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E-R (Child Arrangements) [2016] EWHC 805 (Fam)

Judgment as to where a 6 year old girl should live following the death of her mother: whether with her father and his partner or with family friends of her mother, with whom she was currently living.

T was a 7 year old girl whose mother died of cancer a year ago. The issue in the case was with whom T should live: her father or family friends of her mother, Mr and Mrs H. Proceedings had commenced prior to the mother's death as the mother had made it clear that her wish was for Mr and Mrs H to care for T. HHJ Vincent decided, however, that upon the mother's death, T should live with her father. Mr and Mrs H appealed that decision and the appeal was allowed (Re E-R (A child) [2015] EWCA Civ 405). The Court of Appeal concluded that HHJ Vincent had erred in applying a 'presumption' of natural parent care, and had attached too great a significance to the biological ties of T to her father. The Court of Appeal directed a re-hearing, heard by Cobb J.

Cobb J ordered that T should live with Mr and Mrs H, and spend time with her father. In doing so, Cobb J was required to balance T's right to be raised within her own family, the benefit to T of continuity of care (she had been living with Mr and Mrs H for around two years), and T's ability to grieve properly and healthily from the loss of her mother. The psychological evidence was that T's ability to grieve was assisted by her living with Mr and Mrs H.

Cobb J considered the welfare checklist in s.1(3) Children Act 1989, noting that 'in some cases before the family court only one or two of these factors assume particular relevance or significance; in this particular case, each one of them is charged full with substance' [53]. The following factors pointed in favour of T living with Mr and Mrs H:

i. T wished to remain living with the Hs [54].

ii. T's physical, emotional and educational needs were being met in the care of the H's, and that she would benefit from continuity of school and activities [55].

iii. There was a risk that T would suffer psychological harm if she moved to live with her father, described by the expert psychiatrist as 'psychologically catastrophic' [55]. Emphasis was placed on T's attachment to the Hs:

'It is well-known that attachment is essential to the development of well-being and resilience; resilience is the ability to withstand and recover from adversity. Attachment to a significant person is critical to a child's ability to thrive; without attachment the child may fail to relate to others. As secure attachment will sustain the child in the face of adversity. While undoubtedly the father is T's biological parent, Mr and Mrs H are, or appear to have become, her psychological parents; this attachment to them paradoxically advances her capacity to attach to her father. T therefore benefits from two of the three ways in which parental relationships are achieved (i.e. [1] genetic/biological, [2] gestational and [3] psychological' [51].

The father was ordered to make a contribution to the Hs' legal costs, owing to unreasonable conduct in the course of the proceedings.

Summary by Eirwen Pierrot, barrister, Field Court Chambers
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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.

Case No: TR14P00461
Neutral Citation Number: [2016] EWHC 805 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/04/2016


Before :

THE HONOURABLE MR. JUSTICE COBB

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Re E-R (Child Arrangements)

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Clare Renton (instructed by Stephens & Scown) for Mrs. H
The father and his partner (Miss B) in person
Melanie Johnson (instructed by Walters & Barbary) for the child (T).

Hearing dates: 21-23 March 2016
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Judgment
The Honourable Mr. Justice Cobb :
1. T is six years old; she will be seven in July.  For the first five years of T's life, she lived with her mother.  T was barely two years old when her mother was diagnosed with terminal cancer.  A year ago, T's mother died.   

2. The question arises now as to where and with whom T should make her home; specifically, whether she should be raised by her father ("the father") and his partner ("Miss B"), or by family friends of her mother ("Mrs. H" and "Mr. H"), with whom she is currently living.  Each of them play a key role in T's life at present, and it is not in doubt that all of them adore and dote upon her; it is equally indisputable that T needs a primary home, stability, certainty and a high degree of nurture.  T has already suffered a shattering loss in her life; she cannot afford to suffer any more.  Unfortunately, the argument about T's future living arrangements have driven hurtful and deeply destructive divisions between those who care most about T; this has been unbearably apparent through this hearing.  I hope that with the delivery of this judgment, and a determination as to the way forward, those involved in T's life can start to heal their differences, and pull together in her interests. 

3. This judgment is delivered at the conclusion of the re-hearing of the cross-applications for Child Arrangements Orders.  At a previous final hearing in January 2015 (conducted at a time when, as it is now apparent, the mother was in the last few months of her life), His Honour Judge Vincent decided that upon the mother's death, T should move to live with her father.  Mr. and Mrs. H, supported by the mother, appealed that order.  The appeal was allowed (Re E-R (A child) [2015] EWCA Civ 405, [2016] 1 FLR 521), the Court of Appeal (Laws and King LJJ) concluding that the Judge had erred in applying a 'presumption' of natural parent care, and had attached too great a significance to the biological ties of T to her father.  The Court directed a re-hearing. 

4. Regrettably a year has now passed since that appeal.  In that intervening period:

i) T has continued to live with Mr. and Mrs. H at their home in Cornwall;

ii) T has spent time with her father and Miss B; she has stayed with them at a rented cottage in Cornwall (on many occasions) and at their home in Suffolk (on four occasions);

iii) By Order of Baker J. (22 April 2015) T was joined as a party to the proceedings and is now represented by a Children's Guardian;

iv) On the joint instruction of the parties a psychological report has been prepared by Dr. Anne Gough, Consultant Clinical Psychologist;

v) T has been able to spend time with maternal relatives, travelling to Alaska shortly before Christmas for the wedding of a maternal cousin, a trip which was opposed by the father, but authorised by Baker J on 9 December 2015.

5. Although Mrs. H had previously made an application for a Special Guardianship Order in August 2014, that application was dismissed by Judge Vincent, and is not pursued before me now. 

6. I have had the advantage of reading a voluminous bundle of written material; I heard oral evidence from Mr. and Mrs. H, from the father and Miss B, from PE (the mother's cousin), KE (the mother's sister), AF (a nurse and former carer of the mother), and from the Children's Guardian, Mr. Mike Coleman.  Mr. Coleman was in fact the second appointed Guardian in the case; the first appointed Guardian, Ms CG, was forced to withdraw part-way through the litigation for personal reasons.  No party required the attendance of Dr. Gough whose report is before the court.  The father appeared in person; he, with Miss B, conducted their case with considerable skill and dignity, particularly given their deep emotional investment in the outcome.


