England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		3 October 2018

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MR JUSTICE KEEHAN:

Introduction

1. In this matter, I am concerned with two children, A, who is five years of age, and B, who is four years of age.
2. The mother of both children is PM and the father of both children is CF. Although he has parental responsibility for A, he does not have parental responsibility for B because the parents were not married at the time of her birth and his name does not appear on the birth certificate.
3. An application has been made on behalf of the mother for a number of orders in respect of the children. First, that the father's parental responsibility in respect of A is terminated. Secondly, that there be permission to the mother to change the forename and surnames of both children. Thirdly that the court makes a s.91(14) order preventing the father from making any application in respect of the children without permission of the court first being obtained.
4. CF, the father, had opposed the making of any of those orders, save that he accepted that:

(a) the children's surnames should be changed and;

(b) a child arrangements order should be made in favour of the mother for the children to live with her.

This matter was set down for today and tomorrow for a fact-finding hearing to determine the truth of serious allegations made by the mother against the father in respect of his alleged abuse of her over an extensive period of time. In support of these allegations, a Scott Schedule was filed and served by the mother which contained nineteen itemised allegations against the father. Some of those allegations the father accepted, the majority he denied.

5. This morning, and after having had the benefit of a consultation with leading counsel, Ms. Judd and junior counsel, Ms. Cox, the father's position dramatically changed. I was told and accept that the father had made further admissions in respect of mother's allegations contained on the Scott Schedule, that he did not oppose the termination of his parental responsibility in respect of A. He accepted that the girls' names, both forenames and surnames, should be changed and he accepted, in principle, that the court should make a s.91(14) order against him.
6. The issues remaining between the parties were threefold. First, the mother, supported by the children's guardian, contended that the s.91(14) order should be for the duration of the whole of the girls' respective minorities, whereas the father submitted that these orders should be limited to three years or perhaps five years. Secondly, the father sought indirect contact by way of letters, perhaps only annually, between him and the children. This application was strenuously opposed by both the mother and the children's guardian as not being in the welfare best interests of either child. Finally, the father sought information to be given to him periodically on how the children were faring. This application was also opposed by the mother and by the children's guardian. It was submitted on behalf of both of them that the only information that should be provided to the father was in the tragic event that one or other of the children died.
7. It had at one stage been floated that the father ought to be notified if the children suffered a life-threatening illness or suffered a life-threatening injury. The mother, supported by the children's Guardian opposed this information being provided to the father on the basis that it would require the mother, at a most tremendously stressful period of her life, to contemplate making contact, albeit indirectly, with the father. It was agreed by all parties that these issues could be resolved by me on the basis of submissions and that I did not need to hear oral evidence from any party to determine those matters. I agreed.
8. The father had made concessions but did not accept all of the mother's allegations against him. Was a fact-finding hearing still necessary? It was accepted by Mr. Hames QC, on behalf of the mother, that although the mother maintained that all of her allegations were true and she was prepared to give evidence in support of them, given:

(i) the father's concessions as to the allegations made against him by the mother and;

(ii) his revised stance in relation to the orders sought,

a fact-finding hearing was neither necessary nor proportionate. Neither the father nor the children's guardian sought to persuade me otherwise. I agree that in the circumstances now pertaining a fact finding would serve no useful purpose.

Background

9. The background for the purposes of this judgment can be stated fairly shortly. The mother and the father were in a relationship. The mother asserts that this was a violent, physically and emotionally abusive relationship. It culminated with a serious sustained assault by the father upon the mother on 26 December 2015 for which he was sentenced to forty-two months imprisonment. On 11 March 2016, the mother obtained an indefinite restraining order against the father. Very shortly afterwards, he breached that restraining order by telephoning the mother from prison.
10. In September 2016, the relevant Children Services department assessed the father to be:

"Such a high-risk individual that on release, he is highly likely to seek out PM and the children and has threatened to kill them. The Local Authority are of the view that CF poses a risk of significant harm or death to the mother and/or to the children."

11. On 6 October last year, the mother and the children, given the risk posed by the father, were accepted onto the United Kingdom Protected Persons Scheme and were moved to a confidential address where they remain. On 17 October last year, the father was convicted and imprisoned for a breach of the restraining order.
12. In the Scott Schedule, the father admitted that in May 2014 he was abusive and threatening towards social workers. He admitted that on 5 July 2016, he threatened to do a 'Raoul Moat' style killing of the mother upon his release from prison. The father explained that he admitted making this threat but that he had no intention of carrying it out. By his conviction, he is bound to accept the assault upon the mother in late 2015 although I note from the witness statement filed by him that he sought to deflect blame from himself and to suggest that the mother was blameworthy for some of the acts of violence which took place. He has admitted that on two occasions in 2016 and again in 2017 he breached the life-long restraining order. He also accepted that:

(a) the mother's asserted fear of and anxiety about him are such that it has compromised her ability to parent the children and;

(b) she remains anxious about the prospect of further applications and remains fearful that the father will make a determined effort to find her.

Further, he accepted that the children are vulnerable as a consequence of being exposed to domestic abuse which has caused them emotional harm.

