England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
SITTING AT MANCHESTER

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: P (CHILDREN)

		Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		29th June 2015

HER HONOUR JUDGE NEWTON:

1. I was unable to deliver this judgment at the conclusion of the hearing on Friday 26^th June 15 given the imminence of the father's contact arrangements. This is nevertheless an extempore judgment. If any party requests me to expand upon it for any reason, I would be very happy to do so.

I INTRODUCTION

2. I am concerned with A, a boy, born on 13^th January 2004, now 11, and B, a girl, born on 23^rd December 2005, now 9.
3. The mother of the children is C, formerly D, and their father is E. I hope the parents will forgive me if in the course of this judgment I refer to them as "the mother" and "the father" by way of shorthand. I fear also that I will also have use a term I dislike, "handover," referring to the children moving from one parent to the other.
4. Proceedings in Sweden and then in England in relation to the children concluded with an order made by Mr Justice Peter Jackson on 25^th May 2015. If necessary, reference may be made to his judgment of that date for a full summary of the background and reasons for his decision. It is to be found at E18 in the bundle.
5. The order of Mr Justice Peter Jackson at B14 provides, subject to various undertakings, that the mother make the children available for contact with their father as follows:

"3(i) During term time:

(a) On the last weekend of each calendar month from school on Friday afternoon until return to school on Monday morning, save when the month contains a half term, a holiday or Easter.

(b) All contact in term time shall take place in England, unless the parties agree in writing that said contact may be elsewhere.

(ii) During the school holidays:

(c) For four consecutive weeks during each school summer holiday, the remainder of the school summer holiday to be spent with mother.

(d) For one week during the school Christmas holiday. In even number years, to start no later than 22^nd December and to include Christmas and Boxing Day.

(e) From 30^th December until 7^th January in other years.

(f) For ten days during every school Easter holiday, being one week plus one weekend in substitution for the last weekend of March or the last weekend of April. The children shall spend Easter Sunday with each parent in alternate years.

(g) For every February, June and October half term holiday in the following way:

(i) For February, from the last day of school for a period of ten consecutive days. No additional contact shall take place in the last weekend in February pursuant to paragraph 3(i)(a) above.

(ii) For June, from the last day of school for a period of ten consecutive days. No additional contact shall take place in the last weekend in May pursuant to 3(i)(a) above.

(iii) For October, from the last day of school for a period of ten consecutive days. No additional contact shall take place in the last weekend in October pursuant to paragraph 3(i)(a) above.

(h) All contact during school holidays shall be in Sweden, unless otherwise notified to the mother."

There is then a reference to the parents creating a calendar of contact and indirect contact.

II EVENTS SINCE THE ORDER OF MR JUSTICE PETER JACKSON

6. Direct contact has taken place substantially in accordance with the order of the court.
7. On 22^nd May 2015, a planned ten-day contact visit in Sweden between the children and their father did not place as the result of an incident at Manchester Airport.
8. On 10^th June 2015, the mother wrote to the court indicating that she was not intending to facilitate further contact between the children and their father.
9. On 18^th June 2015, the father issued an application for enforcement of the order of 25^th May 2015. His next planned contact visit was scheduled for 26^th to 28^th June in the UK and he was due to arrive from Sweden on 25^th June. Mr Justice Peter Jackson, to whom the case was reserved, was unavailable on 26^th June. He released the matter to be heard by this court.
10. The mother was legally represented by counsel and solicitors. The father does have solicitors who assisted him in preparing documentation, but he represented himself at this hearing, assisted by his mother as a McKenzie Friend, F. Each parent has filed a summary of their respective positions and I heard oral evidence from each of them.
11. In summary, the father seeks to enforce the existing order of the court in terms of his direct contact with the children and also indirect contact by way of Skype. The mother wishes the contact arrangements to be suspended for an indefinite period.

III THE LEGAL FRAMEWORK

12. The welfare of A and B individually and collectively is my paramount consideration. I have reminded myself of the welfare checklist at s.1(3) of the Children Act 1989 in the context of the findings made by Mr Justice Peter Jackson.
13. The suspension of direct contact between a father and his children, with the inevitable impact upon their on-going relationship, is a drastic step for which compelling evidence would be required. That approach reflects the Article 8 rights of these children and their father under the European Convention on Human Rights and Fundamental Freedoms. Any such course could only be contemplated if it were proportionate, necessary, and justified by pressing concerns for the welfare needs of the children.

IV MY ASSESSMENT OF THE WITNESSES

14. I found the mother wholly unconvincing, both generally and specifically in relation to what happened on 22^nd May 2015. Put bluntly, I am satisfied that she has lied.
15. The father was careful in his evidence. His warmth and concern for the children was readily apparent. I accept his evidence.

