England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/10/2007

The Hon. Mr Justice Sumner :

Introduction

1. This judgment concerns 7 year old C who was born on 25 August 2000. The issue is whether he should continue to live with this mother, 36 year old Miss K T in DeV, or return to London and live with his father, 39 year old Mr J V W. The mother has represented herself; the father has been represented by Miss Parker QC. The hearing took place on 16, 17, 19 July and 27 July 2007. It was an anxious hearing for everyone.
2. There have been over 800 pages of documents and 400 pages of transcripts. It has not been straightforward but I reached a clear conclusion which I announced on 27 July. These are the reasons for that decision.
3. Before setting out the background and the essential arguments, it may help if I set out the essence of the dispute at this stage. I shall then review the evidence and state my findings.

Synopsis

4. The parties married in 1998 and separated in 2001. C remained with his mother. The father is a wealthy banker. There is a marked disparity of means between the parents.
5. Following the separation there were a series of disputes. Since 2004 mediation has been used. Both parents lived in London for some 2 years prior to December 2006. The mother then announced without notice that she, C, her second husband Mr M, and their son T (then 7 months old), were moving from London to DeV.
6. The father applied to court to prevent the move. If he did not succeed in that, he wanted C to finish the school year in London. A child psychiatrist, Dr Berelowitz, reported. There was a two-day hearing before me in April 2007. C spent the summer term at school in DeV. His contact with his father increased to five days a fortnight by June 2007 with school holidays being shared.
7. The father seeks an order that C now lives with him in London. This is opposed by the mother. Dr Berelowitz considered the issue very finely balanced.
8. The father now rents a house in DeV. It is common ground that since April contact and the parent's relationship has improved.

The father's case

9. The mother has never accepted his position as a father. She has denigrated him, his family, and his home to C. Their relationship has been harmed as a result. She has failed to implement changes to improve this despite clear warnings. She lacks insight, remains uncooperative, accepts no blame, but rather blames other people.
10. The whole move to DeV and her conduct since then has been aimed at reducing his role in C's life. This is so against his best interests that only a move to his father now can ensure their relationship prospers.
11. Only if the court is satisfied that the mother is committed to promoting and expanding C's relationship with the father should he remain with her. There is no sufficient evidence of that. A last chance for the mother merely delays his return to his father in London. If he does stay, the mother will feel vindicated, and consider there is no need for change.

The mother's case

12. Historically her view was that the father wanted to exercise control, he was inflexible, and his solicitors wrote aggressive letters over the slightest thing. She has defended herself and her family from the father's accusations. She accepts that she has made mistakes. She should have involved the father in the decision to move out of London. She did not think that allowing C to call Mr M "Dad" mattered despite Dr Berelowitz's warnings in April. It was only when she discussed with him in detail on 7 July that she understood. She now accepts the points that he makes on this and other topics.
13. She has never encouraged C to denigrate his father. There was the strife in her home because of the pressure of father's attitude, the flow of letters and e-mails, and court applications to which she did not respond well. That may well account for C's negative remarks about this father.
14. He is now very happy. They discuss the time he spends with his father, he is doing well at school, and he enjoys his friends and in particular, his half brother. It would be contrary to his best interests to move him back to his father's house in central London now she understands what was wrong in the past. He would be very unhappy at the change.

Decision

15. In the 8 days between the third and the final day of the hearing, I read all the daily transcripts and a great deal of the background statements and reports. In announcing my decision, I pointed to the improvements in contact that had been achieved since April as the father accepted. He lacked confidence that it could be sustained. His alternative for C to live with him in London was viable but it would cause much upset. Contact arrangements with the mother would not be easy.
16. I could not say that the changes which the mother had made, though very late, were just for the court to hear, as the father believes. They were fuller than might have been expected. They justified not moving C at this stage, but their timing meant a review was needed when Dr Berelowitz's further opinion would be available. I invited the parties to enter agreements about therapy. It was for the mother to demonstrate what she said she had learned in the very stressful, expensive and wearing process of the hearing.
17. After a short adjournment, Miss Parker reported that there had been a productive discussion. The mother, Mr M, and the maternal grandmother Mrs T had agreed to take part in therapy. The parents were going to work on a parenting plan. A further one day was to be listed in December 2007.
18. It is against that background that I turn to the history and the evidence in more detail. In particular I refer to the reports and evidence of Dr Berelowitz which is now accepted by both parties. Finally I shall expand on the reasons for my decision. This exercise will I hope help the parties to understand what has now to be achieved and the possible consequences if that does not happen.

The background – August 2001 to December 2006

19. The father was born in Berlin, the mother in Toronto. They met in Tokyo when the father was working for a German bank. They married in July 1998 and separated when they were living in London in August 2001. The father claims considerable involvement with C from an early age.
20. They were divorced in 2002. C remained living with his mother. The father says that from an early time the mother has been intent on undermining his relationship with C. This is disputed. Initially contact was supervised.
21. Between January 2001 and September 2004 the father was working in Germany. His commitment to C is amply shown by the fact that he commuted back to London at weekends and midweek to see him. In October 2001 he issued an application for contact. There was a consent order in July 2002. The father saw C midweek and on a half day at weekends. From January 2003 this was extended to all day at the weekend. Between August 2002 and September 2003 the mother was out of the jurisdiction with C for over three months. The reasons have not been explored.
22. In July 2003 contact was further extended to include alternate weekend contact. There were difficulties. Mediation with Mr Anthony Kirk QC started in March 2004 and continues. It has taken place on some 30 occasions. Both the parties value his skills.
23. Disputed incidents continued to occur. The mother did not agree to the father taking C to Cyprus in October 2005. The father applied to court and was granted permission.
24. The mother remarried Mr M, who became involved in an incident with the father in October 2005, the facts of which remain unresolved. Their son T was born in May 2006.
25. By letter of 4 December 2006 the mother informed the father of a proposed move to DeV. A home had been found and C enrolled at a local school which he had visited in November. She gave more details four days later, when she criticised the father for leaving C in the house on his own. She informed the police. The father accepted that he had wrongfully left him on two occasions for a short time.

Comment

26. The mother's home had been on the market for some time. That provides no excuse for failing to inform the father at an early stage of her proposals to move such a distance from London, as she now accepts. It would fundamentally affect the contact between C and his father as well as removing him from his existing school.
27. The position was exacerbated by the mother taking C to see his proposed new school in secret. It is difficult to see this other than a demonstration of the mother's view of the second class role that the father had in matters relating to C. It is no answer that the father now sees more of C than he did before. It understandably confirmed the father's worst fears and led to these series of court hearings.

