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Home > Judgments > 2015 archive

H v A (No 1) [2015] EWFC 58

Applications by mother in respect of the parties’ three children: (i) to revoke an order allowing the father indirect contact; secondly, (ii) to revoke the father’s parental responsibility and (iii)an application pursuant to s 91(14) CA 1989.

The mother made three applications in respect of the parties' children aged 9, 7 and 5: firstly, to revoke an order allowing the father indirect contact; secondly, to revoke the father's parental responsibility and, finally, an application pursuant to s 91(14) CA 1989.

It became apparent during the proceedings before Mr Justice MacDonald that there was no jurisdiction under the CA 1989 to revoke the father's parental responsibility for L, LF or E in circumstances where that parental responsibility was conferred upon him in all cases by the operation of s 2(1) of the Act.  An initial attempt by the mother to pursue an argument that the provision was discriminatory, as it treated married and unmarried fathers differently, was not pursued. Parental responsibility of a father who is married to, or subsequent to the child's birth marries, the mother cannot be revoked under the Act on the ground of welfare.

The parties agreed that the father's indirect contact should be revoked and that the father should be subject to a s 91 (14) for the duration of the children's minority. It was also agreed that the father's PR should be heavily proscribed. The only area of disagreement between them was whether, as sought by the father, the father should receive from the children's school information regarding their academic progress limited to "the "raw data" that comprises the children's grades". 

The background is set out at paragraphs 14 to 31. In brief, the father was convicted of battery on the mother, and also had a non-molestation order made against him. The father went on to breach the non-molestation order. Thereafter, he set his own car on fire and drove it into the home of the mother and the children. It was found that the mother and the children were lucky to escape. The father was convicted and sentenced to 8 years in custody with a three-year licence extension on the grounds of significant risk to members of the public of serious harm occasioned by the commission of further offences.  He was made the subject of a restraining order until further order of the court, and also received a 2 year concurrent sentence of imprisonment for the breach of the non-molestation order. 

Whilst in prison the father was further arrested on suspicion of soliciting the murder of the mother and on suspicion of encouraging or assisting in the commission of an offence, believing one would be committed, namely assault, theft, criminal damage and arson. It was alleged that the father attempted to solicit the murder of the mother by setting her house on fire. The father was not convicted of murder but was found guilty of encouraging or assisting the other offences alleged. A discretionary life sentence was imposed on him with a minimum sentence of 6 years to run concurrently.

The arguments advanced on behalf of the mother to support her case that the restriction on the father's PR should be "fully comprehensive" are at paragraphs 35 to 39. In particular, it was argued that there was a risk of 'accidental' disclosure by the school of information, and "any source of information" constituted an "unacceptable" risk of the father discovering the whereabouts of the mother and the children. The father's continuing obsession with the mother demonstrated the extreme nature of such a risk.

MacDonald J states that it was difficult to follow the father's argument that the receipt of the children's grades by him was in their best interests. The FCA took the view that making the grades available to the father was not in the children's best interests as he had already shown disregard for his PR towards them. The FCA also highlighted the risk of accidental disclosure by the school.

MacDonald J sets out his analysis of the law from paragraphs 45 to 56 of the judgment. His Lordship concludes that it would be not be in the children's best interests for their grades to be made available to their father. Whilst the father's request was a modest one, it had to be viewed in its proper welfare context. The children's wishes and feelings had not been ascertained by CAFCASS but the court had their mother's description of their views of their father. The court accepted the FCA's view that to ascertain their wishes in this case would have been detrimental to their welfare. Further, the magnetic factors in this case were the children's physical and emotional needs and the risk of future harm and not their wishes and feelings. Mr Justice Macdonald states that "all three children have, in my judgment, a continuing and acute physical and emotional need for a family and home life that is stable, secure and safe from further trauma instigated by the father." The reasons for his Lordship's conclusion are set out from paragraph 57 to 85.

The order made is at paragraph 86 of the judgment. The order included a declaration that the mother was under no obligation to inform or consult with the father in respect of the exercise of her parental responsibility in respect of the children.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk
_________________________

Neutral Citation Number: [2015] EWFC 58 (Fam)
Case No: MA14P01452

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Date: 22/06/2015

Before:

THE HONOURABLE MR JUSTICE MACDONALD

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Between:
H
 Applicant
- and - 
A Respondent
(No. 1)
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Ms McHugh Counsel for the Applicant Mother
Mr Gilmore
Counsel for the Respondent Father
(The names of instructing solicitors have been omitted to protect the anonymity of the parties).

Hearing dates: 16th June 2015
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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE MACDONALD
This judgment was delivered in private. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition always that (a) the names and (b) the current address or present whereabouts of the Applicant and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and current address or present whereabouts of the Applicant and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.
 
