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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> F v M (Rev1) [2023] EWFC 5 (16 January 2023) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2023/5.html Cite as: [2023] EWFC 5 |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
F |
Applicant |
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- and – |
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M |
Respondent |
____________________
(Matthew Stott instructed by the Duncan Lewis Solicitors) for the Respondent
Hearing dates: 5th
and 6th December 2022
____________________
Crown Copyright ©
MR JUSTICE HAYDEN:
"Acquisition of parental responsibility by father.
(1) Where a child's father and mother were not married to, or civil partners of, each other at the time of his birth, the father shall acquire parental responsibility for the child if—
(a) he becomes registered as the child's father under any of the enactments specified in subsection (1A);
(b) he and the child's mother make an agreement (a "parental responsibility agreement") providing for him to have parental responsibility for the child; or
(c) the court, on his application, orders that he shall have parental responsibility for the child"
Section 4(2)(A) provides:
"A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders."
"[128] The undoubted psychological harm, fear, anxiety, and emotional distress suffered was largely caused before these applications were made to the court. The residual trauma is undoubtedly severe enough to require treatment, but its primary cause was the behaviour of the FZ in the present case and not as a result of her inability to make an application to revoke parental responsibility as opposed to the CA 1989 orders granted which have virtually extinguished FZ's ability to exercise that parental responsibility. Such distress as that inability to apply for revocation has caused fail to meet the minimum level of severity threshold. The courts have held this to be a very high bar. I was referred to a number of cases where the domestic courts have concluded that the minimum level of severity had not been reached and/or Art 3 had not been violated, some of which made uneasy reading.[8] In AB v Secretary of State for Justice [2019] EWCA Civ 9 which concerned a minor, the suffering caused to a young offender who was placed on a "single lock'" regime whereby he could not leave his cell unless no other inmates were out of theirs for55
days was found by the Court of Appeal that it did not violate Article 3, where a positive obligation was asserted.
[129] I do not consider that the inability of MZ to apply for a revocation of FZ's parental responsibility amounts to failure on the part of the State in its positive obligation or duty to do "what is reasonable in all the circumstances to protect her (or the children) a real and immediate risk of harm": Re E (A Child) (Northern Ireland) [2009] AC536
per Baroness Hale. The available orders which have been granted by this Court are in this context reasonable and afford protection."
"[42] We see nothing unfair in expecting the father to make his case in the family proceedings to secure the outcome he desires and, if he considers it to be the case, to seek to persuade the judge that contact is in the best interests of his two children. He played a full part, including giving evidence, in the fact-finding hearing. If he has decided that his evidence in that earlier hearing was untrue and wishes to qualify or change it there is nothing unfair in letting him choose to do so. We observe that even section 98 of the 1989 Act provides no protection in the case of perjury. The Strasbourg Court generally looks at the totality of proceedings before determining whether they have been fair for the purposes of article 6. It does not exclude the possibility that a single step may render them unfair. Yet it is inconceivable that the refusal of a pre-emptive blanket order of this sort could amount to a violation of article 6. We are satisfied that the approach to disclosure from the family proceedings found in Re EC (Disclosure of Material) (see para. 17 above) provides appropriate protections and ensures that the family law proceedings would, in this respect, be fair."
i. That the applicant father coercively controlled the respondent mother throughout the relationship by preventing her access to ante-natal care, isolating her from her family, friends and peers, controlling her money and food and deliberately curtailing her freedom, also amounting to emotional abuse;
ii. That the applicant father raped the respondent mother, probably on more than one occasion, during their marriage;
iii. that the applicant father's conduct during the relationship, resulted in [Y] being exposed to emotional harm."
15. On the 30th November 2022, F's solicitors contacted my clerk, informing me that "the parties are in the process of preparing a consent order to adjourn the final hearing". The email went on to say that "we believe that the time estimate for the final hearing can also be reduced… as it is hoped that the parties are able to narrow down some of the remaining issues by consent. The agreed consent order will be with the Court at the earliest opportunity". Reference was also made to the unavailability of M's Counsel. Via my clerk, I responded immediately, refusing the application to adjourn. I regarded that application as, at very best, misconceived. The case remained in the list and a different Counsel was instructed for M. Mr Matthew Stott was able to prepare the case thoroughly and has presented M's case with care, sensitivity and skill. If I may say so, Mr Julien Foster has provided similarly impressive representation for F.
"Child arrangements (spends time with) order (Children Act 1989, section 8)
- The father is permitted to send each of the children a letter once per year.
- The mother is permitted to make arrangements for any other appropriate person to read any letter to the children.
- It is a condition of the above arrangement that the father will set up a Post Office Box, fund it, provide the details of the Post Office Box to the solicitors for the mother and send any letter in accordance with this order via that Post Office Box. If he fails to take any of these steps then none of the arrangements at paragraphs 10 and 11, above will come into effect.
- Except for the above arrangements, the children shall have no contact with the father.
Prohibited steps order (Children Act 1989, section 8)
- No steps which could be taken by the father in meeting his responsibility for the children of any kind shall be taken by the father without the consent of the court.
Further applications (Children Act 1989, section 91(14))
- Until 16 November 2035, no application for any order under this Act may be made with respect to the children concerned by the father without leave of the court. Any hearing is reserved to Hayden J if available.
Non-molestation order (Family Law Act 1996, section 42)
- The non-molestation order made by Deputy District Judge Willbourne on 30 May 2019 and extended by Deputy District Judge Orchover on 4 November 2019 is extended until 16 November 2035.
Order for disclosure (Family Procedure Rules 2010, rule 12.73(1)(b)
- The mother may disclose any document filed within these proceedings to any of the following persons: (a) the solicitor acting for the father in relation to his immigration matters; (b) the Secretary of State for the Home Department; (c) the police."