December 2006 to April 2007

28. The father on 11 December sought an immediate undertaking from the mother to maintain the status quo. If it was not forth coming within 2 days, he said he would apply to court without notice (the correspondence on this is in section E). No undertaking was given, and the father made an application on 13 December without notice. There was a consent order on the following day when both parties were represented.
29. The mother agreed neither to remove C from his London school nor to enrol him in any other school than X School in DeV. A hearing in April was fixed.
30. Shortly afterwards the mother exchanged contracts for the sale of her home in London for £1.8 million. At the same time she agreed to buy a house in four acres for £1.1 million where she now lives.
31. On 15 January 2007 the father filed a lengthy statement. He set out his long standing concerns about the mother's denigration of him which he said C repeated to him and others. He also stated that if there were sufficient safeguards he would accept with sadness that he could move to DeV. He would not be pursuing his claim for sole residence.
32. He considered that the mother had historically excluded him from important decisions concerning C who made negative remarks about his father and his home. He said that his family was not nice. He criticised his sister's wedding and told her that she was a "witch" and a "bitch".
33. In C's hearing, the mother had called the father an "idiot", a "liar" and a "moron". He was also very distressed to hear that C had been told to call Mr M "daddy".
34. He proposed that once he had found a suitable property, which he has now rented, there should be alternative weeks with each parent with holidays shared. His work would allow him to do this. Meanwhile C should finish the academic year at his school in London.
35. The mother filed a statement in response on the 31 January 2007. She set out the reasons for the move. She complained that she had felt bullied and threatened by the father's applications to court. Her only income was the father's maintenance for C of £20,000 per year, and her husband's similar earnings as a film photographer. They had found it financially difficult to live in London. She denied refusing the father contact and said that he had behaved in an aggressive way.
36. On 9 February 2007 she filed a further statement running to over 50 pages. She was still in London but hoping to move shortly to DeV. She set out her account of contact, why they had decided to move, her contentions in relation to the father's account, and her proposals. She did not accept the alleged denigration. C had taken to calling Mr M "dad" which she felt was all right. She was agreeable to extending weekend contact for one night, in exchange for a midweek contact coming to an end.
37. She considered C did not appear to like his father. She produced drawings showing the father for instance being eaten by a shark whilst C smiled. It was only in mediation that she had called the father an idiot and a liar. Mr M had called him a moron when exasperated by the father's behaviour. It was I comment a worryingly negative picture of the father. After April she proposed alternative weekend contact with C spending Friday and Saturday nights with his father.
38. The father replied to the mother in a further lengthy statement of 28 February. Given what she had said, he felt it necessary to maintain his application for sole residence. He filed statements from 3 members of his family and three friends speaking of his care and commitment in warm and positive terms. There was also a statement from a nanny. She wrote of 2 occasions when she had met the mother and Mr M who seemed intent on finding fault with the father's care of C, a matter to which I shall return.
39. I gave directions on 9 March permitting the instruction of a child psychiatrist, later agreed to be Dr Berelowitz. A hearing had already been fixed for 19 and 20 April. The mother started acting in person having she said spent some £35,000 on recent legal costs.

CAFCASS Report

40. Mr Hartley of CAFCASS reported the day before Dr Berelowitz on 12 April. The mother told Mr Hartley that she believed the father wanted to exercise control over her, he found it difficult to be flexible, and the most trivial matter led to his solicitors writing to her in what she felt to be an aggressive manner. The father spoke of how C was being encouraged to have a negative view of him; the result was that he was being sidelined.
41. He saw C with his mother in DeV. He knew about the court battle. His mother had told him. He felt very angry. He referred to his father as J though dad when he saw him. He wanted to be with his mother most of the time. It was "…too much for me to handle". He concluded that there were not the circumstances to remove him from his mother.

Dr Berelowitz's Report

42. The mother told Dr Berelowitz that C had strong and negative feelings about his father. The father objected to the mother denigrating him in front of C whom he saw in DeV with his father. C told him that Mr M was his dad.
43. He concluded that he had a close and comfortable relationship with his mother. He saw him having a lovely time with his father. It was clear his mother was telling him negative things about his father. C gave the clear impression that his mother was undermining his relationship with his father. He was very sensitive to the high degree of conflict between his parents.
44. It was realistic to let him move to DeV but he needed more time with his father and a very much better atmosphere. He highlighted the significance of him calling Mr M "dad" and how negative this was.

The hearing 19 and 20 April

45. The parents, Dr Berelowitz, and Mr Hartley gave evidence. It was apparent from the evidence that Mr Hartley gave that, whatever his statement may have said, he did not dissent from Dr Berelowitz's views, whose evidence I now quote.

Dr Berelowitz

"The time I spent with C and his father was absolutely lovely. He was so happy to see its father. He had a wonderful time with him …

He did not find his father in the least bit annoying … so where does the annoying come from? Well, C says there are two teams. He is on mum's team and dad is on another team.

But I'm obviously not happy with him having such a clear knowledge firstly of there being a court battle, secondly of it having been started by his father, and thirdly of mother having to defend herself … every little boy is going to root for a mum who seems on the defensive and needing help. So if he feels that his mum is being beleaguered by father most little boys will be worried about mum and wanting to support her."

46. I asked about the long term consequences of C being unable to demonstrate his affection for his father.

"It will not remain in that state. Either he will be able to demonstrate his affection and talk about it, or he will neither be able to talk about it, nor demonstrate it. But he can't remain as it is, because it's psychologically impossible. At this stage, it can certainly go either way. Both avenues are entirely open .

I don't need to say that it is wrong and unhelpful (to say negative things to C). What I do need to say is that if it goes on, unless C is having a huge amount of contact with his father, this sort of atmosphere is going to undermine his ability to enjoy a relationship with his father, because you need more than a few hours a fortnight to outweigh that sort of atmosphere, if it exists."

47. He said of the long term consequences of a breakdown in his relationship with his father -

"The very good research in my field could not be clearer … firstly children are significantly affected and often psychologically damaged by exposure to discord between their parents, whether in marriage or divorce. Secondly, children do better psychologically following marital breakdown, if they have full and rich relationships with both parents, and this applies not only to the time spent, but also to the atmosphere and activities.

