.

53.              He alleged that the mother had fabricated evidence; that she had recorded a question and answer session with E and that she is very controlling of her daughter seeking to deny her an identity of her own and preventing her from having any fun love and affection in her life. He further asserted that the mother was implacably hostile to the question of contact and that had the mother allowed contact not only would there not have been a court case but E would not have been put through the emotional stress caused by the proceedings. He further states “I am very aware of the damage that this is doing to E, but it is the respondent who has caused the situation”.

54.              At the completion of all the evidence  the position for the court now is as follows:

The father has withdrawn all the allegations that he made against the mother at the commencement of these proceedings on day four of these proceedings.

55.              The mother’s position is as follows:

The mother seeks the following orders:

a)                  The father shall have no direct contact with the child E;

b)                 There shall be permission for the father to have indirect contact with the child in the form of letters, cards and gifts subject to conditions:

i)                   Indirect contact shall be at no greater frequency than monthly unless agreed by the mother and Y Contact Agency;

ii)                 All indirect contact shall be facilitated through Y Contact Agency and shall not be posted directly to the child by the father unless agreed by the mother and Y Contact Agency;

iii)               The indirect contact may only include audio and/or video recordings of the father if the mother and Y Contact Agency agree;

iv)               The services of Y Contact Agency shall be commissioned by the father and the costs shall be borne by him.

c)                  The father shall not be permitted  to make any application under the Children Act in respect of the child until 23 May 2017 without leave of the court;

d)                 The father shall be prohibited from removing the child from the jurisdiction of England and Wales until further order;

e)                  The non-molestation order shall continue until further order;

f)                  The father shall be prohibited from publishing material that may lead to the identification of the child. The order shall remain in force until the child reaches her majority.

g)                 Consideration should be given to referring the conduct of Dr C to the GMC

h)                 Consideration should be given to referring the father’s conduct, whereby he has submitted a forged statement and letter from Dr C as evidence within these proceedings, to the CPS or police for investigation whether he has attempted to pervert the course of justice or committed any other offence.

i)                   There is a request that the father pay the costs of the preparation of the aborted hearing on 24 July 2013 and the costs of the hearings to date including the date of judgment and the implementation of the order.

ii)                 The father has withdrawn his specific allegations of harm to E against the mother and has acknowledged that he has acted wrongfully and has in fact caused emotional harm to E. There is a revised schedule which sets out his concessions.

a)                  He alleges that the mother has also caused emotional harm to E albeit to a different degree because E has told Mrs Jessup that she did not feel safe; both parents smacked E to discipline her;

b)                 The father disputes the mother’s allegations about his behaviour relating to the 9 December 2012 incident.

c)                  He invites the court to accept his undertaking in place of an injunction to last for a period of 12 months after the final hearing of the outstanding Children Act or Ancillary relief proceedings whichever is the latter.

d)                 He will accept an order for indirect contact to be assisted by Y Contact Agency with a view to supervised contact commencing with the assistance of Y Contact Agency if they consider that E will accept this. He would prefer this to be sooner rather than later after he has written a letter of apology with professional assistance. To support his proposals he has sought out family therapy and has asked his GP to refer him to a psychologist. He has an appointment on 9 May 2014.

e)                  He opposes the making of an order pursuant to s 91(14).

f)                  He would not oppose any order with penal sanctions preventing publication of information by him about his daughter throughout her minority.

g)                 He would not oppose a prohibited steps order preventing his removal of the child from the jurisdiction for a period of 12 months. He would not object to the child being taken abroad by her mother provided her full travel plans are provided to him in writing with documentation in support prior to any trip being arranged.

56.              The findings sought by the mother and the guardian have been set out in a Scott Schedule.

The mother seeks the following findings:

i)                   The father has presented E to medical professionals for unnecessary medical appointments and examinations (including questioning by her GP) not to further her welfare but rather to gather evidence in support of his application. He has taken her out of school for this purpose. This allegation is accepted by the father. The father does not consider the appointments to be appropriately described as unnecessary.

ii)                 The father has applied excessive psychological pressure to E to make false allegations of abuse against her mother to a GP on at least three occasions. The father accepts that he took E to his GP but says he did so on the advice of his solicitor because he believed E was being abused. I will have to decide the whether he genuinely believed that E was being abused.

iii)               The father has applied excessive psychological pressure/bullied her and manipulated the child’s account of an innocent incident to cause E to give a false account of an assault by her grandmother by throwing of a hairbrush at her (including emotionally blackmailing her e.g. by saying that he will find another wife and child). This included contradicting and promoting a false account of the pain to the child. The father recorded emotional abuse of the child as evidence on his mobile phone as evidence to show to professionals. This is admitted by the father. He denies including a false account of pain.

iv)               Routinely changed E into her school uniform during holidays and weekends in order to ensure that her mother never got hold of any clothing that he had purchased for the child thereby humiliating E. This included removing her boots and making her walk back to her mother’s home with only socks on. This is admitted by the father but he denies making E walk back to her mother’s house without her boots as he carried her to her the house. He does not accept that this caused her humiliation.

