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Q v Q (No 3) [2016] EWFC 5

Final hearing concerning the father’s application for direct and indirect contact, and the mother’s applications for prohibited steps and section 91(14) orders.

In 2009, the father was arrested for and pleaded guilty to an offence of sexual activity with a child, namely his nephew. The father was sentenced to a community order. Following the mother's petition for divorce, the father applied for a contact order in 2010. Within the proceedings, leave was given for the father to obtain a risk assessment and a final hearing was listed for October 2012. This hearing did not go ahead, however, due to the father's arrest in August 2012 for sexual assault. This offence was committed within a month of the father's community order expiring and he again pleaded guilty.

Following his release from prison, the father had considerable issues in obtaining public funding. These issues took up a considerable amount of court time and the matter was ultimately transferred to be heard by the President. Two previous decisions concerning these issues were reported at Q v Q (Funding of Representation and Expert Attendance) [2014] EWFC 7 and Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31. Eventually, and with the assistance of the Public Law Project, the father obtained public funding.

The Decision

The President considered the evidence of a number of experts, including evidence from independent risk assessments, the father's probation officer and police records [paragraphs 14 – 27]. In summary, the evidence described the father as not accepting elements of the offences, as being unwilling to explore the reasons for the offences, and as having a tendency to blame the victim. It indicated that he was a medium risk of serious harm to children as a result of his inability to control his sexual impulses. It was unanimous in recommending that any contact with children would have to be professionally supervised and managed.

The President heard evidence from the father and found that his presentation matched that described in the expert evidence. The President was unable to make findings in relation to the mother's allegation that the father sent her a threatening letter, but accepted that her fear of the father was a genuine one. Ultimately, the President accepted the expert evidence and refused the father's application for a child arrangements order, finding that no practical or safe mechanism for contact had been identified. He rejected the father's proposals that the mother or the local authority supervise contact.

In relation to the other applications, the President refused to make orders in the terms of the subsisting undertakings, holding that the undertakings are equally as enforceable as injunctions. He also refused to make a section 91(14) order, holding that the father had not made repeated applications and had not shown the behaviour usually leading to such orders. The President did, however, remind the parties that the court has the power to summarily dismiss section 8 applications if they lack any merit.

Summary by Thomas Wilson, barrister, 1 Garden Court Family Law Chambers


Neutral Citation Number: [2016] EWFC 5
Case No: WJ10P00530


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 January 2016

Before :


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Q v Q (No 3)
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Ms Louise Potter (instructed by Greens Solicitors Ltd) for the applicant father
Ms Lucy Sprinz (instructed by Goodman Ray) for the respondent mother

Hearing dates: 29 October, 2 November 2014
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This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Sir James Munby, President of the Family Division :
1. I have given two previous judgments in this matter: Q v Q (Funding of Representation and Expert Attendance) [2014] EWFC 7, [2015] 1 FLR 318, on 21 May 2014, and Q v Q, Re B; Re C (Private Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324, on 6 August 2014. Both of those judgments were concerned with the difficulties the applicant father was having in obtaining public funding. Those difficulties were finally resolved on 27 July 2015, a little under a year after my second judgment, when the Legal Aid Agency granted the father's application for exceptional funding, accepting eventually that funding was required to avoid a breach of his Convention rights. This judgment follows the substantive hearing of the proceedings in October / November 2015.

The background

2. The background facts can be set out fairly shortly.

3. The proceedings relate to M, a child born in June 2007. His father and mother had married in August 2005. In February 2009 the father was arrested for sexual activity with a child – the victim was his own 12 year old nephew – contrary to section 9(1) of the Sexual Offences Act 2003. Almost immediately the parties separated. The father has had no contact with M since then. In June 2009 the father pleaded guilty at the Crown Court, admitting that he had pulled his nephew's trousers down and masturbated over him until he (the father) ejaculated. In August 2009 he was sentenced to a community order for three years with supervision. He had been in custody throughout since his arrest the previous February.