I am confident that most of my colleagues would agree with me, it does not do a child any good whatsoever to have a denigrated view of a parent ...That is what attachment theory would allow one to argue, that loss of a key figure through denigration is the hardest kind of loss to mourn."

48. He agreed that, if the move to DeV were to stop C having a proper relationship with his father, then the move would have to be reversed. The last passages I quote are of particular significance.

"If the mother's view remains unchanged, and if the mother doesn't really believe …that C firstly can enjoy a very good time with his father and, secondly, does not feel free to articulate this to his mother, then, if C stays in DeV, and nothing else changes, his relationship with his father is highly likely to wither and die.

He then considered the alternative of him remaining in London. "The other is to use the time between now and July to see whether the mother, and her household, can allow father's relationship with C to blossom and extend and grow and become unencumbered. Whatever the rights and wrongs, the latter proposal has better predictive validity than some eight sessions of mediation.

What people actually do is much more powerfully predictive of how they behave in mediation and what they promised to do. So if the court agrees with me that the move to DeV should be conditional on its certainly not damaging and, in fact, needing to enhance father's relationship with C, well, run the next term as a trial period. I struggled to think really what the alternative is …

I mean moving to DeV, seeing how it works, and taking into account how it works in making the final decision … the mother is going to have to make quite a lot of changes if the little boy's relationship with his father is to survive."

49. He summarised it –

"Mother, I think, has had the belief that in terms she's a right to move to DeV; maybe through this process … the mother will learn that actually this move is a highly conditional one. And maybe mother will respond to that. But if the mother won't then C is in a ghastly win/lose situation, either his relationship with his father is very much at risk, and/or the discord between his parents gets worse, or his relationship with his mother is at risk."

The father

50. He had told Mr Hartley that the mother was caring, nurturing and stimulating to C. But Mr Hartley had said that there had to be an end to the battle as C described it otherwise he was at risk of serious harm. He accepted that there had been inflexibility on both sides. He could not say with certainty that the mother said negative things to C but it was the circumstances which pointed to this.

The mother

51. She explained C's need for stability, and that he was part of a family unit. She accepted that C might say what he thought she wanted to hear. She sought a final decision there and then.
52. She accepted that she was wrong to tell him about the proceedings, and that it was very important than him to have a good relationship with his father. She considered that the proposed increase from one to five nights a fortnight was very dramatic. She would agree to three nights, but with five she feared that he would feel very home sick.

Resolution

53. I approved increasing contact with two periods of five days with the father in the middle and at the end of June prior to a further hearing though the mother sought less than 5 days. The order reflected that the situation was on an interim basis only, the father was to have a shared residence order, and C was to spend the summer term at X School.

April – July

54. There was some therapy with Dr Laydon-Walters, a chartered clinical psychologist, in Exeter. She concluded –

"I was impressed by both parties' tolerance to this intervention, and their willingness to engage in it. On the whole it was my impression that (the mother) has developed a style of communication, which is one largely dominated by complaint and counter complaint with the focus predominantly on previous experience of what has not been right. It was my impression that (the father) has developed a style of communication, which is largely dominated by trying to persuade Ms T to hear and validate his position."

Dr Berelowitz

55. He reported on 6 July. He had seen the parents and C in London. I quote from his report.

"C told me that he is enjoying school, and that his parents are getting on well ... he no longer has a sense of there being teams, and he feels that the situation has "sort of changed" … now he sees dad on his time, and mum on hers. It is going fine ... there are no problems about his time with either parent ... neither parent says negative things about the other ...

He firmly believes that mum and Mr M want him to call Mr M "dad", he says he likes seeing his father, and his mum is fine with it. Mum is definitely fine about him seeing dad, more fine than she used to be."

56. The mother told him that she didn't think that C was unhappy with his father. She had not corrected C calling Mr M "dad". She would prefer him to have less time with his father. But if he said it was okay that would be all right.
57. C told him that the time he spent with his father was basically right. He might like a little less time but said the amount of time he had with his father was fine.
58. The father told him that with C back in London he would have a larger support network. It would also bring home to the mother that there was a problem and that they had to have a different relationship as parents. He and the mother were, he said insightfully, both very stubborn and opinionated, and they have similar strengths and weaknesses.
59. His assessment was that the situation was now very much better than it was. C sees a lot of his father. He did not seem to want the balance of time to change. "This is a very real progress, in a short time. However, there are still some very real risks."
60. He thought the father was very angry with the mother. For the mother to refer to Mr M as his father was, at that stage, unforgivable. He put the essential balance in this way.

"If C were to return to London now to live with his father, he would find it very difficult, at least initially. The distribution of time with his parents would become more unequal than it is now. C I believe would be acutely upset. On the other hand, that there is still a real risk that if he stays in DeV, and nothing else changes, he could suffer not an acute loss, but a slow and steady undermining of his relationship with his father."

61. Whilst he was of the view that C should stay in DeV, he had substantial concerns. The mother came across as being unlikely to be concerned if his relationship with his father ceased to exist.

The mother

62. In her statement of July she said how well C had been doing in DeV. She was willing to continue therapy. She regarded the psychiatric intervention as inappropriate and a tactical development. She was concerned about the apparent long-standing relationship between Dr Berelowitz and the father's solicitors. C was not in a fair position to state his views, because he was overpowered. The report highlighted nothing that gave him any concern about why the current situation should not continue, a remark that showed little understanding of Dr Berelowitz's report.

The father

63. He considered that communication could improve, but only if the mother was committed to therapy and mediation. He cited instances of how she was not communicating with the professionals. He did not believe she could and would change.
64. His statement surprisingly did not comment on how contact was going or whether there had been repetition of negative remarks by C. It was not until he gave evidence that his views became clear. Contact had considerably improved.
65. Dr Berelowitz made an addendum report on 13 July. The contents of the mother's statement made him think that where C should reside was now finely balanced.