Mr Justice MacDonald
1. I have before me three applications in relation to L, now aged 9, LF, now aged 7 and E, now aged 5.

2. The parents of the children are H, the applicant mother (hereafter 'the mother') in this case, and A, the respondent father (hereafter 'the father').   The father holds parental responsibility for all three children in the circumstances described in more detail below.

3. The three applications comprise an application dated 5 September 2014 to revoke an order for indirect contact between the father and the children made on 11 March 2013, an application dated 5 September 2014 to revoke the father's parental responsibility for all three children and an application dated 18 May 2015 for an order pursuant to the Children Act 1989 s 91(14).

4. The application to revoke the parental responsibility of the father is no longer pursued by the mother. 

5. In relation to LF and E, the father holds parental responsibility by operation of the Children Act 1989 s 2(1) in circumstances where he was married to the mother at the time of each child's birth.

6. In relation to L both parties appeared initially to be under the misapprehension that the father had acquired parental responsibility as an unmarried father and hence, they agreed between them, the Court had jurisdiction to revoke his parental responsibility pursuant to the provisions of s 4(2A) of the Children Act 1989.  The mother sought revocation of the father's parental responsibility for L.  The father opposed revocation.

7. However, it is clear on the face of the papers, and now accepted by both parties, that the father holds parental responsibility for L pursuant to the Children Act 1989 s 2(1) by reason of his marriage to the mother subsequent to Ls' birth (s 2(3) of the Children Act 1989 requiring s 2(1) of the Children Act 1989 to be read by reference to the Family Law Reform Act 1987 ss 1(2) and 1(3), with the result that s 2(1) of the 1989 Act encompasses children legitimated by the subsequent marriage of their mother and father).

8. The Children Act 1989 contains no provision that would give the court jurisdiction to revoke the father's parental responsibility for L, LF or E in circumstances were that parental responsibility is conferred upon him in all cases by the operation of the s 2(1) of the Children Act 1989.  In relation to L specifically (and again by reference to the Family Law Reform Act 1987 ss 1(2) and 1(3) read with the Legitimacy Act 1976 ss 2 and 10 and also to the explicit terms of s 4(2A) of the 1989 Act) the Children Act 1989 s 4(2A) cannot apply in circumstances where parental responsibility has been conferred as the result of a child being legitimated by the subsequent marriage of their mother and father.

9. Initially, Ms McHugh sought, in a bold submission, to persuade the Court that it should nonetheless read into the Children Act 1989 a jurisdiction to revoke parental responsibility conferred by s 2(1) of the Act on the grounds that the distinction drawn by the Act between married and unmarried fathers with respect to the revocation of parental responsibility is unjustified, unfair (in the sense that the children of married parents enjoy, as Ms McHugh put it, a lesser form of protection in circumstances where parental responsibility cannot be revoked in an appropriate case) and antithetic to the best interests of children generally and these children in particular.

10. Following my pressing Ms McHugh further regarding her primary submission she felt compelled, sensibly, to concede that, in circumstances where the intention of Parliament to draw a distinction between married and unmarried father's with respect to the revocation of parental responsibility is clear on the face of the 1989 Act, and in circumstances where the European Court of Human Rights held in Smallwood v UK (1999) 27 EHRR 155 that such a distinction does not constitute a violation of Art 14 of the Convention taken in conjunction with Art 8 of the Convention, that the Court could not accede to her primary submission.

11. On the remaining applications the parties have reached a level of agreement, which agreement is incorporated into the terms of the order set out below.

12. The sole remaining issue between the parties, which I am now asked to determine, is whether the limitations which the parties have agreed should be imposed on the exercise of the father's parental responsibility should also include a prohibition on the father receiving an annual report from the children's school regarding their academic progress, limited to what has been described as the "raw data" that comprises the children's grades.  The mother contends that the restrictions on the father's parental responsibility should include such a prohibition.  The father invites the Court not to prohibit the reception by him of such reports from the school in the exercise of his parental responsibility.

13. Before determining that issue it is appropriate that I set out the background to these proceedings.


BACKGROUND
14. The mother alleges that she was the victim of extensive domestic violence at the hands of the father during the course of their relationship.   The mother details in her statements before the Court a large number of incidents from November 2005 to July 2012, many of which she contends were witnessed by the children with some involving violence towards the children. 

15. The Father vehemently denies these allegations and in his statement dismisses them out of hand without further explanation.  The allegations of domestic violence in this case have not been the subject of findings and I am not invited to make such findings for the purposes of determining the issue before me.  