4. The mother petitioned for divorce in June 2010. The following month, the father applied for a contact order and an order for disclosure of M's whereabouts. In January 2011, a District Judge directed that the father could obtain a report from RWA Child Protection Services to assess the risk he might pose to his son. A few days later the mother applied for a residence order. The RWA report was prepared by Dennis Smith and is dated 28 March 2011. On 23 June 2011 the Cafcass officer, IK, reported.

5. In November 2011, the District Judge granted the parties permission to obtain a report from Jo Duncombe of RWA Child Protection Services, who was to advise on "the risks inherent to [either indirect or direct] contact and the matters which the court will have to determine if it is to take place." She met the mother but not the father. Her report is dated 3 February 2012. Shortly afterwards, another District Judge determined that a fact finding hearing in respect of the mother's allegations against the father of violence or abuse was not necessary. The final hearing was listed for October 2012.

6. Early in August 2012 the father's community rehabilitation order expired. Less than four weeks later he was arrested for an offence contrary to section 3 of the 2003 Act, the complainant on this occasion being a 16 year old youth. The final hearing was vacated. In October 2012 the father pleaded guilty and was sentenced to 24 weeks imprisonment, later reduced on appeal to 12 weeks. It is interesting to note that in a statement filed in these proceedings dated 28 September 2012, the father had indicated that he was pleading 'not guilty'.  

7. In February 2013 the mother applied for an order under section 91(14) of the Children Act 1989. In March 2013 a Deputy District Judge gave directions for a final hearing in October 2013. That hearing had to be vacated because of delays resulting from the suspension between April and August 2013 of the father's public funding. The Circuit Judge gave directions adjourning the final hearing until March 2014. Mr Smith's addendum report is dated 15 January 2014; Ms Duncombe's addendum report is dated 27 January 2014. The final hearing had to be adjourned again by the Circuit Judge, this time until May 2014, following the decision (upheld by the independent adjudicator) to withdraw the father's public funding. On 1 May 2014 the Circuit Judge transferred the case for hearing by me. It came before me on 21 May 2014: Q v Q (Funding of Representation and Expert Attendance) [2014] EWFC 7, [2015] 1 FLR 318. Subsequent events are summarised in the judgment I handed down on 6 August 2014: Q v Q, Re B; Re C (Private Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324.

8. The father was able to enlist the assistance of the Public Law Project in his attempt to obtain public funding. On 23 February 2015 I made an order re-fixing the final hearing for 10 August 2015. On 14 July 2015 I had to vacate that hearing because the issue of the father's public funding was still not resolved. The hearing was re-listed for 28 October 2015 with a time estimate of three days. As I have already mentioned, on 27 July 2015 the Legal Aid Agency granted public funding. At a final directions hearing on 9 October 2015, the father, by now represented by both solicitors and counsel, confirmed that he did not wish to cross-examine either Mr Smith or Ms Duncombe. I reduced the time estimate for the hearing to two days, starting on 29 October 2015.

The final hearing
9. At the final hearing the father was represented by Ms Louise Potter and the mother by Ms Lucy Sprinz. There were three live applications before me: the father's application for contact (supervised direct contact and indirect contact by way of cards and gifts) and the mother's applications for a prohibited steps order (to replace undertakings in the same terms which the father had given the court on 9 October 2015) and for a section 91(14) order. Ms Potter confirmed that the father was not pursuing his application for disclosure of M's whereabouts.

10. So far as material for present purposes, the father's written evidence was contained in statements dated 28 September 2012, 13 March 2103 and 5 October 2015. The mother's written evidence was in statements dated 18 October 2011, 6 March 2013 and 12 October 2015. There was also a statement from her older sister dated 13 October 2015.

11. In addition to the expert reports I have already referred to, I was shown reports of the father's probation officer, Ms Lisa Rackley, dated 12 July 2010 and 12 October 2011. I was also shown certain materials from police records referring to an incident in April 2009 when the mother's family received a threatening letter.