The hearing 16, 17, 19, and 27 July

Dr Berelowitz

66. He gave evidence first. This was understandable but a pity in the light of the subsequent evidence. He was concerned by the mother's lack of communication. As Dr Laydon Walters experienced it as well, it could have been a pattern.
67. He was most troubled by C's firm belief that his mother and Mr M wanted him to call Mr M "dad". He had ended up being blunt with the mother in interview. Every time the mother said that his father was J and is your dad, there was an attempt to erase the past and create a family life for him in which his own father was not terribly important. "But overall there was huge progress in his ability to enjoy his time with his father ...".
68. He said he was clear that time with his father did not need to be reduced. Something was working for him but it was a long way short of where it needed to be. He was critical of the mother's attitude in describing his time with his father as not unhappy. The inference was that the relationship with his father was an inconvenience.
69. If C moved to London he would suffer acute distress. Seeing his mother every second weekend would be pretty grim for him. To avoid this, the court would need to be confident that the mother "is really committed to promoting and expanding sees relationship with his father, rather than dealing with it … as a necessary inconvenience."
70. He considered that oversight by the court would be necessary with an independent voice for C. The mother's latest statement worried him. There was her belief that there were no fundamental issues, no commitment to therapy, she was free with her allegations against him, and she criticised the interview in which C said he was happy with contact.
71. She had not shown she was making a great effort to make things go in DeV. The progress in respect of C's equilibrium had been excellent, but he considered it rested on fragile foundations. Oversight by the court was necessary. The balance was the acute upset in moving C to his father against the slow conversion of his father into J and Mr M into his real father.
72. What was needed was a fundamental belief that the father was the father and C had a good relationship with him. It was one which would get even better as time went by. It coincided with him spending much bigger chunks of time with his father. It coincided with the mother saying the atmosphere in her home was different.

Mr M

73. He identified Dr Berelowitz as saying that harm could come to C if his relationship with his father was damaged. He thought that he and his father had a fantastic relationship - it was very positive. They had made huge changes in talking openly about his time with his father. Before, they had left it up to him.

The father

74. His last statement was less than a week before the start of the hearing. He appeared to blame the mother for not wishing to attend therapy in the mornings when she was doing school runs which I question. He said she was not committed to mediation, she was unhelpful about keeping him informed of medical matters and school matters, though he thought that communication could be improved. But it was only if the mother was committed to therapy and mediation.
75. He appeared at first to regard as reasonable his last-minute request to take C on a family reunion to Jersey. She had stubbornly refused to improve communication, and he did not believe that she could or would change. He considered he had no choice but to pursue his application for sole residence, though he would listen to what Dr Berelowitz and the mother said.
76. It would seem therefore that matters had not changed since April. This was not so as his evidence showed. He said that matters had improved. The structure of handovers had been very helpful. Things were going very well at school. The longer periods of time "had really improved matters dramatically". He accepted that he had not been blameless in communication not improving.
77. He spoke of practising handwriting with C who then won a prize. Things had been going very well at school. As the mother and Mr M confirmed, C did appear to be happier and doing better at this point.
78. On the surface matters had improved dramatically, there had been less negativity. He believed, however, that the mother still kept her former views. There was a great deal that needed to be done. Unless the fundamental attitudes changed, there was a high risk that they would revert back to the position as it was in February. He thought he had benefited from therapy.
79. He wanted to hear the mother's evidence. It helped discussing the position with the school. He was particularly impressed by the headmaster of the school. "We have made progress - the critical issue is whether progress will continue."
80. On the final day he told me that contact had very much improved between April and July. C was much more relaxed and much happier on the telephone. The improvement was material. He attributed not mentioning this in his statement to acting as his own advocate. He did think that there had been an effort to improve matters. If he was absolutely satisfied that the progress would continue, his views would be different.
81. Some credit was due to the mother for the improvement. He did not see that the mother's case no longer presented the criticism of him as in her earlier statements, nor that she had indicated changes. He in no way diminished the quality of the attack which was made upon the mother. I shall return to the father's attitude.

Mrs T - the maternal grandmother

82. She said all had agreed to promote and encourage C's relationship with his father. The atmosphere had positively changed as a result. It was pro-active rather than negative. C had told her in the past that he did not like his father.
83. Recently, he said he wanted to see his father for two nights, because he missed his mother and brother too much. He did say that he hated his father's home in London.
84. She felt it would be very detrimental if he went to live with his father. He had never been as happy as he was now. He had found a lovely new group of friends, he was not teased as he was in London, and he was a much happier child. He had blossomed. They had not said negative things about his father.

The mother

85. She said she was much more optimistic about the long-term prospects of having a positive relationship with the father. Things had improved since April, despite the stress of this hearing which put them all under a lot of strain. She had kept a pink diary in which he had written down positive things about the father and positive things that she had done.
86. She said that Dr Berelowitz's primary concern was that the father's relationship with C needed to be promoted in a positive way, though she had found his report to confusing. She did not question his feelings for his father in any way. She did not consider that she played any part in what C was saying about his father. She thought it was a result of stress as he was aware of the proceedings in April, which had a huge disruptive effect on her home.
87. Dr Berelowitz in April had made her realise that her role in C's relationship with his father was much more important than she had thought. She could now see that she had a significant part to play in the success of that relationship. Before she thought it was up to the father. She could now see that she and her support team had to be positive actively.
88. After seeing Dr Berelowitz in his office a week ago, she had agreed to change C calling Mr M "dad" because she could see it was really important for the father, and possibly C as well. She agreed that it made him confused about Mr M and his father. But she had not realised it until last week.
89. In April, she had thought it was a matter of opinion. When Dr Berelowitz put it in concrete terms, she could see that his point. She had been calling Mr M "Ed" for the last week, and telling C that it was his father on the phone. She now saw the significance of this.
90. In relation to the time that C spent with his father, if it was fine by him, then it was fine with her. He had complained to her that five days was too long.
91. She had been worried that there was no one who could speak for him with an independent voice. She was concerned about Dr Berelowitz being employed by the father and spending more time with him than with her.
92. I intervened to ask her to think about that overnight, because it seemed she was seeking to undermine what Dr Berelowitz was saying. She was challenging his independence and asserting that he was in the father's pay. If it was her view, within a few weeks, should C alter what he was saying, there was a risk of a reduction in contact.
93. When the mother said that she did not understand why CAFCASS had not made a statement, I pointed out that this might be because she hoped they might express a different view on names and other points from Dr Berelowitz. Ms Parker expressed the view that if there was a genuine and fundamental change in the mother's attitude, that would be very welcome. The father had recognised his need to look at his attitudes and behaviour as well.
94. The case was then adjourned from the 17 to the 19 July. When the mother returned to the witness box, she said that she had had an opportunity to step back and look at the evidence objectively. Until yesterday, she had not really seen what was being said. It was partly because of the stress and emotion of the proceedings. It had made her feel almost irrationally defensive and become biased against Dr Berelowitz. It was based on the 6 years when she had felt bombarded with aggressive letters, e-mails and frequent court action.
95. It had got to the point where she hated to open her e-mails or collect her post. She had seen Dr Berelowitz as an extension of the father's solicitors. She had been unable to recognise his objectiveness. She could see that many things in her statement were wrong. She set out our understanding of Dr Berelowitz.
96. She had learned she had an important and vital part to play in the positive development of C's relationship with his father. The significance of this extended to her home and her family in such areas as names and atmosphere. Finally, her good relationship with the father was of critical importance to C's happiness and well-being.
97. She had tried to act since April on her partial understanding. He had benefited from the changes, and he was now a very happy boy. She welcomed the opportunity to continue to work with Dr Laydon-Walters, who had rightly identified the patterns which had blocked communication between her and the father.
98. After this explanation, Miss Parker resumed her cross examination. The mother was asked what it was in the last 36 hours which had led the scales to fall from her eyes. She said it was her fear which had led her to feel biased about Dr Berelowitz. Despite that, and the father's apparent welcome of a change in the mother's understanding, there was no pause in the cross-examination.
99. She said that, with hindsight, being neutral was not enough. She needed to be very active and positive about the father; that was best for C. She denied that she had been actively hostile about the father nor had she said negative things about him when C was present; she no longer said them in his absence.
100. Her behaviour had never been intentionally unreasonable. She was definite that her proposed move to DeV could have been better handled. The father should have been involved from the beginning, but she had been to a solicitor and the Citizens Advice Bureau.
101. C had been saying negative things to her at the time about his father. She just repeated them in her statements. Until Dr Berelowitz explained it to her, she thought the question of names was just semantics. She accepted that in the past when the C had gone away, she had shown that she was upset because she did get upset. Now we she tried not to show she was going to miss him and talked about his father in a positive way.
102. She had felt very upset in the past, but she now she felt optimistic. She had gone through what she described as "this complete nightmare".

