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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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2023] EWFC 5 | ||
FAMILY
COURT
Strand, London, WC2A 2LL |
||
2023 |
B e
f
o r e :
MR
JUSTICE HAYDEN
____________________
F | Applicant |
|
| - and – |
||
M | Respondent |
____________________
Foster
instructed by Dawson Cornwell LLP)
for
the Applicant
(
Matthew
Stott instructed by the Duncan Lewis Solicitors)
for
the Respondent
Hearing dates:
5th
and 6th December 2022
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
MR
JUSTICE HAYDEN
MR
JUSTICE HAYDEN:
F
v
M
[2021]
EWFC
4. The case presented
very
serious allegations of coercive and controlling behaviour by the
father
(
F),
in the context of two relationships. The
first
of the relationships analysed in that judgment concerned the
mother
(
M)
of the two children with whom I am concerned at this hearing. They are Y, now aged 8, and S, now aged
5.
The litigation history, as I recorded in the earlier judgment, had been extraordinarily protracted. The
final
fact-finding
hearing, which I concluded in January 2021, had been adjourned 6 times. The originating application was
made
by
F
in October 2017. In August 2021, there had been a successful appeal
from
a case
management
decision by a Circuit Judge, and the case was then allocated to
me.
Peter Jackson LJ, delivering the judgment of the Court of Appeal, referred to the "extremely difficult procedural history".
My
judgment sets out
very
serious
findings,
at the highest end of the index of gravity, within the sphere of coercive and controlling behaviour. The
findings
have not been appealed.
My
approach, in the judgment, to this particularly insidious type of abuse, was approved by the Court of Appeal in H-N and others (Children) (Domestic Abuse:
Finding
of
Fact
Hearings) (
Rev
2) [2021] EWCA Civ 448.
March
2021,
F
issued an application
for
a Child Arrangements Order
for
contact with both children (i.e., barely 8 weeks after the judgment). It should be noted that he has never
met
S (the youngest child). There was also an application
for
a Specific Issue Order, seeking a change of surname
for
S. The latter application, in particular, and in the context of
my
findings,
reveals,
at best, an arrogant lack of empathy
for
the effect that the protracted proceedings had already had on
M
and the elder child, Y.
More
than that, however, it
reveals
how
F
has used the Court proceedings as a different
facet
of controlling behaviour.
May
2021,
M's
legal team
made
applications
for
permission to disclose the judgment and the case papers to the police. Additionally, the application sought, in the event that no order
for
contact was
made,
to remove
F's
Parental Responsibility. It would appear to require to be stated that disclosure of the judgment to the police does not require a Court order. Unless the court specifically prevents it, the police and CPS are entitled to a copy of a judgment pursuant to
Family
Procedure Rules r.12.73. The information within that judgment
must
only be used
for
the purposes of child protection and/or investigation of crime.
M's
legal team also sought disclosure of the court order to
F's
immigration lawyers.
married.
Accordingly,
F
is granted parental responsibility
for
his children automatically, see Section 2(1) Children Act 1989 ("the Act"). Withdrawal of parental responsibility is provided
for
by Section 4(1) of the Act:
"Acquisition of parental responsibility byfather.
(1) Where a child'sfather
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'sfather
under any of the enactments specified in subsection (1A);
(b) he and the child'smother
![]()
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 responsibilityfor
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."
married
at the time of the birth, the provisions of Section 4(2)(A) are not engaged. This is undoubtedly anomalous. The question has been raised as to whether such a distinction between
married
and unmarried parents is compatible with the European Convention on Human Rights. The
matter
has been considered by Russell J in Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016] 2
FLR
977 and, in greater
focus,
in
MZ
v
FZ
and others [2022] All ER (D) 130, [2022] EWHC 295 (
Fam).
In that case, a declaration of incompatibility in respect of ss (2) and (4) of the Act was sought. The Secretary of State intervened. Russell J concluded that Parliament had determined that "birth"
mothers
and "
married"
parents should be afforded an irrevocable legal status and that there were legitimate reasons underpinning the legislative distinction, which also resonated in other areas of
Family
law. These, Russell J concluded, established 'weighty reasons' justifying a difference in treatment, predicated on
marital
status. Accordingly, she determined that the statutory scheme was not incompatible with the Convention. Importantly, in her detailed
factual
analysis of the case, Russell J concluded that the inability of the applicant to secure a
revocation
of the respondent's parental responsibility had not amounted to a
failure
on the part of the State in its positive obligation or duty to do what was reasonable in all the circumstances, to protect her and the children
from
a real and immediate risk of harm:
"[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
for
![]()
55
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 ofMZ
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] AC
536
per Baroness Hale. The available orders which have been granted by this Court are in this context reasonable and afford protection."