Background

7. T's parents met in 2007.  By that time, the father had another daughter ("I") who had been born in 2003, to a relationship which had foundered in 2006.   T was born in July 2009; the father's name was recorded on T's birth certificate, and he therefore has parental responsibility for T.   At the time of T's birth, the parents lived in Cornwall; the father's older child, I, continues to live in Cornwall with her mother, currently approximately 8 miles from Mr. and Mrs. H.  The parents separated in 2011, when T was only just two years old.   In the same year (2011), the mother was diagnosed with terminal breast cancer, and given only 18 months to live. 

8. The separation was acrimonious; a restraining order was made against the father on the 17 January 2012.  In March 2012 the father was fined for breach of that order. In November 2012 the relationship finally came to an end, and the father moved away to Suffolk, from where he originated.  He moved in with his new partner ("Miss B") and her two teenage sons, and they remain a family unit; the home in which they live belongs to Miss B.   The father and Miss B are engaged to be married; they both work full-time.

9. During 2012, the father had limited contact with T.  From September 2012 for over two years, he had no contact with her at all.  There is a dispute on the documents as to the precise cause of this hiatus in the father's relationship with his daughter; the father alleges that the mother placed obstacles in the way of his time, or indeed any communication, with T, but that evidence has not been tested and I am therefore unable to reach any firm conclusion.   Judge Vincent had observed (see [2015] EWCA Civ 405 at [6]):

"On any view [the father] was not proactive and his explanation of the difficulties in his way was not really adequate, viewing it from T's perspective. There was a sense however of resignation in him to [the mother's] negative view of him. One has to ask oneself just when he would have put his head above the parapet in T's life had [Mrs. H] not made her application. In all possibility that would have been when the mother had died which would have left him, at best as a dim memory in T's life".

10. In June 2014, the mother and T moved from their home to live with Mr. and Mrs. H, family friends with whom, in the previous three years or so, they had spent many weekends.   Mr. and Mrs. H are in their 50s; they have three adult children and one grandchild.  One of the adult children still lives in the family home with them.  Both work locally, though Mrs. H's work is part-time; she has nursing experience.  Under this arrangement, Mrs. H was able to care for both the mother and for T.

11. In August 2014, Mrs. H, encouraged by the mother, made an application for a Special Guardianship Order in relation to T; at that time, it was believed that the mother was imminently going to die.  On 30 August, the court made a Child Arrangements Order setting out interim living arrangements for T, and bestowing on Mrs. H parental responsibility for T (which she has held since that time, together with T's parents); that application was made without notice to the father, as the mother claimed (wrongly) not to know the father's address – a point on which the mother was fairly criticised by Judge Vincent.  The father soon countered with an application for a Child Arrangements Order. In November 2014, the mother, recognising that her health was deteriorating badly sought to appoint Mr. H and Mrs. H as Testamentary Guardians for T – an intention which, in law, she was not able to fulfil without the agreement also of the father (see s5(7) and (8) CA 1989).  King LJ observed ([2015] EWCA Civ 405 at [8]) that:

"It is hard to imagine how it must have been for this mother to have to face the knowledge that her death was inevitable and that she must leave her young child to be brought up by someone else."

At about the same time, T was re-introduced to her father; it was reported that initially she did not recognise him, and this caused some initial resistance to the meetings, but with gentle persistence, their relationship soon grew.

12. The final hearing of the applications took place over three days in January 2015.  The mother, father, Mr. H, Mrs. H and a number of supporting witnesses gave evidence.  As indicated above, Judge Vincent granted the father's application, to take effect on the mother's death; the mother, who exceeded her predicted life-expectancy, died on 5 April 2015.  In the following week, the Appellate Court set aside Judge Vincent's order, and directed this re-trial.

13. In the last 12 months, T has had regular contact with her father; some of this contact has taken place in Suffolk.  There is much evidence that T enjoys time with her father and Miss B; I have seen many photographs of T in the company of the father and paternal family which appear to confirm this.   Ms CG described the relationship between the father and T as "relaxed" with "reciprocal affection"; she described T as being "at ease" with Miss B.  T told Ms. CG that she enjoyed her time at her father's home in the summer of 2015.    The father and Miss B were observed to be patient, calm and gentle with T.  However, the discord between Mr. and Mrs. H on the one hand, and the father and Miss B on the other, has undoubtedly caused tensions which have been obvious to T and she has found the transitions from one household to the other extremely problematic; this has inevitably affected the overall success of the visits.  The tensions have almost certainly been the cause of stress-symptoms in T, including bed-wetting and stomach aches at the time of contacts.  On the last scheduled occasion of contact, T refused to leave the H's home at all; this provoked mutual accusations and recriminations. Mrs. H accused Miss B of being insensitive, Miss B and the father accused Mrs. H of sabotaging the time which they spend, and their relationship more generally, with T.   The upset was unwisely video-recorded by Mrs. H on her mobile phone.


T – The child

14. T is a bright, outwardly confident, and affectionate little girl.  Dr. Gough (see further §35 below) describes T as:

"… delightful, astute, witty and intelligent… There is evidence of personal strength and resilience that belies her young age… T readily identified a long list of skills - e.g. reading, writing, horse riding, building pretend houses, climbing the mulberry tree, catching chickens, making chicken noises and exploring. T told me that it was difficult to read really small words and quote "getting my pony to move"".

Dr. Gough describes T as having "a degree of self-confidence that is measured and appropriate", but her courageous external presentation disguises underlying psychological vulnerability, and persistent anxieties.

15. Her father gives me another valuable insight into her character, describing her in one of his recent statements thus:

"… she loves being outdoors, going on walks, learning about wildlife, going to the beach, seeing family and playing, riding, walking the dogs, drawing, doing art with us, collecting flowers or beach things for her scrapbook. She loves animals and all the normal things a little girl of her age."

16. T attends a small community school, local to the H's home, which has a strong ethos of pastoral care; she is described by the head-teacher as a popular pupil, with many friends.  Her school attendance is good, and she is always "immaculate, arrives on time and takes a full and active role in school even when times have been tricky".  She has an above-average reading age and is overall a mature child.  Dr. Gough is of the view that T has "benefited from the familiarity, structure, predictability and containment of her school environment. She has received timely emotional support, which in turn has increased her strength and resilience…School is a very important environment for T."

