Preliminary
- This matter is a final hearing in private law proceedings heard on Monday and Tuesday 9th and 10th June 2025. The Father was represented at the hearing by Mr Miller of counsel, and the Mother by Miss Wentworth of counsel. I thank both advocates for their alacrity and professionalism on behalf of the parents and their assistance to the court in turn.
- The case concerns the Father's applications, issued on 13th September 2023, for a Child Arrangements Order on a 50/50 basis (via what is known as a 'Shared Lives With Order'), and a Prohibited Steps Order preventing the Mother from removing the child from this jurisdiction unless agreed by the Father or order of the court.
- The Mother seeks a 'Lives With' order in her favour, permission to enrol the Child in a nursery local to her, and permission to apply for a Polish passport for him, with the further permission to travel with the child to Poland, giving the Father at least 12 weeks' notice and for a holiday on each occasion of no more than 14 days. An earlier application by the Mother seeking to relocate to Poland with the Child was withdrawn in 2024.
- As is customary, this judgment uses the widely accepted court nomenclature of 'M' for mother, 'F' for father and 'C' for the child. The terms 'applicant' and 'respondent' are often used but because of the nature of proceedings like this, where applications are made throughout the proceedings, it is easier to refer to the parties as M and F. No disrespect is intended whatsoever by that convention.
- In respect of the structure of this document, it will first attempt to address the background [I] then outline the legal frameworks [II] then go on to outline and analyse the evidence [III] and submissions [IV] then consider the competing positions on key issues as against the welfare checklist [V] before bringing those elements to conclusions on the order(s) I make [VI].
I. Background
- M and F were born the same year and are only a few weeks apart in age. They met in November 2020 in the UK and started a relationship. M is Polish and F is British. They moved in together around January 2022 and C was born in November 2022. It is common ground, and perhaps an important feature, that the family travelled together to Poland in July 2023, but an incident occurred there which precipitated the ending of the relationship between M and F.
- Whilst the chronology of the matter is long and perhaps too long in the context of the short life of the child, I had the pleasure of hearing this case on several prior occasions, including at the first attended hearing on 8th January 2024 at Horsham, where I decided a Fact-Finding Hearing ('FFH') ought to take place. At that hearing, I also directed interim contact ought to begin, (with M having unilaterally stopped contact between F and C on 4th September 2023, which precipitated F's application later that month). M sought to appeal that decision orally in the hearing and I refused that application. I understand she did not renew it, or at least later withdrew it.
- I reserved the matter to preserve judicial continuity and because of my availability to hear the FFH soonest, between 11th and 13th March 2024 at Horsham. The court heard a series of allegations by both F and M as to each other's conduct during their relationship. That judgment was published under the neutral citation [2024] EWFC 60 (B).
- The allegations were divided into five allegations, namely specific incidents raised by M against F which she said occurred in January, February and July 2023; and an overarching allegation by each party against the other – of coercive control alleged by M against F and of emotional abuse alleged by F against M.
- Most pertinently, I found as facts proven that F had acted in an abusive manner to M in the following ways [at para 150]:
I. That in January 2023, F became angry and threw his phone in the direction of M and it broke into several parts on the floor.
II. That on 17 July 2023, during a trip to Poland, the parties argued, and upon the F believing that M may seek to remain in Poland with L, he became enraged, made threats to end her life, attacked M by pinning her on the sofa and pushing her head down, and he also threatened to throw her out of a window.
III. That having considered all the evidence, including but not limited to: F's frequent use of slurs; F's threats of violence; F's use of physical violence; F shouting at M and talking over her; F storming out when he did not get his way; F refusing to consider counselling as he considered himself "exceptional"; F insisting that he have "authority" in the relationship and that M "know her role"; F demanding that M perform oral sex upon him and "submit" after an argument; and F generally creating an environment where M was subservient, frightened and had little control; that F's behaviour amounted to coercive and controlling behaviour toward M.
- I found the further two allegations not proven which had been raised by the parties, specifically:
IV. That the behaviour of M towards F did not amount to emotional abuse as alleged because the evidence in totality did not meet the burden of proof.
V. That in February 2023, there was an argument, but I could not be satisfied there was an assault, and I could not be sure C was present with M during any assault.
- Notwithstanding my findings in that FFH, and the anxious consideration of Practice Direction 12J[1] as to management of risk as a consequence of those findings, I maintained the interim contact order between F and C at that date, noting that: "on balance it is of greater harm to C to now stop contact until the case is resolved, which may be several more months" [at para 153]. Indeed, it has been a further fifteen months, which in the context of C's short life is a great deal of time.
- M and F appeared before me again in September 2024 at Brighton for a Dispute Resolution Appointment (DRA), where issues were narrowed as follows:
"a. whether there should be a sole 'lives with' order to the respondent or a 'shared lives with' order to both parties;
b. the arrangements for contact:
i. including overnight stays and longer stays;
ii. whether it should be supervised or supported;
iii. indirect contact;
iv. holiday contact;
c. whether the child should have a Polish passport/ and or Polish citizenship (it being the respondent's case that the child already has Polish citizenship by virtue of her nationality);
d. whether the child should remain living in the [Hampshire] area or live closer to the applicant [in Sussex];
e. the arrangements for C to visit Poland for holidays and whether any safeguards need to be in place"
- At the start of this hearing I ruled on a preliminary matter, an application by F to include his notes of a recent meeting with Ms S of CAFCASS, and screenshots of messages with M and a third party seeking information about F's new partner. I am told that F and his new partner recently had a child together, and that F has discussed this matter with her. I am further told that M has no information about F's new partner and is (as one might expect) inquisitive about her, and that CAFCASS take the view that information about her should be shared with them and/or the LA so that they can make any professional checks necessary. I found that this is not a matter for the court today as it would be likely to stray into satellite litigation, and/or to step on the toes of other public bodies in their roles, so I warned the parties to keep to the narrow issues outlined above, and refused any further evidence from F.
- C is two and a half years old, and I am informed that he is thriving. I would note at this point, as I have done with M and F before in prior hearings, that whilst these hearings have concentrated on the competing submissions and positions of the parents, we must strive to remind ourselves that this is C's case – not the parents' case. Ultimately, it is important that the court has the welfare of C as its paramount concern in making decisions about him.
- I would further note that it is rarely the case in my experience of this jurisdiction that parents are one dimensional, entirely one thing or another, or that families all follow one dynamic or set form. Life would be extremely boring if it were that way. Every family is unique, every child has potential and every parent has merit and redeemable qualities.
- Some people are better parents to a child than they were partners to each other, and it is important in such cases to accept that with good grace and to try to be forward thinking rather than entirely focused on the past and personal grudges. I appreciate that is easier said than done, but it is a key feature of good parenting that one tries to put aside personal feelings for the good of one's children. One of the key features in this case, and in many cases, is mistrust between the parents and that has taken energy away from their role as co-parents.
- As I have said to the parents in this case, and many others, it is my sincerely held belief that parenting is the hardest of jobs, and that there is no template for being the perfect parent – we try to do our best and we "learn by doing".
- In my view, the parents need to practice empathy toward one another, and regardless of my decisions today, the court will send them away with a baseline for their future co-parenting of C. It is my sincere and earnest hope that they both try to put aside their differences in the future and put C first. Whilst I take it as read, I say on the record that I believe both F and M love C dearly, and they each genuinely believe that their plan for C has merit. I do not take the view, as in some cases, that any element of this litigation has been vexatious, or used indiscriminately by one parent to harm the other.
II. Legal Frameworks
- It is well trodden that the court must have in mind the welfare of C as its "paramount consideration" pursuant to section 1 of the Children Act 1989 ('the Act') when determining questions about his upbringing, as here.
