England and Wales Family Court Decisions (other Judges)

 

                                                                                                                  Case No: NE13P01961  

 

IN THE FAMILY COURT                                                                              The Law Courts

SITTING AT NEWCASTLE-UPON-TYNE                                                     The Quayside

                                                                                                                    Newcastle-upon-Tyne

                                                                                                                                       NE1 3LA

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF: G (A CHILD)

 

Thursday, 22^nd January 2015

 

 

Before:

 

HER HONOUR JUDGE MOIR

 

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Re: G (A Child)

 

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Counsel for the Mother: Miss Lugg

Counsel for the Father: Miss Callaghan

Solicitor for the Father: Miss Monkhouse

 

 

Hearing dates: 18^th to 22^nd August 2014, 3^rd October 2014, and 22^nd January 2015

 

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APPROVED JUDGMENT

 

 

Transcribed from the Official Tape Recording by

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1.                  THE JUDGE:  I am concerned with the welfare of A who was born on 11^th September 2006.  She is the daughter of F and M.  She is a bright, intelligent 8-year-old who speaks fluent English and Italian, and also speaks French.  She loves both her parents very much.  Her welfare is my paramount concern and as the evidence has unfolded in this case my concern for her welfare has increased.  It has become increasingly apparent that A has been placed by her parents in an impossible position for any child.  She is aware that she is at the centre of a dispute between them and, by an aside, I am told that she is aware, because her mother has informed her, that judgment is taking place this morning.  The family court advisor, Barbara Hewitt, in evidence stated:

“A has a wonderful relationship with her parents and their partners and with the extended family networks on both sides.  She has been put in the impossible situation of having to choose between two people she loves equally.”

2.                  It is the responsibility of this court to reach a decision in the dispute between these parents as to where A should live when the parents themselves have failed to make a decision for the welfare of their daughter.  It is not for A as a child to make a choice between her parents.  A’s welfare is the paramount consideration of this court.  Section 1(3) of the Children Act 1989 sets out those matters which the court must consider in determining her welfare.  The welfare checklist, as it is often referred to, requires the court to have regard to the wishes and feelings of the child having regard to the child’s age and understanding.  Although it is the first matter referred to within the list, the child’s wishes and feelings should not be given any greater weight than any of the other matters set out in Section 1(3).  One of the difficulties in this case to which I will refer within this judgment is identifying A’s genuine wishes and feelings.  It may be that it is a difficulty not only for the court but also for A herself.

3.                  I have heard evidence from mother M and her husband; father F and his partner Z; also from paternal grandmother PGM; and from Barbara Hewitt, the family court advisor.  Within the course of this judgment, I will refer, at times, to M as ‘mother’ and F as ‘father’.

4.                  A has resided with her father in pursuance of an order made by the French court whereby it was provided that the parents have joint parental authority for A and habitual residence with her father.  The applications before this court are father’s application for the contact to mother to be defined, and mother’s application for a residence order and permission to remove A from the jurisdiction.  The case was case managed and directions given by the district judge following the issue of proceedings on 25^th October 2013 and 5^th December 2013 respectively.  The applications were consolidated and transferred to the circuit bench and I gave further directions on 18^th February 2014.  The pre-amble to that order records at B39:

“Upon the parties agreeing that the allegations made by them against each other in respect of mental health, drug, and alcohol problems shall form part of the assessment of CAFCASS in the event that CAFCASS invite the court to obtain medical evidence, then the matter will be returned to court for consideration of that application.  Neither party resiles from their allegations, but in light of the very extensive time that A spends with each of them and the cost associated with such assessments, it is not considered that the threshold for necessity for the court is, at this time, passed.”

5.                  Within that order, a CAFCASS report was required to be served by 2^nd May 2014.  A further review came before the court on 20^th June after the 30^th May hearing had been vacated.  Comprehensive directions and case management provided for a final hearing to be listed on 18^th and 19^th August.  It was anticipated that a two-day hearing was the appropriate time to be allocated for the final hearing.  In fact, the time estimate was woefully inadequate.  The evidence was not commenced until the afternoon of 18^th August because of the late production of much written material and the necessity for the family court advisor to be able to consider such documentation prior to the case commencing.

6.                  On the second day, evidence was commenced at 11.35am because of other cases in the court list.  However, the court was able to afford some time the following afternoon to try to complete the evidence.  The mother had started giving her evidence at 15.40 on Wednesday, 20^th August and continued to give evidence on the afternoon of Thursday, 21^st August.  She did not complete her evidence within the court day, even though that court day was extended.  We started at 9.30am in court on Friday, 22^nd August in an attempt to try to complete M’s evidence.  I was very conscious that she was staying in the United Kingdom while the case continued.  The lists were adapted to accommodate this case.  The matter was not completed on Friday, 22^nd August and was adjourned to the first available date which was convenient to the parties, which proved to be 3^rd October.

7.                  Thus, it can be seen that the actual hearing itself was protracted.  Submissions were provided for 11^th November and it is a matter of regret that the preparation and delivery of judgment has had to be delayed.  The judgment was ready to deliver the week commencing 12^th January and it is listed today to accommodate counsel.  However, the fact that this hearing took considerably longer than anticipated underlines the fact that there has been little by way of agreement as to the detail of the factual background and that the parties have been very keen to inform the court of the many disputed facts between them.  In the light of the disrupted nature of the hearing, I have been at pains to re-read all the documents and my notes which have required a considerable amount of time in circumstances where my professional commitments were already considerable.  However, I view the issue as too important to A and her parents to approach it in any other way even if it has resulted in delay in respect of providing the judgment.

8.                  I have not dealt with or made findings on every disputed fact.  Even though I might not have referred to certain pieces of evidence, I have noted all the evidence which has fed into the decision which I have to make.  The court made an attempt to keep statements and parties focused upon relevant and recent matters and both parties at the outset of the final hearing had proposed that historic matters were not likely to be relevant to the finding or decisions which the court would have to make.

9.                  Mother’s statement, dated 16^th January 2014, had included approximately 30 paragraphs setting out father’s health and emotional problems prior to the separation and the French proceedings.  Despite mother’s allegations, the father denied and continues to deny ever abusing alcohol or having a drug problem.  He accepts that he had anxiety and has taken antidepressants and had counselling, he says, as a result of his worries over M’s health and A’s future.  There is no evidence, save for that of the mother, which confirms anything more than father sets out and the psychological intervention which is within the papers records:

“It became apparent that F’s anxiety and low mood is related to his relationship break‑up and his partner’s behaviour towards him and his daughter.”

The French psychiatric report described, despite raising some questions as to F’s emotions, no obvious psychiatric or psychological difficulty.  It refers to him as a very complex man.

10.              Father makes allegations about mother’s health and emotional wellbeing.  He refers to her as being highly strung and demanding, and details problems requiring daily psychiatric nurse attendance when she was in the UK.  The social enquiry report in the French proceedings concluded at C215.

“The submissions from M are littered with claims and complaints against F.  It seems to us that, for her, their relationship was dead in the water.  M is a mother invested in the welfare of her daughter.  She showed us that she could take care of her when she is not overrun by her mental health problems.  However, these problems do not seem to be fully treated and manifest themselves in an unstable and changeable person.  Recently, she experienced a new depressive episode that ought to have required hospitalisation.  M has once again chosen to go to Italy instead of seeking treatment.  These moments of uncertainty – A does not know where she will be – are very harmful and disruptive for A who loses her sense of self.  It is also feared that M has moved to Italy with her new partner.  However, it should be noted that M notified F when she did not feel able to look after her daughter.”

This report was provided for the purposes of the French proceedings and is thus some years old, dated 15^th April 2010.

11.              The psychiatric report at C139 refers to:

“Beside these recorded facts, M suffers from a pathological psychiatric problem related to a bipolar mood disorder.  The problems that she has demonstrated are serious and involve long term management.  She is insightful regarding these issues and faces the need for support with courage and foresight.  When treatment is effective, regularly taken, and subject to regular and ongoing monitoring, patients with problems lead a normal life in all respects.  However, this disorder may manifest itself in an anxious vulnerability and minor character problems, namely irritability, impulsivity, and emotional instability.  During the August interview, M has demonstrated her excellent capacity of control, intelligence, and adaptability.  She is very attached to her daughter and doubtless a very good mother who is both attentive and tender.  Overall, M is very endearing and expresses, beyond her pragmatism and rationality, a significant urgent emotional need, so perhaps she has the reassurance of stability.  However, she can also give the impression that she puts herself in danger by engaging quickly, urgently, impulsively in processes or projects, which is potentially destabilising.  Regardless, the central question here is that of the psychological and existential stability of M.  Her history clearly shows the extent that she seems to have trouble stabilising her life.  The constant changes that she initiates are not down to whims, but certainly symptomatic of the oscillations in her mood.  This is a critical point and the basis of the questions asked as part of this review.”