16. That said, it is important to note that on 13 August 2013 the father was convicted of two offences of battery against the mother committed on 1 June 2012.  Following these offences the mother was granted a non-molestation injunction on 14 June 2012.  On 9 July 2012 the father was convicted at Bolton Magistrates of a breach of that non-molestation order committed on 30 June 2012.

17. On 24 July 2012 at approximately 7am the father set fire to the passenger seat of his own car and drove it into the family home whilst the mother and the children were inside.  Following the impact the father got out of his car and further fanned the car fire by pouring accelerant on it.  The house then caught fire.  The mother recollects the children's fish tank shattering and the pictures on the walls and the television melting.  The mother and the children were fortunate to escape the burning family home without sustaining injury.

18. The father maintains that his actions in driving a burning car into the family home constituted at attempt to take his own life and that the incident had its genesis in alleged mental health issues.  The incident recounted above was however caught on a CCTV camera.  That camera recorded that the father stood watching the burning car and the burning house, laughing and saying "I couldn't have wished for it to go any better, if I'm not having the house neither is she".   There is no evidence before this court regarding the father's mental health and nor has the father sought to introduce any.

19. The father was arrested following the incident and was charged with arson with intent to endanger life and with breach of the non-molestation order. He was convicted and sentenced to 8 years in custody with a three year licence extension pursuant to the Criminal Justice Act 2003 s 227 on the grounds of significant risk to members of the public of serious harm occasioned by the commission of further offences.  The father was made the subject of a restraining order until further order of the court.  The father also received a 2 year concurrent sentence of imprisonment for the breach of the non-molestation order.  The mother and the children had to be re-housed on account of the family home having been rendered uninhabitable by reason of the father's actions.

20. Following his imprisonment the father was again arrested, this time on suspicion of soliciting the murder of the mother and on suspicion of encouraging or assisting in the commission of an offence, believing one would be committed, namely assault, theft, criminal damage and arson.  The allegations against the father centred on claims that he had sought to pay other inmates to arrange for the murder the mother by setting fire to the house.

21. Following a trial the father was acquitted of three counts of soliciting murder but convicted of the charges of encouraging or assisting in the commission of an offence believing one would be committed.

22. The father was sentenced for these offences on 6 January 2015 and received a discretionary life sentence.  The minimum term the father must serve, concurrently with his 8 year custodial year sentence for the arson attack using his car and before being eligible for parole, is six years.

23. Pursuant to s 11 of the Civil Evidence Act 1968 the fact that the father has been convicted of these offences is admissible as evidence in these proceedings of the fact that he committed those offences.  Further, pursuant to s 11(2) of the 1968 Act, the contents of any document which is admissible in these proceedings as evidence of the convictions is admissible for the purposes of identifying the facts on which those convictions were based.

24. Within this context I have had the benefit of reading the sentencing remarks of His Honour Judge Clayson, The Honorary Recorder of Bolton of 6 January 2015.  The sentencing remarks detail how the father approached a number of fellow inmates at Forest Bank prison, first with a view to persuading them to arrange for the windows in the family home to be broken and thereafter with a view to persuading them to arrange for the property to be set on fire, together with the property of a neighbour. 

25. It is of particular note that the sentencing remarks of the learned Judge record how the father appeared entirely unconcerned about the safety of either the mother or the children who, the father said, could go to a hostel if the house was burnt down. 

26. It is further recorded that the father offered payment for the commission of these offences.  In order to assist with the commission of the arson the father handed over pictures and plans of the property.  

27. When these activities came to light the father was transferred from his prison to a second prison.  The sentencing remarks make clear that the father immediately sought out another inmate at his new prison and repeated his attempts to commission the burning down on the neighbouring property, providing maps and giving details of the alarm systems in the property.

28. In his sentencing remarks The Honorary Recorder of Bolton concludes that the father had shown, and continued to show narcissistic and grandiose character traits, continued to deny responsibility for his offending and showed no real insight into the offences he had committed.  The father's expressions of remorse were found by His Honour Judge Clayson to be convenient rather than genuine.   The learned Judge, finding the father's conduct to be both persistent and insistent, considered that the father posed an immediate and very high risk of serious harm focused mainly on the mother and children but also on the mother's neighbour and the mother's parents.

29. Within the foregoing context the Honorary Recorder of Bolton felt compelled to conclude that it was impossible to estimate when, if ever, the risk posed by the father would lessen to the point it would be safe for him to be released into the community in circumstances where an extended sentence had had no effect in reducing his obsession with the mother.  A discretionary life sentence was imposed.