V MY FINDINGS

Generally

16. Whilst direct and indirect contact between the children and their father has taken place as ordered by the court, sadly, the relationship between the parents has not improved. I am persuaded that, essentially, the mother does not value the father's contribution to the lives of the children and, in reality, would much prefer to be able to get on with life with her new husband and baby without what she sees as the intrusion of contact arrangements.
17. I was, for example, astonished to learn, very much in passing when I enquired about collection arrangements, that on the father's visits, whether in the UK or Sweden, the children are sent in, literally, the clothes in which they stand up and with their passports in their hand: no change of clothing, no favourite toys, nothing to cuddle, no books, not even a toothbrush. When the father visits the UK, he is obliged to bring those items with him on the plane from Sweden. The same situation applies even when the children stay with him for four weeks during summer holidays The message this sends to the children as to the totally separate existences they have with each parent is deeply unfortunate and unhealthy. It is compounded by the mother's refusal to speak to the father at points of handover. The reason she gave was, "I cannot bear to be near him."
18. I simply do not accept the mother's florid descriptions of the children complaining desperately that they do not want to go to see their father. That is a repetition of the evidence which was demonstrably and comprehensively undermined by the findings of the CAFCASS officer, Mr Power, in his report dated 24^th May 2012. If, which I doubt, the children do express such views to her, the most probable explanation is their understanding of her hostility to the father and their desire to please her, their primary carer. I prefer the father's evidence that the children are loving and affectionate with him, enjoy the time that they spend together and are happy and relaxed with him and his family.
19. In July 2014, the mother made allegations of sexual abuse against two girls who are friends of B in Sweden. Those allegations were taken seriously by the Swedish police and social work authorities and both girls and their parents have been interviewed. The Swedish authorities found no basis upon which any action could or should be taken. I found the mother's attempts to blacken the father's character by insisting that he approved of sexual relationships between young children unconvincing, bearing in mind that such an allegation has never been made before. The evidence, such as it is, does not come close to persuading me that B has been sexually abused.

The events of 22^nd May 2015

20. The flight booked for the children and father to fly to Sweden left from Z Airport at around 6:30pm. Boarding closed at 6:10pm. The father was waiting at an agreed place at the airport and began sending texts enquiring as to the children's late arrival from about 5:00pm. The father indicates, and the mother accepts, that she generally arrives at about 5:40pm. She insisted that a 5:40pm arrival was entirely realistic for a 6:30pm flight. In any event, the mother told me she could not be any earlier as she and her husband had to collect the children from school at 3:30pm, arrange for them to change and then to drive from school to Z Airport. She complained that the father should have booked a later flight. I accept his evidence that such a flight would involve changing planes, for example, at Copenhagen and this was the latest direct flight from Z Airport.
21. However, on this occasion and contrary to her evidence to this effect, the mother did not even arrive at 5:40pm. It may be that she was in the vicinity of the airport at 5:40pm, but it is clear from the texts sent by the father at that point in time, which he was able to produce, asking where she was, that she was not at the agreed meeting point. I accept the father's evidence that she arrived around 6:00pm. By this stage, the father was highly and rightly anxious about missing the flight since he and the children still had security and passport control to navigate in a large, busy airport. I find that this is the pattern for the handover at the airport with the children and father usually having to run so as to avoid missing their flight. I reject the mother's insistence that, "They were not too late. They still had half an hour to board the plane." My sense was that the mother was resentful as to the detail of the arrangements, was not troubled by her late arrival and was making no effort to facilitate the speedy handover of the children, saying they were "upset as usual."
22. I cannot be sure of all the precise details, but, in summary, the mother did not exhibit any sense of urgency. The father became increasingly frustrated. The mother's husband saw fit to intervene. Eventually, the father took hold of both children by the hand and began to try to get them through the security barriers. The mother objected and began shouting and screaming. Airport staff intervened and called the police. The children were hugely distressed. When asked in the presence of their mother if they wanted to go with their father, they said no and the police left them with their mother. By that stage, of course, the children and father had missed their flight in any event.
23. The mother in her written statement and in her oral evidence insisted that the children were made the subject of a police protection order:

"The police protection order was to last until 31^st May, during which time E was to have no contact with the children."

The granting of a police protection order pursuant to s.46 of the Children Act is a formal process governed by detailed procedural requirements, none of which the mother was able to evidence. Of course, a police protection order can as matter of law only last for a maximum of 72 hours and not nine days. On the evidence currently before me, the "police protection order" was a fiction of the mother's imagination. It is no coincidence that this supposed order covers the whole of the period during which the children were supposed to be with their father in Sweden. I note the mother's complaint that, "Even during this time the father was trying to call and Skype the children."