17. T has endured one of the most painful of childhood experiences, the death of a parent; this is self-evidently a significant psychological event with lifelong implications.  She is now working her way through the stages of childhood grief – acceptance of the death, experiencing the emotional pain of loss, adjustment to a world in which her mother is not there, and identifying ways to remember her mother and relocate her within her life in a different way.   From time to time, T has had emotional 'meltdowns' since the death of her mother, when she has screamed and shouted; initially these happened daily, but are much less frequent now.  T has received, and continues to receive, the benefit of support from a local child bereavement service; in October 2015, T attended a bereavement day organised by the local bereavement charity.  Mrs. H attended with her, but her father sadly missed it, having experienced transport difficulties in getting there.  T regularly attends the local family bereavement group sessions with Mrs. H, which offers her the opportunity to build friendships with other bereaved children.  At the H's home, the mother's former room has been decorated blue (her mother's favourite colour) which was chosen by T, and is now a playroom; T spends much time playing in the room, and also sleeps there from time to time when she wishes to feel close to her mother. Mrs H has made a memory trunk for T to store belongings which will help keep T's memories of her mother alive. On the day of the mother's funeral, at T's request, Mr. H fixed a swing into an old mulberry tree in the garden of the H's home; T enjoys swinging there.  T spoke of her mother with Dr. Gough in a spontaneous but thoughtful way; T described her mother as "everything; she was everything…. Everything except nasty and horrible".

18. T appears to have a clear and consistent view of the significant people in her life (see discussion of her wishes and feelings at §54 below); the father and Miss B are important to T, but not as important as Mr. H and Mrs. H, and the mother.   


Mr. and Mrs. H's case

19. As indicated above (§10) T has lived in the home of Mr. and Mrs. H since June 2014.  Their home and home-life is one with which T is now utterly familiar; the mother and T having lived there for the last ten months of the mother's life.  The home in which they live continues to have strong associations for T with her mother.  Mr. and Mrs. H have offered good quality care continuously to T.  They describe a warm and close relationship with T, which is confirmed by the professionals who have observed it, and indeed by T herself.

20. Mr. H told me that if the decision of the court were that T should move to Suffolk to live with her father, he and his wife would seriously consider uprooting themselves and moving to Suffolk too so that they could maintain a close and frequent relationship with T; this is a measure of the central place which T now occupies in their lives.

21. Mr. and Mrs. H have undertaken to promote the relationship between T and her father in the event that T continues to reside with them.  They had offered contact fortnightly during term time, and holidays in Suffolk; they have recently proposed that T should build up time with the father by having increasing numbers of days and nights in Cornwall with him; they propose Skype and telephone contact whenever requested by either.  They have proposed that KE plays a part in conveying T for contacts in Suffolk, and indicate that, from time to time as they travel to the South East, it would be possible for them to share the journey too.

22. I noted Judge Vincent's assessment that, in their earlier evidence in January 2015, Mr. and Mrs. H had shown patience and a lack of resentment towards the father.   I find, one year on, that their upset and deep frustration at dealing with the father's unfounded allegations against them (see below) has coloured their view of him.  Mrs. H's evidence revealed an increasing lack of patience; indeed I considered that she and her husband had become resentful of the unwelcome assaults on their characters.

23. The maternal grandfather supports T remaining with Mr. and Mrs. H, as does a cousin of the mother (PE), from whom I heard evidence.  The maternal grandfather has assisted the H's with their legal fees.


The father's case
24. The father loves T and asserts his right to care for T, as T's only surviving natural parent.  His case is that he and Miss B are able to offer appropriate physical and emotional care for T; notwithstanding the gap of two years in which he had no contact with T, he now believes that he has rebuilt his bond with her.  He acknowledges that in the past "there were occasions when I did little to advance my own cause" but essentially blames the mother for this, believing her to have been "abetted" by Mrs. H, in a "naïve and ill-conceived conspiracy to deprive me of my rights over my daughter".  He describes Mrs. H as:

"… a surrogate mother figure who for whatever motives is using her position as the only available quasi-parent in my daughter's life at this troubled time, to further exploit pre-existing tensions as a result of my daughter's biological parents' dysfunctional past…"

25. The father is cynical of Mr. and Mrs. H's motivation in pursuing a Child Arrangements Order in respect of T, believing that they are principally doing so for financial benefit.    The father, in this hearing, was as he had been at the earlier hearing and (it appears) in the Court of Appeal, "openly hostile" to Mr. and Mrs. H (see [2015] EWCA Civ 405 [15]), repeating the "numerous unsubstantiated and serious allegations" about them (ibid.); he explicitly alleges that T is at risk of emotional and physical abuse in the care of Mr. and Mrs. H, and that there is a "strong possibility" that Mrs. H has sexually abused T.   He is convinced that Mr. and Mrs. H have engaged in "subliminal brain-washing" of T (I interject here to mention that Dr. Gough identified no evidence of brain-washing or alienation).  He described Mrs. H in his correspondence with Mr. Coleman as "a highly manipulative and dishonest woman who will stop at nothing to control others"; he considers that T is "at risk" in the care of "this totally unsuitable couple".  When pressed on these allegations at this hearing, he was unable to support his contentions with solid (or indeed any real) evidence; he referred to his suspicion that T was allowed to go horse-riding without protective clothing, concerns about bruises, and to T sharing a bath with Mrs. H (which, I find, has not happened; I accept that T has on occasions got into Mrs. H's bathwater).  It is a source concern that the father appears to have little insight into the damage which these serious allegations have caused to Mr. and Mrs. H, and how undermining they are of their care of T. 

26. The father is dismissive of the professional assessments conducted for this hearing, considering them to be partial and biased against him; he refers to aspects of Dr. Gough's assessment as "uneducated drivel", "not fit for purpose" and 'slanderous'; an earlier application (February 2016) for Dr. Gough to be replaced as the jointly-instructed expert (and for an adjournment of the proceedings to facilitate the instruction of a substitute) was refused (Baker J: 12 February 2016).  Indeed, at the time of applying for the replacement of Dr. Gough, the father applied also for orders directing police and social services investigations into the lives, occupations and activities of Mr. and Mrs. H, their relationship with the mother, and the care she received while living with the Hs, and into the banking arrangements of the maternal grandfather; these applications were all refused (Baker J; 12 February 2016).   The father has made complaints to Cornwall Childrens' Services about the care of T at the hands of Mr. and Mrs. H; his allegations have not been shown to be valid on investigation.   He accused Mr. Coleman of "astounding incompetence", asserting that he had missed "many of the rather blatant warning signs that flag up child abuse" of T in the H's home, and further alleging that he had not been "bothered to do the legwork on this case to protect T from this abuse".