12.              Clearly, there are matters raised within that part of the report.  The conclusion at C142 states:

“Moreover, even if M is a very good mother, she has for many years suffered from problems of which we are well are of the chronic cause, sometimes unpredictable, that causes both major instability and emotional disturbances that are of little comfort for those close to her.  However, this type of disorder allows for the possibility of a normal and satisfying life when they are subject to treatment and psychological care.  Such treatment takes place over the course of an entire lifetime.  With regard to M, her new life is recent.  She is expecting a second child and an interruption of treatment is more likely during pregnancy and finally the birth of a child is, in itself, an event of great emotional intensity that may affect the health of mother.  However, we can assume that M, who is a very intelligent, rational, pragmatic young woman who is concerned about her health, is able to have considered all these hazards to have anticipated them and is prepared and protected to the maximum.  To draw to the end of this analysis, it however seems reasonable to maintain a certain distance for at least one year to ensure that M has finally found emotional stability on a psychological and existential level.  This appears as the main condition for her own security, her confidence, and ability to continually and in a [inaudible] matter, take care of her daughter.  Moreover, if M’s health is stabilised in the long term, nothing shall therefore oppose her looking after her daughter for the maximum amount of time or even them living in close proximity.”

13.              Clearly, the reports lodged in the French proceedings envisaged that mother’s state of health could, in the future, progress and stabilise and that nothing within her mental health would prevent her looking after her daughter as referred to for the maximum amount of time, or even them living in close proximity.  Since the French proceedings, both parties have looked after A for prolonged periods.  The issues of mental health or emotional problems on the part of either parent have not prevented both the mother and the father caring for A.  Thus, their relevance must be considered and set against that background.  The French court made its decision that A should live with her father in January 2011.  M appealed that decision and the appeal was heard in May 2012.  The appeal was dismissed.

14.              Mother has maintained her desire to have A live with her throughout the French proceedings and indeed thereafter.  She has been very critical of the French proceedings and the reports provided therein.  It is apparent that she has never accepted the decision which was made by the French court.  Within 19 months of the appeal against the decision of the French court being dismissed in France, M again made an application, this time to the court in the United Kingdom, to have A live with her.  I am satisfied that mother has never been able to accept that A should make her home with F.  She has continued, perhaps understandably as a mother, to be firmly of the view that her daughter should reside with her and has set out her beliefs that decisions to the contrary made by the French courts were flawed and made without full knowledge or consideration of matters that M knew to be the correct facts.  She maintained that the experts in the French proceedings based their opinions largely upon what they were told by F.  She gave no credit to the professionalism of the experts involved within the French proceedings.

15.              It seems to me that the French proceedings were comprehensive, informed, and focused.  However of course I have not heard from the authors of the reports nor has there been any opportunity for cross examination.  F spoke to the social investigator and the clinical psychologist in the French proceedings, saying that M would never countenance that someone may have a different opinion to her.  Her evidence before me, I find, has demonstrated this characteristic of M’s approach to the views and evidence of persons involved with A.  M bases her application for a change in A’s living arrangements very much upon what she states are A’s own wishes.  She maintains that F does not have a stable home and neither does A, moving, mother says as she does, between the home of her father, the house of Z, and spending a great deal of time in her grandparents’ home.  She sets out in her statement at C14:

“I would, of course, dearly love my daughter to live with me in keeping with what has always been my dearest wish.  I am A’s mother and nothing could be more natural.  My application, however, is not motivated by my own desires, but because I have real concerns for A’s emotional welfare and because A has consistently demonstrated a strong desire to live with me.  A has expressed her views most clearly and rationally and is becoming increasingly distressed as she feels nobody, especially her father, is listening to her.  F has, to a large extent, sought to exclude me completely from A’s life in England and I can only speculate as to why A says she is so unhappy living with her father.  I do have concerns that F’s history of depression and addiction to alcohol may be a relevant factor, both at the current time and going forward.  What is clearly a fact is that A has expressed extreme unhappiness with the current arrangements and a strong and well-reasoned desire to live with me.”

16.              Miss Lugg, in her submissions to the court, argues that mother and A have moved on, but that F remains fixed or fixated in the past.  I find that both parents have struggled a great deal to concentrate on the present and future rather than the past, and that this approach is not confined to F.  F still believes that the relationship between M and her present husband commenced before the final separation of the parties and M still refers to F kidnapping A.  While I have made no findings in respect of these matters which pre-date the French proceedings, it is apparent that neither party is willing to consign these matters to the past.

17.              A has been at the centre of enquiries as to her residence and welfare for a considerable part of her young life.  Sadly, it has meant that she is acutely aware of the difficult relationship and animosity between her parents and which animosity she witnesses each time there is a handover at the airport.  It is unsurprising in the circumstances that the evidence I have heard in respect of the handovers details distress and extreme behaviour on the part of A when her parents are both present, to be followed by relative calm and contentment once she is in the care of the other parent.  In considering the historical matters in the case, the relevance of such matters must be set against the fact that A spends lengthy periods of time with each parent with the agreement of the other parent.  Therefore, the issue of such things as the mental health of either of the parties cannot and should not be determinative in any way in respect of the issues which I have to decide and which are in front of me.  Both parties, however, have used the past history between themselves of mental health issues and, indeed, other historical matters to support their arguments as to the credibility of the other party.  I did find M’s evidence that she had had no treatment and no concerns about her mental health or any medication for the past 13 years not borne out by the written evidence.  That she was still having medication and psychological support in June 2010.  I found her evidence somewhat contradictory.  The evidence would suggest that M, as well as F, required psychological support at times relating to the relationship problems between them and, in M’s case, earlier psychiatric disorder.

18.              I make it clear to the parties that I have considered very carefully the written and oral evidence.  As I have already mentioned, it is not possible to deal with each disputed fact between the parties as they are considerable and nor would it be helpful in respect of determining the welfare of A.  What is absolutely apparent is that each parent has fixed views as to the past and, indeed, the present, which remain as a huge obstacle to each of them viewing clearly the needs and welfare of their daughter.  They are still dealing with their own issues within their relationship and both seem fixated on their rights as parents.  It may be that M, as the non-residential parent, displays more anxiety in this regard.  When A was taken to Centre Parcs, and this was a break in communication for a number of days, in evidence, M told me:

“I did not know F had taken A to Centre Parcs.  I tried to make contact on F’s mobile phone and landline.  The landline rang empty.  I was concerned that I couldn’t speak to A and F wouldn’t answer the telephone.  It went on for a number of days.  The longer time passed, the more concerned I became.  I sent emails, or texts, and felt it necessary to remind him of the content of the court order.  It was a right to speak to A.  If he didn’t make contact possible, I had no alternative but to involve the police to find out where she was.”

19.              M’s insistence on the inflexibility of the Skype contact was apparent within the course of the evidence.  It was put to her that she would demand that Skype would occur at the exact time and exact day.  While I appreciate that certainty in relation to a contact regime may be very helpful, I found that M’s approach was inflexible and, indeed, worrying.  She maintained that calling A as she and her F  were driving home from the airport at Edinburgh was reasonable.  She said, “It was a Skype day.”

20.              I have been provided with a number of email exchanges over summer of 2014 which I found instructive.  M told me in evidence that it was:

“…important to remember A is very keen to speak to us because she is suffering.”

It is apparent that M has some difficulty in accommodating flexibility.  I was referred to an email exchange which started on 23^rd June 2014.  An email from F set out:

“Hi M, I hope you’re well.  I’m going to take A to the lodge at the weekend, so could you call on the phone on Friday rather than Skype or, if you prefer, Skype her on Thursday, 4 to 5 UK time, please.”

21.              That was followed by an email dated 26^th June saying:

“Dear F, I would prefer for Skype schedules to be respected to ensure A the continuity she requests and deserves.  As you are of course aware, A is very keen to speak to us as she is missing mum, her family, and Lozza very badly.  Thank you.”