30. As already noted, in his statement for these proceedings the father continues to maintain that his actions in driving a burning car into the family home constituted at attempt to take his own life and that the incident had its genesis in alleged mental health issues.  Further, the father continues to deny the later offences concerned with seeking out and harming the mother and the children for which he received a discretionary life sentence and states he is attempting to appeal his conviction.  As matters stand however, his convictions, and the sentenced imposed as a result, subsist.

31. As might be anticipated from the history recounted above, the conduct of the father has had a lasting impact on the three children.  The mother states that E recalls the house fire.  LF is, the mother says, terrified of loud noises as she believes these mean that the house will be set on fire.  The mother states that LF and L refer to the father as "that man".  The mother further relates that L has had behavioural difficulties, displaying aggression and violence towards his siblings (although this has somewhat improved of late).  The mother also states that L refuses to use his middle name, which name he shares with his father. The mother and the children now reside at a location that is strictly confidential and unknown to the father.

32. I also have the benefit of a Case Analysis of Cafcass dated 16 September 2014.  The father cautions me that that analysis was carried out without the Cafcass Family Court Advisers who compiled the report seeing and speaking to the children.  The report makes clear that a decision was taken by Cafcass that this would not occur for fear that to speak to the children about this matter would be detrimental to the children's welfare.  I deal with this issue in more detail below.


THE ISSUE

33. Within the context of the foregoing history, and as noted above, the issue before the Court has now resolved into one of whether the limitations which the parties have agreed should be imposed on the exercise of the father's parental responsibility should include a prohibition on the father receiving an annual report from the children's school regarding their academic progress, limited to what has been described as the "raw data" that comprises the children's grades.  It is important to note that if the court accedes to this request it will, in effect, be sanctioning the complete proscription of the father's parental responsibility given the matters already agreed by the parties.

34. Both parties have invited me to determine the issue on the basis of submissions. The Family Court Adviser also briefly stated the view of Cafcass regarding the father's request to receive anonymised information from the children's schools.

35. The mother urges me to make fully comprehensive the restriction on the exercise of the father's parental responsibility.  The mother submits that to allow the father any source of information concerning the children constitutes an unacceptable risk of the father finding out where the mother and the children are and once again implementing a nefarious scheme from prison in order to persuade others to do her and, by extension, the children, harm.  

36. To quantify what she submits is the extreme nature of this risk the mother relies on the father's continuing obsession with her, as evidenced by his serial convictions for repeated attempts (both before and after he was confined to custody) to ensure that harm comes to her, and his complete disregard in this context for the safety and wellbeing of the children.  The mother further relies on the sentencing remarks of The Honorary Recorder of Bolton of January this year regarding the finding of the criminal court that it is not possible to say when the risk presented by the father will have reduced to acceptable levels and on the nature of the sentence the learned Judge thought fit to impose on the father in light of the level of risk he presents, namely a discretionary life sentence.

37. On behalf of the mother, Ms McHugh submits that the father has, in her words, the animus and the cruel inventiveness to utilise his parental responsibility to the detriment of the children and that, by allowing him the information from the school that he seeks, the court would risk giving him the practical means to do so.   In this regard, Ms McHugh submits that in the context of what she terms "the edifice of risk" described above, it would only take one teacher or member of the schools administrative staff to disclose accidentally the identity of the school or the identity of a teacher or the identity of an esoteric subject to provide the father with information which he could use to identify the whereabouts of the family and seek to do them harm in the way he has repeatedly sought to do in the past.

38. In addition to the issue of physical risk as outlined above, the mother further prays in aid the impact on the emotional equilibrium of the children and on her as the primary carer for the children of an ever present fear, were I to accede to the request of the father, that their location may be the subject of accidental disclosure to the father.  Ms McHugh emphasises that the mother and the children derive a great deal of reassurance and security from the fact that the father does not know where they live.  Within this context, Ms McHugh submits that the provision of the information the father seeks, with the risk of accidental disclosure that it carries with it, will risk not only the physical safety but also the emotional integrity of the household.

39. Finally, on behalf of the mother Ms McHugh submits that the benefit to the children's welfare of the father receiving the information he seeks is, at best, dubious and is, in any event, plainly outweighed by the risks inherent in making provision for it. 

40. The father limits his submission to contending that it is in the children's best interests for him to receive anonymised reports from the children's school containing, as it is put on his behalf, the "raw data" of their grades.  He submits that the anonymisation of this material would ensure that no particulars that might lead to the disclosure of the mother and children's location were disclosed to him, with further protection being provided by the school passing the anonymised information in the first instance to the paternal grandfather.