Oral submissions on behalf of the father

103. At the conclusion of her cross-examination, and after the midday adjournment, Ms Parker produced a 19 page final submission which she and the father's legal team had prepared. It of course took no account of the mother's views as expressed that day.
104. Miss Parker started her oral submissions by setting out the father's fallback position. It was that there should be a shared residence order, with the father's time with C gradually increase to 7 days out of 14.
105. There should be a review, if he was to stay in DeV, in say January 2008 with a report by a therapist, and after Dr Berelowitz had seen the parties and C again. If he was to remain, it should be on a strictly monitored trial basis were the mother to be given another chance.
106. Her evidence that day was described as superficial, lacking in real understanding, self-serving, even manipulative. It was because she knew what the court wanted to hear as a result of my intervention at the end of the second day. It should not be taken at face value. It was only at the last possible moment. She took no responsibility for what had happened so far, other than needing to improve her relationship with the father.
107. There was no fundamental change in her evidence on that day. It was expressed with dramatic effect but with little real content. An example was the only now did the mother finally accept that the school holidays should be divided equally. Until then, she proposed 40 days for herself and 20 days for the father.
108. It was only at the last minute and when she said that she was overwhelmed and anxious about the documents. She had not taken on Dr Berelowitz's clear evidence in April, either because of deep wilfulness or because her mindset was so ingrained that it had not yet begun to change.
109. The father had accepted the beneficial changes for C, and that he might have contributed to the rushed and inflammatory Wednesday night visits. He was committed to therapy, but it had shown that there was a lot of resentment. There was a battle from the very beginning about whether C was entitled to have an independent relationship with his father, which was not controlled, governed, and limited by the mother. Her commitment to Dr Laydon-Walters was less than 100%.
110. The only explanation for what C had been saying was not just badmouthing behind closed doors or wanting to please his mother. It was because things were said directly to him or overheard by him. The contrast with the father's attitude at the conclusion of the hearing on 17 July was marked.

The father's written submissions

111. The mother has known about and had the chance to make radical change since Easter but had not done so. Ten examples are given ranging from being obstructive over therapy, not sharing school and medical information with the father, not cooperating in arrangements with Dr Berelowitz, showing no insight, and barely responding about arrangements.
112. The mother does not recognise the need for change, nor will she engage in the process. Whilst more contact with the father has brought excellent results, the mother shows no signs of moving forward certainly with sufficient speed. The prospect of the mother engaging in what is needed to promote a proper relationship with his father is now extremely remote. Action is required now which would allow C to continue with his father in London, and attend his former school.
113. The mother's restrictive attitude to the father's relationship with C is historic. The court should find that the mother, Mr M and Mrs T have told C matters undermining of his relationship with his father. Over 15 examples of this are set out. They include the drawings, which have come about because C was told to draw frightening things about his father.
114. The essential points from Dr Berelowitz's evidence are set out. In particular C's belief that his mother and Mr M wanted him to call his stepfather "dad", her allegations about Dr Berelowitz's relevance, and her refusal to accept the C was happy in his relationship with his father.
115. He was very worried that the mother felt that he had to have the same relationship with her as her younger son T. This did not allow him to have a full and deep relationship with his father. If she felt this, it explained why she behaved in the way that she did, but it was dangerous for C's relationship, both with his father and with himself. He could adjust to living with his father.
116. The court would need to be satisfied that the mother was committed to promoting and extending C's relationship with his father and the necessary work which this entailed. It meant being honest with herself, and following advice. Things have changed for the better, but whether it will survive the end of proceedings requires a lot of thought. The father did not yet believe that she valued and saw the importance of C's relationship with his father.
117. It was submitted that little turned on the evidence of the father, who was thoughtful, willing to listen, receptive to advice and prepared to accept that he had made mistakes. Mr M it was said was evasive, noncommittal and unfocused. Mrs T was anxious to follow the party line and showed little insight.
118. The mother was described as lacking insight, uncooperative, blamed others, and went back on saying that C disliked his father. She tried to avoid responsibility for this by saying that she merely reported what C had said. When she did not like what Dr Berelowitz reported her as saying, she said that he had misunderstood things.
119. She had sought to use the evidence of Mr Hartley in the belief that he saw no reason for change. She did not appreciate that in evidence he had agreed with Dr Berelowitz.
120. It all points to the move to DeV being a deliberate act to reduce or eliminate C's contact with his father. It coincided with a time that the mother had reported that C did not like his father.
121. The only explanation for the huge progress reported by Dr Berelowitz is the extra contact between C and his father. There has been no other action or support by the mother.
122. Unless the court is confident that the mother is committed to promoting and expanding C's relationship with his father and following advice, he should be with his father. She has not achieved it so far. She is unlikely ever to do so.
123. If she cannot achieve it under court pressure, and with the clear threat of C's removal, the prospects are bleak. A last chance is only to delay the inevitable. It is time for a move now.
124. The submission could not take into account the mother's acceptance on 19 July of what Dr Berelowitz had said, nor her further admissions that day. That lack of a pause in the cross-examination led me to ask the father on 27 July about his remark that he would wait to see what the mother would say. He could not readily have anticipated that she would take blame to the extent that she did. I queried whether it meant that it did not matter what the mother said or that he felt it lacked sincerity.
125. He accepted that the mother had the perception that she needed to change, but the question was whether she was committed to it. He had been struck by a number of points made by Mrs T which made him think they would be back where they started. But his concern was that change would not last.
126. I pointed out to him that both he and the mother were saying that what C had said to Dr Berelowitz was not what he was thinking or feeling. Even though he had been staying with him for five days before seeing Dr Berelowitz, he thought that the mother had discussed the meeting with him on the day before. He agreed that C had said what he felt, and his view was that things were better.
127. I asked him about how he proposed that contact would work out between him and his mother if he was living in London. I asked this as he had made no real proposals in relation to contact. He did not appear to agree with Dr Berelowitz's description of it being pretty grim for C. He agreed that he was doing well at school, which had bent over backwards to make it a good experience for him.