v)                 On 8 March 2013 the father attempted to remove E from a theatre trip with school which was stopped by the teacher and security were called to assist. Thereby exposing the child to unnecessary and harmful conflict with professionals. This is admitted by the father.

vi)               The father was abusive and out of control of himself as he:

a)                  Shouted at the head teacher on the 8 March 2013;

b)                 Was abusive and threatening to the head teacher on 18 June 2013. This act ultimately led to him being banned from the school premises by the school governors. The father admits raising his voice at the head teacher on 8 March 2013. He denies being abusive to the head teacher on 18 June 2013 and alleges that he was assaulted by the head teacher who was rude to him and his mother.

vii)             The father made public comments that the mother had physically abused E through various mediums including telling people he knows, Facebook status updates and in an article in the [name of newspaper given] on [Date redacted] 2014. E has become aware of these allegations and has been caused significant distress as a result. This is admitted by the father.

viii)           The father withheld from E’s mother that she was diagnosed with possible asthma in September 2012 and withheld that she had been prescribed inhalers thereby:

a)                  Failing to ensure that the child has access to the respiratory medication at home and at school when not in his care. This is admitted by the father.

b)                 Failing to disclose the use of this medication to the ENT surgeon and/or anaesthetist who removed the child’s adenoids on 16 October 2012. This is admitted by the father.

ix)               Assaulted the mother and threatened to kill her in the presence of E on 9 December 2012. This is denied by the father. He alleges that the mother was aggressive to him and threw objects at him on his returning the child 90 minutes late.

x)                 The father has perverted the course of Justice:

a)                  The father has amended and/or created a false statement purporting to be from his GP, Dr C dated 4 October 2013, and forged his signature on the statement and then filed and served the statement with the court;

b)                 The father has amended and/or created a false second page to a letter originally written by Dr C dated 15 August 2013 and forged his signature upon the letter then filed and served the letter with the court in support of his application to call Dr C to give evidence. Both allegations are admitted by the father.

xi)               Altered the recording of E that he played to the police and to Dr C and presented it in edited form with the court to present a dishonest and/or misleading account of the original content. The father admits this allegation save that he does not accept producing a dishonest account.

57.              The Guardian submits that:

i)                   That the father lacks emotional insight into the needs of the child and the impact of his behaviour upon her. This is considered to be a continuing risk.

ii)                 His litigation conduct has contributed to the emotional harm suffered by the child.

iii)               The father sought to influence the responses E gave to the guardian during her first interview with her.

iv)               The guardian invites the court to consider disclosing a copy of the judgment and a transcript of Dr C’s evidence to the GMC because his actions facilitated the father’s emotional abuse of the child.

v)                 The father’s conduct in relation to the statement and letter should be referred to the DPP for consideration whether any criminal conduct has occurred.

vi)               The mother is also to be criticised because she has physically chastised the child and has also failed to meet the emotional the child in the early stages of these proceedings. However she acknowledges that the mother is in tune with the emotional needs of the child and she has promoted contact even after the publication of the article in the [name of newspaper given].

58.              The guardian therefore seeks the following orders:

a)                  There should be an order for indirect contact only between the father and the child;

b)                 There should be a non-molestation order until further order;

c)                  There should be an order pursuant to s 91(14) for a period of 3 years;

d)                 The guardian supports an order prohibiting the father from publishing material in the newspapers as well as on Facebook as requested by the mother during E’s minority;

e)                  The guardian supports the making of a prohibited steps order until further order preventing the father from removing the child from the jurisdiction because he has shown that he can act in a precipitous way without consideration of the consequences.

f)                  The court is invited to disclose a copy of its judgment to the Local Authority so that consideration can be given to any safeguarding issues that may affect the father’s prospective stepdaughter.

ii)                 The guardian recommended that final orders be made with the guardian playing no further part in the proceedings because E does not need visits from social workers, police officers or children’s guardians.  Proceedings should move at her pace and not one dictated by adults or the courts.

The Legal Framework.

59.              Since these proceedings commenced there has been a change in the substantive law and procedure governing private family law cases. The Family Court came into existence on 22 April 2014 and the Children and Families Act 2014 became law introducing the Child Arrangements Programme (CAP). Residence orders and contact orders have been replaced by Child Arrangement Orders.

60.              The philosophy behind the CAP is that parents are to take responsibility for the arrangements for their children once their relationship has broken-down. They are to seek mediation and non-court dispute resolution as an alternative to coming to the courts. The voice of the child is to be considered and given weight depending on the age of the child. The role of the court is to resolve the dispute which cannot be resolved away from the court and then the court withdraws and leaves the parents with the responsibility of exercising their parental responsibility. Once the issues have been determined by the court there should not generally be any review hearings unless it is necessary and in the child’s best interests.  The court has power to make a contact monitoring order.

61.              In determining any issue concerning the welfare of the child the court is required to apply the welfare checklist set out in s 1(3) of the Children Act 1989.