41. It was difficult at times to follow the father's argument as to why the provision of this information to him would be in the children's best interests as opposed to of benefit to him.  His case in this regard seemed to centre on the contention that the provision of this information would permit him, in a limited way, "to remain involved in the lives of the children" and would permit him a better bond with the children if and when he came to have contact with them in the future.  The father was anxious to make clear that he was in no way suggesting the children should become involved with the provision of this information.

42. Having regard to the history of this matter and to it's own assessment of risk, the Cafcass Case Analysis concludes, in the context of the application to revoke the order for indirect contact between the father and the children made on 11 March 2013, that due to the risks posed by the father to the mother and the children, Cafcass would be unable to support any form of contact between the children and their father.  The FCA makes clear that this view is unlikely to change during the course of the minority of the children and recommends that the full gamut of protective orders be put in place. 

43. In relation to the limited proposal for the provision of information now advanced by the father, and having concluded in the report that the father has shown disregard for his parental responsibility towards the children by engaging in the criminal conduct for which he has been convicted and sentenced, The Family Court Advised told me that endorsing this proposal would not be in the children's best interests. 

44. The Family Court Adviser reasoned that the provision of such information presented a significant risk of accidental disclosure of the whereabouts of the mother and the children.  Further, he questioned what benefit the children would gain from the information being provided to their father.   Whilst the reservations of Cafcass centred primarily on the potential for mistakes to be made by those providing the information to the father, the family Court Adviser took the view that in circumstances where the exercise of parental responsibility should be for the benefit of the children, the father's proposal for information to be provided to him was one that was, in fact, solely for his own benefit. 

THE LAW

45. The question of whether there should be provision for the father to receive anonymised reports on the academic progress of the children is a question concerning the extent to which the father should be prohibited from exercising the parental responsibility he has in law for the children rather than a question of the merits or otherwise of 'contact' between the father and the children.

46. Within this context, in deciding the issue before it the question for the court is whether the exercise of the father's parental responsibility (in this case the entitlement to receive information concerning his children from their schools) should be restricted beyond that level of constraint the parties have already agreed between themselves, and which is set out in the order at the conclusion of this judgment.

47. S 3(1) of the Children Act 1989 defines parental responsibility as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.'

48. The rights, duties, powers, responsibilities and authority that comprise 'parental responsibility' are contingent in nature because they are inseparably connected with a parent's obligation to meet the welfare needs of his or her children and arise out of that obligation.  A parent's rights, duties, powers, responsibilities and authority insofar as they concern their children are only derived from their obligations as a parent and exist only to secure the welfare of their children (see Family Law Review of Child Law, Guardianship and Custody Law Com. 172 (1988) para 2.4 and Art 18 of the United Nations Convention on the Rights of the Child).  Within this context the concept of parental responsibility "emphasises that the duty to care for the child and to raise him to moral, physical and emotional health is the fundamental task of parenthood and the only jurisdiction for the authority it confers" (see Introduction to the Children Act HMSO 1989 para 1.4). 

49. Thus, in Re D (A Child) [2014] EWCA Civ 315 Lord Justice Ryder reiterated that the concept of parental responsibility describes an adult's responsibility to secure the welfare of their child, which is to be exercised for the benefit of the child not the adult. The status conferred by parental responsibility relates to welfare and not the mere existence of paternity or parenthood. 

50. Within the foregoing context, the courts have repeatedly emphasised, and I expressly acknowledge, that in most cases it is in a child's best interests for both parents to have and exercise parental responsibility for the child.   Further, and within the context of this case, the courts have emphasised the vital importance of encouraging the exercise of parental responsibility by fathers, children having a right to that benefit (see Re D (A Child) [2014] EWCA Civ 315 at [33] and Art 5 of the United Nations Convention on the Rights of the Child).

51. Where however the manner in which a parent chooses to exercise an aspect of their parental responsibility is detrimental to the welfare of the child, the court may prescribe, to whatever extent is in the child's best interests and proportionate, the exercise by that parent of their parental responsibility. 

52. Within the context of this case, the court may make a prohibited steps order pursuant to s 8 of the Children Act 1989 to prevent a parent from exercising his right to see the children's school records under the Education (School Records) Regulations 1989 (see R v Leicestershire Education Authority ex parte C [1991] Fam Law 302).  Pursuant to s 2(8) of the Children Act 1989, the fact that a father has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any order made under the Children Act 1989.

53. In considering whether to grant a prohibited steps order each child's best interests are my paramount consideration and I must have regard to the matters set out in the 'welfare checklist' contained in s 1(3) of the Children Act 1989.  I should not make a prohibited steps order unless doing so would be better than making no order at all. 

54. In P v D & Ors [2014] EWHC 2355 at [109] Baker J noted that, in very exceptional cases, the power to grant a prohibited steps order extends to making an order prohibiting a parent from taking any steps in the exercise of his or her parental responsibility.