- When considering whether to make an order under section 8 of the Act (i.e. Child Arrangement Orders as are being sought) the court must have particular regard to the 'Welfare Checklist' at section 1(3) of the Act, i.e.:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
- As this is a case where the court has found facts [para 10 above] of domestic abuse proven against F, I must also have in mind the guidance in Practice Direction 12J at paragraphs 36 to 37A when I am considering the relative positions of the parents and their ability to meet C's needs pursuant to the Welfare Checklist. I must also consider whether the aim of the litigation by the person found to have acted abusively amounts to a further method of abuse, and whether to make an order barring them from further applications at the end of the case without permission of a gatekeeping judge pursuant to s.91 (14) of the Act. Specifically, paragraphs 36, 37 and 37A state:
"36.
(1) In the light of-
(a) any findings of fact,
(b) admissions; or
(c) domestic abuse having otherwise been established,
the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained.
(2) In particular, the court should in every case consider any harm-
(a) which the child as a victim of domestic abuse, and the parent with whom the child is living, has suffered as a consequence of that domestic abuse; and
(b) which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made.
(3) The court should make an order for contact only if it is satisfied-
(a) that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact; and
(b) that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
37. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –
(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;
(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.
37A Orders under section 91(14) of the Children Act 1989
(1) In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider whether an order under section 91(14) of the Children Act 1989 would be appropriate, even if an application for such an order has not been made. Section 91(14) orders are available to protect a victim of domestic abuse where a further application would constitute or continue domestic abuse. A future application could be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is merited due to the risk of harm to the child or other individual."
III. Evidence
- For the avoidance of doubt, where I refer to a witness's "evidence" that may include their written or oral evidence or supporting exhibits, unless specified.
- The court considered live evidence from both parents and from an expert from CAFCASS, Ms S, who the court thanks sincerely for her help and expertise. In the court's experience, CAFCASS find they "cannot do right for doing wrong" – in that each parent will often pick and choose which bits they agree with or take the view that any disagreement from the expert with their case for C is a personal attack on them or some form of persecution. In the court's experience of such experts, they are genuine, hardworking, over worked and underappreciated. In the present case the court found the evidence to be both earnest and fair.
- The court heard both parents give oral evidence and be expertly cross-examined by the advocates. The court also considered their written evidence and the exhibits to the same.
- In live evidence, Mr Miller asked questions on behalf of F of Ms S. He asked about the prior concerns raised by CAFCASS of the lack of responsibility and reflections shown by F toward his own behaviour in this case (discussed at length in the prior judgment).
- It was fairly accepted that over the course of intervention by CAFCASS with F he has begun to show a lot more empathy and acceptance of his prior behaviour and indeed was accepted onto a 'DAPP' course to address his behaviour. It is notable that it was a precondition that to be allowed onto that course F must have shown insight, and the final report of that course described him as fully engaged and that he "always spoke from the heart" – helping to show other parties how to learn how to address their own issues. I found this to be heartening and positive evidence of F's ability to care for C and to show some insight into the harm he caused to M.
- The CAFCASS officer told the court that F had "really learned to address his behaviour" and that she felt that a letter to M by F showing contrition was positive. Ms S said that she had noticed some less positive behaviour, but that there were not very significant signs of negative behaviour by F, only nuances to do with F's struggles to accept M's role and his difficulty in trusting M.
- Ms S said that the main difficulty in this case is a lack of trust between M and F, and that this "really screams out in this case". I wholeheartedly agree and endorse this view. The lack of trust, Ms S said, was about each party's view of the other's intentions. The findings made by the court previously helped to identify and define the abuse that had happened and was a starting point for M to begin to heal from that experience. Ms S noted that the abuse was likely to cause M concerns over F's parenting capacity, and that on the other side M's prior application to relocate to Poland (since withdrawn) was likely to remain with F as a basis for his own mistrust. Sometimes, Ms S noted, F felt he was in a better position to decide things about C, possibly because of his career in education.
- When it was put to the witness that M unilaterally relocated to Hampshire, the witness interjected and noted that M in fact "fled" which is not a point missed by the court. M cannot fairly be criticised for reactive steps which might not have had the permission of the court when they were, as the court found, in the context of abuse being suffered by her. Her case was (and remains) that she took exigent steps to protect herself and C.
- Ms S wholeheartedly endorsed the idea that a final order should be made here and that time to settle into this "new reality" would allow them to "enjoy and refocus on C" after this. She opined that sometimes in this process "both parents' focus on C got lost" and that each had, by inference, spent too much energy on proving they were the better parent.
- In terms of the recommendations by CAFCAS, Mr Miller went through these sequentially. It was agreed that both parents would agree to avoid derogatory language about the other.
- As to the third party, Ms S noted that CAFCASS do not have the power to make further enquiries without the contact details of the new partner. She explained that if they had known that F was going to shortly become a father for the second time, they would have passed this to Children's Services and the Local Authority would have conducted a pre-birth assessment with the new mother in order to assuage any concerns.
- I accept that F was not ordered to provide that information to the authorities, but I do find that it is likely to cause concern and consternation from the other parties (including M, CAFCASS and the court) as to F's intentions as to controlling the narrative. Whilst I am not going to make an order, nor perhaps should I, governing non-parties including the new partner and LA, I do find that F ought to reconsider sharing information with the new partner, for her own benefit, and that doing so would perhaps go a long way toward blunting any concerns from the other parties.
- As to final recommendations, Ms S recommends a (sole) Lives With Order, in that C be ordered to live with M but spend time with F. She maintained that she did not believe that a shared lives with order would be of benefit for C, owing chiefly to the controlling behaviour shown previously by F. She pointed out that both parents still have Parental Responsibility ('PR') and a role to play in the life of C. She did not think "we are there yet" in terms of a shared lives with order, and noted that she still had concerns about F's behaviour and that in the near future once things have settled down then a shared lives with order could be of benefit.
- Set against this, Mr Miller pointed out that CAFCASS had recommended two nights and three days contact per week with F, and that this significant amount of time was not far from 50/50 shared care, and he asked in light of this if shared care was not the way forward. Ms S responded that the shared lives with order was as much about the family dynamics and F's behaviour, and that once C is old enough to express his views, and both parents respected each other's views and roles, then a shared order might be appropriate.
- Mr Miller put it to the witness that a shared lives with order would signal both parties' equal role as parents and would allow concerns, such as over C's dental care, to be enshrined within that Order. The witness explained that a shared lives with order does not give any enhanced role or responsibility on that point. Ms S explained that she believed that M belatedly listened to F's concerns about C's teeth and took steps to take him to a dentist. Again, she maintained that the most important factor was trust and respect between the parties, and the issues with teeth were now managed by experts. She did not believe that any delay with dealing with C's teeth amounted to a child protection or neglect issue. The witness explained that she understood that M had been breastfeeding until recently, up to seven times per night, and that this was having a negative impact on C's teeth, but that she had since ceased breastfeeding once this concern was addressed by experts. Mr Miller pointed out that F had been persistent on this issue and he was really concerned that M would not have appropriately dealt with those concerns.
- As to the planned progression of overnight contact, Mr Miller put to the witness that F's working pattern was somewhat unusual – he is free Monday to Friday but is unavailable on a weekend and school holidays as that is primarily when he teaches at the moment.
- F's position, via Mr Miller, was that F ought to have C during the traditional working week and that M ought to have care of him during the weekends and school holidays. Ms S pointed out that the welfare needs of C were not subservient to the working patterns of the parents and that once C goes to school the primary need would be for C to have continuity and not to travel too far during the week.