12. I heard oral evidence from the father and the mother, in each case through an interpreter. Ms Rackley, Mr Smith, Ms Duncombe and IK were not called, and no attempt was made to challenge their evidence. The mother's older sister was not called.

13. At the end of the hearing I reserved judgment.

The expert reports

14. It is convenient to start with the expert evidence, none of which was challenged. I begin with Ms Rackley, whose two reports have to be read together with information about the father recorded on the NOMS OASys Assessment system. On 16 December 2009, the OASys Assessment records this:

"Still denies huge elements of the offence and struggles to see things from others perspectives. He blames the offence on his partner and has also tried to victim blame as his nephew was naughty and had had sex education already."

On 30 March 2010 it records this:

"Prior to his incarceration I had commenced the one to one sex offending work. [He] presented as difficult to engage at times and he clearly minimises his offending. He would attempt to put barriers up in supervision to divert from the offence focused work being undertaken. Continues to demonstrate cognitive deficits and clear that he would benefit from work in relation to denial of his offending. Complete lack of victim empathy and clear inconsistencies when we broke his version of events down.

The circumstances of the current offence raise concerns about the defendant's thinking process which clearly reflects elements of distortion amongst other things. He states that he did not know the law of this country, suggesting what he did could have been acceptable elsewhere. Additionally, it was apparent from interview that there was a deficit relative to consequential thinking. Further, the issues surrounding his marital relationship is indicative of his poor problem solving skills and seeming inability to with regard to problem solving skills."

15. In her first report of 12 July 2010, Ms Rackley said this:

"In light of not being able to fully address his offending behaviour [he] is assessed as a medium risk of serious harm to children and his current risk assessment is as follows:

Who is at risk

(1)  Children

What is the nature of the risk

(1)  Offences of a sexual nature

When is the risk likely to be greatest

Consider the timescale and indicate whether risk is immediate or not. Consider the risks in custody as well as on release.

(1)  When sexually frustrated, [he] not in a relationship at present, therefore risk may be heightened. Through PSR stage arid initial interviews has suggested he masturbates frequently and was sexually frustrated around the time of the index offence. His claims he was "just very horny" on night of index offence are worrying, and statements that he had no sexual attraction to the victim, leading to the suggestion that he was just overcome and 'had' to masturbate even in the presence, of the victim. This is indicative of risk to future possible victims and is not currently showing a willingness to explore the reasons for the offence.

What circumstances are likely to increase risk
Describe factors, actions, events which might increase level of risk, now and in the future.

(1)  Unsupervised contact with children (own and/or others), continued minimisation and inability to acknowledge motivations behind offence

What factors are likely to reduce the risk

Describe factors, actions, and events which may reduce or contain the level of risk. What has previously stopped him/her?

Completion of offence-focussed work (will have to be one-to-one with interpreter), not having unsupervised contact with children."

16. In his first report of 28 March 2011, Mr Smith records the father's account of the offence:

""I decided to masturbate to the boy as I was so aroused. Couldn't stop myself. It was totally wrong. A child of that age should not have experienced that as it might affect him for the rest of his life".

[He] eventually accepted that he had taken the boy's clothes off, opened his own zip fly, placed his penis between the cheeks of his nephew's bottom and moved up and down on him until ejaculating onto his back."

He also records the father's explanation that "it was an accident."

17. Mr Smith's evaluation of the level of risk posed by the father and whether it could be managed included this:

"Many individuals experience sexual thoughts and feelings about children but are able to stay in control via the influence of internal inhibitors (their conscience) and the knowledge that what they are thinking is inappropriate and wholly wrong. It is the power of inhibitory control and effective protection that prevents abuse occurring. By his own admission, [he] was out of control when he sexually abused his 12 year old nephew having overcome both internal and external inhibitors.

