FAMILY DIVISION
B e f o r e :
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FATHER |
Applicant |
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- and - |
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MOTHER |
1st Respondent |
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- and - |
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CHILD (Acting by his Children's Guardian) |
2nd Respondent |
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Dr Charlotte Proudman (instructed by Morgan Wiseman) for the 1st Respondent
Ruth Cabeza (instructed by Bindmans LLP) for the 2nd Respondent
Hearing dates: 29th – 31st July 2024
Additional written submissions received on 6th August 2024 including from Ms Chhina on behalf of the mother
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Crown Copyright ©
Mrs Justice Arbuthnot:
Application
The parties' positions
a. A lives with order in the mother's favour. This was agreed by the parties.
b. The child to have Facetime contact with his father, on Tuesdays and Thursdays at 5pm UK time but no longer on Sundays. This was supported by the mother but opposed by the father who wanted the current arrangements of three times a week to continue.
c. In terms of direct contact, the guardian proposed at least twice a year contact. This had the support of the mother but the guardian understood the concerns about whether any more than the minimum might take place if not ordered. The father's position was that the court should order four times a year contact otherwise the mother would allow only the minimum.
d. Any contact should allow the child to have his own bedroom for him to have the space to be quiet when he needs to. The mother's position was that the father should rent the same home for the contact visits to allow him and the child's half sibling, S, to mirror the child's home routines. The father preferred the guardian's proposal that any hotel he booked should have an interconnecting room for the child.
e. The child should have direct contact for four consecutive nights on 28th December to 1st January each year. This was supported by the mother but opposed by the father who wished to have alternating Christmas and New Year so it would dovetail with his contact with S.
f. In 2025, the father should be able to have contact for seven consecutive nights between 2nd and 9th August for a holiday in Europe. In August 2026 and each year thereafter, the father should have 10 days (including travel) in the United States and have seven days in England.
g. After I suggested that the mother should provide a position on contact, on 22nd July 2024, the mother set out her proposals. She proposed no contact outside the jurisdiction within a two year appeal period after the enrolment of the order, which might allow the father to vacate the order on the grounds of duress. Her position was that after the two year period the father should submit a new application for a review of international contact. After the US legal expert gave evidence, the mother's position varied to no contact at all outside the jurisdiction.
h. The mother proposed that the father should arrange play dates with the child's friends and take him to his extra-curricular activities and assist her in obtaining assistance for
the child's needs. The father did not argue against this proposal, and I would support these proposals to ensure that the father is more involved in the child's day-to-day life.
a. The father evidencing the completion of a four week 'Understanding Autism Course' provided by the University of Kent and various other courses. This proposal had the support of both parties.
b. The father was to provide the child with a 'social narrative' in the form of a scrapbook filled with information about the father's home and family in the United States. This had the support of both parties.
c. Not less than four weeks prior to any period of contact the father was to provide the mother with a schedule setting out where the child would stay, the planned daily activities and the details of the journey and when the child would have indirect contact with the mother. This had the support of both parties.
d. Before any contact abroad the father was to provide copies of the return tickets and hotel bookings. This had the support of the father.
e. In relation to any final order made by this Court, the father should instruct a lawyer to enrol the order as a foreign judgment in the local US court adopting the language suggested by the US legal expert, at his own cost and then provide proof that he has done so. The mother refused to assist with this and said she did not support the enrolment as she was concerned this might affect her primary position.
f. Significantly, having listened to the father's explanation of his current financial situation, the guardian also suggested the father pay a bond of £10,000 on order of the court, to be paid not less than 28 days before the child's visit abroad and then not to be released to the father until the mother had confirmed that the child has been returned. This had the support of the father but the mother argued that £10K would not be sufficient to allow her to instruct her own lawyers in the United States.
g. The father should not remove the child from England and Wales except for the purpose of contact. He was not to enrol the child with healthcare services or for education in the United States.
h. The father was to provide his passport to an agent nominated by the mother or a solicitor when having contact in this country whilst the mother was to provide
the child's passports to the father when he collects him to take him abroad. They would be returned at the end of contact. The father accepted these proposals.
Background
There has been no support for this suggestion from the child's guardians. The Cafcass officer and the guardians' positions were clearly correct. The allegations dated back to 2016 and were not going to prevent direct contact.
Some Law
49. Regarding the making of a Prohibited Steps Order ("PSO"): under s. 8(1) of the Children Act 1989, a PSO is defined as: "…an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court." The legal test is whether it is in the child's welfare to make the order. The guardian has proposed three PSOs. These are not opposed by the parties and I make the orders.
Evidence and discussion
123. The mother's view was that the child masked his difficulties with his father. The MIND report said that this was possible but it was more likely that a combination of factors explained his different presentations in different contexts. I accepted that if he was masking this was an "additional cognitive burden" for him and that this could leave them "more exhausted by social situations than others…". I accepted that if masking was taking place this "may cause" him to misdirect his frustrations towards his mother who had no part in causing additional demands. I concluded from the MIND report that if the child was masking it was essentially that he was on best behaviour at school and with his father but had no need to camouflage his difficulties with his mother.