The Law

13. When considering these applications, I bear in mind that the welfare best interests of both of the children are my paramount consideration: s.1(1) of the Children Act 1989. I also have regard to those factors as set out in the welfare checklist of s.1(3) of the 1989 Act. I have been referred to two principal authorities in relation to the making of s.91.14 orders namely, Re P [1999] 2 FLR 573 and Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 314. I have considered and taken account of both of these decisions.
14. I also have regard to the Art.6 and Art.8 rights of the children, of the mother and of the father, but bear in mind that where there is a tension between the Art.8 rights of a child on the one hand and the Art.8 rights of a parent on the other, the rights of the child prevail. Yousef v The Netherlands [2013] 1 FLR 210.

Submissions

15. On behalf of the mother, it is submitted that such is her fear of the father, such is the damage that she has suffered emotionally and psychologically as a result of the violence within the relationship between herself and the father, that she needs protection from any involvement in the future by the father. It is in the welfare best interests of the children that that protection is afforded because an increase in the levels of stress suffered by the mother by involvement from or contact with the father will, inevitably and invariably, have an adverse impact upon her ability to parent the children and will have an adverse effect upon both of the girls. This submission is made with equal force in relation to the father having indirect contact with the children and/or providing information to the father about the wellbeing of the children from time to time.
16. The children's guardian, as I have said, supports the orders which are sought by the mother. In her initial case analysis she said as follows:

"I have noted the comments in the probation pre-sentence report of 25 August 2015 that predicts that the risks CF was considered to present to PM and others would increase were he to have a perceived grudge to settle or a point to make. I have taken account of PM's belief that CF will continue to pursue a relationship with her and his aspiration for them to move together to Scotland. If it is the case that CF will pursue PM it is likely that on his prison release, he will make an application to spend time with the children and she will learn of this application having been made and potentially granted. He may well thereafter seek to challenge the validity of this in an appeal court which would involve continued anxiety and uncertainty for her which will clearly unsettle her and by extension the children. Even if he is unable to legally challenge any decision made, his sense of frustration might spiral."

Then in her final analysis she says this:

"The impact of the children's exposure to domestic abuse is complex and may result in a range of emotional, social, psychological and behavioural responses with short and longer-term implications. As stated in my previous reports, A has clearly a memory of her mother's injuries. It is currently unclear to what extent the impact of their exposure to domestic violence and to the mother's resulting mental health struggles will impact on their future outcomes. I do not accept CF's view that the children were protected from the long-standing and damaging domestic abuse in that they were not witness to it. They were clearly affected by the harm caused to their mother which represents emotional harm to them. It is my view that every effort must be made to safeguard these vulnerable and already damaged children. Their early lives were marked by exposure to domestic abuse which will carry with it to them a measure of harm that will take dedicated focused parenting to mitigate against. Whatever the difficulties in her early adult life, the available information supports that PM has demonstrated an ability to provide parenting to the required standard. She has cooperated with Children Services and the police. PM is at the early stages of her engagement with support services to enable her to negotiate the negative effects of her early adulthood and the domestic abuse suffered via counselling support. It is clear from the available opinion that the progress that it is hoped she will make and the children will, by extension, benefit from will be compromised were she to live with the threat of CF, making a future application for contact with the children. Where children spend no time with violent fathers, the harm they have sustained can be ameliorated and their recovery is related to that of their mother with continuing threats for proceedings used to protract conflict impeding the mother's recovery, thereby resulting in an indirect effect on the children. As such, given the circumstances of this case, I cannot commend that the opportunity for CF to make a further application for contact should remain."

17. The children's guardian recognised that the orders being sought by the mother are draconian in their nature and should only be made in exceptional circumstances. She was of the clear and professional view that the circumstances of this case are so exceptional that the orders sought are entirely justified and are in the welfare best interests of both of the children.
18. On behalf of CF, Ms. Judd QC submits that he recognises the part he has played and the damage he has caused to the mother and thereby to the children. He recognises that it will take a considerable period of time and hard effort on his part to bring about change in his mental processes and behaviour. Further, only if such change is effected, is there any realistic prospect of him having any future role in the lives of either of the children.
19. It is accepted that given the exceptional circumstances of this case, it is in the welfare best interest of the children to make a s.91(14) order against the father. I have indicated that any such application should be reserved to me. That is agreed by all parties but, as Ms. Judd QC submits, that order should not last for the entirety of the children's respective minorities but should only be for a period of three or five years which, given the ages of the children, is a considerable period of time within which the father may be able to make changes to his behaviour and to put his past behind him. It would, she submits, risk being a disincentive to the father to effect those changes were the s.91(14) order to last for the whole of the children's minorities.
20. Ms. Judd QC on behalf of the father prays in aid those matters in respect of and in support of the father's application for indirect contact with the children, albeit modest in frequency and also his application to receive information about the wellbeing of the children, again albeit on an infrequent basis.