24. I do not find the father entirely blameless for the distressing scene at the airport, but understand the pressures he found himself placed under with the flight closing. On balance, I find that this scene was largely instigated by the mother's behaviour. I do not accept that the children were inherently unwilling to go to Sweden, more that they were understandably confused and terribly upset by the behaviour of their parents.
25. The children have been kept off school today. I do not accept the mother's account of why she took that step. However, I will not draw any adverse inferences since the relatives' address where the children were present was readily forthcoming.
26. The mother's proposals following the incident are that:

"The father needs to get some understanding of A's diagnosis and how to look after him to care for him properly. He needs to understand that children should not have sex with one another and he needs to go on a parenting course. The children need time out and visits should be suspended until trust can be rebuilt and they can feel comfortable together. Then there should be supervised contact visits in England in the first place."

27. The father asks that the order of Mr. Justice Peter Jackson remain in place, in particular that he can see the children in England this weekend and for 4 weeks in Sweden during he school summer holidays

The Children's Needs

28. There is no evidence which begins to persuade me that, exceptionally, A and B are children who do not need an on-going relationship with both their parents. It is in their welfare interests to visit Sweden to maintain their links with their father, his heritage and their extended family. It would be very sad for them to lose their abilities in the Swedish language, B's abilities outstripping than those of A. Both children, but particularly A, given his diagnosis of an autistic spectrum disorder, need a calm and nurturing environment, free from their parents' bickering and the kind of incident which took place on 22^nd May. The father's plans for the forthcoming weekend were to take the children to Norfolk to visit their maternal grandfather, from whom mother is estranged. Accordingly, contact to their father also enables the children to keep in touch with important members of their maternal family.

The children's wishes and feelings

29. There is no reliable evidence that the children's essential wishes and feelings in relation to contact with their father have altered since they were interviewed by Mr Power and since Mr Justice Peter Jackson assessed the situation.

VI CONCLUSIONS

30. I am entirely satisfied that there is no basis, consistent with the welfare of the children, to justify variation of the fundamentals of the order of Mr. Justice Peter Jackson. This is a father who has much to offer his children. He has proved remarkably committed, making, I accept, 37 flights from Sweden to the UK last year alone to see his children. I find the mother's objections to contact ill-founded. Were I to accede to her submissions, it would give her yet further opportunity to attempt to undermine the children's relationship with their father and it would be extraordinarily difficult thereafter to reintegrate the father into the lives of the children. In summary, the basic provisions of Mr Justice A's order will remain in place.
31. In terms of the practicalities:

(i) I direct that the mother instructs the family members caring for the children today to hand them to the father at 3:30pm at their home address. There is no need for the mother or indeed her husband to be present at that handover.

(ii) The summer holiday with the father this year will take place between 23^rd July and 19^th August 2015. The father has agreed to come to the UK the day before the start of the summer holidays so that he can collect the children from school and avert any meeting between himself and the mother. That seems eminently sensible and the order will be amended so to permit.

(iii) Counsel will draft the order, reflecting the timing of the contact arrangements in the UK and Sweden until the end of the school term in July 2016. The father has suggested that the timing of the Christmas holidays needs to be altered this year so as to permit the children to return to school at the start of their term in January 2016 and I trust that can be agreed.

(iv) The father proposes that the children should at some stage thereafter travel with SAS Unaccompanied Minors' Scheme. That would avoid the need for the parents to meet at the airport at all. I am conscious that in 2012 professionals advised against this, particularly in the light of A's special needs. The mother also says that the Scheme simply cannot apply to A. On the other hand, this is a flight to which the children are now very accustomed and apparently comfortable with. If the father wishes to pursue this suggestion, he must revert to the court with the appropriate evidence relating to the Scheme and particularly whether it can encompass A. If the mother objects, there may need to be a hearing about this specific issue, but I hope that agreement might be reached. In the meantime, the order will be amended to provide that when the father is flying to Sweden with the children in accordance with its provisions, the mother will ensure that the children are at an agreed meeting place at Manchester Airport two hours before the flight is due to depart.

(v) Skype contact between the children and their father should be taking place every Tuesday and Friday. In future, it will happen promptly and will be uninterrupted. Further, when the children are with their father in Sweden, they may Skype their mother rather than make a telephone call twice each week.

32. Time does not permit me to address the parties' financial situation. I am not pressed upon this by the father. I take no action on the financial loss he has undoubtedly suffered. I will make no order for costs on this application
33. For the avoidance of doubt, the penal notices attached to the order of Mr Justice Peter Jackson will remain in place.
34. Finally, I do accept that the mother is extremely anxious about A and B and their relationship with their father. I respectfully urge her to seek the help that was recorded by Mr Justice Peter Jackson in 2012 as being necessary and appropriate to assist her in endeavouring to alleviate those anxieties. If she fails to do so, she is at real risk of causing significant damage to her own relationship with A and B.
[Judgment ends]