27. The father and his witnesses accuse Mr. H of alcoholism; they allude to some rather tenuous circumstantial evidence of the same.  Mr. H accepts that there has been previous alcohol misuse in his life but denies that this is current.  The most recent medical report on Mr. H dated 24 September 2014, contains the results of 2013 liver function tests of Mr. H (including the Aspartate aminotransferase (AST) test and the Alanine aminotransferase (ALT)); the tests were "completely normal".  The report does confirm that Mr. H has suffered bouts of depression over a number of years (about which Mr. H told me), and that he has an anxious personality.

28. The father, in his submission to the Court of Appeal, professed regret at his "intemperate and ill-considered behaviour on occasions", and "having lost sight of what was in [T]'s best interests", but his presentation before me displayed little of that contrition, or any more insight.  He remains bitter and openly hostile.

29. Both the father and Mr. H have previous convictions.  None of them raise a safeguarding issue.

30. Miss B presents as altogether a more thoughtful, insightful, person than the father; she has worked hard, in my view, to understand T's vulnerabilities, and displayed a high degree of empathy for T when she gave her oral evidence.   She plainly wants to do what is best for T.  She did not associate herself with all of the father's antagonistic views of the Hs, though has apparently had little impact on moderating them.

31. On an occasion when T visited her father's home in Suffolk in summer 2015, T was witness to an argument between the father and Miss B; she described this to Ms CG as a "fight" in which there had been a "lot of shouting", and that the father and one of Miss B's sons had "elbowed" each other.  Miss B confirmed to Dr. Gough that she had "shouted my head off", and admitted swearing.   Both the father and Miss B accept that an argument occurred, and although they denied that T had witnessed it (which I do not accept; I find that she did), they nonetheless accept that there was an atmosphere in the house afterwards, and that T had been unsettled by it.  It is apparent that at or about the same time, one of Miss B's sons had expressed his grievance over the disruption caused to the family by T's incursion into it, which T may well have heard.  This discord in the father's home affected T, and may have impacted adversely on T's growing attachment to her father and Miss B (see §41(iv) below).  T does not enjoy the long car journeys from Cornwall to Suffolk (it is 366 miles from door to door), and this undoubtedly aggravates her stomach aches and stress.

32. The father filed a statement from KE (the mother's sister) and called her to give evidence.  At the previous hearing in January 2015 KE had filed a statement and given evidence in support of Mr. and Mrs. H; at that earlier hearing, she had been highly critical of the father, referring inter alia to occasions when her sister had complained of his violence towards her.  KE had also reported conversations with I's mother, in which I's mother had described violence by the father towards herself and I (KE confirmed at this hearing that these conversations had indeed taken place, but I am not in a position to confirm whether these complaints were true).  KE had also described in her first statement (for the earlier hearing) how the father had caused her considerable distress by launching a "defamatory and slanderous" "internet attack on" her which "decimated my business and public standing" having hacked into her e-mail account (all of which she confirmed to me at this hearing was indeed true).  She had also referred in the first statement to an occasion when she had witnessed the father gravely upsetting T, having snatched her in the park and driven off with her, causing T "a great deal of psychological distress" (she confirmed at this hearing that "T was crying, I saw it".)  Her earlier statement had concluded with the following passage:

"… in conclusion I say that (the father) is a narcissistic psychopath and a danger to anyone who comes into contact with him and the very last person that should be left to care for a young child."

Judge Vincent, I note, had viewed KE's evidence with "caution", finding that she was personally prejudiced against the father. 

33. KE filed a second statement for this hearing.  It opens with the words: "I wish formally to cancel my last statement as more information has come to light".  As indicated in the paragraph above, although KE wished to "cancel" the previous statement, she confirmed at the hearing before me that significant factual material in the first statement was in fact true; interestingly many of the events referred to in the second statement which purport to cast the Hs in a bad light actually pre-date the signing of the first statement.   In the second statement she nonetheless refers to the father as someone whose behaviour was "very erratic" and who "frightened all of [the mother's] family".  She now says that Mrs. H (whom, it must be remembered, she previously supported) had seized an opportunity to prey upon "a frightened and vulnerable single mother" and had manipulated her "to her own advantage and latterly controlled her when she was too ill to make reasoned decisions."  KE's extraordinary change of stance was not easy to comprehend, and I was left wholly unpersuaded by her evidence; sadly I felt it was contaminated by the bitterness which the father expresses and startlingly exposes the division in the mother's own family.  I note that KE is contesting the mother's last will, even though by that will, the mother leaves all her estate in trust for T.

34. The father further relied on the evidence of one of the professional nurses (AF) who had assisted in the nursing of the mother for a period in 2014; AF had been dismissed by the mother in August 2014 for having allegedly breached confidences.  AF has had no contact with T since that time.  AF described a range of concerns about Mr. and Mrs. H, and made a number of serious allegations about their conduct, and their motivation for caring for T.   Her evidence was directly contradicted by another nurse, whose evidence had been filed by Mr. and Mrs. H (and who had given evidence at the first hearing).  AF made a number of surprising, highly tendentious and (in my view) inaccurate statements about T's situation.  She referred to the fact that T was being "denied" her father, which – given the father's extensive contact – is simply not true; she commented (in the context of describing their unsuitability to care for T) that Mr. and Mrs. H "have low incomes and unskilled low paid jobs", and asserted that if T remains in the care of Mr. and Mrs. H "she will be manipulated and down-trodden".  She referred to Mrs. H as "highly dangerous" without explaining the allegation, or supporting this with evidence.   I am extremely surprised that a professional trained nurse, considered it possible to express herself in such an immoderate way, in relation to matters which are outside of her professional expertise, and historic.  I strongly suspect that she and KE have connived together in the drafting of their evidence. 


Professional assessments

35. By letter dated 5 October 2015, the parties jointly instructed Dr. Anna Gough, Consultant Clinical Psychologist, to assess the following issues in the case:

i) The impact upon T of the loss of her mother; T's needs in relation to this loss in both the short and long-term;

ii) The nature of the attachment between T and Mr and Mrs H;

iii) The nature of the attachment between T and her father and Miss B;

iv) The nature of the attachment between T and I;

v) The impact upon T of severing any of those relationships;

vi) The impact of any changes upon T including residence, and school; how best to manage change and to mitigate the effects of change upon T;

vii) An assessment of T's psychological and emotional needs;

viii) Recommendations for intervention for T.