55. Finally, it is important to note that, however extreme or exceptional the facts of a particular case, a prohibited steps order is a statutory restriction on the exercise by a parent of their parental responsibility.  Any such order made by the court must accordingly be based on objective evidence.  There is a high responsibility on the court not to impose such a restriction without good cause and reasons for imposing a restriction must be given (see Re C (Due Process) [2013] EWCA Civ 1412, [2014] 1 FLR 1239).  Specific consideration must be given to the duration of the prohibition (see R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) at [38]). 

56. Within this context, and in circumstances where a prohibited steps order constitutes an interference with the Art 8 rights of both the parent against whom the order is made and the child who is the subject of the order, the making of, the terms of, and the duration of a prohibited steps order must be proportionate to the mischief that the order is designed to address.


DISCUSSION

57. I have come to the conclusion, in the exceptional circumstances of this case, that in addition to the prohibitions agreed between the parties it is also in the children's best interests and proportionate that I should prohibit the father from receiving, in the exercise of his parental responsibility, any information from the children's schools.  My reasons for so concluding are as follows.

58. On the face of it the father's proposal is a very modest one.  He asks for the provision of anonymised 'data' comprising the grades of the children stripped of any information that might identify the current whereabouts of the mother and the children.  However, this apparently modest request must be considered in its proper welfare context.

59. The father is correct when he points out that the children's wishes and feelings have not been ascertained by Cafcass in this case. The Cafcass Family Court Adviser was clear in his report that, having regard to the history of this matter, speaking to the children regarding the issues before the court would be detrimental to their welfare.  The father did not seek to challenge that conclusion by way of cross examination of the Family Court Adviser but did submit that it necessarily affected the weight I should attached to the case analysis provided by Cafcass. 

60. Having regard to the history of this matter, the incidents the children have seen, the impact of those incidents on the children and their respective ages, I can readily accept the view of the Family Court Adviser that raising with the children the issues that now fall to be determined by the court would be detrimental to their welfare.   Whilst it is a statutory requirement for the court to have regard in particular to the ascertainable wishes and feelings of the children, securing those ascertainable wishes must be done in a manner that is not antithetic to the children's welfare. 

61. In this case I have available to me the mother's description of the children's views of the father provided to Cafcass, and to the court in her statement.  Whilst the father criticises this evidence as coming from a person who has a negative view of the father, I consider the evidence sufficient for me to ascertain in broad terms the children's views concerning the history of this case and their feelings concerning their father.  This is particularly so in circumstances where I am satisfied that this is a case in which the children's physical and emotional needs and the risk of future harm, rather than the children's ascertainable wishes and feelings, are the magnetic welfare factors in this case that drive the conclusion of the court.

62. As to the children's physical and emotional needs, all three children have grown up in an environment in which the conduct of the father towards their mother resulted in his being convicted of two offences of battery against the mother committed on 1 June 2012 and a breach of that non-molestation order committed on 30 June 2012.  All three children have suffered the trauma of experiencing their father seeking, in a particularly violent manner, to burn down their family home with them inside it and being made homeless as a result.  All three children have lived in a home environment in which it became apparent that the father was continuing his efforts to do harm to the family even as he served a sentence of imprisonment.  Each of the children will inevitably have experienced the impact on their mother, their primary carer, of these very traumatic events.

63. Within this context all three children have, in my judgment, a continuing and acute physical and emotional need for a family and home life that is stable, secure and safe from further trauma instigated by the father.  In particular, all three children need to be brought up in an environment that is not only free from any risk that their father will locate them and again attempt physically to harm them but also as free as reasonably possible from the anxiety that there location might be disclosed. 

64. As their primary carer, it is also important in my judgment that the mother likewise be placed in a position whereby her physical, mental and emotional state, and thus her ability to meet the children's needs, is not impaired by any risk that the father will locate her or by the worry and anxiety associated with a persistent and pernicious fear that her location and the location of the children will be revealed to the father. 

65. In the circumstances, it is plain to me that the children have an imperative need to be protected from any continuing risk of harm the father presents, both in terms of physical harm and from the emotional harm that would, I am satisfied, flow from fear that the father may discover the family's whereabouts.  I accept the mother's submission that it is important not only to protect the mother and the children from any risk of physical harm that the father represents but also to ensure the emotional integrity of the household by ensuring that the mother and the children do not live in fear of their location being ascertained and exploited. 