62.              I remind myself that the burden of proving a fact rests on the party that makes the allegation and that in civil proceedings the standard of proof is on the balance of probabilities.

63.              With regard to an application for an order under s 91(14) of the Act I remind myself of the guidance provided by Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) 1999 2 FLR 573. This can be summarised as follows: (a) the court always has to carry out a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the court; (b) the power is to be used sparingly and is the exception not the rule (c) in suitable circumstances a court may make an order although there has been no past history of making repeated and unreasonable applications if the welfare of the child requires it. In such cases the court will need to be satisfied first that  the facts go beyond the all too common situation where there is animosity between the adults in dispute and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carer will be subject to unacceptable strain; (d) a need for a time to settle to the regime ordered is not sufficient to justify a s 91(14) order; (e) the degree of restriction must be proportionate to the harm it is intended to avoid.

The Evidence

64.              I have heard evidence from the father, the mother, Dr C and the guardian Mrs Jessup. Dr C’s evidence was heard over the video link.  Notwithstanding the admissions and concessions made by the parties and in particular the father I am required to make some findings.

The incident on 9 December 2012

65.              This is not the most significant incident in this long catalogue of events but it illustrates a pattern of behaviour that has beset this case and has prevented an early resolution to the detriment of E.

66.              The father said in evidence that he collected E on the Friday 7 December when school finished around 2-2.30. He went to London to visit his then girlfriend. He said that he accepts that he was travelling on the Sabbath but at the time he was not as observant as he is now. He had not told the mother that he was taking E to London and he had led her to believe that he was staying in the locality as they had had discussions about E’s weekend activities, vis, swimming lessons and gymnastics.  

67.              On Sunday 9 December He was late in returning E. There was an angry exchange of texts which it is not necessary for me to set out here. On arrival the mother was angry. The mother said that the father had the boots in one hand and E had been made to walk in the snow in her socks. There was an argument about the boots. She asked him about E’s school shoes. He said he had left them at his home. This meant that E had no shoes with which to go to school on Monday. She said he barged into her, was close to her face and shouted “hit me hit me. I’m going to kill you bitch.” He then walked away.

68.              The maternal grandmother in her police statement said she heard a commotion outside the house. She went out but could not see the parents as it was dark but she heard them arguing. She heard the father say “hit me, hit me.” E had run into the house without her shoes. She then heard the father say “I will kill you.”

69.              Father said he had changed E back into her school uniform at some point in the return journey and had removed her boots. He did this after every contact so that the mother could not retain the clothes that he had bought for E. He first said that he had removed her boots at the car and was carrying her to the mother’s door. There was snow on the ground. He later in cross-examination said that he had removed the boots at the door. He denied making her walk in the snow without her boots on. He says the mother hit him with one of the boots or a plastic bag containing clothing. He denied jostling the mother or threatening to kill her.

Visits to Doctor C

70.              The father took E to see Dr C. He accepts that he was gathering evidence to use in the forthcoming proceedings. The chronology is as follows:

i)                   On 12 September 2012 he took E to see Dr C. He reported allegations that the mother had subjected E to a regime of poor care by smacking her, forcing her to eat burnt food, and not giving her medication (a nasal spray). E was present whilst the father related his account. Dr C said in evidence that E did not deny it nor did she validate the account. The doctor made an assessment that E might have asthma and suggested she should undergo an assessment.

ii)                 On 19 September 2012 the father took E to the surgery to see the nurse for a peak flow assessment and a trial of a Ventolin inhaler. E did not see the doctor. The father did not tell the mother or the school following this appointment of the diagnosis or assessment or the prescription. 

iii)               On 20 September 2012 the father telephoned Dr C and reported that the mother does not regularly give E her medication. This resulted in a letter being dictated by Dr C

“To whom it may concern”….E does not regular (sic) receive her medicines whilst at home with her mother. She reports these are kept away from her. The first medicine was a nasal spray prescribed by the ENT consultant and needs to be used regularly but many doses are missed and the spray is not passed over at the weekends during visits to her father’s house. The newest is a spray that has been prescribed whilst E is being assessed for a diagnosis of asthma. It is reported that mum is refusing to give the medication”.

This is a reference to the medication prescribed the day before.

iv)               On 26 November 2012 the father took E to see Dr C. He complained that E is not given water at night. This resulted in a second letter from the doctor dated 26 November.