36. I have a detailed report from Dr. Gough, who has met with the protagonists, and has met T on a number of occasions in different contexts.  I note that Dr. Gough completed her doctoral research in the field of childhood bereavement.  Dr. Gough has also answered a number of written questions posed by the father. 

37. Dr. Gough is of the view that following the death of her mother, T has made the precarious transition to Mr. and Mrs. H as her "alternative primary attachment figures" at a time of unpredictability, chaos and pain in her life.  Dr. Gough considers that there is still a "fragility in this bond due to the time that has elapsed since [the mother's] death and repeated separations as a result of the current contact schedule."  She considers that T has not identified the father and Miss B as alternative primary attachment figures because of their "inconsistent availability… problems with emotional attunement, and exposure to conflict."  Dr. Gough recommends that T should remain living with Mr. and Mrs. H, expresses concern that "disruption in the aftermath of parental bereavement is linked to later psychological consequences", and concludes that a move to live with her father in Suffolk would be "extremely psychologically harmful to T"; she goes on to opine that T needs "stability and certainty in her life" in order "to continue her bereavement journey", and that contact with her father should be designed to "support" her placement with the Hs.

38. Dr. Gough prefaces these recommendations and opinions with an acknowledgement that biological family ties "form the base" of important relationships, but not the totality of the same; she emphasises the need for T to have permanence in her life, and uses the term "fictive kinship" to describe the nature of the relationship between T and the Hs; this term is often used to describe forms of kinship or social ties which are not blood-related nor achieved by marriage – i.e. kinship ties that are fictive, in the sense of being not-real.

39. She believes that T is working hard "to process her mother's death", benefiting from the experience of spending time in the playroom, and from the swing in the mulberry tree in the garden:  "I am not surprised" said Dr. Gough "that T has chosen this activity because rhythmic and repetitive movements are inherently soothing and regulating for children of all ages."  T continues to "invest time and energy to preserve her mother's memory and the bond with her. She is still taking care to ensure a continuing bond with her mother and relocate her in her life."  


40. Within the primary attachment relationship, Dr. Gough identified "a depth and intensity of emotion" in T's description of her relationship with Mr. H, even more so than when she discussed Mrs. H; T identifies in Mr. H a shared interest in "adventure" – T admires that he is "brave… strong … and fixes things".  There is some consensus among those who know the family that there is a special bond between T and Mr. H.  T completed with Dr. Gough an art-based exercise similar to the genogram completed with Ms. CG (see below); the results were comparable: Mr. and Mrs. H and her best school friend were identified as closest to her; the father, Miss B, I and I's mother in the next most significant category; the maternal grandfather, and KE in the third (i.e. people she likes but does not need to see often).  Dr. Gough considered that T's relationship with Mr. and Mrs. H was not "idealised" (which she opined would be psychologically unhealthy), and has been able to express anger and upset with them.  It has been observed to be an "extremely comfortable" relationship in which T feels able to go to either for support and comfort.  Dr. Gough considers that T has been able to identify Mr. and Mrs. H as alternative primary carers, for the following three main reasons:

i) They were already part of the trusted network of people around T at the time of her mother's death; they have been physically available for T and have been a trusted source of comfort for T during the darkest moments of her life;

ii) They were available for T before and after her mother's death; they appeared to be "sensitive and thoughtful" about T's experiences of bereavement, and demonstrated a willingness to understand and reflect on T's psychological needs; and

iii) They have put bereavement strategies into place – preparing the playroom for T, fixing the swing in the mulberry tree, and taking T to bereavement sessions.

There is, however, as I have mentioned above a degree of insecurity and vulnerability in T's attachment to the Hs given the relatively short time since her mother's death, and the re-appearance of her father in her life.

41. Although T has an undoubted bond with her father, and with Miss B, Dr. Gough does not believe that this amounts yet to an attachment.  T did not include her father and his partner in the 'Family Relations Test' 1 which she undertook with T on 4 November, an omission which Dr. Gough regarded as "surprising" and "significant"; in the art-based exercise conducted on the same day, T did not include her father and Miss B among those people who she would "like to see all the time", although her responses do indicate that they are nonetheless important to her.  When observed together, T appeared warm and affectionate to her father (Miss B made significant effort with T than her father) but appeared more anxious and unsettled in the company of her father and Miss B than she had done with the Hs or at school.  The lack of attachment in the relationship between T and her father is explicable in part, according to Dr. Gough, by:

i) The long gap of time (2 years) in which T did not see her father; whatever the reason for this, the father "is a relatively new person to T. Parental availability is the essential first step in forming an attachment bond";

ii) The father has not been consistently available to T since being reintroduced to her in November 2014; Dr Gough expresses surprise (and I share her surprise) that the father has not taken every opportunity to be with T over the last 12 months; the father has to make up for "lost time", but is not making sufficient effort to do so;

iii) The father has not taken opportunities to weave himself into T's life in other ways by interaction with T's school, or by calling T by telephone in the periods between his visits;

iv) Exposing T to conflict, between himself and Miss B, and with the Hs.

Dr. Gough also expresses concern that T's relationship with her father and her psychological well-being more generally will be damaged if T is made aware of the views held by the father and Miss B about the mother – to Dr. Gough they made "serious and significant allegations about the mother's mental health, aggression and her care of T"; they showed limited capacity to reflect on these comments, according to Dr. Gough, and were dismissive of the steps taken by Mrs. H to assist T to grieve.  Similar concern is expressed about T's exposure to the "scathing comments" of the father about Mr. and Mrs. H and their care of T.  The father raised as an issue Mr. and Mrs. H's lack of private education and perceived intelligence – he referred to them as T's "captors" and "predators".

42. Dr. Gough is of the view that I is important to T, although given their difference in age (approximately six years), and the disparity in their developmental stage, they have little in common. The relationship is currently assessed as "fragile" and "needs support to flourish".

43. As I say, Dr. Gough concludes that T should remain in the home of Mr. and Mrs. H.  She indicates:

"For T, she is in the early stages of renegotiating a relationship with her deceased mother.  In the event that T moves to Suffolk then she would lose the close proximity to her mother - e.g. the playroom, the mulberry tree… It is clear that [the playroom] is a source of comfort for her.  Moving to Suffolk will disrupt and impede T's efforts to preserve the memories of her mother and renegotiate the bond with her – a critical task of bereavement. There is clear evidence that T has identified Mr and Mrs H as alternative primary carers. Therefore any plan to move T away from them will be traumatic for her.  This child has already suffered the permanent loss of her mother.  It is my opinion that the cumulative psychological impact of a second attachment disruption would be psychologically catastrophic – I wish to assure the court that I rarely use this term and I have not done so lightly in this context. Separation from Mr and Mrs H will be incomprehensible for T in light of her experience of their care and nurture.  Indeed, I strongly suspect that T would be more able to understand the death of her mother because she knew that her mother was ill and not able to care for her." (Emphasis by underlining added).