[He] displays worrying personality characteristics associated with the child sexual offender. I consider him to be emotionally lonely; having little or no self esteem; poor self management / coping skills; poor intimacy / relationship skills; distorted thinking; sexual preoccupation / entitlement and portraying an external locus of control. Given his poor progress in Probation supervision to date, I would assess that, at best, the risk he poses to children (including his 3 year old son) is Medium whilst subject to Probation oversight. Once he completes his period of supervision the level of risk might increase should his circumstances deteriorate further; if he has failed to develop appropriate plans and strategies with which to prevent relapse to previous sexually abusive behaviour, and, he once again overcomes inhibitors.

As the behaviour of perpetrators who sexually abuse male children is known to be very addictive, the risk posed by [him] with regard to any contact with a child(ren) could only be managed within a professionally supervised setting."

18. The report of the Cafcass officer, IK, followed on 23 June 2011. Having referred to Ms Rackley's and Mr Smith's reports, he said "I do not support the introduction of contact."

19. On 10 October 2011, the OASys Assessment records this:

"Still demonstrates poor victim empathy, maintaining that victim … would not have been upset by offence, rather he would have thought it was continuation of play fighting. [He] finds material difficult due to his 'shame' and consequently difficulty in talking about offence. Have discussed with [him] that this is limiting his ability to engage"

20. In her second report of 12 October 2011, Ms Rackley said this:

"He acknowledges that at the time of the offence he was feeling sexually frustrated and was under stress due to problems in his marriage. However, he maintains that he fantasised about his wife during the offence, therefore minimising his behaviour due to maintaining he did not have any sexual thoughts in relation to his nephew. During this session [he] struggled to recognise the impact that this offence has had on his victim, as he stated that the victim would have thought the offence was part of a "play-fight'. Work has been done around perspective taking, but it is apparent that there is still significant work to be achieved around victim empathy.

… It remains "early-days" in relation to his progress in relation to addressing his sexual offending behaviour, however he is demonstrated improved motivation in this area. Consequently, at this stage of treatment he remains a medium risk of serious harm to children, the nature of which is sexual offending. Should [he] continue to improve his willingness to talk openly about his offending and complete the Sex Offender Treatment Workbook, he will be working towards reducing this level of harm."

21. In her first report of 3 February 2012, Ms Duncombe expressed her conclusions as follows:

"If a decision is made that direct contact should be allowed between [him] and his son, it is essential that such contact be professionally supervised as recommended by Mr Smith within his assessment of [him]. In the interests of the child, contact should take place within a  reasonable travelling distance of M's home. This would give [the father] an indication as to the area in which his estranged wife and children live and may open up the opportunity for [him] to discover the address of the family home thus placing [the mother], her daughter and son at risk from him.

With regard to indirect contact; if telephone contact is permitted between father and son, and due to the risk of him speaking inappropriately to M, any such telephone conversations would need to be monitored, via speaker phone. [The mother] maintains that fear of her estranged husband is such that having to monitor conversations between M and his father would cause her distress. There would also be the concern that M, not realising the need to prevent his father knowing where he lives, could be encouraged by [him] to reveal his address, or information which would assist [him] in identifying the area in which the family lives.

Contact via letter or card might be considered as a possibility. However, any such mail would need to be sent via an address other than [the mother's] and should also be monitored for inappropriate content. This is sometimes possible using the Local Authority as a medium, but, as my understanding is that the Local Authority do not have any involvement with this family, this is unlikely to be an option.

Taking into account the opinion passed by the Judge in respect of 'the effect (of any contact) on the primary carer' I would offer the view that any contact [he] has with M would have a deleterious effect on [the mother] and would thus have a negative impact on her ability to parent her son and daughter.

It was suggested to [her], ways in which she can talk to her son about his father when he reaches an age where he becomes curious. Discussion also ensued about the importance of M benefitting from positive role models within the family; [she] informed me that she and her family remain in close contact with other family members, particularly those living in the UK and that M has a good relationship with his uncles."