"[45] …It is worth however noting that the proposed new section 91A dovetails with the modern approach which I suggest should be taken to the making of s91(14) orders. In particular the provision at section 91A(2), if brought into effect, gives statutory effect to Guideline 6 of Re P (see para 39 above) by permitting a s91(14) order to be made where the making of an application under the Children Act 1989 would put the parent or child at risk of physical or emotional harm."
"[41] In my judgment in many cases, but particularly in those cases where the judge forms the view that the type of behaviour indulged in by one of the parents amounts to 'lawfare', that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner's part."
Section 91(14) orders: further provision
(1) This section makes further provision about orders under section 91(14) (referred to in this section as "section 91(14) orders").
(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—
(a) the child concerned, or
(b) another individual ("the relevant individual"), at risk of harm.
(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to "harm" is to be read as a reference to ill-treatment or the impairment of physical or mental health.
(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.
(5)
A section 91(14) order may be made by the court—
(a) on an application made—
(i) by the relevant individual;
(ii) by or on behalf of the child concerned;
(iii)by any other person who is a party to the application being disposed of by the court;
(b) of its own motion.
(6) In this section, "the child concerned" means the child referred to in section 91(14)
"Key Principles
2.1 Section 91(14) orders are available to prevent a person from making future applications under the 1989 Act without leave of the court. They are a protective filter made by the court, in the interests of children.
2.2 The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.
2.3 These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person's conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse.
2.4 A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.
2.5
There is no definition in section 91A of who the other individual could be that could be put at risk of harm. However, it is most likely to be, but is not limited to, another person who has parental responsibility for the child and/or is living with or has contact with the child, or any other individual who would be a prospective respondent to a future application.
2.6 In proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a section 91(14) order on disposal of the application, even if an application for such an order has not been made (since the court may make an order of its own motion – see section 91A(5)).
2.7 Section 91(14) orders are a protective filter – not a bar on applications – and there is considerable scope for their use in appropriate cases. Proceedings under the 1989 Act should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.
2.8 The court should consider case law for further guidance and relevant principles, bearing in mind Parliament's insertion via the 2021 Act of section 91A into the 1989 Act."
4.1 Sections 91(14) and 91A are silent on the duration of a section 91(14) order. The court therefore has a discretion as to the appropriate duration of the order. Any time limit imposed should be proportionate to the harm it is seeking to avoid. If the court decides to make a section 91(14) order, the court should explain its reasons for the duration ordered.
"Our whole family is emotionally, physically and mentally drained from the damage the Applicant has exerted on us over the years… The indirect contact that is currently in place provides the Applicant with the opportunity to abuse or manipulate the children in the future; especially once these proceedings conclude. It should be highlighted that the Applicant has only sent the children cards twice since this was ordered, and in fact he again undermines the Respondent by writing the card to ["B"] and further asking in the card, "I wonder if you've learnt how to write your name".
In [S]'s card, the Applicant has sent a card with two elderly people, not what I would call child friendly and talks about "sky gardens" and "a Punt in Cambridge", this would his wishes to again brag above living his alleged highlife… Our family have grave concerns for the welfare of [Y] and [S] in the event that the Applicant is granted any direct contact with the children. I do not believe the Applicant wishes to have a relationship with his children and his motives are questionable. It is hard to believe that the Applicant is able to love anyone else but himself from his previous actions, which is evident through the way he has continued to treat [the other families]."
"Our life has been in complete limbo and will continue to be until this case reaches a conclusion in favour of our daughter's position in respect of any future contact between the Applicant and the children. We are concerned from the knowledge we have been provided by one of the other families, that the Applicant continues to pose a risk and clearly has no insight into his behaviour. My husband and I are extremely concerned of how the Applicant will continue to deceive professionals to further himself in obtaining contact with [Y] and [S]. Currently, as [Y] and [S] are so young, they are without a voice. This worries me further as the Applicant seems to damage and ruin everything he touches, which can be seen in the psychological and emotional trauma he has caused to the [Z] children, who are much older than his own. It has always crossed my mind whether the Applicant requires professional psychological help to assist him in his urges to manipulate, control and abuse women and children. All we can hope for is that these proceedings will acknowledge the damage the Applicant has inflicted upon us and bring some justice to enable our family to heal, grow and progress."
"[69] She told me how in February 2018, her daughter brought F to stay for the weekend. She recalled some facts to which she attributed significance, correctly in my view. F called himself 'Jordan', that was not his name, as emerged a few weeks later. He said that he was 40 years of age, he was 26. He stated that he had a Master's degree, that his family lived in Windsor and that he had been educated at Eton College. He claimed to drive a white Mercedes sports car and to live in a flat near London Bridge, where he was looked after by a housekeeper. I am not sure whether Mrs G had met many old Etonians, but she had perhaps seen sufficient of them in the media to cause her strongly to suspect that F was not one of their number. All this background was fantasy."
29. None of this leads me to have any confidence that F is capable of fulfilling the Cafcass Officer's hope that he might, through indirect contact, be a conduit by which the children might know something of their cultural origins. He is, as I concluded above, a fantasist. Already MGM spots something of this fantasy life creeping into the limited indirect contact he has taken up. I consider her judgment to be correct and I entirely share her concerns. I note that F signs his cards off by stating "I love you a lot and I miss you…". This is, on the face of it, innocuous but in the context of the background of the case, it is manifestly unsettling and confusing for the children. I emphasise again, that F has never seen the youngest child. Throughout these proceedings, F has not revealed the slightest insight into his own behaviour nor have I seen him exhibit even a scintilla of empathy for those whose lives he has grievously damaged. In cross-examination by Mr Stott, F was arrogant and even, at times, belittling of Counsel's questions.