22.              It was then followed up on 26^th June by an email:

“Sorry, I’m really tired, so I might have misunderstood your message, but it reads as though you don’t want A to go away for the weekend.  Of course, A will be available for contact at the agreed time, but it will need to be on the telephone rather than Skype.  I’m sure we both agree that contact needs to be flexible and take into account her activities and holiday.”

23.              That is followed by a lengthy email on 27^th June, from which I read:

“I suppose you really must have been tired indeed if you thought I wish to prevent A from going to your lodge as no such message was expressed in my email.  I am quite happy for A to enjoy weekend breaks from her day to day routine or for you to organise any other suitable initiative appropriate for her age and compatible with her desires and needs.  Clearly, the emphasis for A at this stage and given her clearly expressed desires and needs is to promote Skype contact with mum.  A desires and needs Skype contact to be as continuous and flawless as possible.  You are, of course, aware that A has requested an increase in Skype contact and is missing mum, brother, and sister very badly.  In order to respect the scheduled arrangements and meet A’s clearly expressed desires and needs, I suggest you simply allow A to Skype from your mobile phone when at the lodge as you had so helpfully provided to do during all of last summer and occasionally when you had no internet connection this year.  As an alternative, you could, of course, simply postpone your short drive to the lodge until after A has concluded her call.  I look forward to our call at the usual time.”

24.              On 27^th August, there is further email correspondence from M, which states:

“I have rang your landline and mobile repeatedly to speak to my daughter.  It is my right to speak to A on a daily basis.  It is A’s right to speak freely to her mother whenever she wants, which is every single day as she repeats every time I speak to her.  I shall be involving the police unless I speak to A.”

Of course, that is the occasion to which I have already referred.

25.              Conversely, in relation to M’s insistence that A has the right to speak freely to her mother whenever she wants, M has recorded all A’s recent Skype conversations with her father.  She explained to me in evidence when asked why she recorded the Skype conversation:

“Because I was curious to understand how the communication between them takes place and why A is so distraught, him telling her to make signals and things she found creepy.  When mum and dad disagree about everything, is she the classical child who says to one parent one thing and says something to another?  A didn’t know I had recorded her conversation, nor did F.  I played them back afterwards.”

26.              F gave evidence that he had always had suspicions that the calls were listened to.  He described his Skype exchanges as just awful and gave a graphic description of A “forced to make a speech like a hostage.”  The transcript of the Skype conversation on 27^th December 2013 exhibited by the mother is distressing.  All A wants to talk about is living with her mother and the broken promise.  It is instructive that, at one stage, A says, “Yes, I know it’s up to me and I want to live with my mummy” in response to father saying, “It’s not up to me to decide where you live.”  Father then says, “It’s not up to you either, princess,” and A responds, “Yes, it is.”

27.              I am satisfied from the evidence before me that A was well aware that her mother was privy to what she said to her father in this Skype call, either because mother was in earshot, or because A was aware that it was recorded.  A immediately, when asked what is wrong by her father at the outset of the call, said, “You broke a promise.”  The whole conversation centres around this broken promise.  Father’s responses in difficult circumstances were very appropriate.  A’s discourse, sadly I find, has been prompted by her mother.  A must have been reminded about ‘the broken promise’ which it seems was made in November 2013.  M says that, prior to the conversation, she had shown A the return flight tickets.  M says she had tried to gently explain to A that she would be going back to her father.  She says she also explained that court was involved in making decisions about the arrangements for her.

28.              M says A wrote a letter on 30^th December 2013 without any assistance and wanted it to be given to the judge.  I find this letter deeply troubling.  A typed version of it is found in the bundle at C52 and the written version is at C51.  What A sets out is this:

“Dear judge, I want to ask you if you can help me because I really want to live with my mummy, stepdad, and my sister, and my brother, but my dad broke his promise because I go to mummy’s house in the summer holidays and live with my daddy, but I actually want to do it the other way around so I could live with my mummy and go to my dad’s house on the summer holidays.  Look, once I was at the airport returning from Italy with my mummy.  I really did not want to go, but my dad, F, did not want me to live with my mummy.  He could not get me to go with him, so he said, ‘Let’s go and talk about it with a cup of tea and some cake’.  So, we all went with him to eat and talk about it.  F, ‘Right, A,’ which is me, I am A:

‘I will not let you go, but I will promise you something.  From Christmas onwards you can live with your mummy and this is the last time you’ll come with me, I promise you with my heart.  Now, come with me.’

So, me and my mummy trusted him and I went.  It was very, very sad for me and my mum to leave each other.  I sat on the bags crying and blowing kisses.  My mummy followed me until I had to go into the aeroplane.  He kept saying to me that I most certainly could go and live with my mummy from Christmas, but this he only said when it was not Christmas.  Finally, Christmas arrived, ‘I NEVER SAID YOU COULD LIVE WITH YOUR MUM,’ he said and he lied just like I said in the beginning, and I want to live with my mum because I love my mum a lot, loads every day.  I even love my stepdad and HS, my little sister, even my brother HB, even if sometimes he is a bit annoying, but I still love all my family and I’m also very proud of my great granddad.  He is the oldest one in Italy.  He is 92 years old and still alive.  Lots of love from A.  Hope you can help me.”

29.              It is said that this letter was written without any help.  I accept that A is a bright, intelligent 8-year-old.  She would have been 7 then, I think.  I do not accept this is her own unassisted work.  The phrasing and grammar is not that of a 7-year-old.  If I had been told that A had written it but asked for help with how to express certain things, I may have accepted it as her own views written out.  However, M says in her statement at C18, paragraph 61:

“On 30^th December, A was in the kitchen writing a letter.  When I asked what she was doing, she said she did not want to be interrupted or show me the letter.  She stated that she was writing a letter to the judge, but she did not want anybody to see it until she had finished the letter.  When A had finished the letter, she gave it to me as she stated that was what she wants the judge to know what she wants to happen because her daddy has broken his promise to her and is not listening to her.”

30.              Phrases such as, “Me and my mummy trusted him,” and, “He kept saying I most certainly could go and live with my mummy from Christmas” raise concern.  She refers to her father as, “My dad F” and just, “F.”  If A is aware, as I find she is, of the dispute over which parent she should live with and which parent she should holiday with, and that it is her mother’s very strong wish to have A living with her, I find it unsurprising that when she is aware that her mother knows what she is saying, such as in the Skype call and the letter, that she makes it clear that she wants to be with her mother.  A has been brought into the dispute between her parents to such an extent that she actually articulates that it is for her to make the decision as to where she should live.  It is an intolerable burden for an 8-year-old child.

31.              The issue of the promise is explained by the parents in somewhat different tones.  M sets it out at C16:

“F asked A if she was unhappy living with him and A was very clear and very determined in her response that she wanted to live with me in Italy and, ‘For the rest of her life’ to quote her.  A refused to untie herself from my coat or let go of my hand, even to go to the toilet, as she was frightened that F would simply scoop her away.  F promised A that she could live with me from Christmas onwards and promised her that this was the last time she would have to leave her mummy.  A asked F to write down his promise and F responded by writing a note stating that daddy promises A that he and mummy will work things out.  A realised that F had not written down that she would live with him from Christmas onwards.  She told him that she refused to follow him on the plane.  F answered that A had his word that she would live with him from Christmas and this should suffice.  I prepared a document which F and I both signed saying:

‘I, M, and I, F, agree to meet with Assistance Legal and All Mediation in order to discuss change of residence for our daughter A in the near future.’

Whilst F wrote one himself stating:

‘I agree to talk to M in the presence of a mediator in order that that we discuss a compromise over A’s residence, holidays, et cetera.’

At this point, A decided to accept following her father to the gate whereby they checked in and on to their flight.  I am aware that F accepts that he signed those documents, but has alleged that he did so under duress.  I do not accept that F was under any form of duress whatsoever from me, although I would say that his behaviour, making promises to A, would actually indicate an incapacity to cope or deal with A and her requests.”