Comment

128. The penultimate day of the hearing started with the mother explaining the extent of her understanding. She had had an opportunity to step back and to re-read documents objectively. It had caused her to see things in a new light. Bias and lack of understanding had caused her to say many things that were wrong. She set out her understanding of Dr Berelowitz's views. Further cross-examination did not suggest that this was wrong.
129. His legal team had prepared his closing submissions for presentation that day. They were presented after a short oral submission to which I have referred which substantially dismissed the further understanding the mother had set out.
130. C was to reside with his father and his mother was to have contact alternate weekends during term time after school on Friday, till she returned to the school on Monday. It did not deal with the practicalities nor the expense for a mother living in DeV, with a one-year-old child and a husband working away quite frequently. It was silent about the extent of C's upset and how this might be met.
131. The only comment came in answer to me and was based on the fact that the father had had to travel and that C would have to travel in any case to see his friends and family in London. His final thought was that the mother would be able to spend time with him in London. I was left with the impression that this had not been realistically thought through.
132. He was in evidence prepared to give the mother credit for the improvements since April. Until he gave evidence it was not apparent that any improvement had been made. I am puzzled why this was not mentioned earlier.

The mother's closing submissions

133. These she produced on 24 July. They run to 15 pages. She had plainly worked hard. Did they reveal any further understanding or any grounds for the confidence which Dr Berelowitz said was required?
134. She said that since April there have been many changes which have left C a much happier and outward going boy than he was a few months before. She had tried to put her understanding of the necessary positive changes into practice. She listed them under categories setting out examples of each.
135. She no longer kept him informed of what was happening. Neither she nor her family had discussed the court case. She saw beneficial results in that he no longer suffered from nightmares.
136. They talked positively about his father, and encouraged him to speak about his father. An accidental meeting with the father made clear to her the advantage for C in seeing them both behaving normally together. She thought it helpful for the future.
137. She now sees the advantage of the extended contact introduced by my order in April 2007. The atmosphere at handovers was better. There had been a joint letter of instruction to C's GP, and she had kept the father up to date with medical appointments.
138. His father had also taken him to a physiotherapist, and to the dentist. She said it was at her suggestion. Meanwhile, she had maintained the pink book, which was a personal diary of positive changes.
139. She pointed out that a joint letter of instruction had gone to both C's School in London and in DeV. She tried to keep the father informed of collection times, and they had both attended a parents evening and a school play. Telephone contact had improved.
140. She spoke positively of his progress at X School, and quoted from his teacher about his improvement. She set out details of how living in DeV had helped that C in developing interests and confidence. She referred to the improvements being noted by both Dr Berelowitz and the father.
141. She said that she had learned as a result of this hearing. It was the value and importance to C of his relationship with his father and the effect of that on his long-term well-being. She repeated how it was only Dr Berelowitz's explanation in concrete terms that had brought home to her the importance of names.
142. She accepted that she had been wrongly biased against him. Though the case had been emotionally upsetting, it had highlighted the changes needed, and still needing to be brought about.
143. She had felt inundated by the amount of documents and correspondence. It was not helped by the fact that, as the hearing progressed, the transcripts were sent to DeV whilst she was staying in London. She had found the language used about her alleged strategy as negative and exaggerated. Her commitment to therapy had been questioned even when she had repeated what the therapist had said about every three weeks on a trial basis. She saw the move to DeV as a unique opportunity not a strategy by her.
144. She felt accused of being tight with money and not taking the proceedings seriously. She pointed out that between December and March she had spent some £35,000 on legal fees, which was the equivalent of their annual income. She contrasted this with the father's great wealth.
145. I add in parenthesis that, though Miss Parker was careful to say that she was only suggesting that the mother had the means to take legal advice, the example above demonstrates the real limitations upon this. The comparative financial vulnerability of the mother in contrast to the father is a factor to be borne in mind.
146. The mother claimed that too much of C's negativity had been attributed to her. She had not been obstructive in relation to mediation and had attended as recently as 6 July.
147. She pointed out that much as she had been criticised for being obstructive, this was not one-sided. Her criticisms of the father were that he had given her only 3 days notice of taking C to a family reunion in Jersey this summer, he did not copy her in on correspondence he had with the schools despite agreeing to do so, he cancelled a dentist appointment without notice, and he continued to be habitually late.
148. These are relatively mild. I contrast them with the father's approach to the mother when her approach had so recently and radically changed. He is fully entitled to question both its sincerity and whether it will last but, when therapy and mediation are regarded rightly as so important, the tone is not altogether encouraging.
149. She sets out the disadvantages of any move for C to London citing Dr Berelowitz and the schools. The father had yet to ask any of his school friends to play at his home. She accepted again that she should have involved the father earlier in the move to DeV.
150. Finally she set out the future changes. She was as committed as the father to therapy continuing. They both needed to learn to work together as parents. She was willing to do so as Dr Berelowitz said.
151. She proposed a joint residence order, C continuing at his school in DeV, equal share of school holidays, 5 days contact with the father in DeV, and continuing therapy and mediation. Contact should increase to 6 days a fortnight by Easter 2008 and a week by September subject to Dr Berelowitz's views.