Her overall conclusion was that:

"Whilst a decision as to whether contact should be allowed between [him] and his son M is the province of the Judge in these proceedings, in my professional opinion, and taking into account all of the above, I would suggest that the tensions caused by contact at this time would not be in the best interests of the child."

22. That was all before the father committed the second offence.

23. In his second report of 15 January 2014, Mr Smith records the father describing the first offence as being "one stupid mistake." In relation to the second offence, Mr Smith made these comments:

"[His] arrest and re-conviction for a further sexually abusive offence against a child in 2012 within days of the completion of his Community Order represents continuing evidence of his inability to stay in control of his sexual feelings.

… not only did the 2012 sexually abusive offence take place within days of the completion of [his] 3 year Community Order but within weeks of the planned final hearing for contact with his son and whilst still subject to the Sex Offender Register. In this author's opinion such behaviour illustrates how [he] prioritises the strong and invasive sexual feelings and thoughts he has about children over and above other matters which he deems to be important to him, displaying loss of control and an inability to remain inhibited."

He went on to express the view that: 

"As past behaviour often predicts future behaviour, until [he] knows and understands how he makes his offending happen, he will never be in a position to draw up alternative plans and strategies with which to avoid further sexually abusive offences against children."

24. Asked to comment on the mother's view that his offending "targets minor male children and her fears that her son is most vulnerable due to the level of his special needs", Mr Smith said:

"The victims of the sexually abusive behaviour for which [he] has been convicted were both male children previously known to him and were minors. To this end, and from the information to hand, the author would concur with the victim profile suggested by [her]. Clearly her son's special educational needs and that he is a child known to [him] increases his vulnerability to being groomed and abused."

Asked about the level of risk posed by the father, Mr Smith said:

"[His] reconviction confirms the addictive pattern of behaviour mentioned [in] this author's report dated 28/3/11. This, together with the fact that he remains untreated, further increases the risk [he] presents to children in general and to his son in particular thereby militating against direct contact with his 6.5 year old son. [He] presents a real and present risk to male children in their minority.

Given this author's professional knowledge and experience and taking account of [his] unwillingness to share the sexual feelings and thoughts he has about children, indirect contact whether via telephone / letters / cards / photographs may also pose dangers to his son by feeding [his] sexual fantasies and imaginings of male children in their minority. This author is also aware of the anxieties and consternation indirect contact poses for [the mother]."

25. Mr Smith ended his report with this suggestion:

"In an attempt to be constructive this author suggests that [his] best way forward is to: (i) study the English language to a meaningful standard in order to improve his ability to communicate effectively then (ii) seek gainful employment once his command of the English language is sufficient enough (iii) Renew pursuit of a programme of appropriate intervention once he has accrued the means with which to fund this. Meanwhile [he] will be well advised to use the services of the Police Officer responsible for the Sex Offender Register and consult the 'Stop it Now' helpline when risky feelings and thoughts about children invade his functioning."

26. In her second report of 27 January 2014, Ms Duncombe said that she remained of the opinion that unsupervised contact between the father and M "cannot be considered at this stage." Elaborating, she said this:

"Should supervised contact be considered, as stated in my initial report, supervisors for such contact would necessarily need to have significant understanding of the way child abusers groom not only the child, but also other adults who might otherwise protect the child. Experience informs that in the majority of cases where the parent is a convicted child abuser, local authorities are extremely reluctant to accommodate contact for fear of placing other children at risk. Therefore, [he] would need to locate a private agency that would be willing to offer such a service. Again there may be restrictions due to his status as a convicted child abuser. [The mother] reports in her statement that [he] has not offered any suggestions as to how supervised contact may be managed.

Supervised contact would, for the benefit of M, need to be arranged in a locality which did not involve him in making long journeys, particularly as he is now attending school. This would therefore allow [the father] information of the locality in which his son and ex-wife currently reside, something [she] is at pains to prevent. Having been diagnosed recently as autistic, changes to his routine would be difficult for M to manage; therefore trying to establish contact may well have a detrimental effect on the child.