66. As to whether there is a continuing risk of future harm, and if so the nature and extent of that risk, in my judgment the father is, and is likely to remain for an indeterminate period of time, a dangerous individual.  The nature and circumstances of the father's convictions and the nature of the sentence passed in relation to his most recent convictions are in my judgment ample evidence of the risk of physical harm he represents to the mother and to the children.  This is, on any estimation, a very exceptional case.

67. As his convictions evidence, the father set fire to the family home whilst the mother and the children were inside it, displaying a callous disregard for their safety and wellbeing.  Once imprisoned for this offence, and instead of seeking to recognise and address his offending behaviour, the father made further attempts, through the calculated use of third party intermediaries, to do harm to the mother and, by extension, to his children, resulting in an indeterminate life sentence being passed on him as recently as January 2015.  Once again, he expressed contempt for the potential consequences to the children of homelessness and physical injury and demonstrated that the children's welfare came a very poor second to his goal of harming the mother.

68. Within the context I have just described, and as evidenced by his convictions and sentence, I am satisfied that the consequences of the whereabouts of the mother and the children becoming known to the father would be grave and would result in real risk of significant harm to the children.  Whilst Mr Gilmore prays in aid the fact that the father is incarcerated as reducing the risk he presents, were the father to ascertain the whereabouts of the children and the mother I am satisfied that he would once again seek, albeit at arms length, to engage in conduct that would be entirely antithetic to their personal safety and emotional wellbeing.  

69. In the circumstances, and given the children's welfare needs as identified above, it is plain that it is in the children's best interests for the exercise of the father's parental responsibility to be proscribed by order of the court.  It is to the father's credit that he has recognised this and has agreed to the terms of such an order.  The question is whether it is in the children's best interests and proportionate for court to go further than the level of proscription already consented to by the father.

70. The courts evaluation of the welfare justification and proportionality of the additional prohibition sought by the mother in respect of the father is driven in this case by the welfare need to protect the children from the risk of harm presented by the father, the nature and extent of the risk of harm presented by the father and the need to ensure that the mother can parent without the fear of being located hanging over her. 

71. I accept the submission made on behalf of the father that, were I to accede to the father being provided by the school with reports as to the children's grades, certain steps could be taken with a view to seeking to ensure that the confidentiality of the children's location was maintained. 

72. However, the adequacy of such steps has to be evaluated carefully in the context of the nature and extent of the feared harm they are designed to address.  In this case that harm is very grave.  Given the gravity of the harm that would flow from the location of the mother and the children being disclosed to the father, the court must be satisfied that any measures to ensure confidentiality will be as failsafe as possible in nature.

73. Moreover, in the context of the level of fear that the possibility of the father locating the family generates in the mother, any steps taken to ensure that this does not happen must have the confidence of the person who they are designed to protect if they are to serve the ancillary purpose of protecting the emotional integrity of the family by reassuring the mother and the children that there is no possibility that their location will be accidentally disclosed.

74. The mother submits that the risk of allowing even the provision of anonymised grade data to the father is too great, carrying with it as it would the risk of the accidental disclosure of information that could be exploited by the father.  Further, she submits that in any event the ongoing fear of accidental disclosure through such a medium that would persist by virtue of an order for the provision of such information being in place would be sufficient to disrupt the emotional integrity of her and the children. 

75. I accept that there is an appreciable risk that the provision of information to the father from the children's schools will result in the inadvertent disclosure to the father. 

76. In my judgment that risk does not so much flow from the provision to the father of an anonymised document setting out the children's grades per se as it does from the arrangements that will be required to be put in place to ensure such provision.  One can readily contemplate a situation where an administrative assistant or a new member of staff yet to be briefed, seeing that document X is sent annually to the father, assumes that document Y should also be sent to him in circumstances where document Y is being sent to all parents.  Were document Y to contain information from which the father could begin to piece together the children's whereabouts the harm that would flow from such an accidental disclosure would be grave. In my judgment, implementing the proposal advanced by the father would materially increase the systemic risk of the accidental disclosure of the whereabouts of the mother and the children.

77. Based on the nature and circumstances of the offences for which the father has been convicted I am satisfied that the father would exploit any such mistake on the part of those providing him with information concerning the children to his own ends. Based on his convictions I accept the mother's submission that the father is, as a relentless and calculating individual who has recently sought through third parties to continue his campaign whilst incarcerated, likely to seek to exploit any opening available to him to project himself harmfully into lives of the mother and the children.

78. I also accept that it would not be in the children's best interests to put in place an arrangement that will, understandably and justifiably, result in the mother labouring under a persistent and pernicious fear that the location of hers and the children will be disclosed accidentally to the father with all that would flow from that.