MZ
v
FZ
(supra), society and
families
have changed
very
considerably since the introduction of the Children Act 1989 (in October 1991). Cohabitation outside
marriage
has become
far
more
commonplace.
Marriage
is available to same-sex couples, civil partnerships have been created and extended to heterosexual couples, carrying with them, the same privileges, and responsibilities of
marriage.
The Human Embryology and
Fertilisation
Act 1990 has now opened opportunities
for
biological parenthood to those
for
whom it would never otherwise been available. In this case, I
found
that
F
had raped
M
on
more
than one occasion. It is worth reflecting that even the concept of
marital
rape was not recognised until after the Children Act came into
force.
Each of these developments represents significant social change. Collectively, they
reveal
a
very
different social landscape to that
facing
the authors of the Children Act 1989. Prescient though the legislation has proved to be, I do not think it could have contemplated social change on the level we have seen. Against this backdrop, it is uncomfortable to realise, in 2022, that
M
may
not
make
an application to divest
F
of his parental responsibility entirely due to the
fact
that she was
married
to him when the children were born.
Moreover,
by the time of the
marriage,
as I
found
in the judgment,
M's
autonomy had already been significantly corroded in consequence of her treatment by
F.
Her parents believed and continue to believe that the
marriage
was driven by
F's
desire to obtain leave to remain in the United Kingdom. However, whilst I
find
this anomaly of legal status to be profoundly uncomfortable, I do recognise that the contemplated protection
for
the applicant parent and children is to be
found
in the regime of Prohibited Steps Orders and Specific Issue Orders which the Children Act affords. Thus, whilst the legal status of a
married
father
remains intact, it can be stripped of any potency to reach into the lives of the
mother
and children. His ability adversely to affect the welfare of either
may
be effectively prevented. This was the approach endorsed by Sir Andrew
McFarlane
P in Sheikh
Mohammed
v
Princess Haya [2021] EWHC 3480 (
Fam).
F
made
an application,
framed
as a Specific Issue Order, seeking that any statement or admission
made
by him in the proceedings, would not be disclosed to the police. That application was pursued on his behalf by leading Counsel on the 17th November 2021. I refused the application
for
the reasons set out in
my
judgment:
F
v
M
[2021] EWHC 3133. On the
5th
January 2022,
F
issued an application
for
permission to appeal
my
judgment to the Court of Appeal and an accompanying application to adjourn the
final
hearing pending the outcome of this appeal. Inevitably, I had to yield to the adjournment application.
February
2022, Peter Jackson LJ invited the Director of Public Prosecutions (DPP) and/or Secretary of State to consider
making
representations to assist the Court of Appeal with regard to the legislative differences identified in the appeal, concerning the application of Section 98 of the Children Act 1989 in private and public law proceedings. The DPP accepted the invitation and was joined as an intervenor in the appeal hearing on 31st
March
2022.
Maldon
CJ concluded:
"[42] We see nothing unfair in expecting thefather
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."
for
permission to apply to the Supreme Court was rejected. The application was renewed before the Supreme Court. On the 30th September 2022,
F
applied to adjourn the directions hearing before
me
pending the Supreme Court's decision on
F's
application. With
very
great reluctance, I did so. However, having heard nothing at all,
from
either of the parties, I caused
my
clerk to contact the parties' solicitors, informing them that I had listed the case on the
5th
December 2022
for
a
final
hearing.
For
completeness, I record that on the 2nd November 2022, the Supreme Court, Lord Lloyd-Jones, Lord Hamblen, and Lord Stephens refused the permission to appeal having concluded that the application raised no arguable point of law.
following
the
fact-finding
judgment on 15th January 2021, records the
following
findings:
i. That the applicantfather
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 applicantfather
raped the respondent
mother,
probably on
more
than one occasion, during their
marriage;
![]()
iii. that the applicantfather's
conduct during the relationship, resulted in [Y] being exposed to emotional harm."
mother's
legal team were successful in their attempts to ensure that the Home Office saw either this order or
my
judgment. In any event, in November 2021, I am told
F
received a letter
from
the Home Office, granting him a period of 30
months
limited leave to remain in the United Kingdom. I am told that this is predicated on
F's
pursuit of the '10-year partner route' to secure eligibility
for
indefinite leave to remain in the United Kingdom. It is clear
from
my
judgment that I have
found
F
to be a serious danger to the physical and emotional safety of women and children. His evidence at this hearing
revealed
him, once again, to be narcissistic, arrogant, and entirely devoid of empathy
for
his
former
partner and the children. On this occasion, I propose to send a copy of this judgment and
my
earlier judgments to the Home Secretary
for
her personal consideration. Decisions relating to immigration are, of course, entirely
for
her. I
forward
the judgments simply to reassure
myself
that she has the
full
information before her.
filed
a report setting out her recommendations. She concluded that it would not be possible to safeguard the children
from
F's
emotionally and psychologically abusive behaviours until he has undertaken behaviour change work. She noted that in
my
January judgment, I considered that
F
had caused emotional harm to children in the other relationship that I analysed. Nonetheless, she recommended that there be indirect contact by way of a letter once per year, to the children, which should be stored by their
mother
in a safe place, "until such a time that they are able to read his letters". The Cafcass Officer had not
revisited
her report during the course of the intervening delay, nor had anyone requested her to.