32.              At C85, paragraph 78, F sets out:

“M says that she was making arrangements to change A’s school in 2013 because I had agreed to A going to live with her in Italy.  That is not the case.  Most of the contact handovers are difficult, but the one on 3^rd November 2013 was particularly difficult.  On meeting M, I was told that A wanted me to have a letter which is now produced to me.  The letter is supposed to be written by A, but it seems clear to me that those are not her words and that she has been told what to say.  The school and school health both commented that A couldn’t have written the letter on her own.  [I will return to the content of this letter shortly].  M wouldn’t let go of A and was claiming A was terrified of me, terrified to go to England, that she couldn’t stand being touched by me.  I just wanted to get A and take her home.  I suggested to M that she shouldn’t have such conversations in front of A and that any concerns could be discussed over the phone when we were home.  M responded that A agreed with her and that I had to listen to her, A, and give her what she wanted.  To calm things down, I offered to sit and talk.  M was talking to A in Italian, which I didn’t understand, and then to me in English.  I asked if we could all speak English, which M responded that she was just explaining what I was saying, which was ridiculous because A would understand what I was saying.  I ended up asking the police to assist me as it was quite clear that M wasn’t going to let A go with me.  They were clear that M had to let A come with me and suggested that M and I go for coffee to sort things out, which I agreed to.  I explained to M that A was going home and that it was best it took place calmly, to which she agreed.  M then said that if I agreed with A living with her from December 2013 that she would let me take her back to England.  I said I needed time to think about it.  However, M wouldn’t accept that and claimed to have spoken to her Italian lawyer, even though it was as Sunday afternoon.  She said that the lawyer had suggested that me and my lawyer speak to her and her lawyer by video conference to sort out arrangements for A to live with M.  M said I needed to sign an agreement before she would hand A over.  M was stating that A would not go with me, that she was terrified of me, et cetera.  As we were running so late for check-in, I decided to just agree with M.  I was playing along with this in the hope that it would result in the situation coming to an end and me being able to take A home calmly without further police involvement.  She wrote a letter saying I agree to speak to a mediator to discuss the option of A’s residence being changed.  I was told to sign it or A wasn’t going anywhere.  I did sign it, but I would have signed anything to be able to remove A from the situation we were in.  The letter that M got me to sign is exhibited to her statement at MP4, which is the letter to which I have referred.  Within five to ten minutes of leaving M, A was her usual self and was more than happy to be with me.”

33.              I accept F’s account as the more likely.  It is apparent that A has been encouraged to her mother’s view.  I have also considered the further letter it is said was written by A, again unaided.  M told me that A was on the plane, crying, and so she suggested A should write down what she felt.  It is said that she wrote the letter and asked her mother to hand it over to F.  I find the fact that it is written in the third person and includes phrases such as, “We would all want to invite you to Lozza for the holidays,” militates against it being A’s own unaided work.  It is also noticeable that it is introduced by the words, “Sorry, F” and concluded by, “A to F.”  I find that it is not A’s own unaided work.

34.              I heard in a great detail about the airport handovers.  What I heard does not reflect well upon either parent.  The filming of it and the involvement of the police is nothing short of appalling and the effect of all of this on A can only have been extremely detrimental and damaging.  I do not attempt to analyse each incident in detail.  F claims at C91, paragraph 100:

“In addition, M makes handovers at the end of contact incredibly difficult for A.  She never encourages A to leave her and to come with me.  In fact, the opposite is true.  She and/or SF will hang on to A and M will tell me in front of A that A does not want to be with me.  M seems to have no understanding of the impact of her actions on A and, instead, chooses to blame me for the difficult situation she has created.”

35.              M told me that she and SF try to make it as easy as possible.  She said:

“It costs us a lot of energy because A is so insistent that she does not want to go.”

36.              However, it does seem, on her own account, that M is not able, despite trying to so do, to alleviate A’s distress.  F says as soon as mother is out of sight and A is in the car or has gone into the departure lounge, A immediately calms down and the journey home thereafter is unproblematic.  I accept the evidence of F about this, which is confirmed by Z, F’s fiancé.  If it is correct, and I find it is, that it is only when mother or someone close to mother is present, but most particularly mother, that A displays extreme distress, one must question why this is so.  The evidence of Z supports father’s claim that A was not the little girl she knew when Skyping from Italy.  My note sets out Z’s evidence that:

“She said she doesn’t want to speak or talk to us.  Her voice and tone are different and there is little eye contact.  It is very distressing and uncomfortable.”

37.              PGM, the paternal grandmother, gave evidence before me and she described A as totally different when in Italy.  She said:

“She basically doesn’t speak, even when coaxed.  She wouldn’t speak to the dog, or my aunt.  Her shoulders and head are down like a little hostage.  She would surreptitiously wave bye-bye to me.”

38.              I found PGM an impressive witness.  She was clearly very fond of her granddaughter and I accept that they have a special and close, loving relationship.  Thus, it is perhaps of concern that A behaves as described by her grandmother when she is in Italy.  It is suggested that she compartmentalises her life, but there was no evidence that when in the United Kingdom she is reluctant to speak to or talk to her mother.  Clearly, she feels comfortable from her home in the United Kingdom with her father and paternal relatives interacting with her mother and Italian relatives.

39.              It was put to M that she seeks to know every aspect of A’s life in the United Kingdom.  She involves herself in it.  She told me:

“I think it is quite normal for me to wish to know what school and activities, like Brownies, pony riding, and swimming, that A likes, to know about her two friends.”

I do not criticise M at all for her interest in her daughter’s life, but it does go further.  When A had a sleepover with a friend, M required the name of the mother and she told me in evidence, “I thought to exchange chitchat with Y’s mum.  I think that is normal.”

40.              A, mother says, is very open about her English life when in Italy.  It seems that, in the past, A has been less open about her life in Italy when in England.  While, of course, no-one is criticising mother for her interest in A’s life in her father’s care, it seems to go further and along with the insistence and inflexibility about such things as Skype, indicating, in my view, an attitude of desired control and intrusion in A’s life when she is in her father’s care.  I am of the view that mother genuinely believes, as she puts it, “A is not flourishing in the care of father” and she is unable to understand the effect of her actions and approach upon A’s security and welfare.  I do not doubt that M wishes A to be happy and settled, but unfortunately, she sees that as possible only if A lives with her.  It is unsurprising that A absorbs her mother’s views during the extensive contact she has with her mother.  When asked if she had influenced A, she told me:

“I don’t think I have ever done anything to influence A, or manipulate A to do anything she does not want to do, or to feel comfortable with me.”

It is clear that M cannot see anything in her own behaviour which had influenced the present situation.  I find that worrying.  She told me:

“I think I have been reasonable in the past five years.  [She went on to tell me] She sees her dad as an obstacle to what she desires, preventing her from feeling complete.”

41.              I find that is M’s view of the situation, rather than A’s.  I do not accept it is the view of A.  Although mother denied that this represented her feelings and said that she did not think in terms of her life.  I am satisfied from an analysis of all the evidence before me that it is M’s view that without A living with her, M’s family is incomplete

 

[Short adjournment]

 

42.              When A has been staying with her mother, upon various occasions she has been enrolled and attended the local school without, it seems, any reference to F in relation to this course of action.  While it is a small point, and M says A enjoyed it, it is an unusual action for a mother to take to enrol a child in school and let that child attend school during a period of contact and during the holidays of that child from her own school.  It is of concern that when in Italy it seems that A refers to her father as F or Quello Li, which I am told means ‘that guy’ or similar.  In England, she refers to F as ‘daddy’.  It seems she is not corrected by her mother when she refers to her father thus in Italy and I find that that is troubling.

43.              F says that he misunderstood Barbara Hewitt’s advice and made a mistake in raising matters with A and talking about how things would change if she lived in Italy.  He said it was not intended to give a negative view of Italy or unsettle A, but to find out her views.  However, in discussing the need to change schools and losing X as her best friend, it is clear that it was influencing A and inappropriate during the course of the proceedings.  Whatever had been said by Barbara Hewitt, whether F had misunderstood or not, raising matters in this negative way was unhelpful and demonstrates a lack of understanding of the pressures upon A and the possible confusion these proceedings may bring to A when she is aware that the two people she loves best are arguing over her in the courts, and discussing with her, from of course very different perspectives, her future.

44.              It is instructive that there is no evidence, whether from the school or otherwise, that A is unhappy in her father’s care, save for what M places before the court.  According to F, she has never said to him outside the presence of her mother that she would wish to live in Italy.  Father does say that A has, upon occasions, said to him that she wished she could stay longer in Italy.  When in father’s care, she is described by those who know her as a warm, happy, funny, loving, intelligent child who seems happy with the set up.  The evidence is that she is a pleasure to be with, loving, and normal.

45.              F gave evidence when she arrives at the airport, she becomes cold.  F questions whether she is frightened of showing affection to her father when she is in her mother’s presence.  F told me that A will talk to him about her mother in his presence, and talks positively about her mother, it seems in contrast to the way that she refers to her father when in Italy.  Both Z and father say that A has started to open up very much in the past year, talking about M and about enjoying time with her brother and sister.  PGM said that A, in fact, had never discussed with her living in Lozza.