79. Finally, whilst I am satisfied that an order is justified on the basis of the risk of harm set out herein I am further satisfied that the disclosure to the father of the children's anonymised grades would be of no welfare benefit to the children.  I have considered carefully the father's submission that such disclosure would permit him to, in a limited way, "to remain involved in the lives of the children" and would permit him a better bond with the children if and when he came to have contact with them in the future.  However, I am afraid that I cannot identity any welfare benefit to the children of anonymised academic information being provided to the father at this point in time. 

80. There is, for example, no evidence that the provision of such information would serve to promote a positive image of the father in the children's minds nor that it would serve as a conduit to the further development of contact.  Rather, having regard to the evidence of the Family Court Adviser and the evidence concerning the impact on the children of the father's offending behaviour, the evidence tends towards the contrary.  Further, even were it to be the case that limited welfare benefits flowed from the provision of academic information to the father, in my judgment such benefits would be significantly outweighed by the risks inherent in the provision of such information.

81. For these reasons, and in the exceptional circumstances of this case, I am satisfied that all possible steps must be taken to guard against the risk of the father becoming aware of the whereabouts of the mother and the children.  In the circumstances, and acknowledging that the father has taken of his own volition the step of submitting to significant restrictions on his parental responsibility, I grant in addition to the orders agreed by the parties an order prohibiting the disclosure to the father of any information from the children's school.

82. As to the duration of the prohibited steps order, under s 9(6) of the Children Act 1989, no court shall make an order under s 8 which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional. Given that it is, at present, not possible to identify when the risk presented by the father will have ameliorated sufficiently for the restrictions on the exercise of his parental responsibility to be relaxed, I am satisfied that in the exceptional circumstances of this case that the additional order I have made shall continue, as with the orders agreed by the parties, until that child reaches the age of 18.

83. I acknowledge that the order I have made will, when taken together with the orders agreed by the parties, result in a comprehensive proscription of the exercise of the father's parental responsibility for the duration of the minority of the children.  This constitutes a significant interference in the father's right to respect for family life under Art 8 of the Convention and also in the children's Art 8 right to respect for family life.  I am however satisfied within the context of the matters set out in this judgment that such interference is necessary having regard to the provisions of Art 8(2).  In my judgment, the order I have made is to proportionate to the risk to the children's welfare it is intended to address.

84. In ordinary circumstances it would be in the children's best interests for the father to be involved in their lives and to exercise his parental responsibility.  In particular, in ordinary circumstances it would be very important for the children to know their father was interested in their progress at school and for the father to have information with which he could engage with the children on that topic. This however, is not an ordinary case. 

85. By reason of his persistent desire to harm the mother the father has demonstrated himself incapable of discharging his parental responsibility to the sole end for which it was bequeathed to him, namely ensuring the welfare of his children.   To the contrary, the father has chosen to expose the children repeatedly to the risk of very serious physical and emotional harm. In these circumstances, I am satisfied that the need the children have for a father to be able to exercise his parental responsibility so as to remain involved in their lives must, in this exceptional case, give way to their need for continuing safety of the children and for the continuing safety of the mother who cares for them.


ORDER

86. In the circumstances, I make an order in the following terms, which terms encompass the order agreed by the parties and the additional prohibited steps order that I have granted for the reasons set out above:

The Court declares that     
1 The mother is henceforth under no obligation to inform or consult with the father in respect of the exercise of her parental responsibility in respect of the children.

The Court Orders that
2 The father is prohibited from taking any steps in the exercise of his parental responsibility in respect of each child until the said child reaches the age of 18 years. 

3 For the avoidance of doubt the prohibition in Paragraph 2 of this order shall include the following specific prohibitions:

a. The father is prohibited from requesting of any school attended by the children any information concerning the children, including but not limited to information concerning their academic performance or pastoral care whether pursuant to the Education (School Records) Regulations 1989 or otherwise;

b. The father is prohibited from removing the children from the care and control of their mother;

4 The father shall have no contact with the children of a direct or indirect nature.

5 The father shall pursuant to s 91 (14) of the Children Act 1989 be prohibited from making any applications in respect of the children without leave of the court. This order shall remain in force in respect of each child until the said child reaches the age of 18 years.

6 Any person or organisation served with this order or who has notice of it is prohibited from disclosing to the father any information about the children.

7 No person or organisation served with this order or who has notice of it shall be bound to comply with any attempt by the father to exercise his parental responsibility for the children. 

87. I am satisfied that, in terms of the orders agreed by the parties, I have jurisdiction under the inherent jurisdiction to order that any person or organisation served with the order, or who has notice of it is prohibited from disclosing to the father any information about the children and that any person or organisation served with this order or who has notice of it shall be bound to comply with any attempt by the father to exercise his parental responsibility for the children.

88. That is my judgment.