- Mr Miller suggested that F's case is that C could go to school nearer to F and that this ought to be given as much priority as M. Ms S said that her recommendations were based around the age of C and that changing the status quo for C to live with F might be overwhelming, and one night contact at the moment and then increasing to two nights with F would be suitable. She cautioned against increasing too rapidly to three nights, which would in her view be too much.
- The witness told the court that M had been the main carer and spending more time with F would be positive and contact should progress, but that to do so too rapidly would place a lot of demand on C and could work against F and impact his relationship with F.
- Mr Miller suggested two nights per week at the outset and then progressing to three nights. Ms S reiterated that she felt three nights was too much at the moment owing to C's age and the things he and his parents had been through and that extending overnight to three nights too soon would not be beneficial. When C goes to school in September 2028, the contact with F should change to weekend and his career would need to adapt in turn.
- Ms S explained that F would need to review how he organised his job and that she believed that F had had different working patterns historically and that he would need to make changes for C. If C is going to live with M, then it would be very difficult for C to travel from Sussex to Hampshire to have overnight contacts. She accepted that Friday night from school through to Sunday would be a good start for F once C goes to school but that a drop off at school on Monday would be too early a start for C owing to the distance.
- As to where C lives, Ms S maintained that there were no concerns about where M lived, she had a flat, a network and was settled there now, and that she had no intention of moving closer to F.
- Both parties agreed that C should be enrolled in nursery and Mr Miller and the witness both agreed that F should "definitely" be consulted about which nursery and that M should be consulted in turn about any nursery nearer F where he might attend one day a week, if appropriate.
- As to the passport issue, Mr Miller explained to the witness that F disagreed with the CAFCASS recommendation that C be allowed to have a Polish passport – because his evidence would suggest a "worst case scenario" that return of a child from Poland under the Hague Convention could take up to 7 months. Ms S reiterated that she has seen no evidence that M has not complied with court orders once they have been made, including travelling to Poland and returning on time. She noted that M had withdrawn her application to relocate to Poland. The witness felt that this court making an order which would then be registered with the Polish courts would be sufficient as a safety mechanism.
- Ms S said that in interview with F she had concerns about his attitude and rationalising his views on controlling where C would go to nursery. She indicated that she felt F's approach was focused too much on him rather than C. She explained that she felt this had controlling elements where his concern went too far.
- In examination by Miss Wentworth, Ms S was asked some follow up questions about domestic abuse in this case. Ms S agreed that in her first report she found that C had, vicariously, been a victim of the domestic abuse by F of M.
- It was asked whether compliance was irrelevant if someone does not make changes to their behaviour. Ms S reiterated that the final DAPP report outlined that F had indeed made positive changes to his behaviour but accepted that she still had some lingering concerns as to his attitude on some occasions. She said that the way F comes across was somewhat concerning, in his belief that he is a better parent and that he expected everyone else to change their patterns to suit his life.
- Miss Wentworth asked what it was that led the witness to believe that F thinks he is a better parent than M. She accepted that she was concerned that F was seeking a local nursery without M's input whilst also refusing to engage with M as to her efforts to find a local nursery local to her. The witness explained that she now understood that F was in agreement with working with M to find a nursery. She explained that because she was not supportive of 3 nights contact with F then this would mean he would be better placed in a nursery closer to M.
- Ms S said that F tended to focus a lot on practicality especially in terms of what would be easier for him and the impact on him, rather than the impact on M and C. She pointed out that M had fled from the area during the end of the relationship and that yet F suggested at one point that M move into a property put forward by F's brother, which was inappropriate and Ms S indicated was a sign of a lack of empathy from F.
- Ms S explained that F was often trying to find solutions to suit him but that this did not necessarily contradict the good work done under the DAPP course or undermine the view that F had worked on his behaviour.
- It was suggested on behalf of M that F had said that any order would need to be revisited in three years when C goes to school and that a prohibition on F bringing further applications (i.e. s91(14) of the Act) would be worthwhile.
- F's position, Miss Wentworth suggested, was about control for him. Ms S said this was possible but she was not convinced. She said that, as an alternative, it was to do with what F felt he deserved rather than F trying to control M.
- As to the level of contact, Ms S suggested increasing to two nights overnight with F would need to be based on C's response to change and how well he would adjust to that. M was concerned as to the impending change of nursery in conjunction with the increase in contact suggested by CAFCASS. Ms S insisted that contact would only progress if things went well and the parents would need to pay close attention to how C reacts. The parents would need to communicate on this point.
- On the point of holiday contact, the recommendation was for holiday contact on an ad hoc and agreed basis between each parent around important dates such as special occasions (birthdays, Christmas and easter for instance) and that when C goes to school this would need to adapt to the term dates. I accepted this was logical.
- On the point of holiday contact, CAFCASS recommended gradually stepping C up to a one-off three night contact with F as a precursor to longer contact such as holiday for five nights soon after. That would be, it was suggested, contingent on contact going well and no adverse reaction, and to both parents communicating better. It was also suggested indirect contact would assist both parents in maintaining those bonds.
- F then gave evidence and was cross-examined by Miss Wentworth. He had provided a very detailed witness statement and appendices. He was asked questions about dental issues, shared care and what he understood that a shared care order would offer in terms of the practicalities of the law.
- He responded that he thought that a shared care order would offer each parent equal ability to deal with C's concerns quickly and to discuss them with the other parent. He was pressed on what he thought would be different between the PR he has now and a Shared Care Order in future. He accepted that in practice there may be no difference.
- It was put to F and he accepted that my findings were clear and he unequivocally accepted them. He was asked questions about the DAPP course. He said he was told that abuse arose from feelings of a power struggle and a breakdown in communication, and that the process of abuse in this case had come from there. F talked about the relationship rupturing and the lack of ability to repair it. He explained that expectations of authority could and did arise due to a lack of communication and a lack of trusting each other's best interests.
- It was put to F that he denied he had been recently controlling and he apologised for the appearance of this with CAFCASS but said that he did not believe he had been acting in a controlling way. F acknowledged that he could be arrogant; he was used to making decisions and sticking by them, which did not take into account the feelings of the other person. Now he is trying to take care to ensure that the things he is saying are well received in terms of the tonality and message. Rather than responding immediately, he says he tries to get other people's opinions. He said that the DAPP course had been long and tracked his progress over time. He said he was still in that process and did not think he was perfect and was trying to be more empathetic as to how he is perceived.
- It was asked about F's perception that he had been treated unkindly by M in the past. He said that he wanted to move on and put any grievances aside and he reiterated that he accepted his role in causing harm and had apologised wholeheartedly. He accepted that M was the victim, not him. F said that he has had an epiphany about his behaviour after being shown a Ted Talk on the DAPP course about harm suffered by a little girl. He told the court that he accepted that his behaviour had a negative effect on M and indirectly on C and offered that he was deeply ashamed of this negativity. He accepted that through his denial, minimisation and victim blaming, it would have an impact on C.
- He was asked whether it was appropriate for F to ask the court to order M to return to Sussex despite being settled in Hampshire. He was overjoyed by the fact that M now has a support network and that the Maternal Grandmother has come over from Poland to help care for C, he accepted that he was attempting to offer plans and options but that he tacitly accepted that he did not control where M lived.
- F accepted that it would not be in C's interests to keep coming back to court and that having heard from CAFCASS today that he would not seek to reopen the issue over where C lived in the near future, and that stability would be vital.
- F became very emotional in offering quite fulsome praise to M. He described her as doing "a great job" and said that C is kind, inquisitive, and F infers that he is very well looked after and compassionate and he has to give M credit for this as he is in her care the majority of the time. F accepted that M is the primary carer for C.
- Miss Wentworth asked about F's aim for care in the region of three nights per week. F suggested that both sides of the family should give "equal contribution" to C and that he was seeking "equality". I found that this was a quite binary and arithmetic approach to C's needs based on a perception of "fairness" to the parents and was not helpful.