“To Whom It May Concern….This is to confirm that I saw E today in clinic and E stated that she does not have access to water at night. It is important for her to have access to water when she is thirsty, particularly with taking her inhalers as they can dry her throat causing worsening of her nocturnal throat.”

v)                 On 3 January 2013 E was again brought in to see the doctor by the father. There were complaints from the father that E was made to stand outside in the cold after she had stepped in a puddle,   and that she was force fed cough medicine when she did not have a cough. E is alleged to have told the doctor that she was not given her inhaler by her mother. This led to another letter from the doctor in which he said:

“To Whom It May Concern….E came to the surgery today accompanied by her father P. She stated that her mother is continuing to provide inadequate care with regard to her underlying illness and symptoms. She complained to her mum that she was wheezy and was told to stop wheezing. After accidentally stepping into a puddle, was forced to remain outside in the cold and rain as punishment. Finally, she is being force-fed cough medicine by her mother despite not having any cough symptoms. These events are obviously concerning”.

vi)               On 16 January 2013 the father took E to the surgery. Dr C telephoned X Social Services in response to the email sent to him by Ms W. He stated that he had no concerns. He said that he had merely noted father’s concerns. He was advised that if he had any concerns he should notify social services. On 22 January 2013 Dr C sent an email to X social Services in which he said that:

“The letters were written for Mr P were not intended as a referral back to yourselves, but requested by his solicitor for an on-going court case regarding residence of E. If anything changes I will contact you, and refer directly myself”.

vii)             On 11 February 2013 [location redacted]  Social services sent an email to Dr C informing him that Mr P had contacted them and had suggested that he, Dr C, had further concerns about E. They asked him to complete a referral form if that was the case. The doctor completed the referral form in which he stated:

“ The actions of the mum towards E are  causing concern to E and the father R. Including withholding medicines, safety issues making her cross the road on her own, leaving her outside in the street, forcing cough syrup….” The father admits tippexing out the words which followed this entry before he filed the document with the court.

viii)           On 31 July 2013 the father went to visit Dr C on his own and obtained a letter from the doctor addressed to his solicitor in which he, the doctor, expresses surprise that social services had not acted on his expressed concerns. He said that at no point during his consultations with E did he feel that Mr P was coercing E or putting words in her mouth. She was capable of recounting the events herself and able to respond to my questions spontaneously and independently. He went on to say that he would have concerns about E staying with her mother or grandmother.

The tape recording

71.              The incident with the tape recording is an important incident. The information is recorded in the FWIN of the same date. On 5 August 2013 the father made a report to the police that E had been ill treated by her mother and grandmother. He complained to the police that the maternal grandmother had thrown a hairbrush at E; she was not being looked after properly because she had filthy nails, her clothes were dirty, she was not allowed to shower daily, E was locked out in the cold and rain she was constantly smacked and pushed around. 

72.              The police reported that the house was clean and tidy. E had no signs of visible injury neither did she look unkempt. The father was contacted. He insisted that he had a recording which he wanted the police to hear. He was invited to the Police Station. When asked to play the recording he was described as appearing very nervous and fidgety. He produced letters from Dr C. He then played the recording which he had made on his mobile phone which lasted about 10 minutes. The FWIN then states the following:

“In the recording P can clearly be heard applying a great deal of psychological pressure on E demanding that she discusses whatever concerns she has about her mother and living at home. E says several times that nothing is wrong and she has no concerns. P gets frustrated and tells E that she is weak and that her friends whom he names are far stronger that her. He tells her that she will have no life and will never go on holiday and that is her choice if she wishes to remain at home but her mother will not allow her to be a Jew or celebrate Jewish Holidays. He goes on to say he will marry and have more children who will have a life. E challenges him on this. The recording goes on to say that P changes the subject and discusses the time that a named person threw a hairbrush and it hit E on the arm. E agrees that this did happen and that the person was very angry. P asked did it hurt. To which E replies “not really” to which P retorts “it did, it did hurt didn’t it.”

The officer notes that

“The recording comes across as a father highly manipulating a conversation from his 9 year old daughter whom he doesn’t seem to be talking to as a child. E challenges P several times about his motivation behind the questioning and refers to P repeating these conversations to the solicitors gets mummy into trouble”.

73.              This recording now does not exist. The father states it was damaged when he left the recording in his jeans which went in the wash leaving only the incriminating 8 seconds in which E says the hair brush hurt when it hit her arm.

74.              The father in evidence has told me that he now accepts that he has behaved foolishly. He says E has to believe that the court issues are over. He confirmed that residence is not in dispute and he acknowledged that where she is currently living is not appropriate because of the overcrowding. He said that in his heart of hearts he would like E to share her time equally with him but he knew that would not be possible. He accepted that when he took E to the doctor the process of both the doctor and himself asking her questions could be confusing for her. He accepted that she may have felt under pressure confused and unsettled.

75.              He said he came to a realisation that this was no longer appropriate in August 2013. He said until then his sole objective was to “get E, to have my time with her.” The change came in the August when he met his wife to be. Having spoken with her he realised that he had to get on with his life and that he was doing her harm. However it must be noted that there were the calls to the police complaining about the care being give to E by her mother and her grand mother on 5 August 2013. He explained this behaviour as “I was not acting rationally.”  It must be noted that he maintained these allegations until a late stage of this hearing.

The evidence of Dr C

76.              Dr C gave his evidence over the video link. I directed that a transcript of his evidence be obtained so that there is an accurate record of his evidence available.

77.              Dr C said that the statement contained in the bundle at page C201 dated 4 October 2013 submitted by the father was not his statement. He did not sign this statement.