She goes on:

"In the event of a change of residence I predict a swift decline in T's emotional state – heightened and unmanageable anxiety, temper tantrums, controlling behaviour and possible somatic signs of distress (e.g. bedwetting). It is my opinion that T would require at least 2 to 3 years to recover from the death of her mother and then separation from Mr and Mrs H.  This will mean that T enters the next significant psychological phase with additional relational vulnerabilities that will be reactivated in adolescence."

44. Dr. Gough has made recommendations about T's future and ongoing relationship with her father: proposing regular indirect contact during the school term, and visits with her father, in Cornwall, in the school holidays.  She has advised that these visits should be at a frequency which "does not disrupt the fragility of her bond with the primary carer".  She contemplates T visiting Suffolk once she is older and is "more secure in her relationship with Mr. and Mrs. H and also her father and Miss B, and once there is confidence that the home environment in Suffolk does not contain conflict that impacts on T".  She makes the important point that the most successful contacts are those made when there is a "natural weaving together of the lives of important people around a child".  She expresses pessimism that this can be achieved in this case; I would like to believe that the Hs and the father can – with this litigation behind them – work more collaboratively in T's best interests.  I interpolate here to say that I am convinced, from all that I have read and seen, that T needs her father, Miss B and I as part of her wider family.

45. T's court appointed Children's Guardian, Mr. Coleman, has prepared a detailed report.  He had planned to see T in the home of the father on 12 March, but this plan was thwarted by T's upset at leaving the Hs on the previous day.  He has nonetheless undertaken a full review of the case, and has recommended that T remains resident with the Hs.  He expresses himself thus:

"… to move T at this time would remove all the familiar support she has had since her mother's death.  Moving at this time could cause further bereavement for T in terms of losing Mr and Mrs H, a school and friends. The relationship between T, her father and Miss B needs to be progressed further and for life in Suffolk to become more familiar to T at a pace that prioritises her needs, wishes and feelings."

Adding:

"I agree with Dr Gough that T has an important relationship with her father and Miss B and that needs to be maintained as long as it does not undermine her relationship with Mr. and Mrs. H. I have observed that T's relationship is developing with her father and Miss B and I am hopeful that it will continue. If this progression is maintained I recommend that contact is increased so that T spends half the school holiday time with her father and Miss B. However she is clearly not ready to have contact in Suffolk at present and it may be some time before she is."

46. Mr. Coleman recommended monthly contact for the father and Miss B with T in Cornwall, to be increased ultimately to half the school holidays "at T's pace".  He recommended that Mrs. H should send a monthly newsletter to the father, together with all school reports and photographs.


Discussion

47. With the death of her mother in April 2015, T has suffered a devastating loss.  This traumatic childhood event renders her emotionally and psychologically intensely vulnerable, particularly to further loss and separation.  T is at an early stage of her bereavement journey; she is developing new thoughts and feelings about her deceased mother.  She is thinking through what this has meant for her and what this means in the future.  As Dr. Gough says (see §45 above) she is also still re-building her relationship with her father and Miss B.  

48. In this unusual case, there are many powerful and credible influences impacting upon the difficult decision which I am required to make, most significant among them being:

i) T's right to be raised within her own family (the "special contribution which natural parents can make to the emotional needs of their child": per Law Commission (1986)),

ii) The benefit to T of continuity of care, and

iii) T's ability to grieve properly and healthily the loss of her mother.

King LJ concluded (at [31] and [32]) that Judge Vincent had erred in law in elevating to a 'presumption' the first of these considerations, the unchallenged and indeed undoubted 'special contribution' of a biological parent to the upbringing of a child; as for the second, she considered the value to T of continuity of care, commenting thus ([2015] EWCA Civ 405 at [34]):

"For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances" (emphasis by underlining added).

49. Addressing the first and second of these considerations together King LJ observed (at [35]):

"… the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does … the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case" (emphasis by underlining added).

50. There is a further potent influence, that the mother sought to appoint Mr. and Mrs. H as the testamentary guardian for T, a point which King LJ dealt with in the following way (see [2015] EWCA Civ 405 at [38]):

"The fact that a dying parent has expressed by the appointment of a testamentary guardian, her strong desire that her child should live with a particular person following her death, does not generate a preferential position in favour of the proposed testamentary guardian; rather, the fact of the appointment is another significant matter which will be taken into account and given appropriate weight by a court when determining the best interests of the child" (emphasis by underlining added).

51. Dr. Gough has spoken of the benefit to T of having made alternative primary attachments to Mr. and Mrs. H in the last year.  Dr. Gough's emphasis on this growing attachment is significant; it is well-known that attachment is essential to the development of well-being and resilience; resilience is the ability to withstand and recover from adversity.  Attachment to a significant person is critical to a child's ability to thrive; without attachment the child may fail to relate to others.  A secure attachment will sustain the child in the face of adversity.   While undoubtedly the father is T's biological parent, Mr. and Mrs. H are, or appear to have become, her psychological parents; this attachment to them paradoxically advances her capacity to attach to her father.  T therefore benefits from two of the three ways in which parental relationships are achieved (i.e. [1] genetic/biological, [2] gestational and [3] psychological).  Of the genetic/biological, Baroness Hale said in Re G [2006] UKHL 43 at [33]:

"This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child … For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain".

Baroness Hale went on (at [35]) to say about social and psychological parenthood that it is:

"… the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

52. T therefore has the combination of that "special sense of love for and commitment to that child which will be of great benefit to the child" from her father together with the fulfilment of the "psychological needs for a parent" – someone to provide "for the child's needs, initially at the most basic level" from the Hs.   The father needs to adjust his thinking away from the claim of parental rights which have to be distinguished from parental relationships.  As the Supreme Court commented in Re B [2009] UKSC 5 at [33]:

"… re G had given the final quietus to the notion that parental rights have any part to play in the assessment of where the best interests of a child lay" (my emphasis by underlining).