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.
filed
by either party
for
any order pursuant to Section 91(14) of the Children Act 1989. I therefore signalled, again
via
my
clerk, that I should like the parties to consider it and address
me
upon it. On the
morning
of the hearing, the
following
protective provisions had been agreed between the parties. Additionally, there appeared to be a consensus as to indirect contact as recommended by the Cafcass Officer:
"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.
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.
Orderfor
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."
F's
application, on 25th December 2017. As is abundantly clear, it has been heavily litigated. The challenges and obstacles to the smooth and timely resolution of the case, as discussed in the judgment
from
the
fact-finding
hearing, have been almost entirely of
F's
making.
At risk of repetition, it requires to be emphasised, that
F
found
the opportunity to extend his controlling behaviour into the Court arena. The Children Act embodied,
for
the
very
first
time, in English statute, the obligation to avoid delay in litigation relating to a child. Underpinning that is a recognition that delay is invariably inimical to the welfare of children. Here, it has been actively harmful. The protective provisions agreed by the parties and set out above related to the
findings
that I had
made
but they did not recognise the opportunities that the litigation has created
for
F
to exert control over
M
and the children's lives. With this omission in
mind
and with the
full
co-operation of the parties, I decided to hear evidence
from
the Cafcass Officer and
from
M
and
F.
May
2022 pursuant to the Domestic Abuse Act 2021 ss. 67(3), 90(6), SI 2022/
553,
Regs 1(2), 2(1)(b). In Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749, King LJ referred to a prevailing and "changed landscape", not least in consequence of social
media
and wide access to smart phones. She considered that this opened considerably wider scope
for
the greater use of Section 91(14) which, to
my
mind,
had always been intended to provide a protective
filter
from
inappropriate applications. The
filter
exists to protect the child and, not infrequently, the parent with whom the child lives. It is not a punitive
measure
towards a recalcitrant parent. Neither is it a bar on access to justice. Where a Court identifies an issue that requires to be resolved, the case will proceed but where it does not, the child and the primary carer are protected
from
the stress and uncertainty of a
misconceived
or
vexatious
application. Anticipating the introduction of the amended Section 91A reforms, which had received Royal Assent, but not yet come into
force
at the time of her judgment, King LJ said:
"[45] …It is worth however noting that the proposed new section 91A dovetails with themodern
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."
familiar
to every
family
lawyer:
"[41] Inmy
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."
from
corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm. This amended provision strikes
me
as properly recognising the
very
significant toll protracted litigation can take on children and individuals who
may
already have become
vulnerable,
for
a
variety
of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and Judges
must
be assiduous to identify when this occurs, in order to ensure that the Court is not
manipulated
into becoming a source of harm but a guarantee of protection.
full:
Section 91(14) orders:further
provision
(1) This sectionmakes
![]()
further
provision about orders under section 91(14) (referred to in this section as "section 91(14) orders").
(2) The circumstances in which the courtmay
![]()
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 ormental
health.
(4) Where a person who is named in a section 91(14) order appliesfor
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 applicationmade—
(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 ownmotion.
(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 personfrom
![]()
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 circumstancesmay
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 hasmade
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 Afuture
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 tomake
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 protectivefilter
– 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 lawfor
![]()
further
guidance and relevant principles, bearing in
mind
Parliament's insertion
via
the 2021 Act of section 91A into the 1989 Act."
following
practice guidance is given in relation to duration of orders:
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 tomake
a section 91(14) order, the court should explain its reasons
for
the duration ordered.
Mr
Foster
told
me
that
F
was able to agree to the
making
of an order pursuant to Section 91A and
for
the same period. Again, on the
facts
of this case, I consider the duration of that order reflects the nature of the identified harm.
F
plainly troubled the
mother,
though
for
reasons that she struggled to articulate. However, I
found
the
maternal
grandmother's (
MGM)
statement insightful and powerful. I set out her observations:
"Our wholefamily
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 childfriendly
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]."