78.              The father has admitted forging the doctor’s signature on the bottom of the statement and submitting it as genuine. The statement at page C203 dated 15 October 2013 in the bundle is Dr C’s genuine statement. The father had prepared the statement and had intended that the doctor would sign it. The father has said that because of the pressure of time he decided not to put the statement before the doctor for him to sign. He signed it himself and submitted it to the court.  Dr C disassociates himself from paragraphs 2, 3,6,9,10,11 and 12 of the statement at page C 201/2 of the bundle. He explained that he had taken advice from a senior partner and had come to the conclusion that the contents of the statement at page C201 were far too subjective.

79.              Dr C accepts that he wrote letters.  However the letter dated 15 August 2013 at page C182 had been altered.  The father has admitted forging the last page of the letter and forging the doctor’s signature before submitting it to the court.

80.              Dr C said that he was concerned about E’s welfare and that is why he wrote the letters and made the referrals to social services. He said that he had received the information from E’s father and on occasions from E herself.

81.              Dr C was extensively cross-examined. He has been a GP since 2010. He admitted that his he had not undertaken his safeguarding re-evaluation every year and that he is not currently up to date. He was a GP at the parents’ surgery between July 2012-September 2013. He was neither the father’s named GP nor E’s GP. Their GPs were other named doctors at the practice. He had never met the mother nor did he know if she was registered at the practice. He said that he first saw E on 12 September 2012 but he had met the father a few days earlier on 6 September 2012. The father had highlighted his concerns which centred around problems when E was with her mother namely force feedings, smacking and not giving E her medication. Father wanted to make a referral to social services and the doctor said that if he needed his help he would make the referral. Of the allegations, he said “I can’t recall if I asked E. She did not deny it but I don’t recall her validating it at that time.”

82.              He explained that he wrote the letters for the father to use in court as he believed the letters were required for his solicitors. In general the father would tell Dr C what his concerns were as related to him by E and sometimes E would confirm the complaint. He could not recall if it was spontaneous or answers to questions. He could not recall if she adopted the father’s comments. However he said that there was nothing about her demeanour that made him feel that she was prompted or coerced.

83.               With regard to the Ventolin inhaler he said that he wanted to assess whether E had asthma. He was informed by the father that E had not been given the inhaler by her mother but he accepted that he had not checked that she had only been prescribed the inhaler the day before. He did not speak to the   mother to tell her about his diagnosis. He assumed that the father would have told her. He did not know that the father had not given the inhaler to the mother. He accepted that he did not check the position with the mother, E’s primary carer, before he reported matters to the social services.

84.              Dr C was referred to the GMC Guidelines Protecting Children and Young People 2012 and the Short Guide for GPs. He accepted that he had a duty of care to the mother and could have offered the mother support if he felt that she was not responding to the treatment regime he had recommended. He accepted that he had failed to keep an open mind. None of the reported concerns would have put the child at risk had he spoken to the mother about them. He did not perform that risk assessment before he made the referral to social services.

85.              He accepted that the guidance made provision for him to see a child separate from a parent if the presence of the parent may discourage a child from giving an account. This was particularly relevant where child protection is involved. The doctor accepted that at the time that he made his referral to social services on 16 January 2013, in which the child had alleged that she had not been given her medication, fluids at night had been fed cough syrup when it was not necessary and had been left out in the rain as a punishment, none of these matters had been discussed with the mother.

86.              The second referral to social services on 22 January 2013 was made by the doctor following an email from the social worker. However prior to filing the document the father tippexed out some words.

87.              He accepted he wrote the letter dated 31 July 2013 to Ms Ll. He said he was supporting the father in his bid to have his contact restored to the previous level and he stated that he did not believe that the father was putting words in E’s mouth or coercing her.

88.              Dr C subsequently agreed that with the benefit of hindsight some of his letters were too subjective.

89.              The doctor admitted that he did not notify the court that a forged statement had been submitted by the father to the court. He trusted the father to notify the court.

My Analysis and Findings

90.              Following discussions between the parties the issues have been significantly reduced as set out above. The matter was then adjourned for written submissions and for a referral to Y Contact Agency and for the father to seek assistance from a psychologist.

91.              Before I proceed any further may I thank the parties for their submissions. The father has been greatly assisted by Ms Grundy in making sensible concessions, albeit at the eleventh hour, which have gone some way to mitigate the harm that has been occasioned to this little girl. However there are findings that I will have to make before concluding this matter. In accordance with the CAP and the wishes of the parties the court has been asked to finalise this matter without a review hearing.

92.              There are three subsidiary issues that I will have to resolve at the conclusion of my findings in relation to the welfare issues concerning E. Firstly there is the issue as to what if any action I should take in relation to the role played by Dr C. Secondly, the father has admitted behaving in a way which could constitute doing acts tending and intended to pervert the course of justice. I will have to consider what action to take in the circumstances; thirdly there is the issue of the mother’s application for costs.

93.              The outstanding factual issue concerning the incident on 9 December 2012 now seems to centre on whether the child was made to walk in the snow in her bare feet and whether the father assaulted the mother and made a threat to kill her.   I say at the outset that I prefer the evidence of the mother where it differs from that of the father.