This is a view which I have kept in mind in deciding the way forward here.  Lord Kerr in Re B went on to say:

"… in general, children tend to thrive when brought up by parents to whom they have been born. …  In the ordinary way one can expect that children will do best with their biological parents. But many disputes about residence and contact do not follow the ordinary way".

Adding at [37]:

"All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim."

This dispute, with its extraordinary characteristics, does not in my judgment follow 'the ordinary way'; this in itself ensures that the focus of attention has most firmly to be honed on what is best for T.

53. The checklist of factors set out in section 1(3) CA 1989 provides a valuable framework within which to consider specific welfare issues in the case.  In some cases before the family court only one or two of these factors assume particular relevance or significance; in this particular case, each one of them is charged full with substance, and (as encouraged by Baroness Hale in Re G at [40]), I have addressed each of them in turn so as to ensure that no particular feature of the case is given more weight than it should properly bear.  The death of a parent when aged only 5 years old represents in itself highly material 'age' and 'background' circumstances against which the other factors must be studied.

54. Ms CG validly observed that in view of her unusual and complex situation, and given her age, T may not fully be able to provide reliable wishes and feelings about her future; (Ms CG did not in the circumstances ask T the direct question).  With that qualification in mind, I am satisfied, from all that I have read and heard, that T wishes to remain living with the Hs.  Mr. Coleman has elicited this view from T directly as has Dr. Gough; Ms CG, his predecessor in the role, had completed a genogram with T in September 2015, which gives wider insight into her ascertainable views about the important people in her life.  She placed the mother, Mr. H and Mrs. H in the closest positions to herself, with various family pets (including 'Mikey' a deceased dog) in the section of the diagram immediately beyond; her mulberry tree is given a place on the genogram.  At a further distance away is the father (somewhere beyond 'friends'); T did not wish to include Miss B's sons.  I take account when viewing this document that to some extent T may well be reflecting her current situation.  But this possibility is not entirely supported by the fact that she has included her mother and Mikey, both deceased, in the scheme.

55. T's physical, emotional and educational needs are being well met in the care of the Hs; T benefits from the routines of her life, of her schooling, and of her activities (ballet, brownies, horse-riding etc.) which she has enjoyed in the care of the Hs continuously since before the death of her mother.  I have no doubt that suitable recreations would be available in Suffolk as indeed would be a suitable school, but T's current school has played a successful and vital role in cradling her through recent dark times, supporting the essentially uninterrupted progress of her education.   T has profound emotional needs; for understanding, empathy, freedom from conflict and loss, security, and love.  A change in her current arrangements would be dramatic for her;  Dr. Gough has spoken (see §43 above) about the prospect of a "swift decline in T's emotional state – heightened and unmanageable anxiety, temper tantrums, controlling behaviour and possible somatic signs of distress" in the event of a move.  Dr. Gough refers to the "psychologically catastrophic" consequences of a second attachment disruption; I accept that she does not make such predictions lightly.  Dr. Gough was clear that "the risks involved in a transfer of residence are too far-reaching to contemplate for this child and her young age and at this stage of the bereavement journey."  These are powerfully expressed opinions which I should be slow to reject.

56. T is at risk of psychological harm from a second attachment disruption (see above); she is at additional risk of psychological harm by exposure to conflict – either between the Hs and the father, or within the father's home (between the father and Miss B) or in the father's view of the mother.  Her adjustment to life without her mother is at an early and fragile stage; any adverse impact on her recovery from this devastation would be likely to cause her harm which I fear may be irremediable.

57. And so I turn to the capability of the protagonists to meet T's special needs.  Each have their qualities and their faults.  

58. The father has shown himself to be an affectionate, relaxed and loving father with T; photographs of them together reveal this.  He has charm, a sense of humour, and I believe a capacity to love.  He has much to offer T.  However, Dr. Gough described in the father what I myself observed to be a "striking lack of self-reflection"; the father verges on the belligerent in his assertion of his rights, and has shown limited ability to respond to professional re-assurance, encouragement and advice about the H's situation and their care of T.  He has made repeated ill-considered and serious allegations against Mr. and Mrs. H and the professionals without any discernible consideration for the consequences.  I share Dr. Gough's explicit concerns that the father and Miss B are not well attuned to T's specific psychological needs, and I worry that the father has now done irreparable harm to his relationship with her current carers, Mr and Mrs H. 

59. For all his qualities, I found the father to be a somewhat insensitive man, and emotionally rather disconnected from the difficult issues engaged here; he repeatedly yawned through his evidence, and emitted an air of expectation that his paternal rights would be respected by the immediate transfer of T to his care.  Dr. Gough was concerned that he had not gone 'the extra distance' in re-establishing his relationship with T, and I share that concern.  He has not attended all of the contacts available; he has not contacted T's school; he told me that, having promised to sponsor T when she undertook a sponsored run following her mother's death, notably for a cancer charity, he "totally forgot" to pay the sponsorship money (the Hs paid the money for him); he recognised that this "looks bad" but did not appear to relate this to how T may have felt at being let down.     He has made no maintenance payment to the mother or Mrs. H, and did not make the trip to Cornwall in July 2015 for the visit which was closest to T's birthday (he said he had to work); he sent her no card or present, nor did he telephone her on the day.  T desperately needs to know that she is held in mind by those who care for her; the father's behaviours caused me to doubt his ability to do this.

60. I reject the father's case that the Hs have physically, emotionally or sexually abused T, and am equally satisfied that they are not motivated by financial gain in offering to care for T; T's inheritance is placed in trust until she is 25.  Indeed, on the contrary, Mr. and Mrs. H financially support T in every respect, without any assistance from the father.

61. The father accused T of "lying" about aspects of life in the care of the Hs; this was a harsh judgment of T, and failed to acknowledge the probability that she may simply not be able to share with her father news of the life she leads with the Hs.  I find that, recognising the tense relationship between the Hs and the father, T has learned to compartmentalise the different aspects of her life, finding it difficult to talk about one in the home of the other.

62. I found Miss B to be altogether a more emotionally intelligent and insightful person; she has been conscientious, I find, in trying to support T over the last year, and integrate her into family life which she has with the father and her teenage sons.  She is a conciliator; she also has the potential to be a moderating influence on the father, though is not altogether effective in restraining his lack of judgment; she spoke with insight, and compassion for T.  At times she has tried too hard in relation to T (a view formed by Dr. Gough) and comes across as overwhelming; I don't hold that against her.  She is in a difficult situation.