- F was pressed on his working arrangement apropos C's care. He explained that working in the traditional working week would be "a massive pay cut" and that working on the weekends offered support and financial input to C. He conceded that if the court made orders which better fit with C's arrangements then he would make changes to his career.
- It was put to F that C's needs are best met by him staying in Hampshire and with M and that it is not in his best interests to be forced to move or to be placed in 50/50 care. He maintained that equal care was, in his view, in C's best interests.
- F was asked questions about the nursery issue and whether he told CAFCASS that he should be able to decide where C goes to nursery. He maintained that he had not said that, and instead that he thought that both parents should be involved in such decisions.
- F maintained that C has had a tumultuous life so far and has not seen F for a long time. He described himself as an educator and said that he did not think nursery was vital, he did not think it had an impact on later education but offered that it did affect social interaction and said that on this point he accepted that social interaction would be important. He reiterated that he thought M should have discussed nurseries with him instead of looking into them and visiting, but on the other hand accepted that he had made enquiries about nurseries and had obtained an offer (unilaterally) without involving M. It was put to him that this was an example of continuing controlling behaviour, but he denied this, he felt that it was a good idea to get a plan to offer a solution to the court and for C.
- F was asked questions about his statements as to wanting to "exercise his parental rights without fear or hindrance" and said that this was not the way it sounded in his statement and not an example of continuing controlling behaviour. He indicated that he had been bound by second guessing every parental decision and request for months. He said he had no intention of discrediting M. He accepted that he had mistrusted M and that she had mistrusted F. He totally accepted that he had been coercive before but now believed he was attempting to communicate more effectively rather than continuing that trend.
- It was put to F that there was "no good reason" why C should not have a Polish passport. F thought C should have the opportunity to make that choice when he comes of age. He pointed out that he has not stopped C going to Poland with M, and indeed said that he loved Poland, very much liked M's family, and was sad that he had not been able to spend more time there since the breakdown in the relationship. He was concerned that M had previously wanted to relocate to Poland and felt that M seeking a Polish passport was a back-door effort at this. He said that his own worries about M potentially taking C to Poland and not bringing him back would create a negative association with C.
- It was put by Miss Wentworth that F was unable to separate his fears and emotions about Poland from the facts of the matter with reference to risk. He said that he would not deliberately reveal these fears to C. With respect, F's whole approach to the issue of the passport failed to take into account the elephant in the room – namely that he reacted very badly and assaulted M when he thought M would stay in Poland with C, but that in fact there had been no concrete evidence that she had ever actually intended to abduct him to Poland.
- Miss Wentworth pointed out some of the benefits of the Polish passport – free movement, free healthcare, and other security for C. F disagreed. He said that the passport does not determine heritage or provide the benefits of being Polish.
- In terms of holding the passport, F wanted to pay solicitors to hold the UK passport of C for 16 years. He said that there should be a third party involved and that he thought that whoever held the passport between M and F would be "in power" which I found to epitomise the mistrust and lack of child-centred thinking in this case.
- As to handovers, F maintained that handovers should be in Chichester, as this is roughly half way in distance between M and F. He said that this would breakdown the journey for C. This did not seem to appreciate the logic that if either parent travelled to Chichester then C would still have to travel from there with the other parent, so the journey for C would still be as long even though it would only be about an hour for each parent outbound and an hour return.
- M's evidence was given in turn and she was cross-examined by Mr Miller on behalf of F. She was asked whether she thought F was a good father to C. She said she did not know any more, she was not there for the contact and could not know for sure.
- It was put to her that the contact notes were positive and she accepted that they were quite positive. CAFCASS observed contact on 14th May 2025 and gave a positive report. M said that she had her own beliefs on this but that she accepted and trusted the professional opinion of Ms S. She said that she thought Ms S was very fair in her judgment.
- Mr Miller pointed out that the CAFCASS report had said F had made good progress on the DAPP course, and M said she could see on paper that he had made progress and had said nice things in his apology letter to her but she had concerns that his approach was more academic rather than putting things into practice. She said she was emotionally drained by this court process and noted that F had had the chance to apologise earlier and had not done so. She wanted to be able to move on and put things behind her, but that she had found in the past that F had not taken the opportunity to rebuild things when she wanted to.
- Mr Miller asked about trust between M and F and whether M felt there was any way to build up trust between them. She responded that she did not understand why F did not trust her, she said that when she made the application to relocate when she was in a refuge in a very dark place. She said that actually once she became aware of her options she steadfastly decided to build her life again from scratch in England. She wanted C to have a relationship with F.
- M said that F is very formal on the parenting app and he sometimes does not answer her questions. She felt that F was very careful about how he explains things on the app but that it felt too "official" and then when she asked about things related to C, for instance his tantrums, F was not open and honest about these issues. C was the most important person in this case and M said that she would "put her ego in her pocket" to move forward in the interest of C.
- The recommendations set out in the CAFCASS report were put to M by Mr Miller. Those in issue were discussed in turn. M outlined that she stands by her opposition to a shared lives with order and that to have a shared order is only in line with F's controlling behaviour. She denied the assertion that by the lives with order being in her favour there would be some kind of power imbalance. She maintained she would never reject C's view in the future if he wanted to.
- M was asked, at length, questions about the dental impasse. She explained that she had promptly followed the advice to stop breastfeeding C but that this had not been easy because C had been unsettled without being fed. She accepted that communication between her and F had not been as good as it could have been. She accepted that F had been worried about C's health and that it was not ideal that there was a delay but that she had sought treatment belatedly and that this was important.
- As to her own situation, M indicated that she intended to shortly begin a course of study and then aim to get back into work, but that she understood the importance of C going to nursery on a part time basis in order to build social skills.
- M was asked a line of questions about building up contact between F and C. She indicated that she had some niggling concerns about care by F, such as C coming home hungry or overstimulated, and wondering where C would stay with F. She indicated some anxiety about C going on holidays with F but said that she would have to get beyond this and freely offered that she accepted C would need to spend time on holidays with F.
- M said that occasional reports from F about C are not very helpful and she indicated that they appear to be anodyne. She indicated that she would like more information from F about his time with C and vice versa.
- M indicated that she would discuss issues like the nursery with F, and that she would share school holidays with him in due course. She accepted that F's current working patterns preclude time at the weekends with C, but in the future she submitted that he could change this.
- The issue of the passport was ventilated in cross-examination at very great length. M maintained that at her lowest point in July 2023, when I found she had been the victim of serious domestic abuse by F in Poland, she had not decided to overstay or otherwise abduct C. M maintained that C having a Polish passport would allow him recourse to emergency (and quicker) treatment if needed in future.
- The court also considered the expert report of Ms Lewicka-Krzysztowczyk an Attorney at Law and expert in Polish law, which was probative and helpful, notwithstanding F having provided an inordinately long list of questions for the expert which the court found she had endeavoured to deal with. That evidence concerned issues around how C would be entitled to a Polish passport and that in the eyes of the Polish court he was a Polish citizen by birth. It also dealt with issues surrounding Poland's relationship with the courts of England and Wales via the Hague Convention.
- The court heard each witness's views on the matters arising and the interpretation on what included fairly knotty matters of international law and lengthy submissions on this interesting, but somewhat otiose, issue.
- I say otiose because the totality of the other evidence I have heard in this case demonstrates no evidence whatsoever of an actual as opposed to fanciful risk of M abducting C. In fact, the only source of that risk is the suspicion of F. That suspicion led him to completely unacceptable violence against M in Poland in July 2023, but she still returned. She has in turn taken C to Poland since then for holidays and, as Ms S for CAFCASS said, there have been no issues with her adhering to those conditions.