[The father] initially named family members who he considered appropriate to facilitate indirect contact, in the form of written communication, between himself and his son. [The mother] was not in agreement with the people named by [him] as she fears they will pass on information to him as to her whereabouts. Were telephone contact to be considered, it would be necessary for [his] calls to his son to be monitored which would necessitate [her] having to listen in to the calls. On the basis that she suffered physical, sexual and emotional abuse during her marriage to [him], this would be inappropriate and very possibly, extremely upsetting for her."

27. Her final conclusion was that:

"Considering all of the above, and taking into account the continuing risk posed by [him], it is unlikely that contact with his father would offer any positive benefit to M and I therefore stand by the conclusion I reached in my initial report that contact between [the father] and his son is not recommended."

The police records
28. Contemporaneous police records show that in April 2009 the mother's family received a hand-delivered letter saying "You will drop case, or we will kill your family …" The mother suspects that the father was behind this. He denies it, pointing out that he was at that time in custody. The mother, as recorded in an OASys Assessment, "moved to a location unknown to [the father] in an attempt to evade him. Clearly she feels threatened." Related to this – perhaps – is the evidence of the mother's sister who, in her statement dated 13 October 2015, recounts a conversation with an unnamed cousin in September 2015, who, according to the sister, told her that the mother's address "had been leaked" and that the father had told her (the cousin) that "he wanted to apply through the courts to get his son back and if he didn't get him back he would take him … if she [gave M back] he would get out of [the mother's] life and leave her alone." The father denies the cousin's account and maintains the position that he does not know the mother's current address.

29. It is not possible for me to make any findings in relation to these matters adverse to the father. The mother's fears and suspicions of his involvement in these incidents may be well-founded but that is as far as I can go. One thing which is clear, however, and I so find, is that the mother's fear of the father is genuine, whether or not it is well-founded.

The father's case

30. The father's evidence is rather thin. It amounts to little more than an asserted wish to pursue indirect and supervised contact with M. Recognising that it is a long time since he last saw M in 2009, he acknowledges that he needs to re-establish a relationship with him, by a combination of supervised contact and letters, cards and gifts to him on his birthdays and on religious occasions. He says that he loves and misses M very much and wants to be a father figure to him. He says he is willing to pay £15 per week in maintenance and, if the mother will not accept it, says that he will open an account and save the money for M (so far as I am aware he has not in fact done so). He points to the length of the proceedings as proof of his commitment. Referring to the reports of Mr Smith and Ms Duncombe, he says that he does not accept that he would be of any risk to M. He says that he is "extremely remorseful" about his two convictions. He says that he is genuine in wishing to address his criminal behaviour and "realise[s] that I must do this if I am to have unsupervised contact with M." He adds (this was in his statement dated 13 March 2013) that his attempts to try and access help and support have been unsuccessful and that his solicitor's attempts to enlist the assistance of CAFCASS and the probation service in facilitating contact were also unsuccessful. He says that he is effectively completely excluded from M's life.

31. The father's oral evidence added little positive to what he had said in his statements. He came over as self-pitying, unable really to accept and understand what he had done and the implications, and unconvincing in trying to explain why he had done so little either to seek appropriate help, or to address Mr Smith's suggestions, or, indeed, to attempt even the most basic indirect contact during any of the periods in the litigation when he was represented. He presented in court much as he had to Mr Smith (see paragraph 17 above) – "emotionally lonely; having little or no self esteem … [etc]." Astonishingly he persisted in implying that the mother was in part responsible for his criminal behaviour inasmuch as she was unable or unwilling to meet his sexual demands: "I cannot fully blame my wife for this: it was me that needed it more than she did." Despite his two convictions for abusing boys, he said that "I do not feel attracted to young boys" and explained that "if the need arises" he goes to a massage parlour. 