46.              M is concerned that things have been said to A about mother’s mental health and, in particular, that PGM had said that mum was, “Crazy like  a coconut” and that father and grandmother kept calling her, “Sick.”  When put to PGM that she had referred to mother in this way, PGM told me that she had never heard the expression and it was not the sort of thing she would say.  I accept PGM’s evidence.  She went on to say that, as far as she is concerned, A’s welfare is what she is concerned about.  She said:

“We want to protect her from anything.  We are more aware of it because of the situation.  We make sure she wouldn’t hear anything about mother’s ill-health.”

47.              Having had the opportunity to hear PGM giving evidence, I accept her denial that she said anything to A about anything concerning M’s mental health, or that what is alleged is the sort of language that PGM would use.  I am most concerned that A told her grandmother that Barbara, that is the family court advisor, was evil.  PGM states at 321:

“A, out of the blue, then surprised me by saying that Barbara was evil in a monotone voice.  I tried to reassure her that Barbara was not evil and that it was her job to make sure children were happy, safe, and well.  A once again repeated a few more times that Barbara was evil.  I asked her if she knew what ‘evil’ meant and I cannot remember exactly her response, but she was able to convey that she knew what it meant.  I thought, on balance, it was best not to say anything more about the subject because I did not want to see A stressed or upset in any way.  [She went on to say] Ever since A was little, she has often confided in me about things as grandchildren often do with their grandparents.  A said to me at my home words to the effect that she was worried about seeing Barbara because she was frightened about her mummy finding out that she had not told Barbara the things that her mummy had told her to say.  She did not elaborate on what those things were.  I told her that she did not have to be worried, that Barbara wanted to see her to check she was okay, and she would not tell her mummy what had been said.  A appeared to be reassured by this and nothing more was said on the subject.  At no other time have I spoken to A about her meetings with Barbara, nor have I ever yelled at her or punished her as M has suggested A has said.  I love my granddaughter very much and would not ever upset her in such a way.  I have only ever wanted to protect and shelter her.”

I accept the evidence of PGM.  I found her an impressive and credible witness.  It is not a childlike comment to call a professional such as a family court advisor ‘evil’ and I do not accept that this grandmother would yell, or shout, or punish A. 

48.              At C310A in the bundle, I was referred to a drawing done by A.  I am told it was made by A in May 2014 and it was taken by F to his solicitors shortly thereafter and left in the file until reference was made to it on the first day in court.  M, in oral evidence, said that she had already been aware of the drawing, yet it is difficult to see how she could have been as it had not been sent to the mother.  Further, she invited the court to consider that A, with no prompting, referred to it three weeks before the court hearing began during a Skype conversation with her mother, telling her that she, A, was put under pressure from father to draw it.  There was nothing in the mother’s detailed statement about this Skype conversation, and yet M said A did talk about the drawing two to three weeks before she flew to England.  According to M, A told her that father sat with her and coached her into drawing it.

49.              Mother documents in detail every Skype conversation, but neither the drawing nor the allegation that A is alleged to have made about being put under pressure from father to make this drawing in his presence is mentioned.  Miss Callaghan submits on behalf of F that either mother is making up this conversation with A, or that she had spoken with A and questioned her on Skype following the first day of the court hearing in August.  Sadly, I must find that it is one or the other.  It is unlikely that A referred to it spontaneously in late July or August when it had been completed and filed away in May.  In fact, it probably does demonstrate how A is actually feeling, as do many children in her situation, that, “The best thing for me would be if I could live with both of you because there is no best.” 

50.              An element of this case which raises many concerns is the involvement of Dr Petrolo.  Mother, in her statement, explains it thus:

“Given the intimidation to which A has been subjected by her father in the last few months, together with F’s clear anger towards her on Skype, and A’s visible fear at the prospect of returning to England, I decided to contact Dr Daniela Petrolo, who is a child psychologist.  I thought it might be helpful for A to talk her emotions through with a person who has no involvement with either me or F so that she may feel completely free to do so.  I asked Dr Daniela Petrolo to meet with A in December 2013 following A’s distress at feeling betrayed by her father who had promised her that she could live in Italy, as she requested.  A’s conversations with Daniela have wholly excluded me to preserve her role as an independent ear for A.  Following A coming to Italy this summer, it was clear A was panicking and seemed to be terrorised.  I arranged for A to meet with Daniela, whom she trusts, on 11^th August so she could express herself and voice her wishes and concerns in a setting where she is comfortable and feels secure.  I have requested Daniela to provide a written report following her meeting with A.  It will clearly be seen that, in these circumstances, and far removed from her father A has repeated her simple desire to live with me and her family in Lozza.  She has also reiterated the fear she disclosed to me and, in fact, provided further details to Daniela than she has shared with me.  For example, I have never heard A refer to her father as ‘poo’.  This is also further seen from the letter which A wrote to Daniela as referred to in the report and also attached.”

51.              In oral evidence, mother told me that she knew Dr Petrolo from 2012 when the court proceedings were in France.  She told me Daniela produced a statement which was filed with the court in France.  When A had a tantrum, mother told me:

“I was so taken aback. I rang Dr Petrolo and told her that, for the first time, there had been an extremely violent reaction.  Dr Petrolo suggested a number of sessions could be arranged.  I should not attend and A could have space with someone not linked to dad or mum, or any member of the family.”

52.              In fact, of course, it is not quite accurate of mother to say that Dr Petrolo had no involvement with either her or F, but, in addition, I would be surprised if A did not think that this lady, who mother described as a friend and to whose house mother conveyed her, was not in some way linked with her mother.  M went on to say in evidence:

“I told A, a lady who I knew, who knew children quite well and who enjoyed drawing... and I told A I was taking A to see her and she could play games.  I asked if she’d enjoyed the time there and she said, ‘Yes’ and said she wanted to go back.  I told A I could see she was bubbling up with a lot of emotion and a lot of things she wanted to say and I couldn’t discuss things about the arrangements and daddy and wanting to go back.  I emphasised it was fun.  I don’t think A was aware that it was linked to the court procedures or living arrangements.”

It was put to her did she think that she had influenced A:

“I disagree.  I don’t think I’ve ever done anything to influence A, or manipulate A to do anything she doesn’t want to do, or feel comfortable with me.”

53.              It is perhaps naïve, or indeed untruthful, of M to say that she did not think A had worked out in any way that it was concerned with the court proceedings or the arrangements as to where she should live.  M approached Dr Petrolo in December 2013.  A had six sessions with Dr Petrolo.  Neither the court nor the father was made aware of the involvement of Dr Petrolo.  Barbara Hewitt was not told of A’s attendance with Dr Petrolo.  Although M denied that she had deliberately kept it from the court, she agreed that it was right that she had deliberately kept it from father.  She said that such course of action was taken to give A a chance to talk about whatever she wanted to so that she was quite free to express whatever thoughts that she may have.

54.              A went to see Dr Petrolo each time she went to see her mother from December onwards, culminating in a visit on 11^th August 2014 after which Dr Petrolo completed the report that was placed before the court.  M was asked in cross-examination whether she had told Dr Petrolo that the family court advisor in England had said that A did not want to talk to anyone about her situation, to which M responded and I quote from my note, “I put my child first.  Before court proceedings, I think about my child.”  Sadly, this is another example where M’s attitude is that she knows better than anyone else and despite a professional view being expressed by the CAFCASS officer, M, in fact, went ahead to do what she wanted to do and what she thought was correct.

55.              It is of concern that Barbara Hewitt reports on 8^th August with a recommendation for A to remain in the United Kingdom with her father and that A is taken to see Daniela Petrolo some three days later, a visit organised by the mother.  Until M’s statement of 13^th August exhibited Dr Petrolo’s report, no-one except the mother was aware of A’s involvement with Dr Petrolo.  A herself had said nothing.  This may be an example of her compartmentalising her two lives, or it may be that she was told not to say anything.  It is impossible for me to be sure which one is correct, but the fact remains that A said nothing to her father or to Ms Hewitt about visiting Dr Petrolo.