IV. Submissions
- Following the evidence, the court had the benefit of helpful submissions from both counsel which amplified their client's respective positions, namely that, for M:
a. M supported and endorsed the report and evidence of CAFCASS save in respect of the progression of contact and holiday contact.
b. M sought an order under s91(14) debarring further applications from F for a period of four years without the permission of the court.
c. M sought a final lives with order in her favour, with C spending time with F
d. M sought permission to enrol C in a local nursery
e. M sought an order where F would have contact with C on Monday and Tuesday each week, with a maximum of one overnight contact, progressing to two overnights after C starts nursery around December 2025 / January 2026 and then when C starts school in three years' time, on alternate weekends.
f. M sought an order for handovers to continue to happen local to her in Hampshire
g. M sought permission to apply for the Polish passport
h. M sought permission to travel to Poland with notice and for the UK passport of C to be returned to her (it being held prior by way of an undertaking at the solicitors office) and for M to ordinarily then keep both passports until F needed to take C on holiday, after which he would return them to her
i. Communication to continue via a parenting app, with the Paternal Grandparents to be added so as to increase communication around handovers.
Meanwhile, F broadly sought:
j. To persuade the court and the respondent of his sincere apologies for his prior abusive behaviour and that he had undergone (continuing) therapy and courses to address this
k. That the court should make a shared lives with order and an initial four days per week contact with C, and 8 weeks holiday with M per year, which F purports amounted to an approximate 50/50 split of time for C
l. As a secondary position that C should have two nights with F per week, progressing to three nights in short order
m. That C be ordered to be returned to the Sussex area where he was living prior to the cessation in contact, and in the alternative that handovers occur at a midway point between the two parents, perhaps around Chichester.
n. That the court refuse to allow M to apply for a Polish passport, and that the PSO on that point be retained.
- Mr Miller on behalf of F sought to highlight the very positive assessment of F that the CAFCASS officer had provided in evidence. F has clearly undergone personal growth, including sending a personal apology to M and was "genuinely remorseful" for his actions and the impact upon M and C. He accepts all the findings I made against him and continues to reflect on this.
- Mr Miller noted that M was less generous about F than she could have been, noting for instance the excellent contact notes as to F's care of C. M struggled to identify positives about F but in terms of her own plans they were somewhat nebulous, for instance she was not entirely clear as to whether work or study was her immediate plan, and she had previously opposed overnight contact between F and C although she had resiled from that position at the hearing which was to her credit.
- Both parties agreed not to disparage one another. Both parties have Parental Responsibility and need to rebuild trust for one another.
- Mr Miller submitted that a shared lives order was the right outcome in this case, and that as F builds up contact the parties will come closer to equality of time. I was taken most pertinently to the case of AZ v BX (Child Arrangements Order – Appeal) [2024] EWHC 1528 (Fam), a case heard by Poole J, at paragraph 81, where it was noted that a shared lives with order would put the parties on an equal footing and stop either party from regarding "themselves as being in control of contact or to seek to control contact".
- Mr Miller pointed out that the CAFCASS officer was rightly concerned about C's teeth and the delay in treatment on behalf of M and indicated that a shared lives with order would have streamlined this.
- In terms of relocation – Mr Miller submitted on behalf of F that C was previously living near to F in the Sussex area and that is where the paternal family is based, and F's work and network is there. It was not dealt with in submissions that M had fled because of domestic abuse but that is the fact which undercuts F's position on where C lives primarily. I was directed to the case of Re C (Internal Relocation) [2015] EWCA Civ 1305, a Court of Appeal case heard before Black, Vos LJJ and Bodey J. That case sets out some of the principles around relocation within the jurisdiction and some of the logistical complexities of an older child where the child is in school. I note that in that case, the distance was much more vast – one parent in London and one in Cumbria, a very significant drive even for an adult and one which would preclude direct contact without that exhausting journey. The present case can be distinguished owing to the age of the child and the distance (roughly 65 miles or 2 hours in a car give or take) and also that both parties have the flexibility over time to move within those adjacent counties.
- As to the passport issue, Mr Miller addressed me on F's concerns re the perceived slowness of return under the Hague Convention at length. It was conceded that there was no data before me or comparator for other Hague Territories or even for how quickly the UK would return a child in reverse circumstances. However, at the conclusion of submissions, Mr Miller then took instruction from F and he made, in my view, a commendable concession, following my enquiries and indication, that he would not object to M applying for a Polish passport. The advocates then addressed me on the minutiae of this and potential undertakings or recitals in my order which would allow colleagues in the public authorities in Poland to see, instantly and unequivocally, the status of the child in regards the court of England and Wales.
- In terms of communication, both parties agreed to redouble efforts on this front and to continue to use the AppClose program to message one another. F and M both agreed during submissions that they would make more effort to tell one another with a degree of immediacy about the day-to-day concerns over C (for instance, had he had a nap, how well he had eaten etc.).
- Mr Miller submitted that F was not acting in a controlling or inappropriate way in bringing or progressing this case and that he did accept he can come across as arrogant or very direct, and is working on this, which I accept, via therapy.
- Miss Wentworth then made submissions on behalf of M. She indicated that it was welcome that F had belatedly made concessions about the passport, but she criticised F for the late hour of this, and in the face of judicial inquiry about the validity of his prior position.
- Miss Wentworth indicated that M still had concerns about F's attitude and attempts to control things. She indicated that albeit CAFCASS had found that F had begun to develop his insight -including via the DAPP course and the letter of apology- he still had hallmarks of a controlling or coercive mindset. I was asked to closely consider the guidance in PD12J at paragraphs 36-37A apropos whether F was pursuing applications in this case which were not child-focused but were about F's perception of power and what he was due in terms of contact.
- M was greatly heartened by F's evidence that M was doing a really good job with raising C. However, Miss Wentworth submitted concerns about a lack of insight on the part of F as to who was the "primary carer" and that his application for a shared lives with order was based on his attitude as to equality of time and was not based on a child-focused approach or in C's welfare interests. Namely, Miss Wentworth made it clear that the totality of the evidence tended toward M being better placed in terms of the welfare checklist to meet C's needs and that for F to contest this position was illogical and perhaps indicative of his oppositional thinking and lack of focus on the welfare checklist.
- F was wrong in applying for a nursery in his locality when the issue of where C would ultimately live, and in the context of M having fled with C to Hampshire, was not settled, and was likely to resolve in favour of M when one scrutinises the evidence. Miss Wentworth said that F doing this showed a lack of insight and perhaps another element of control. For what it is worth, I find that the application for nursery in Sussex was poorly thought through and was likely to antagonise, but I do not find that it can be properly categorised as a form of continuing controlling or abusive behaviour. In terms of F seeking to have C live nearer to him, it might be argued on his behalf that he was seeking to make plans, as he said in evidence.
- As to the arguments over 'Shared Care' Miss Wentworth reiterated that F had previously tried to assert undue authority in the relationship and that the evidence of CAFCASS was unequivocal on this point. F could still exercise all of his usual rights under PR without a shared care order and in fact that to make such an order might open M to renewed potential to suffer domestic abuse either intentionally or otherwise.
- Miss Wentworth submitted that in regards the principles in AZ v BX – the message of "two equal parents" does not always fit – in the instant case, F had been found to have caused harm to M and vicariously accepted the impact on C. A shared lives with order would not be suitable in this case because of his prior control and that the starting point would be that the primary carer (as accepted by F) would be M.
- Miss Wentworth explained that PD12Q at para 14 mentioned the need to consider a section 91(14) barring order in a case with previous domestic abuse. The court ought to make such an order of its own motion, Miss Wentworth urged, not least because F had indicated in his written evidence (albeit he stepped back from this in live evidence) that when C reached school age he would seek to change things.