94.              I find that the father travelled with the child to London on the Friday night without letting the mother know that he was going to London. He was then late returning her to the mother on the Sunday. The mother was naturally very upset. She sent the father abusive texts. The father admits changing E into her school uniform as he usually did following the end of contact. He also removed her boots. This was to ensure he said that the mother did not retain “the clothes he had bought for E”. This was a pattern of behaviour that he followed even during the school holidays.  There is an issue whether E was made to walk in her socks to her mother.  I accept the mother’s evidence that she did have to walk for a short distance in her socks. I also accept the mother’s evidence that there was some jostling of her by the father and he used the words “hit me”. I do not accept however that any threat to kill made was intended to be acted upon by him. This behaviour took place within the hearing of E. I find that the mother was likely to be distressed and upset by this incident.

95.               In the context of this case the significance of this incident is that it confirms that the father has no understanding of the emotional needs of his daughter as he could not understand that E would feel humiliated and embarrassed by this behaviour. It also demonstrates the petty mindedness of the father and again shows that he was prepared to put his own needs first in order to make a point against the mother as he pursued his own agenda, thereby failing to prioritise the needs of child above his own. It also demonstrates the aggressive side to his character.

The Child’s Welfare

96.              It is a matter of the greatest regret that these two intelligent parents have allowed these proceedings to be conducted in the manner that I have summarised at the commencement of this judgment. In arriving at my judgment I apply the welfare check list set out in s 1(3) of the Children Act 1989. Neither parent is blameless. The chronology demonstrates that there were incidents of violence and abuse resulting in the attendance of the police on many occasions causing the greatest distress to E.

97.              The guardian had reported at an early stage in these proceedings that E felt that she was being torn apart; that E was experiencing the greatest emotional distress by the continuing litigation yet both parents lost sight of their principal responsibility, which was, to safeguard the welfare of their child. It should be remembered that the guardian commented in April 2013 that despite some hiccups in contact arrangements, E had maintained contact with her father every other weekend and each Wednesday for a significant period of these proceedings.  

98.              The mother has not been without blame. She made a recording of E and her litigation conduct in the earlier part of these proceedings can be criticised. For example her unwillingness to accept the medical reasons for the father seeking an adjournment in March last year and then her application without notice to have the father’s contact varied.

99.              The guardian noted that E felt scared of both her parents and spoke of both her parents using physical chastisement which the social worker and the guardian felt was inappropriate.

100.          However I find that the mother had the ability to realise her shortcomings and responded by seeking help for E. It is also to her credit that notwithstanding all the manoeuvrings by the father she made the child available for contact.

101.          The father has withdrawn his allegations of ill-treatment by the mother upon E. That was a proper action to take. It is a pity that he has persisted with these allegations for so long. I find that there is no evidence that the mother has physically harmed E. I reject the suggestion that she or the maternal grandmother has intentionally harmed E. Notwithstanding my observations of her conduct at the beginning of these proceedings I find that she is well attuned to E’s emotional needs and is the better of the two parents in terms of being able to meet E’s long term welfare needs.

102.          I find that the principle cause of this unnecessary litigation has been the father. He has pursued his own agenda with a degree of ruthlessness rarely seen in these courts.

103.          He has taken E for unnecessary medical appointments on occasions taking her out of school in order to manufacture evidence to further his cause. The incident at the Lowry Theatre was caused in part because he wanted to take E to an unauthorised assessment by a psychologist about which the mother was ignorant.

104.          He has put pressure on the child to make allegations against her mother to Dr C and then in a recording he is heard to exert pressure on the child with threats being made to encourage her to make false allegations against her mother and grandmother. This he presented to the police in a bid to further his campaign of harassment against the mother.

105.          He has forged a letter and a statement purporting to be that of Dr C which he has then filed with the court.

106.          He has shown a lack of empathy towards his daughter and his conduct has caused her significant emotional harm. Firstly he sought to manipulate her to make allegations against her mother by telling E that she was weak and that he would have a new wife etc as set out in the FWIN dated 5 August 2013. Secondly, he made her change into school uniform when handing the child back to her mother after contact irrespective of whether contact took place during the school holidays. This would have caused the child embarrassment and upset. Thirdly attempting to remove her from the Lowry Theatre when she was on the school trip and his subsequent aggressive behaviour at school again causing her embarrassment. Fourthly publishing material against the mother by his comments to friends of the family, placing material on Facebook and the publishing of the article in the [name of newspaper given]  on [date redacted] 2014 in defiance of clear warnings from two judges. This material has caused great distress and I find significant emotional harm to E.

107.          His failure to tell the mother that E had been prescribed Ventolin and was being assessed for asthma had the potential to cause E significant physical harm. Because firstly, the mother was unaware of the provisional diagnosis and so could not provide the medication for E at home or at school. Secondly he did not reveal to the ENT surgeon and the anaesthetist that E had the diagnosis and was on medication when she had her adenoids removed on 16 October 2012.