56.              I am aware that M justifies her actions, to some extent, by the fact that father went to Dr Haque and Kerry Stafford without informing the mother, and Miss Lugg submits on behalf of the mother that a backdrop of unilateral action and concealment therefore was already in play and had been commenced by the father.  Dr Haque’s involvement was, I think, in 2009 and disclosed into the French proceedings, and Kerry Stafford was a referral at school.  Mother, of course, should have been told, but the involvement of these professionals does not justify M’s failure to be open and honest about Dr Petrolo’s involvement.  I do not accept that it was never mother’s intention to use Dr Petrolo’s report as ammunition.  I find it is likely that mother would want to wait and see what transpired from the sessions to see whether it was worthwhile introducing such a report or attendance with Dr Petrolo into the proceedings.

57.              The involvement of Dr Petrolo is of a different quality to that of Dr Haque and Kerry Stafford.  A’s visits to Dr Petrolo started in December 2013, each time she stayed with her mother in Italy.  By this time, there had been discussions whether to involve experts.  M had already involved Dr Petrolo when those discussions took place.  M is intelligent and whilst she may not have a complete grasp of the procedure in the English courts, she was aware of the role of experts in the French court proceedings, one of whom, it seems, was Dr Petrolo.  Miss Lugg submits that save for the sanction of the court on the steps she took, the matter, which must be seen in the context of her not being present in the jurisdiction, there was nothing inherently wrong in what she did.  It is argued that:

“Mother was patently not accessing support for the purposes of obtaining ammunition for the ongoing court proceedings because no attempt was made by her to obtain a report until after the August interview.”

58.              I have already commented upon this.  In fact, it is not clear when the report was requested or why it was requested if there was no intention to use it in the proceedings, or no intention to use Dr Petrolo’s involvement within the proceedings.  M’s solicitors have acted appropriately throughout in bringing it to the court’s attention.  I do not accept Miss Lugg’s submission that there is nothing inherently wrong in what M did.  Further, I am satisfied that M knew it was something that will be disapproved of.  Otherwise, even if she did not tell the father, she would have told Barbara Hewitt of A’s attendance at Dr Petrolo’s.

59.              In the May report, Barbara Hewitt opined that there was no professional concern for A’s emotional wellbeing, but it seems that, at that stage, A had already seen Dr Petrolo probably some three times at least.  M did not draw to Barbara Hewitt’s attention, either before or having received the CAFCASS report, the fact that a psychologist was already seeing A and continued to see her finally submitting a report which concluded:

“The above elements point to the existence of a form of child emotional neglect to which A is subjected by her father.”

60.              Within days of the second CAFCASS report being available, which states A has said that she wants nothing to change, A is taken again to see Dr Petrolo.  It can be viewed as likely, as submitted on father’s behalf, that mother wanted to counter what A had said to Barbara Hewitt, with an exploration of issues with A when A was within her mother’s care and influence in Italy.  More particularly, from the child’s point of view, she has been subject to more questions and subject to the burden of having to articulate with which parent she wanted to live despite the advice that such discussion was the last thing that A should be subject to.

61.              Miss Lugg sets out in her submissions that Daniela Petrolo does not make accusations of potential child abuse, nor indicate a need for statutory involvement.  Nor does M pursue findings of any such nature.  In evidence, M said that she had never said that she believed that the behaviour referred to in respect of F getting into A’s bed was sexually motivated, yet if one reads the report of Dr Petrolo and takes it at face value, it raises very considerable areas of concern, not only of emotional abuse, but sexually inappropriate behaviour.  M does not pursue the allegations of sexually inappropriate behaviour, but it is clear from all her evidence that M is of the view that allegations of emotional abuse are accurate.  If the conclusion of emotional abuse is to be given weight, why not the further allegations which are contained within Dr Petrolo’s account and report?  There is no context provided in respect of the questions asked.  The paragraph dealing with Barbara Hewitt is of interest.  At C284, it is set out:

“A has expanded on this, explaining that her father does not listen to her and has repeated for months that when she met the family court advisor, she must say she wanted to live with him or else she would be in great danger.  A has also explained that on the day she found herself with Barbara at her offices, A could see her father and he was making signs to her which she says prevented her from feeling safe and expressing herself freely, hearing also that F could hear what she was saying in the interview.”

62.              Barbara Hewitt in her evidence said that it was impossible for A to have seen her father making signs to her during the course of A’s interview discussion with Barbara Hewitt.  Barbara Hewitt told me that she had carried out an exercise just to satisfy herself that it was impossible, which she confirmed in her evidence that it was.  Also, A is recorded to be saying she must say she wants to live with her father or else she would be in great danger.  It is dramatic and, in fact, not what she actually said to Barbara Hewitt.  She said she did not want things to change. One must question why A told Dr Petrolo about being unable to express herself freely in the interview. It is untrue that F could hear what she was saying or that she could see him making gestures.  Thus this claim to Dr Petrolo may have a different purpose. One explanation, although there may be others, is that she wanted to explain to her mother through Dr Petrolo why she had not said that she wanted to live with her mother.

63.              I treat Dr Petrolo’s report with great caution.  She is not here to be cross-examined, her involvement was kept secret by M until the last minute, and the content of the report raises numerous questions in respect of which there has not been an opportunity to investigate or provide answers.  It is recorded within the report that A refers to ‘fighting’ in order to realise her project, which is to live in Italy.  Mother uses the same phrase; that is ‘fight’ in the Skype conversation with A.  M said it was important to continue to fight to have her, A, in Italy.  M denied that the concept of fight came from her and yet it would seem that in the conversation for which W has provided a translation, ‘fight’ is, indeed, the word used.

64.              Miss Lugg submits that the school has been very supportive of father.  F has exhibited correspondence from the school and Barbara Hewitt made enquiries, as one would expect of the family court advisor, with the school.  At D8, it is recorded:

“To summarise, Ms Stafford confirmed that A told her in November 2013 that she did not want to choose between mum and dad and wished that she could live with her mum and dad together.  A talked positively about both of her parents and detailed happy experiences with both of them.  A told Miss Stafford that she did not like having to move around all the time and also, that her family in Italy felt more complete.”

65.              At D7 within the bundle, it is also recorded by Barbara Hewitt:

“I have spoken with A’s class teacher and the head teacher of her school.  They have no concerns with regards to the standard of care provided to A by her father F.  A is described at school as very happy, very intelligent, and very smiley.  She does not stand out as being different.  A speaks about her mother in a matter of fact way and likes her.  She seems used to her situation, happy to go to mum, and happy to return to father.  A can be a little quiet for the first day or so following her return from holiday in Italy.  School cannot fault dad.”

66.              Miss Lugg submits that the fact the school says about mum, “Likes her” reveals the school’s attitude in that they were only prepared to concede that A likes her mum.  The school says that A is used to her situation, but Miss Lugg submits a better word would be ‘resigned’.  Miss Lugg submits that when A is in England, she just gets on with her life.  I am satisfied that the latter comment is correct.  A is quite happy to get on with her life.  The school describes her as a very happy, very intelligent, very smiley girl.  It is not the description of a child who is increasingly angry and frustrated by the current arrangements for which she is demonstrating mounting distress and fear as set out in M’s most recent statement. 

67.              I have been provided today with a letter from the school.  That letter sets out a record of conversation which I am told took place yesterday; that is Wednesday, 21^st January.  The letter states:

“At lunchtime today while talking to Mrs [Zacowski?] and myself about her talent in art, A asked us who we would choose to live with between our mum and dad.  A went on to say that she wanted to live with her mum in Italy.  She explained that her parents were going to court soon and the judge would decide where she was going to live.  A again said that she hoped they would say that she could live with mum.  She went on to tell us about her brother and sister and her grandma’s bed and breakfast.”

68.              It is of considerable concern that the day prior to judgment being given in this case, A spontaneously, out of the blue, whatever description one wishes to use, raises with her teachers who would they choose to live with between mum and dad, and then goes on to say that she wants to live with her mum in Italy.  There is no evidence before me that A has ever acted in this way before.  It is right that M had asked the school to let her know if A ever expressed a preference for where she wanted to live.  The school, in accordance with that wish on behalf of mother, has provided this letter.

69.              F has given an account of what he says A said about what happened at school.  I make it absolutely clear I have only heard from Miss Monkhouse what F’s account is.  I have heard no evidence from M and it may well be that she wishes to raise certain matters in regard to this.  This judgment was prepared some time ago.  It was completed sometime ago.  However, this matter concerns a child and, in those circumstances, if further evidence is provided in the way that it has been, it is not appropriate for the court to ignore it.