Analysis

21. I have considered carefully the submissions made by all parties. I have regard to the fact that the father is the biological father of both of these children and that it is ordinarily in the interest of children to have some knowledge of and relationship with their father. I further accept and acknowledge that these children are very young and have a substantial part of their childhood ahead of them. However, I accept the submission that any adverse effect upon the mother's emotional and psychological wellbeing will have an adverse impact on the wellbeing of the girls.
22. This case is truly exceptional. It is a rare event indeed when the police assess the risk posed by a father to a mother and to children to be so high as for them to be admitted to the UK Protected Persons Scheme. The impact upon being taken into such a scheme on the daily life of the mother and of the children is profound and it is a factor that I weigh very heavily in the balance when considering the appropriate orders to make in this case.
23. I am satisfied that notwithstanding the progress she has made, the mother remains a profoundly vulnerable individual for whom the relationship with the father and the violence suffered at his hand has and will, sadly, for the foreseeable future have a profound adverse impact on her. In my judgment, no step can be permitted which would have a real risk of further increasing the stress and pressure on this mother thereby resulting in harm to these vulnerable children.
24. I accept the opinion of the Guardian that it is a particularly significant factor in this case that the father, in fact, has no pre-existing relationship with either of the children. It is sad to be noted that A's only real recollection and memory appears to be of her father being violent to her mother. Plainly, steps will have to be taken, which the mother accepts, so that there is a narrative for the girls which explains the role of the father in their lives. This is an important matter and I am pleased to note that the mother accepts it is in the children's best interests for it to occur.
25. On the basis that there is no pre-existing relationship between the father and the children, in my judgment to permit him even to have indirect contact by letter or card on an annual basis, runs the risk of having an adverse impact upon the mother and of destabilising her and thereby adversely affecting the children. The balance falls decisively in favour of that contact not being permitted in the welfare best interests of the children. I recognise this will come as a grave disappointment to the father, but he must recognise that what must first happen is that he is able to prove and demonstrate to the court that he has affected change, he is a changed man and any risk he poses to the mother has very, very, very considerably reduced.
26. I have pondered what information should be given to the father. At one point I considered it almost inhumane that the father should merely be told, sadly and tragically, that one or both of the children had died, and that he should not be notified if the children sadly suffered a life-threatening illness or injuries. However, I am persuaded given the extreme vulnerability of the mother, that were she to have to endure the awful event of one or both of the girls suffering a life-threatening illness or sustaining a life-threatening injury and that she then had to contemplate arranging for that information to be passed to the father, it would simply be too much for her and therefore, would have an adverse impact upon the wellbeing of the girls. In my judgment this is not a risk the court should take because it is not in the welfare best interests of the children.
27. I ask myself rhetorically, as was put to me in submissions, what could the father do with that information other than to be concerned or worried about the children? The answer is, there is little or nothing he could do. There is no ultimate benefit in the balancing exercise to him being given such information. Accordingly, the information to be provided to the father about the girls is to be limited to the possible future event where, very sadly and tragically, one or other of them died.
28. I turn now to the issue of the length of the s.91(14) order. I accept and I am pleased to hear that the father wishes to put his past behind him and he wishes to change his behaviour such that he does not pose his current threat to the mother, to the children or to members of the public generally. He is to be encouraged to pursue this course which will ultimately be for his benefit. There is, however, no evidence before me that there is a realistic prospect that this father can effect substantial change, or that any such change would be sustained by him, in the foreseeable future.
29. The risk that the father poses to the mother and the children and the mother's vulnerability and fear of the father making future contact with her, either in person, indirectly or via a court application, is such that a limited period for the duration of the s.91(14) order is not, in my judgment, in the welfare best interests of the children. As matters stand on the evidence presently available, the only order which will ensure the protection of the mother, and thereby the protection of the children, and certainly promote the welfare best interests of the children is that I make a s.91(14) order for the whole of the respective minorities of A and B.
30. If the father is able to affect the necessary changes, it will be open to him to make an application to me for him to prove to and to satisfy me that he has effected a change, which may well then lead to permission being granted to him to make a substantive application for a s.8 order. It may well be that if he is able to effect change, he may seek to apply to persuade me that the period of the s.91(14) order should be reduced to a more limited period. This, is, however, for the future. As matters now stand, I am wholly satisfied that the children need protection from the father and the mother needs the confidence to know that the father cannot make any application to the court for any s.8 order in respect of the children without the permission of the court.

Conclusion

31. Accordingly, I make the orders sought by the mother and supported by the Guardian. Father's parental responsibility in respect of A is terminated. I note that he does not consent to this application because he does not wish A to think that he has given up on her, but he does not oppose the making of the application which I am entirely satisfied, for the reasons I have given, is wholly in the welfare best interests of A. The mother will be given permission to change both the forenames and surnames of both of the girls and there will be a s.91(14) order preventing the father from making any s.8 application in respect of the girls without first obtaining the permission of the court. This case is reserved to me. Any such application should in the first instance be made to me, if available.
32. The father's application for indirect contact with the girls is dismissed and the information that will be provided to the father in the future about the wellbeing of the girls will be limited to the sad and tragic event that either one of them dies in childhood.

CERTIFICATE Opus 2 International Ltd. hereby certifies that the above is an accurate and complete record of the proceedings or part thereof. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital This transcript has been approved by the Judge