Findings and conclusion

152. My decision given on 27 July was based on what is in C's best interests. His welfare is my paramount consideration. I have no concerns about his day to day care provided by either parent. They are both devoted to him. He loves each of them. It is his crucial relationship with his father which has dominated the hearing.
153. The parties had a short marriage of some three years. C remained with his mother who at an early stage travelled extensively with him.
154. For 3 ½ years, the father flew back twice a week from Germany to see C. By July 2003 when C was about three, the father had contact on alternate weekends as well as holiday time. There were difficulties. It took court hearings for contact to increase. Personal antipathy was evident. Each party regarded the other as unreasonable. Both were capable of a degree of inflexibility.
155. They pursued mediation, on average 10 times a year. Despite the undoubted assistance which it provided, it could not address the underlying feelings and resentments that each party felt. The father considered that the mother had no real commitment to his relationship with C. He also had to endure his negative remarks for which he understandably held the mother responsible. The mother felt that he sought to control her and resorted too freely to solicitor's letters and court proceedings. Whilst there were lapses, on the whole I exonerate the father.
156. The mother's belated notice that they were moving to DeV started the present proceedings. It brought to a head the simmering discontent of both parties over their relationship. It also served to highlight the poor state of C's contact with his father. The father had good cause to believe that he was being sidelined, both by the way that the move was planned, the negative remarks, and by the fact that Mr M was called "dad".
157. The cross-examination of the mother in April and July has compelled her to face up to the shortcomings in C's relationship with the father and the significant part she has had in that. It was unlikely to have been achieved by other means.
158. It has caused her to change the views she has expressed in a major way. It has also caused her anguish for which she must accept most of the blame. The father too has reconsidered his attitudes but they have not been so radically examined which has been a loss. But the mother's change has been in part so last minute that its sincerity and true worth have not been sufficiently tested.
159. At the end of the hearing it was important for both parents to know whether C was going to remain in DeV or not. To live with uncertainty adds considerably to the strain for both of them. It makes their relationship with C and each other more difficult. Despite the force of these considerations, which I do not underestimate, I am satisfied that this is not a course which is at this time in C best interests. There should be a period when he remains with his mother but under the continued supervision of the court.
160. Inevitably the evidence has concentrated on the events of the last year. Incidents in the last of five years had been referred to but rightly this has been isolated. Time did not permit a closer examination. But it was in that period that patterns were set which have profoundly influenced the mother and father ever since.
161. At the heart of this hearing have been two conflicting themes. The first has been the father's belief that the mother has from a very early stage been determined to limit his role in C's life, to allow him to express freely in words and by drawings negative feelings about his father, to promote Mr M as his father by reference to him as "dad", and only to allow more contact as result of court proceedings. There is justification for this.
162. He traces her hostility back to their short lived marriage, its acrimonious break-up, his substantial involvement with C early on, and the subsequent difficulties created by the mother in which she has involved Mr M and Mrs T. It took Dr Berelowitz's first report to show the harm that was being done to C by his mother's attitude.
163. The father says that the mother's evidence has been insincere. Improvements have been achieved has not been by any actions of the mother, but by increased contact. Such insight and any positive actions by her have only been at the very last minute, and limited to the extent necessary to avoid an order that C should now live with him in London.
164. The other theme has been the mother's contrasting beliefs. They started by her complaints that the father has used his wealth unnecessarily to oppress her by frequent communication and court proceedings without an appreciation of the strain on her and her financial difficulties. He has been unreasonable. His care of C can be rightly criticised, whether it is frightening him, pursuing her on skiing holidays, irresponsibility in his day-to-day care, or failing to keep her informed of his plans and actions in which C is involved. Though there is some substance in the latter complaints, the father has had to resort to solicitors and the court to achieve proper contact.
165. Her attitude in February 2007 is I find well set out in a passage from her statement at the time. This was before Dr Berelowitz reported. It shows her belief that C disliked his father who was totally unrealistic. More contact was just going to create difficulties later (see C 62).
166. Dr Berelowitz rightly appreciated that it was C's relationship with his father not his mother that was crucial to this case. Accordingly he saw the 2 of them together and not C with his mother. This was understandable with limited time but it did not help the mother's perception of his role.
167. He considered that C had a close loving relationship with his mother. What he experienced was him having a lovely time with his father. In an important passage which I have quoted, he pointed out that if the mother did not believe this, and if C could not express his feeling, then his relationship with his father was likely to wither and die.
168. Despite his clear evidence on this and the dangers of letting him call Mr M "dad", only part of his recommendations were acted on by the mother. I am satisfied that the mother did, after April, take a more positive line with C about contact with the father.
169. The improvement freely accepted by the father and Dr Berelowitz could not have been achieved by extra contact alone as the father contends. She and her family did allow C to talk about contact in a positive way. But her understanding was limited.
170. It is not surprising that Dr Berelowitz should have been alarmed by her final statement in July 2007. It described his report as a tactical development to sideline Mr Hartley's report, and questioned his independence. She saw nothing in his report that gave her any concern about why the present position should not continue.
171. Making all allowances for the mother not being represented, and being very much on the defensive, had those beliefs continued, Dr Berelowitz's evidence, which I accept, makes clear the dangers which would have followed. It is entirely understandable therefore that he should regard the issues as finely balanced in July.
172. The hearing had difficulties. Dr Berelowitz did not hear the mother's apparent acceptance of his evidence. There was no real cross-examination of the father (save for the limited open questions I asked), no opportunity to test the mother on the list of positive steps that she said she had taken, and no comment by the father on them. They had not emerged in anything like that detail before.
173. It is common ground that there have been substantial improvements since April. The case has depended on the extent to which I am satisfied that those and the latest changes are sincere and will continue and develop.
174. I am satisfied that if the mother is genuine in her evidence on 19 July and her submissions on the 29 July, then she has gone a considerable distance in understanding and belatedly putting into effect what Dr Berelowitz has set out. The questions that remain are whether it is genuine and will be sustained.