MGM
concludes as
follows:
"Our life has been in complete limbo and will continue to be until this case reaches a conclusion infavour
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."
married,
she would have been recommending
revocation
of
F's
parental responsibility. This begs an inevitable question. If that were so, why would she recommend indirect contact? It struck
me
that the Cafcass Officer had
reverted
to general principles, without weaving them into the particular circumstances of this deeply troubling case. It is a professional and, indeed, a human instinct to preserve some thread, however
vestigial,
that leaves open options
for
a child who does not have contact with a parent. Generally, this is considered to be an opportunity
for
a child to obtain some understanding of their cultural and genetic inheritance. As a principle, it is obviously both sound and important but it
must
not be seen as automatic. The need
for
it and the potential damage that
might
be caused by it, need properly to be evaluated. Nor, in
my
judgement, should the importance and reach of indirect contact be underestimated.
MGM
had rightly identified that
F
was projecting an image to his children that cast him in a glamorous way. She talks of his 'highlife' which she sees reflected in a photograph of him in a punt in Cambridge. This tendency can be seen in the earlier judgment. Referring to the evidence of the second
victim's
mother,
I
made
the
following
observation:
"[69] She toldme
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.
MGM
is also right, in
my
view,
to comment on the nature of the cards. They are not strikingly 'inappropriate' in any offensive way, but they are cards intended
for
an adult. One of them shows an old couple walking along a road together, but there is something dark and slightly
frightening
in the image. It is intentional on the part of the artist. It is
far
from
the type of card that one would send to children of this age.
F
told
me
that he bought the card because he had been talking to a woman at the Tate who had created the images on the card and was selling her own work. He told
me
that he engaged in conversation with her and that she was an artist
from
the South-West. He wanted to encourage her work. This
may
be a laudable sentiment, but it
failed
entirely to recognise that this was a card
for
his children and not an opportunity
for
philanthropy. I
found
the absence of empathy, warmth or sentiment towards the children to be striking. I agree with
M
that the casual inappropriateness of the card is, itself, illustrative of
F's
attitudes and behaviour.
MGM
puts it simply: "It is hard to believe that the Applicant is able to love anyone else but himself".
might
bring to these children in this case. By contrast, it is easy to see how it
might
be unsettling and potentially harmful to the security of both the
mother
and children. After reflection in the witness box, the Cafcass Officer decided that this was a case where indirect contact was not appropriate. Though
M,
through her previous counsel, had been prepared to agree to an order
for
indirect contact, it was plain that she was doing so in an attempt to avoid conflict. It is equally plain that she could see only trouble coming
from
it. Additionally, she is
very
respectful to authority and I think, had been prepared to accept that if the Cafcass Officer had recommended indirect contact, it
must
have been in the interests of her children. That she was prepared to take advice that ran counter to her own instinct, reflects her determination to do what is right
for
her children at every turn but, it is also a signal that she has not yet
fully
achieved the capacity to assert her own autonomy. In
my
view,
she should
follow
her parental instincts. Despite all that has happened to her, she is proving to be a
very
good
mother.
Her children are both doing extremely well. I asked
M
if she had their school reports. She told
me
that she had and brought them in the next day. They were in a
folder
in chronological order. This was not prepared
for
the Court; it was how she kept them and it reflected her obvious pride in them. The reports also told their own story, particularly, in relation to Y. The growth of Y's confidence can be tracked with each passing term. She is now doing
very
well academically. However, she knows when her
mother
and grandmother have had to attend Court and this causes her anxiety. It would have been impossible to conceal this
from
her given that the litigation has endured
for
5
years and required
many
court attendances.
very
end of the hearing,
F
decided that he would not oppose an order
for
'no indirect contact'.
For
reasons which are clear
from
the above paragraphs, the case requires a judgment to be given.
Moreover,
there are occasions where it is necessary to recognise a disagreeable truth. There is, sometimes, though
very
rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case. When children are received into the care system and subsequently adopted, indirect contact is invariably ordered, though on a
very
limited basis. This recognises that though parents will not have been able to provide a satisfactory standard of care
for
their children, the children continue to be loved and their parents have an important contribution to
make
to their evolving understanding of their lives. The decision not to order any indirect contact has to be seen in this light, truly to understand how uncommon the order is and why.
My
comments in respect of this
father
are not ones that any Judge
makes
lightly. Judges do well to avoid emotive terms, but equally, where a clear
finding
requires to be
made,
it cannot be concealed in abstruse and cryptic language, which
might
only serve to soften or occlude the
message.
My
conclusion accords exactly with that of
M
and her
family.
In the light of all they have experienced, it seems to
me
that they are entitled to know and in unambiguous terms, that their assessment of this
father
is, in
my judgement, entirely accurate.