108.          I find the father to be an intelligent but highly manipulative man. He can be very aggressive when his wishes are thwarted. An example of this is the report of his behaviour by the school in March 2013 set out in the letter from the head teacher dated 8 March 2012 at page G23.

109.          He has displayed an ability to act without regard to the consequences or without considering the consequences of his actions. He has displayed a willingness to defy specific warnings by this court in respect of publishing material in the press.

110.          Prior to the publication of the material in the [name of newspaper given] E had told Caritas that she was happy to see her father and wished to see him. However contact did not then take place for many months because father had stated that he had become more religious and was not available for contact on a Friday afternoon or Saturday.

111.          E has suffered significant emotional harm having been in the midst of an acrimonious dispute between her parents. She has witnessed arguments and violence. Both parents have failed to protect her from such harm. The mother has mitigated her responsibility for the abuse by recognising the harm being caused to her daughter. The father did not until a late stage in the proceedings. With some hesitation I am prepared to I accept the truthfulness of his current position.

112.          The father has sought a shared care arrangement. I agree with the guardian that such an arrangement would require close co-operation between the parties and an ability to communicate effectively and ability to compromise. I find the father’s conduct would have made this an unviable option and following the publication in the [name of newspaper given] this is no longer an option.

113.          Following the publication I accept the evidence, as does the father, that E does not now wish to have contact with him. She describes her displeasure at the embarrassment he has caused her to his face on the 5^th contact session supervised by Y Contact Agency.  In the circumstances there was no alternative but for the father to abandon his application for shared residence and for an order for a defined direct contact order.  I have already made an order directing that E shall reside with her mother.

114.          The father seeks an order for direct contact. He acknowledges that this is not possible at the moment. I agree. E is of an age where her views must be given careful consideration. Whilst I am aware that she had been exercising good quality contact with her father until the [date in early 2014 redacted]  when the article appeared I accept the evidence of the guardian, as does the father, that she now does not want to see him. Sadly there can only be indirect contact. I accept the submissions of Ms Cavanagh and the terms of the order set out above which I have taken from her submissions subject to fine tuning. Y Contact Agency has been approached by the father. He has paid their initial fee. I shall consider any further submissions as to the form of the order at the conclusion of this judgment.  

115.          The father will have to allow time to elapse and he will have to take advice from Y Contact Agency first in trying to re-establish his relationship with E by indirect contact and then an assessment will have to be made of the prospects of introducing direct contact. At this point in the proceedings it is not possible to predict when E will be willing to see her father. I have confidence that the mother will not prevent contact direct taking if E it lets be known that she is ready for such contact.

 

 

S 91(14)

116.          I find that his behaviour has caused emotional harm to E. Mrs Jessup has advised the court that E now needs a period of calm away from court proceedings and being assessed by social workers and other professionals. I agree. Because of his conduct, his single minded approach to his application regardless of the evidence and the views of this child and the fact that he has a tendency to act without considering the consequences I agree with the submissions of the mother and the guardian that there should be an order pursuant to s 91(14) of the 1989 Act preventing the father from making any application for an order under the Children Act as amended without the leave of this court.

117.          The father has submitted that such an order is not necessary. I disagree. It does not prevent him making an application. It does however act as a filter. If he makes progress in pursuing his therapy, if he can re-establish a relationship with E with the assistance of Y Contact Agency and/or if E lets it be known that she wishes to see her father then he can make an application to the court for leave and the merits of his application can then be considered. In the circumstances I consider that a period of three years recommended by the guardian and supported by the mother is appropriate.

The application for a non molestation order

118.          The father’s physical violence has not been of the greatest but the psychological and emotional pressure he has applied to the mother was highly abusive. He deliberately set out to undermine her and has sought to manufacture evidence as part of his campaign irrespective of the consequences. I accept that it has caused the mother the greatest degree of distress, financial difficulty and stress. I have not been asked to re-visit the incidents which led to his acquittal of assault charges but I have made findings about his conduct on 9 December 2012. He has made referrals to the police and to social services all designed to further his cause based on manufactured evidence.

119.          The guardian in her Report dated 15 April 2013 stated that the mother had been identified as a High risk Victim and her case was referred to MARAC. The father has a tendency to react aggressively when his wishes are thwarted. The guardian referred specifically to the incident at school on 8 March 2013. She also relied upon disclosures made to her by E that she had witnessed incidents between her parents.

120.          The father consented to an order early in these proceedings. I have considered whether I should accept the father’s offer of an undertaking. However I consider that the father’s conduct amounts to emotional abuse of the mother. It constitutes harassment of the mother which would justify the court granting the mother an injunction in the terms sought. However in my judgment his behaviour does not warrant an injunction until further order. I am prepared to accept that the father may have moved on in his life. He says that he is in a new relationship and intends to marry. He says he is seeking out therapy to help him understand why he behaved as he did. Time will tell if he will be successful in moderating his behaviour. In my judgment a non-molestation is the appropriate order as a result of the father’s admitted behaviour and because of my findings. The father has shown by his behaviour an ability to disregard court orders. It will be limited in time for a period of three years. If he breaches the terms of the injunction the mother can apply for the injunction to be extended and in which case the court may be persuaded to make the order unlimited in time.