175. The father is entitled on the history to be sceptical. He may be right. But as I have said the improvement was not achieved without an input from the mother. She has much to live up to. A real belief in what she has said, or a justified fear that C will live with his father if she cannot maintain and enhance their relationship, are both sufficiently potent factors to ensure that progress is maintained.
176. The father has paid credit to the standard of her care (for instance in his description of the mother to Mr Harley), but for this one crucial area. She has had much to learn and put into practice in a short time. She needed Dr Berelowitz to spell out in what she described as concrete terms the harm in the name calling. I accept that this caused her to change. Her final submission is impressive. Refreshingly it does not criticise the father in any major way (see para 50). It does criticise his solicitors for the volume of documents, sending transcripts to DeV when she was in London, and the tone of the final submissions.
177. Therapy involving Mrs T and Mr M appears agreed. The father rightly considers this is important. The wider families on both sides have to support the other parent in a positive manner. It is right that Mr M and Mrs T should be involved in the therapy given the history. The fact that pre April Mrs T did not think C had an excellent relationship with his father and thought that it would not help her to have advice on how best to help C, is some indication of its importance.
178. I am conscious that the father believes Mrs T was hostile to him from early on and that she deliberately upset C in an incident in July 2004 when he cried to her to save him from his father. She denies this. I am not satisfied it was deliberate.
179. Given the ill feeling at the time, it would have taken little to upset C who was not stopped from expressing hostile views as he should have been. Handovers were bound to be fraught. On this occasion Mrs T was the more responsible though the father's brusque manner did not assist.
180. Though not explored at any length, I deplore the involvement of the police by the mother when the problems should have been solved by other means. The father went out in January leaving C alone in the house whilst he shopped locally for a short time; later the same day he went out as his sister was approaching. Rightly he does not defend this. It did not need the police to be informed by the mother save on a point scoring basis.
181. The father is keen on a parenting plan. Looking at recent issues, it should include each party telling the other of all medical concerns and visits, copying each other in to all medical and school correspondence, and personal messages wherever possible. I am not clear to what extent the mother was genuinely overwhelmed by correspondence and documents. Some 25 messages back and forth within 3 weeks in June 2007 did not elicit a protest from her.
182. It may be a way of the mother both excusing her past attitude and her last minute change. She is bright, not easily overborne, and capable of change provided she truly believes in it. She can be glib. But last minute documents, absence of transcripts, and the language of the final submissions for a litigant in person is not easy.
183. C has spent all his 7 years under his mother's care with whom he has a strong and beneficial bond. No court would alter that situation without clear evidence that he had suffered harm which would continue or was at serious risk of that. In April he was suffering harm because of the mother's attitude to his relationship with his father. Rereading Dr Berelowitz's first report shows how the tension and attitudes were affecting C.
184. It was not done to cause him harm. It was part of the mother's negative feelings towards the father being allowed far too free a rein. It was to C's detriment. It is sadly a not uncommon result of a breakdown in a relationship. It is not often that it is so graphically pointed out as in this case. Courts are slow to change residence in such circumstances without giving the resident parent a chance to understand what has gone wrong and to remedy it, provided such a course is compatible with a child's best interests. The changes in the mother's attitude justify such a course in C's best interests.
185. I consider the mother has shown an understanding of what has gone wrong. She has apparently listened and responded. I am less clear about whether she has the will to sustain the implementation of the changes needed. There has been too little time though progress has been made. It is therefore best if the court retains a close supervision of the progress.
186. She has to accept that the situation she created was by February causing C distress. She allowed her and her family's feelings about the father to be evident to C who responded as he thought she would want. It was not checked as it should have been nor was he spared knowing about the hearings. The au pair's observations, though not examined in evidence, have a ring of truth about them. The father was being freely criticised which C picked up. I have doubts whether he was told directly but the effect was the same.
187. The father is a man of strong feelings. He is thoughtful, devoted to C, capable of accepting mistakes and more than able to play an invaluable part in his upbringing. The history has left him angry. He lacks trust in the mother for good reason. But he has to guard against those factors leading to a lack of respect for her as a person and a parent which C could pick up.
188. I am not clear whether it was this or some other reason that led him to avoid any mention in his July statement of the improvements since April. This was in marked contrast to his evidence when he had no hesitation in making due acknowledgment.
189. He said he would listen to what the mother had to say before reaching any final decision. Two days later the mother made admissions about many of her faults. Miss Parker commented that the scales had fallen from her eyes. The cross-examination continued undiminished, her remarks being said to be insincere and manipulative. The written submissions that followed have little by way of redeeming features so far as the mother is concerned, whose care of C is otherwise commended by the father as I have pointed out.
190. I have been a little troubled by this. Was the father being less than frank in saying he would listen? Or were the mother's remarks so obviously manipulative that there was no room for reconsideration? I am not sure of the answer.
191. Finally I was struck by the father's attitude to the proposed change of residence for C. There were no details of contact or how feasible that would be for the mother. In particular I am not clear that he understands just how upset C would be nor how this could be managed.
192. The upset would not be a reflection of the quality of his care but the loss of the care of his mother, the company of T, by now Mr M, and his new home and school where he is obviously happy. It would not be like an extended holiday once C knew it was to be for the future. He might well blame himself. It would require a high degree of understanding and support.
193. Were a change of residence to arise again, these are matters which would need consideration. It is one of the disadvantages of one side only being represented that such issues are not more fully explored.
194. The prospects for the future are brighter than for a long time. I am optimistic but only if the mother can show she is genuine in what she said on the last 2 days. If she cannot maintain the progress with the full support of her family, then the father's fears will be justified and the result may be inevitable and C will suffer.
195. The father has his part to play. If his feelings, however justified, come in the way of full participation in and support for the mother in therapy, mediation, and outside, C again will bear the loss. He needs to see his parents communicating as amicably as possible and meeting if and when this can be managed without ill-feeling.
196. C has an unusually varied heritage on both sides of his family from which he should draw in equal measure. This has not happened in the recent past. There is a worthwhile chance that it will in the future but both parties have to work for this. Time will show whether they can. Communication between each of them rather than with solicitors should be the aim. The tone will be revealing.