- Miss Wentworth submitted that until F made greater changes with his respect to his attitude and work around his acknowledgment of domestic abuse, and until C was able to better express his views and feelings, a debarring order was necessary to assuage any concerns. I heard competing submissions about the length of this and gave an indication.
V. Welfare
- In assessing the parties' relative positions, I have attempted to ensure I carefully consider the merits of both their positions and take a non-linear approach to assessing the competing arguments. It is notable that they were completely opposed on some issues which the court will have to decide one way or the other.
- On other issues, it is more nuanced, and each parent has shown a willingness to compromise and meet in the middle ground. Whilst F's initial position is somewhere around 50/50, he has a fallback position closer to 40/60 or two nights per week. M in turn initially seeks six nights per week with C but has not ruled out that the court might give F more.
- The level of contact is therefore an elastic issue and one where the parties need to listen to each other and note that the other has merit and can offer something complimentary and facilitative to C and to the other. For instance, F works on weekends, and has freer time during the week; M is seeking employment or study, and no doubt could do more of either if afforded the time provided by childcare when C is with F.
- The basis for contact therefore is an area where I am confident that the court can find a middle ground based upon the respective abilities of the parties to meet C's needs pursuant to the Welfare Checklist, with the appropriate thought applied to the impact of PD12J para 36-37A in turn.
- As I have said previously to the parties, such an order would be a baseline for them to take this matter out of court and keep it in the community in future, where they can make amendments to their arrangement with a degree of flexibility and empathy for one another.
- For now, the key issue is where C lives, and on what basis i.e. whether an order is on a joint or sole lives with basis, bearing in mind the features of such an order vis a vis equal footing around holidays, and that the caselaw demonstrates that even where a child does not spend equal time with each parent, a shared lives with order may be appropriate in some cases (i.e. AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam) at para 77).
- I therefore assess each position with regard to each factor in the Welfare Checklist:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- C's age means he is unable to clearly express an opinion which would unequivocally assist the court on his wishes. Whilst M claims that C is sometimes distressed after spending time with F, this is too amorphous – we do not know the basis of his distress – it could be argued that leaving F and returning to M in itself might cause some distress. In countless cases like this, the parents notice distress and each draws conclusions which are inherently unsafe at such an age. I am persuaded from the evidence, including the third party expert, that C enjoys spending time with both parents and that his wishes and feelings, so far as they are ascertainable, are in line with the love and nurturing that he gets from both.
- It follows that this factor of the checklist has relatively less weight in assisting me to the overall orders which I must decide, but it does not favour either parent as more or less suited to meet C's needs in that regard.
(b) his physical, emotional and educational needs;
- I am not aware of any physical or emotional need that C displays beyond that of a typical two and a half year old toddler with loving parents who do not live together. I am minded that his needs are met by attending a nursery in the near future, noting his age and the relative contact he has so far had with each parent.
- I note that he will not be attending school for a few years, but research shows that this is a key period in his life where he will need to socialise and interact with other children, and I am concerned that he needs to be placed in a nursery soon and that many children begin attending nursery younger than C and he may otherwise begin to miss out. In doing so, it will in turn free up time for M to seek work or study, which will empower her to rebuild her own life and career in turn which of course can only benefit C in the longer term. As to where the nursery is, this is based on where C lives. The parents live around two hours apart, or 65 miles, which is not the greatest distance but with a young toddler travel of that time is deleterious more than once a day.
- It would therefore make sense for contact between each parent to be structured around C's attendance at nursery and overnight contact, for instance it was suggested in future that if C attended nursery near M on Thursday and Friday each week, he might stay with F from Monday morning through to Wednesday morning when he could be dropped back by F with M.
- That would in turn mean only two long journeys by or on behalf of F, to pick C up on Monday and take him back on Wednesday and then M can care for him on Wednesday and ensure he is at nursery on Thursday and Friday. That would provide four days (and two nights) per week where M is able to focus on her own needs and use the time for employment or study.
- I note that F currently works on weekends and has shown concern that his career would be impacted by having C on a weekend. With respect, F's career is as an educator but he currently fits his working pattern around the needs and suitability of other people's children who he educates. He will need to think in the longer term about the sacrifices and changes that all parents make to fit around the compromises and balance of their own children's needs. I do not wish to patronise F or to make assumptions about his career or lifestyle choices but I infer from the evidence of his career that there is no reason why he could not also seek work as a teacher during the week too, in order to fit around having contact at least every other weekend in the future. He has fairly expressed via his counsel that he makes more money working two days a week for private tuition than he did as a full-time teacher, which is fine, but it does not end the matter there. Balancing time against money is one of the key issues all parents grapple with from time to time.
- At the present, I believe it suits both parties and C that C's needs for physical, emotional and educational structure are best based around an initial one progressing to two and then perhaps three nights per week with F during mid-week. That ought to progress by the time C goes to primary school to a pattern of at least every other weekend with F, which will in turn better fit around the fact C will be then in full time education, and depending on where he goes to school travelling two hours on a school day may not be conducive to his welfare at that point. F will have to put his needs and employment pattern as subservient to C's needs and school pattern at that point.
(c) the likely effect on him of any change in his circumstances;
- It is trite that children are surprisingly resilient and that toddlers who are healthy and well-loved tend to adapt easily to changeable arrangements in the short term. However, as C gets older he will likely need more stability and routine. At present I do not find that either parent's plans would have an especially deleterious impact on C in terms of a change in circumstances.
- I note that M unilaterally took C and moved to Hampshire at the breakdown of the relationship, and that as F also had parental responsibility, she should not have done this without making an application. M justifies this by saying that she had to flee. I accept this from the evidence. Clearly, this was a dramatic change in C's circumstances.
- In turn, F had to make the application to court, which he did swiftly, but we are now almost two years later and F's overall time with C has been clearly diminished.
- The court is now faced with the unenviable request by F to order that C be returned to Sussex, which would be a second big change to the status quo. I urge that the parties will need to speak honestly and frankly with one another about their future plans for where they will live and where C will go to school, because the distance and time will likely become more problematic when he does go to school, wherever that may be.
- In the interim I find that the stability that C has with M, notwithstanding the gradual rebuilding of contact, and the positive reports on the same, with F, plays an important factor and just about favours C staying in Hampshire and going to nursery there. In the future, one or both parents will need to make sacrifices to spend time with C, and that structure around his routine will take precedence.
(d) his age, sex, background and any characteristics of his which the court considers relevant;
- As to specific characteristics of C, whilst all children are unique, I am not informed of anything such as a special need or disability which he may have which requires support that one parent may be better suited to offer, for instance. The primary characteristic before the court is C's dual heritage and the bearing this has on the issue of the passport.
- Having considered the evidence closely on the issue, I find that it is important for C to grow up with the benefits of his dual heritage, including the benefit of frictionless travel in the EU which would be afforded by Polish citizenship and a Polish Passport.
- I was glad to see a volte face from F on the issue of the Polish passport after I gave an indication and asked several questions of his position with regard to international law and the evidence (or lack thereof) about the risk of abduction. He has now agreed that M can apply for a passport for C and that he will not obstruct this, although both counsel were then invited to consider a form of words for the parents to agree, either as an undertaking or recital to the final order, which would give F confidence in M's reliability and also give the Polish authorities confidence that matters about C are primarily to be decided in England and Wales.
- Both parents need to put their own baseless suspicions of the other aside and take a leap of faith if they need to. The court deals in facts and draws inferences from the evidence. The totality of the evidence did not support F's case with the passport, and therefore I am going to order that M has permission to apply for a Polish passport for C, with conditions that if she intends to travel to Poland, or anywhere else out of the jurisdiction, she will give at least 12 weeks' notice and not be away for more than 14 days with C. The same conditions will apply equally to F.