70.              F, through his solicitor, has said that when the school phoned to tell him about what had been said, A was with him.  He spoke to A, who told him that mum had told her to say this during a Skype call.  When F asked why A had not told him, she said she was worried about getting her mother into trouble.  I am told that F reassured A that that was not going to happen.  A, it is reported, used the phrase, “She just wants to be normal.”

71.              I am told that M made A aware that the court would be giving judgment today so the parents would be at court.  Clearly, A explained to her teachers that her parents were going to court soon and the judge would decide where she was going to live.  I am very troubled about the timing of this if it is correct about what A has said to her father, and the further burden that has been placed upon A.

72.              Barbara Hewitt, the CAFCASS officer, is a very experienced officer who has provided two reports in this case.  She reported as a family court advisor on 8^th May and subsequently on 8^th August 2014.  Her recommendation appears at D26 in the bundle.  It is for a child arrangement order to F in respect of A residing in his care and a defined contact order for mother.  Miss Lugg, on behalf of M, is critical of Barbara Hewitt and submits that Barbara Hewitt fell into some significant errors and her recommendations are therefore significantly and fatally flawed.  She says that Barbara Hewitt approached this case with a care hat on and that there was no reference to the welfare checklist.  In fact, there is a reference, albeit a formulaic one, to the welfare checklist on the final page of each report, but I accept the import of what Miss Lugg seeks to say.

73.              Miss Lugg criticises Barbara Hewitt for expressing her view that it was her aim that the parents should agree.  Of course, this cannot be a valid criticism.  The current framework of private law proceedings is to emphasise the role of the parents in their child’s life and to refer parents to mediation in an attempt to place responsibility upon the parents to make plans for the future of their child.  I accept it was probably over optimistic in this case to expect any positive outcome from mediation.  However, that does not mean it was a mistake on Barbara Hewitt’s part to at least see if mediation could achieve progress.  A told Barbara Hewitt in preparation of the first report that she wanted to live with her mother and was quite reticent about speaking about her father.  Ms Hewitt told me that she found this surprising as she had clearly been very comfortable with her father in the home environment.  Barbara Hewitt noted it was in contrast to what A had told Kerry Stafford in November 2013 of being happy with both her parents and not expressing a clear view to live with either.  Barbara Hewitt set out what A had told her at D14 in the bundle:

“Namely A told me she wishes she could stay with mum longer and:

‘I’d like to stay there, live there.  Dad promised me two years ago I could live there and this Christmas, but he didn’t let me.’

A told me she had told her father lots of times.  Also, that she’d tried to talk to her father about it, ‘But he gets very annoyed and sends me to bed’.  A made reference to being small and the judge deciding she should live with her dad and dad breaking his promise to her mother as he didn’t give her back.  A told me that her mother had told her that father is asking the judge if she can have less holiday with mum and she wouldn’t like that.  A said she didn’t care about the past, ‘I want now’.”

74.              It is of note that what A said to Barbara Hewitt was that F broke his promise to her mother as he did not give her back:

“A wanted the judge to know, ‘I want to live with my mum.’  I asked her how she would feel if the judge decided she should stay with her father she replied:

‘I’d feel quite disappointed and sad because I want to live with my mum.  If I got to live with my mum, I’d be very happy and it would be the best thing in my life if I went there.’

A held my gaze when she told me this and was very confident in her view.  A spoke about seeing her parents fighting lots of times, that she felt quite nervous.  She just wanted to go back to Italy with mum.  They were shouting at each other.”

75.              Barbara Hewitt’s conclusion, despite the views expressed to her by A, was that a change in A’s current circumstances was not supported by the current information before the court.  The structure of the May report is not helpful, nor is it clear why Barbara Hewitt reached the recommendations that she does.  However, she is clear in her recommendations and gave more detail as to her reason in her oral evidence.  The addendum report was to comment upon A’s wishes and feelings.  It was agreed that it was not proportionate to require CAFCASS to visit A in Italy and that there would be an opportunity to observe A with her mother on 5^th  August and for an interview to be undertaken on 6^th August at CAFCASS offices prior to A leaving to go to Italy.  Both parents told Barbara Hewitt that A had told them that the other parent had told her (A) what to say to CAFCASS.

76.              A presented on 6^th August as uncomfortable about speaking alone to Barbara Hewitt, but relaxed slightly, I am told, as the interview progressed.  At D24, Ms Hewitt sets out what A told her:

“A told me that she would not like to go to a different school as she likes her school in England.  A spoke about who she visited in Italy.  I asked how she felt about her visit and she said she was happy to see her mum and stepdad.  I asked how she felt about coming back to England and she replied:

‘Good, because dad said he’d go on a bungee jump at the Metro Centre.’

A spoke about having to get two planes to Italy and said:

‘I wish I could just walk through a door and go to Italy for something and then come back.’

I replied that I guessed that if there was no distance between England and Italy that would make life easier.  A agreed that it would.  I asked if there was anything about her life that she wanted to be different and A replied, ‘See mum a lot more than I do now.’  A told me that:

‘Sometimes they shout at me.  They didn’t want me to say that, what I said, and not be very happy with me.  When I last said I wanted to live with mum, I realised I’d have to go to school in Italy.  Dad said I wouldn’t see my best friend anymore.’

A later asked me if I could scrub out what she’d said about them shouting at her and not tell her parents.  I reminded her that I had a duty to inform F and M about our interview and what information was shared.  I asked how she would like her parents to talk to her and she said, ‘To be happy’.”

77.              In oral evidence, Barbara Hewitt confirmed that her recommendations did not change.  She had sat through all the evidence presented to the court.  She was concerned that she had been unaware of Dr Petrolo’s involvement.  She stated:

“My belief is that the last thing A needed was another professional intervening in her life.”

78.              Barbara Hewitt was asked about the importance of the sibling relationship which she acknowledged.  She emphasised that the important factor was the quality of the sibling relationship and commented that:

“She experiences good quality contact.  It is interesting whether she would feel the same if she lived there.  It may be helped by distance.”

She pointed out that A had developed a very close relationship with her siblings on the basis of the contact currently in place.

79.              Barbara Hewitt found PGM as quite fair in circumstances where she was describing the impact upon the family of this hearing.  As I have indicated, I similarly found PGM balanced and fair, and concerned for A’s welfare.  It is apparent that all family members, both in Italy and the United Kingdom, will have been under great stress due to these proceedings.  It is very difficult situation for any family.

80.              Barbara Hewitt said:

“A is so bright and intelligent.  They [i.e. children] sense when adults are unhappy or sad.”

It is inevitable, I find, that A will have picked up the tension and anxiety of the adults around her and with whom she is involved.

81.              I am satisfied that A has no wish to hurt either parent and is confused about where she wants to live.  She was not consistent in her two discussions with Barbara Hewitt.  However, she certainly did not want to spend less time with her mother, which is what she said her mum told her that her dad was asking the judge to order.  I find this is another example of mother manipulating A’s feelings.  A said she would not like that and I am sure that she would not like her time with mother to be reduced.

82.              A told Barbara Hewitt about the broken promise and said she wanted to live with her mum forever.  Barbara Hewitt described how A’s presentation between May and August had changed dramatically.  She said that her presentation was very troubling.  However, I expect that as the court hearing approached, the adults became more stressed and A picked it up.  A must have felt pressured by both parents and must have felt reluctant to hurt either. 

83.              When Barbara Hewitt said that A had gone from how she was before to being a very stressed and anxious little girl, she talked about seeing her parents fighting lots of times, shouting at each other.  She felt quite nervous.  She said:

“Normally, my dad that shouts.  She [mother] doesn’t really shout.  It’s mainly my dad.”

84.              A agreed the summary set out by Barbara Hewitt at D25, namely that:

“She does not want anything to change.  She wants to see her mum more.  She would like a door to go through to make Italy easier.  A does not want to talk to anyone about her situation or meet me again.”

85.              The decision in this case must therefore be approached taking into account the pressures which no doubt A has felt and feels.  The present position is that A has been living in the United Kingdom with her father and seeing her mother every holiday since she was three years old, thus a period of five years.  She has lived in the same property, attended the same school, and regularly sees her paternal grandparents.  She is thriving and doing well at school and achieving very well.  She is described as a bright, bubbly, balanced girl with a good sense of humour.  Equally, despite not living with her mother during school time, she has a very close loving relationship with her mother and stepfather and her siblings.  She speaks to her mother on Skype three times per week.  Under the current arrangements, A spends time with her mother in Italy during holidays and it has been calculated that that works out at about every six weeks. 