Restriction on Publicity

121.          The father has accepted that his publication of material has caused harm to the child. No party has invited me to take any action against the father. However the consequence for him has been severe. That which he had been striving for, namely, a closer relationship with his daughter has been severely damaged. He is prepared to submit to an injunction until further order preventing further publication of material which could lead to the identification of the child. I agree that such an injunction would be appropriate and proportionate in this case. Subject to further argument I am prepared to make the order in the terms contained in the submissions of Ms Cavanagh.

The prohibited steps order

122.          There has been an order preventing each party from removing the child from the jurisdiction pending the final hearing or further order. The father has accepted that the mother should be permitted to remove the child from the jurisdiction provided that she tells him her travel plans are presented in writing with supporting documentation.  He is willing to consent to the making of an order against himself for a period of 12 months.

123.          The father’s behaviour has led to a lack of trust in him by the mother and E. His conduct has been criticised above in this judgment. I have determined that he is not in a position to have direct contact with E at the moment. It is not possible to determine when he will be able to have direct contact with her. He will have to make an application for leave to make an application in the event that circumstances change. I have found that his behaviour has been erratic and unpredictable and that has demonstrated a willingness to defy court orders or directions. I therefore agree with the mother’s submissions that the father shall be prohibited from removing the child from the care of the mother and from the jurisdiction of this court until further order. Should he be granted leave to make an application for a section 8 Order in the future, the terms of this order can then be reconsidered.

The father’s action in respect of the falsified documents

124.          With regard to the falsifying of evidence. I find that the father falsified the letter from Dr C dated 15 August 2013 addressed to [location redacted]  County Court at page C182 in the bundle by amending the second paragraph the paragraph at the bottom of page C182/3. He then forged the doctor’s signature. Thereafter he filed the document with the court as part of his evidence in the case.  The letter which Dr C had signed is to be found at C 183(a). 

125.          I find that the father submitted a statement dated 4 October 2013 which he knew to be false in that it had not been approved or signed by Dr C purporting it to be a genuine document knowing that it would be used in litigation in the private family law proceedings being conducted in the County Court. This to be found at page C201.

126.          The consequences of his actions are that there could have been a miscarriage of justice which could have affected the welfare of his daughter.

127.          This is a serious and potentially criminal act. I have come to the conclusion that it warrants reporting the matter to the DPP for her to consider what if any action to take.  A copy of my judgment and copies of the letters dated 15 August 2013 and the statements dated 4 October 2013 and 10 October 2013 shall be disclosed to the DPP or the police.

The role played by Dr C

128.          The mother supports the guardian in submitting that the doctor should be referred to the GMC.

129.          The doctor’s involvement has been summarised above in that he knew that the father was involved in a dispute about the welfare of a child which was proceeding before the courts yet he did not exercise caution before writing the letters and making the referrals to social services. He sought to question the child with her father present in order to obtain evidence of abuse.

130.          I accept the submissions of the mother and the guardian. I make the following findings:

i)                   Dr C was naïve and was manipulated by the father. The evidence suggests that he was targeted by the father as a means of obtaining evidence to further his case. In so doing he allowed E to have unnecessary medical appointments;

ii)                 Dr C could and should have spoken to the mother. He did not know that the mother was a patient at the practice. A simple check before proceeding to refer to social services would have made him better informed in assessing the issues being raised by the father. He therefore failed to follow the safeguarding guidelines in that he did not provide support to the primary carer, the mother, before making the referral to outside agencies. Speaking to the mother would not have put the child at risk of harm.

iii)               Dr C failed to keep an open mind as to the truth of the allegations. In doing so he failed to protect her from the father’s allegations and he allowed the father to be present when the allegations were being discussed.  He accepted, and I find, that his letters were too subjective.

iv)               Dr C admitted that he was not up to date with his safeguarding training;

v)                 Dr C’s clinical notes of appointments with E, where allegations of ill treatment were discussed, were not properly kept.

vi)               He also admitted that he was not fully aware of the court procedures. This explains his willingness to issue the letters on Practice Headed notepaper. He did not consider what use the father could have made of these letters.

vii)             Dr C failed to contact the Cafcass officer or the court to alert them to the fact that the father had admitted to fabricating his statement and had forged his signature and had submitted the statement to the court as evidence in support of his case.

viii)           I accept the submission of the guardian that his actions albeit unwittingly, facilitated father’s emotional abuse of E.

131.          I have carefully considered the submissions of the mother and the guardian. I agree that a copy of my judgment and a transcript of Dr C’s evidence should be sent to the GMC so that they can further investigate this matter and take appropriate steps if they consider that this is necessary.

132.          I will now hear submissions as to the form of the orders and on the question of costs as these have not been responded to by the father in his written submissions.