- As to the location of the passports, I heard a nebulous suggestion from F that he would pay for a solicitor to hold them but he had not actually made such an enquiry. Again, I did not find that his fears of abduction had any basis in the evidence, so it follows that fears around who holds the passports are misplaced. In the absence of a workable plan and cost for solicitors holding C's passports then they will stay with M until they are needed by F and will not be unduly blocked from him using them to book travel as needed and agreed.
(e) any harm which he has suffered or is at risk of suffering;
- The issue of harm is a central concern in this case. I found facts proven at the FFH, including that F had behaved toward M in a way which was coercive and controlling, and that he had exhibited domestic violence or domestic abuse on two occasions of those alleged. It is of note that those instances of harm were directed toward M by F, and thankfully not directly to C. If they had been, likely these proceedings would have a very different track. F accepted in evidence that his actions had caused harm to C, indirectly.
- There is an abundance of evidence and study on the harm caused to children indirectly by diminishing the capability of the parent victim to resist and to function. I am heartened that the evidence I have heard from M both at this final hearing and at the previous hearings, and via her presentation and demeanour, suggests that she is a resilient, brave and stoic woman, and one who has strived to put the needs of C above her own at times. I am also minded that because F and M are no longer together, the scope for harm to C via those behaviours during the relationship is reduced.
- I am satisfied that the evidence leads me to find that F is doing continuing therapy and work on his behaviour, including having completed courses of his own volition, and having written what I find to be a sincere letter to M, which is a world away from the presentation of the man I heard evidence from last March. That person had little empathy, insight or kind words for the mother of his child, and I was deeply concerned that he harboured misogynistic and harmful views.
- Having heard evidence at this hearing and considering the material supplied on behalf of F, I am satisfied that he has worked on his behaviour and shown insight into the harm he caused. I am confident that the scope for further harm to M or C is greatly reduced, but M will clearly always be wary of F's behaviour, and as they both have to continue to co-parent C for at least another 15 and a half years, I would strongly recommend that F continues to better himself, does not seek to minimise or reject the feelings of others, embraces the power of a sincere and timely apology when he does make mistakes, and eschews the rather misguided (if not somewhat childish) concept that a parent can unilaterally control things beyond themselves.
- Because of the facts I found at the hearing in March 2024, I am bound to consider the impact of those findings as against PD12J paras 36-37A. In doing so, I note that:
a. The risk assessments following my findings were considered by CAFCASS in their section 7 reports and the addendums. I am content that they have correctly advised the court and the parties as to the risks arising and I am content that the risks can be minimised by the passage of time and distance, and the fact that F and M are separated and F is in a new relationship. Were F and M still together, I would have greater concern for the risk of harm.
b. This is not a case where the perpetrator of domestic abuse has ignored or argued with the findings of the court. Quite the opposite. F has shown genuine remorse, contrition, insight and efforts to better himself. It will continue, in my view, to be an ongoing area of work, and he must not rest on his laurels. I find that the steps F has taken are important in lessening and addressing the risk to C going forward and he ought to be given credit for that.
c. Noting PD12 para 36(2), the harm caused to M cannot be understated. The court heard the recording. The court has experience of grave matters in the criminal courts, yet was shocked by the recordings. The fact that F sought to play it in court for M during cross-examination, when I had already heard them and indicated I would not be assisted, was a misstep. I wondered at the time whether it amounted to a form of control or re-victimisation. Thankfully, the passage of time and the geography of the parties is of benefit to M, in conjunction with F's efforts to apologise and better himself. His behaviour was unacceptable and the lasting impact in terms of harm is that M will probably never fully trust him again. That is for F to deal with and he will need to continue to strive to earn the trust back for the benefit of C. In turn, I do not believe that making an order with capacity for contact will increase the risk of harm to M or C.
d. As to PD12J para 36(3) I am, in turn, satisfied by reference to the evidence I have heard as to how contact has progressed that the risk of further abuse is low, and that the physical and emotional safety of both C and M is, as far as possible, secured.
e. As to PD12J para 37; I do not consider that the prior findings are an operative factor in any ongoing risk of domestic abuse because the parties are separated and both appears able to put the needs of C above their own, and to be forward thinking in their approach and not allow the harm which that behaviour caused to damage C going forward. I do not consider, inter alia, that the litigation amounts to a form of continued abuse by F directed at M and find that the applications he made are a proper use of the process in context.
f. I have no evidence before me that either party wishes to bring this matter back to court in the near future nor to seek to elongate the matter beyond final orders today. I have guarantees from both parties that they are invested in a final order which empowers them to co-parent amicably and effectively. I note the age of C and the prior context of the facts I found dating to July 2023 most specifically. I would reiterate that my conclusion is that the time and distance in the case since then favours an inference that the risk of further harm via domestic abuse is lessened. However, I note that M seeks a prohibition on F bringing an application after today without the leave of the court, for a period of four years. I think that would be draconian in the context of the age of the child. I do, however, feel that both parties need to let the order I will make today breathe and to work within a shared framework without continually badgering one another or wasting the resources they could otherwise use on C. I do feel that the parties ought to concentrate on C and approach parenting him with better communication and with a sense of energy and positivity. That needs to be done out with the court process. For that reason, I am persuaded that a section 91(14) order prohibiting F and M from making further applications for a period of 24 months from today is appropriate. That does not mean that F cannot apply to the court, if there is a real and urgent need – it simply means that a Judge would have to triage his application and decide whether it should proceed or not, and provides an added safeguard for all the parties but primarily in the welfare of C who has spent most of his life now in litigation.
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- It was agreed in cross-examination by F that M is currently the primary carer for C, and also that she is doing a good job of parenting C. M, for her part, was less generous in her appraisal of F, noting that she has not seen him caring for C and somewhat minimising the rather universally positive reports on this feature. Whilst I do not forget the harm done to M by F, it is not entirely fair of M to not give F at least some credit for what appears to be at least competent parenting of C in his care. M will need to compartmentalise F as an ex-partner and F as a parent. In the latter he seems to largely be striving to better himself and M ought to recognise this.
- In turn, I do not find that either parent has some sort of special advantage or disadvantage, or any sort of impediment to their ability to parent C. Indeed, the opposite is true, it appears that both parents are doing their best.
- As to each parent's comparative capability to parent C – it is self-evident that C has spent the vast majority of his life with M and that she is the primary care giver as was accepted by F. It is an important factor bearing in mind the age of C and all that has happened between his parents in respect of the domestic abuse and findings I have made.
- Notwithstanding those findings, I am heartened and accept that F has accepted the harm he caused, apologised for it, and is genuine and sincere in his aims at changing his behaviour. I also accept that this is not an instant change, such is the scientific evidence on the lack of elasticity in neural pathways in adults – and that he will need to continue to have therapy and undergo work to improve his behaviour to M. F also accepted that his behaviour toward M had a negative impact on C.
- I am concerned about the slowness in M getting dental treatment for C, set against the panic and dismay of F in that regard. The lack of communication between the parents was poor on that issue, and whilst treatment was eventually given, it does seem that C's teeth will require further treatment. I must insist that they do better on this in future.
- On balance, I find that M is slightly better equipped than F in meeting the needs of C owing to the time she has spent with him, but that does not indicate that F is also not capable.
(g) the range of powers available to the court under this Act in the proceedings in question.
- The court has a range of powers in this case from making "no order" through to a 'lives with' order, spending time with each parent and prohibited steps or specific issues orders under section 8 of the Act.
- Such is the history between the parties and the mistrust, I find that it is inevitable that the court must step in and make an order as a baseline for them to begin co-parenting.
Conclusions
- From the evidence the court has heard, M is the primary carer for C, this has been accepted by F.