86.              Section 1 of the Children Act is very clear that when determining any question in relation to the upbringing of a child, the child’s welfare shall be the paramount consideration.  Also, when looking at any application for leave to remove a child from the jurisdiction, the President in Re: F (A Child) [2012] EWCA Civ 1364, having analysed the historical position and looked at the post-Payne jurisprudence, said at paragraph 61:

“The focus from beginning to end must be on the child’s best interests.  The child’s welfare is paramount.  Every case must be determined having regard to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this court.”

87.              Miss Lugg is correct.  This case does not sit on all fours with the majority of removal cases because the circumstances are not that a primary carer is seeking to move jurisdiction and a contact parent seeks to prevent this.  Here, the primary carer remains static.  The only issue that the court therefore needs to consider is the best interests of A, her welfare being paramount, and this is judged by reference to the welfare checklist.

88.              The welfare checklist, at Section 1(3) of the Children Act, sets out that the court shall have regard to the child’s wishes and feelings in light of her age and understanding.  I have already referred to the difficulties in this regard at length in determining A’s genuine wishes and feelings.  I find she has been heavily influenced by her mother, but her father has also, by reason of his questions of A, whether well-meaning or deliberately manipulative, or mistaken from Barbara Hewitt’s advice, has spoken to A in respect of X not being her best friend anymore, discussing the need to change school, and asking leading questions.  The unhappiness and distress exhibited by A when seen by Barbara Hewitt in August is unsurprising.  A has been pulled both ways.  The very fact that she has changed in what she was saying to Barbara Hewitt and her demeanour in saying it points to the difficulty of the court placing reliance upon what A is saying.  Miss Lugg argues that more reliance can be placed on the first interview with Barbara Hewitt when A’s demeanour was more confident and relaxed.  However, I find that A’s wishes and feelings are confused, influenced, and changed as is unsurprising for an 8-year-old in A’s position and situation.  Even if I was satisfied that A’s genuine wishes and feelings are to live with her mother, that, in itself, is not determinative.  I have to look at A’s overall welfare and wishes and feelings are just one part of the equation.

89.              I must consider her education, physical, and emotional needs.  Both parents can equally care for A physically, and educationally it is clear that A is bright, doing well at school, and it is likely that she would be equally high achieving in Italy.  It is the emotional factor and the emotional needs which raise questions and which are of utmost concern to this court.  Both parents must accept responsibility for failing to meet A’s emotional needs.  Their continuing battle and animosity towards each other has impacted upon A’s emotional wellbeing, as I have detailed within this judgment.  Examples such as the mother’s insistence on her fundamental right to speak to A each day, regardless of A’s activities with her father, and M’s acceptance, at the very least, of A calling her father F when in Italy are indicative of the mother’s attitude and approach.  F clearly finds it difficult to accept SF as A’s stepfather, which colours his approach to A’s position within her Italian family.  The extreme behaviour at airport handovers and Barbara Hewitt’s oral evidence that the mother is not able to effectively encourage A to return to her father raises questions as to whether if A lived with her mother rather than her father, the relationship with her father will be gradually eroded and father marginalised as he fears.

90.              I have no confidence that M, if A were living with her, would encourage and promote A’s relationship with her father.  Conversely, whilst she is living in her father’s care, although there have been the obvious difficulties at the airport, father, I find, has always promoted and ensured A’s very considerable contact with her mother and continues to say, despite all the difficulties, that the Skype conversations should continue, that they should be of the same frequency despite the undoubted restriction which that places upon his life and activities with A.  A has a close relationship with her siblings which has been developed under the present regime.  I have already referred to this relationship within the judgment.

91.              The court has to look at the likely effect on the child of any change in her circumstances.  Clearly, a move to Italy will be a considerable change in A’s circumstances.  However, A is very familiar with her mother’s home and there would be no difficulty in respect of the language.  Miss Lugg argues that the current arrangements do not work.  Apart from the distressing handovers, which I accept are very relevant at the airport and I do not minimise them, there is no evidence that the current arrangements do not work for A.  A has a very good relationship with both maternal and paternal families.  The description of her at school is of a happy, bright, achieving, and, indeed, normal little girl which it seems, from recent evidence, is what A wishes to be, who does not stand out as being different.  A is clearly happy when with her mother and siblings in Italy.  She is equally happy with her father, I find, in the UK.

92.              The concern of this court is whether the very close relationship which A has with her father and paternal family will be maintained if A was to make her home in Italy.  The evidence which I have heard does not engender any confidence that it will.  The transcripts of the Skype conversation between A and her father when she is in Italy, the minimisation of father’s role in A’s life by her being allowed to refer to her father as F, or Quello Li and the failure of M to deal successfully with A’s tantrums and out of control behaviour at the end of contact and in the airport on her return to her father, all point to a likelihood of father, as he graphically states, being driven out of A’s life.

93.              The present status quo has its problems, which need to be grasped, but I have no confidence that mother will promote and encourage A in a relationship with her father.  I think the converse is more likely if A is living in Italy.  The driving factor in M’s argument to change the status quo is what she says are A’s wishes.  There is no independent evidence that the current care arrangements are contrary to A’s welfare.  Miss Callaghan submits that A’s supposed wish to live in Italy is, in truth, a reflection of her mother’s feelings and not her own.  I find that there is likely to be merit in this submission.  In reality, it is likely that A’s expressed view that she would like to live with both parents is correct and that as A says otherwise there is no best.

94.              The situation in the United Kingdom has been in place for five years.  The situation of A making her permanent home or base in Italy is untried.  It is not known how she will react to the significant change of no longer being the centre of the adult attention, but sharing it with her siblings.  There is no knowledge of how the changes will affect her if she is in Italy on a permanent basis rather than visiting frequently. 

95.              The court has to consider any harm which A has suffered, or is at risk of suffering.  I have no doubt that the bickering and animosity of the parents has caused emotional harm to A and these proceedings have exacerbated it.  She is caught in the middle. 

96.              I have to consider how capable each of the parents are of meeting A’s needs.  Both parents are capable of meeting A’s needs, physically and educationally.  Sadly, in respect of her emotional needs, both parents have failed to keep A out of the disputes between themselves.  This case is complex and sadly for A her parents are unable to agree what is best for her.  The court therefore has to do its best on the evidence available.  Barbara Hewitt says that it is a finely balanced case.  On first consideration of the evidence, that might indeed be the case.  Neither parent is without blame for the present situation.  The family court advisor Barbara Hewitt recommends that A continues to make her home with her father in term time and spend her holidays with her mother in Italy.  Her written report could have been more analytical and fuller, but she is a very experienced CAFCASS officer and she maintains her position in oral evidence.

97.              I have looked at all the evidence with very great care.  It is not an easy case.  I am not sure that it is finely balanced, but in looking at the matter overall, I find A’s welfare is best met by an order being made securing her residence with her father and generous contact to her mother.  In my view, this will best preserve her relationship with both parents and protect the development of her own identity.  M has been and continues to be a powerful influence in A’s life.  A loves her dearly and clearly enjoys her time in Italy.  However, the present living arrangements have nurtured and produced the delightful little girl whom everybody describes.  Her father has ensured her relationship with her mother is promoted and secured.  It must be hoped that now the decision has been made that both parents fully endorse it and the burden is lifted from A of feeling that she has to decide between her parents.  However, if M continues to overwhelm A with her own desire for A to live with her and fails to support A in the framework that this court lays down then A’s welfare in the future will be compromised and the arrangements whereby A spends considerable time with her mother will have to be revisited.

98.              Therefore, the court will make a child arrangement order whereby A, as presently, lives in the care of her father and that M has the frequent contact that she already enjoys.  The detail of that contact is something which, it seems to me, needs to be looked at now rather than as it is set out in the French order.  The French order has never been totally complied with in any event. 

99.              This judgment has taken a considerable length of time.  I have made it absolutely clear what the findings of this court are.  I am very conscious that M, for very good reason, is not here, and that Miss Lugg will have to seek instructions.  Although I may be being very over optimistic and unrealistic, I would prefer, if possible, that the parents agree the framework of the contact arrangements.  I have made it clear that, presently, it must be generous, that A’s wishes for it not to be reduced should be looked at, and the practical arrangements to improve the handover should be considered.  On behalf of father, it is suggested that M brings A to the UK and father takes A to Italy.  I will not make any determination or definition of contact until both parents have had the opportunity to consider the position.  I make it clear, however, that if there is no agreement, I will define contact in accordance with what I think will meet A’s needs.

[Judgment ends]