32. Ms Potter, on the father's behalf, rightly points to the fundamental right of a child to have a relationship with both parents. Being realistic, whilst recording that the father's "ideal case" is for supervised direct contact, she recognises that his stronger case is for some form of indirect contact. She points out that, except for the evidence of Mr Smith and Ms Duncombe, which she does not challenge except to suggest that in certain respects they strayed outside the ambit of their instructions and expertise (a complaint which I reject), all that is known about M or his current life and living arrangements comes from what little the mother has been prepared to share with us. Likewise, as she points out, we are completely dependent upon the mother's account of the likely impact on her and her family were there to be contact. What is clear, she says, and this, she submits, may expose M to future emotional harm, is that the mother has given M only very limited information about his father and not all of it, she suggests, entirely truthful. Without an order for contact of some kind, M, she says, will complete his childhood and experience adolescence without any sense of paternal identity. There are therefore, she submits, good grounds for ordering some indirect contact – cards and presents – as suggested by the father, whatever the mother's reaction to them may be. She suggests that the local authority – which has some residual involvement with the mother – can act as the intermediary.  

The mother's case

33. The mother's evidence unsurprisingly places much weight on the views of Mr Smith and Ms Duncombe. She is fearful of the father, both for M and on her own account, not least because of the potential for contact to lead to the father's discovering where they live. "I do not trust [him]. I believe that he will do everything in his power to gain access to his son and he will encourage family members to assist him … I am in terrible fear that [he] will persist in his determination to cause trouble for me and to see his son and will not stop to consider anyone else but himself." For that and other reasons she would oppose the use as intermediaries of any of the father's family or friends. She says that, because of the risk the father poses to M, any form of contact, even if supervised or monitored, would have to be subject to close involvement by a trained professional with specialist knowledge of the potential for 'grooming'. Her fears are only increased, she says, because of M's recent diagnosis of autism which, she believes, will make him particularly vulnerable to the risks posed by the father. She is candid in admitting that, given what has happened in the past, she would find even indirect contact very difficult to cope with. "How can I trust [him] when he said he would not commit a further offence and then he did. I can never trust him or forget that he has ruined my nephew's life." On the other hand she recognises, as was emphasised in her oral evidence, that M knows nothing of his father, beyond what little he may remember, and apart from having asked why his father does not live with them – ' because he fights with us' – does not ask about him and, she says, has not expressed any wish to see him. She knows that, as he grows older, M will become more curious, but said that she would not tell him anything about what had happened.

34. The mother's evidence and her stance were carefully probed in her oral evidence. She repeated her objections to and the reasons why she opposed any form of contact. The fact is, to adopt Ms Potter's words, that the mother has strongly negative feelings about the father, reflecting a visceral revulsion about what he did. Who can blame her for that?

35. Ms Sprinz submits that the risks to M of any form of contact are clear from the evidence of Mr Smith and Ms Duncombe. Given that there has been no effective challenge to their evidence or their conclusions, their reports, she says, represent an indisputable basis upon which the court can, indeed must, rely. In the light of their expert opinions, and having regard to the totality of the evidence, both expert and lay, the only order that meets M's needs is, she submits, one which precludes any form of contact.  


36. I start with the dispute in relation to contact. The principles are clear. They were recently and conveniently summarised in Re Q (A Child) [2015] EWCA Civ 991, paras 19-20. Plainly the order the mother seeks is most unusual; indeed, it lies at the very extremities of the court's powers. Almost always there should be some contact between child and parent. It will only be in a rare and exceptional case that the court will agree that there should be none. This, in my judgment, is such a case.

37. I accept the expert evidence of Ms Duncombe and Mr Smith. Specifically, I accept the expert evidence of Ms Duncombe (see paragraphs 21, 26-27 above) and Mr Smith (paragraph 24) as to the risks involved in either direct or indirect contact and as to the kind of professionally-assisted steps that would require to be taken to manage those risks. It is, in my judgment, wholly unrealistic to expect the mother to supervise contact – she would not be able to cope and in any event she lacks the necessary skills to do so – just as it would be wholly inappropriate for that task to be undertaken by any of the father's family or friends. In my judgment, any form of contact, direct or indirect, will require – now and well into the future – to be supervised or monitored by appropriately skilled professionals, alert to the kind of dangers that a convicted sex offender like the father may pose even to his own son.