- It is also my finding that M fled with C from F due to F's abuse. I do not criticise M for fleeing and not making the proper application to relocate within the jurisdiction because of those exigent circumstances. I do not find that it is in the best interests of C to order that M move back to Sussex now, as she is settled and has begun to rebuild her life in Hampshire. I order that C be allowed to continue living with M in Hampshire.
- I do not find that, weighing all the competing evidence and the parents' relative abilities to meet C's needs, there is a stark difference between either of their abilities. The persuasive factor in this case as to whether there ought to be a shared care order is not, as the caselaw makes clear, an arithmetic consideration of how much time each parent has with C. It is more to do with recognising the lived experience of the parents and C. I find that, on balance, there is nothing additional which F could not achieve in exercise of his PR which would be provided by a Shared Lives With Order. On the contrary, I was concerned by the language used by F as to revisiting orders of the court in the future; as to M being the primary carer "at the moment"; and C being "dependent" on her as though this might be a negative connotation. I do have a degree of concern that in the mind of F, the application for a shared lives with order is some sort of power share, and that he has not approached this point with a child-centred focus. The practical effect of C and M living in Hampshire and C having contact with F is that for the most part C will be living with M. In the wider context of the case, in light of my findings of domestic abuse, I do not believe that a shared lives with order would best meet the welfare needs of C. I therefore order that C lives with M and spends time with F. This does not dilute F's PR.
- On the issue of the Polish passport, I order that M be allowed to apply for this and F supports or otherwise does not object to that application as may be required in Polish law. The parties are invited to address me on a form of undertaking or recital which demonstrates that M recognises the welfare of the child is to be decided in England and Wales if there is a dispute.
- M and F will not remove the child from the jurisdiction for a period of more than 14 days and will provide at least 12 weeks' notice to the other party of travel plans abroad.
- It is my finding that C ought to start nursery as soon as possible. I am told there is a place available for him in Hampshire on Thursdays and Fridays. I find that one day per week is a starting point within the next six weeks (by 22 July), and then to progress to two days per week as soon as the parents agree this and in conjunction with the nursery staff when C begins to settle. I find that C ought to be doing at least two days attendance at the nursery per week by the end of this year, with a view to building up the time he spends with other children in that pre-school environment in line with his needs.
- As to the arrangements for contact, I have considered the totality of the evidence and each parents ability, skills, working patterns and travel issues and I believe that contact ought to progress between C and F as follows:
i. C to live with M and spend time with F
ii. Initial contact with F of one overnight per week from the morning of Monday through to the afternoon or evening of Tuesday;
iii. Contact to progress to two overnights, namely Monday and Tuesday each week so that F picks up C on Monday morning and returns him by Wednesday afternoon or evening, such contact to progress to two nights by Wednesday 10th September 2025, which is three months from now.
iv. Contact to progress to three nights per week with F, on the basis of Monday morning through to Thursday morning, by 10th February 2026, which is a further five months from then last progression.
v. Holidays to take place on an equal basis whilst C is of pre-school age, and contact for three nights with F in the week prior to a holiday of not more than five nights to take place no sooner than week commencing 8th December 2025. [i.e. that by example F would have three nights overnight contact from Monday 8th December, followed by up to five nights holiday with C in the week of 15th December 2025]. Such holiday is to be reciprocal, so that when M wishes to take C on holiday and vice versa it be for no more than the same length of time that the other has. This is aimed at fostering equality of opportunity and openness of communication.
vi. Contact with F to continue on the basis of up to three nights per week, from no sooner than 10th February 2026 up until the time C goes to school, notwithstanding time for holidays separately of up to 14 days with either parent by agreement and with notice as above.
- I note that my plan to step up contact from two nights to three nights departs from the recommendation of CAFCASS in this case. This is a best estimate of the time I believe it will take to embed the change in routine for C. I took that Ms S believed that progression has a degree of testing and review, but she did not persuade me that there was a hard and fast timetable to follow here. Having heard from both parents and considering positive progression on contact to date, I am hopeful that a five-month gap from two to three nights is sufficient time to embed for C in a controlled manner. That also considers the potential flexibility around Christmas holidays.
- Once C goes to primary school, contact will revert to a weekend basis between F and C to recognise the impact of travel on full time education. I have anxiously considered each parent's proposals on this point, and note that M's position is that if she is not allowed at least some weekend contact, it will greatly diminish the quality of time she has with C (as C will clearly be at school during the week and will be tired after school as all children are). Conversely, F seems to believe that he ought to have all weekends, presumably on the basis that otherwise it would be a reduction in his contact time. As I have tried to make clear throughout this judgement, the primary concern of the court is the welfare of C, not some perception of exact arithmetic equality for the parents. To focus on the time or number of nights or hours each parent has with C is to miss the point about his needs. Education, from September 2028, will be the primary concern for C, and the parents will need to fit around that and still have quality time with him.
- To that end, I have decided the contact pattern from September 2028 will be as follows:
i. C to continue living with M and spending time with F
ii. F to have overnight contact with C from Friday afterschool pick up through to Sunday evening at 7 p.m. when he will be dropped off back with M, allowing time for wind-down before his bedtime routine, on the basis of every other weekend.
iii. F to have contact after school with C, during a week when he does not otherwise have contact on that weekend, one day per week, from school pick up to 7 p.m. when he will be returned to M.
iv. The day of the after school contact between F and C to be determined with reference to any afterschool clubs or other commitments which C has from time to time, [i.e. so that for instance if C has a commitment after school on a Tuesday which would otherwise diminish the time F has to spend with him that day, contact would instead take place on another evening.
v. Indirect contact between F and C to take place for a minimum of 15 minutes and a maximum of 1 hour via video calling platform (WhatsApp, FaceTime or similar) on a weekend when F does not otherwise have direct contact with C, such contact to be facilitated by M and not unduly blocked, with F to communicate with M and be mindful of the fact that young children sometimes do not like to speak very long over the phone and both parents will take their cues from C.
vi. The above is a minimum baseline for contact between F and C, and the parties are encouraged to agree and expand contact if circumstances dictate in future once C is settled.
vii. Holidays once C is at school to be on an equal basis, so that in a one week holiday each parent alternates who looks after C, and in a two week holiday they each have one week, and in a summer holiday they each have an equal time on the basis of 1/1/1/1/1/1; or 2/1/1/2 as may suit their holiday plans and C's needs. The parties to remain conscious of avoiding long gaps of time of more than two weeks with no direct contact from either parent.
- For the avoidance of doubt, contact between either parent and C does not need to be supervised or supported based upon the inferences I have been able to draw as to each parent's ability to meet C's needs per the checklist.
- That, I believe, deals with all the issues identified at DRA and in the skeleton arguments of each advocate. A few ancillary issues came up as to the method of communication between the parents, the involvement of the PGP and the duration and regularity of contact reports.
- On that I am happy for the parents to continue to use AppClose or similar platform, or WhatsApp if it is more expedient. The parents are directed to provide a contact note about how contact has gone and how C is in their view and anything else they think is important about their interaction with him, to the other, at least once per week. That is a baseline, and I would hope over time the parents become more human with each other and less reliant on the court to tell them how to behave and how to keep each other informed about C.
- The PGP are welcome to be involved in those communications if the parties agree as I understand they do.
- Counsel are welcome to address me on the minutiae of the final order in terms of recitals, clarity and any undertakings as discussed, with a view to giving a mirror order for use in Poland if needed, where it can be registered.
- Lastly, I would urge the parents to sit with this outcome, to work with it and to avoid relitigating things at the drop of a hat. I sincerely wish them the best for the future and I also remind them that their energies are best used on C.
DDJ Nahal-Macdonald