38. At this point the father's application comes up against what is, at least at present, an insuperable obstacle. Apart from a passing reference to the local authority, which has no current locus in the proceedings, neither the father nor Ms Potter has been able to identify any practical and safe mechanism by which indirect contact could be facilitated or, more generally, any appropriate form of professional input that might be available to facilitate and monitor contact, whether indirect or direct. Indeed, that has been the reality throughout these proceedings. So far as concerns the local authority, I have little information about its current role, but there is nothing in anything I have read or heard to suggest a willingness on its part to embark upon any ongoing role in relation to even indirect contact. Indeed, it appears that whatever residual role it is currently playing is unlikely to extend much beyond the handing down of judgment.

39. In the circumstances the father's application for contact – more precisely now, of course, his application for a child arrangements order – must be dismissed. 

40. I turn to the mother's application for a prohibited steps order. Ms Sprinz has no complaint as to the ambit or language of the undertakings which the father gave on 9 October 2015. Her point is simply that the mother will be better protected, she says, if the undertakings are replaced by injunctions. Counsel are agreed that there is no power to attach a power of arrest to an order under section 8 of the 1989 Act, so the arguments have focused on two points: first, that the police may, it is suggested, be quicker and more willing to act if shown an order containing injunctions rather than an order containing undertakings; secondly, that it may be easier to obtain a 'port alert' if there is an injunction. Neither proposition, in my judgment, is convincing. I have helpfully been taken to paras 4.3 and 4.7(f)(ii) of FPR PD12F. Neither suggests the need for an injunctive order; quite the contrary.

41. The fact is, the law is, that an undertaking is enforceable in just the same way as an injunction. It is equally binding on the person to whom it attaches. And the court should not lend any credence to any suggestion to the contrary.

42. In my judgment the mother is appropriately, adequately and effectively protected by the existing undertakings. I decline to grant any injunction.

43. I turn finally to the application under section 91(14).

44. The starting point is the guidelines set out by Butler-Sloss LJ in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, 592-593. They are too familiar to need repetition. It is clear that an order can be made extending throughout the remainder of the child's minority: Re J (A Child) (Restriction on Applications) [2007] EWCA Civ 906, [2008] 1 FLR 369. I am prepared to assume, without deciding, that in an exceptional case an order can be made even in the absence of litigation misconduct: see Re J, para 15 (quoting para 64 of the judgment at first instance). However, the general principle is clear. As Wilson LJ said in Re A (Contact: Section 91(14)) [2009] EWCA Civ 1548, [2010] 2 FLR 151, para 16:

"the power to make such an order is … to be used with great care and sparingly and is … generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications."

45. That the proceedings have dragged on for such an unconscionably long time is due in part to the delay brought about by the father's second offence but more recently to the long drawn-out process of obtaining public funding. This is not a case of repeated applications. Nor does it display on the part of the father the kind of behaviour which, typically, founds a successful application for a section 91(14) order. The circumstances fall short of the kind of case which Wilson LJ had in mind in Re A and the case does not exhibit the unusual features which led to the making of an order unlimited in time in Re J. This, in my judgment, is simply not the kind of case in which it is appropriate to make such an order.

46. In coming to this conclusion I bear in mind the extensive case management powers the judge will have if the father makes any further application, as summarised in Re Q (A Child) [2015] EWCA Civ 991, paras 21-22. I have in mind, in particular, this passage:

"In an appropriate case [the judge] can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter."

In my judgment, that will give the mother – and M – adequate protection.

47. I shall therefore dismiss all the applications before me. The undertakings the father gave on 9 October 2016 will remain in place.