63. Mrs. H is a caring, warm, engaging, loving and kindly woman, who has plainly nurtured T admirably for nearly two years – for the last year as a substitute mother.   T has benefited greatly from continuity of care by Mrs. H and her home environment throughout the dreadful period of her mother's final months, and for the year since her mother's death.  As Dr. Gough's report makes clear, and I accept, family environment plays a significant role in the emotional and psychological development of the child.  It seemed to me that Mrs. H has been worn down by the litigation and particularly by the barrage of assaults on her character issued by the father; this has, sadly, had the effect of hardening her attitude towards him, and towards the current situation in which she finds herself.  My assessment is that she has become somewhat dogmatic, and I suspect rather inflexible, in her views; she projects a sense that she knows best, and may not readily brook alternative opinions (particularly if they belong to the father and Miss B).  She needs to keep this in check.  Relationships between the Hs and the father need to improve for T's sake.  Mrs. H needs to play her part in that by going out of her way to recognise their importance in T's life.   Mr. H was a straightforward man; he plainly is devoted to T and had, I thought, surprised himself how fond he has become of her.  He described, with a glint of amusement, how she had brought out the "inner child" in him.

64. In reaching a conclusion in T's best interests, I have conscientiously weighed the issues discussed above, and brought into the reckoning my judicial assessment of the key individuals.  I have been careful to give 'significant' weight to the matters described in §48-50 above, and have been particularly struck by Dr. Gough's warning that a move of T now would be likely to have dire "psychological consequences" for T.  In all the circumstances, I have reached the clear conclusion that T's interests will be best served by her remaining in the care of Mr. and Mrs. H; I propose to make a Child Arrangements Order that T live and make her primary home with them.  

65. That said, the father and Miss B must play a full part in T's life and childhood; their close involvement in her life is absolutely fundamental to her psychological well-being. I propose to make a further Child Arrangements Order which provides that unless otherwise agreed between the parties:

i) T shall spend one weekend in every three with the father and Miss B in Cornwall, except when Mr. and Mrs. H are themselves away on holiday with T;

ii) In the summer holidays in 2016 and 2017, T shall additionally spend two periods with the father and Miss B – one of seven days, one of five days; 

iii) In the Christmas holidays 2016 and 2017, T shall spend one week with the father and Miss B;

iv) In half-terms (including the forthcoming Whitsun half-term) this should be a long weekend of no less than three nights;

v) These holiday periods in 2016 shall be in Cornwall unless everyone agrees that T wishes to, and is ready, to travel to Suffolk; I should add that I consider it important that T re-establishes and then maintains first-hand experience of the father's home and returns as soon as she is ready; at least one of the holiday periods in the summer 2017 should be in Suffolk;  thereafter the holidays should be in Cornwall or Suffolk at the father's choosing;

vi) Unless otherwise agreed, the father and the Hs should share the journeys between Cornwall and Suffolk, undertaking half of the journey each, meeting at an agreed location (probably somewhere near Reading). 

vii) By 2018, the pattern of holiday visits with the father should include a week's stay also at Easter;

viii) The father should be encouraged to send things to T so as to reinforce for her that she is in mind; special things can be stored in her memory trunk; Mrs. H should be sure to copy the father into any important school, medical or other like communication concerning T, and send photographs where appropriate.

66. I do not feel able to prescribe any further visits, but wish to record my hope (if not expectation) that over time T should spend one-half of each holidays with the father and Miss B, once T is able to manage this.  There is to be flexible and liberal Skype and telephone communication between T and her father and Miss B.

67. It is important that T has regular contact with I; I expect, indeed require, Mr. and Mrs. H to facilitate and promote this; I expect that the father will wish to promote this too on his visits to Cornwall.


Conclusion

68. The mother would, I am sure, be horrified if she knew that the legacy of her parting had been to thrust T into the centre of a 20-month legal battle over her future.  Deep divisions have been caused between the Hs and the natural family; even within the mother's own family there is schism – the maternal grandfather and maternal cousin supporting the Hs, while the mother's sister supports T's father. Judge Vincent referred to the "outpouring of vitriol and prejudice" which the proceedings had generated in January 2015; I regret that this has continued, and sadly T has not been successfully shielded from it.

69. At a time when everyone should have been helping T with her grief and with her adjustments, they have been pulling in opposite directions.   The time has long since come for these parties to put aside their grievances and bitterness.   They all owe it to T to do so.  If they do not, then they will cause irreparable harm to T, a young person who has already had more than her fair share of distress in her short life. 

70. That is my judgment.


And later, following the Judgment
71. At the conclusion of the judgment, two applications were made:

i) Miss Renton, on behalf of Mr. and Mrs. H, made an application to the Court for an order that the father make a contribution to her client's costs;

ii) The father made an application for permission to appeal. 

I deal with these applications in the paragraphs which follow.


Application for costs
72. Miss Renton contended that the father should make a contribution to the costs of Mr. and Mrs. H; she asserted (though I saw no schedule or bill of costs) that the H's costs since the appeal hearing exceeded £70,000.  She limited her claim to a contribution of no more than £25,000.  She presented her case as follows:

i) In the last year the father had made unsuccessful interlocutory applications (or had unsuccessfully opposed interlocutory applications) on at least four occasions; the three most notable were:

a) The father opposed T attending the bereavement day at the local bereavement charity (see §17 above) as it would interfere with his contact schedule;

b) The father opposed the H's application (December 2015) for T to make the trip to Alaska for her maternal cousin's wedding; six informal requests for his permission were made over a period of time before he stated his formal opposition (he did not respond to four of the requests); his opposition was based on (i) "the threat of military action by terrorists both in the UK and the United States" (30.11.15), (ii) the risk that she would not be returned, and (iii) that there has been no written confirmation of the wedding; having signalled his opposition, the father did not then attend the hearing, claiming "work commitments" (he is self-employed); 

c) He made two unsuccessful applications to substitute an alternative expert (December 2015 and February 2016) in place of Dr. Gough, and other applications for disclosure; he did not attend the hearing on 12 February 2016 on account of "work commitments"; he did not make an application in the proper form for a substitute expert (under Part 25 FPR 2010).

ii) The father had significantly increased the overall costs of the litigation "unreasonably" and "reprehensibly" by:

a) Introducing at a late stage the evidence of KE and AF, whose evidence I had rejected (see §32-34 above), but Mrs. H had been put to the expense of responding to their evidence;

b) Not merely disputing the evidence of Dr. Gough and Mr. Coleman, but launching a full-scale assault on their integrity and professionalism, which approach had increased the temperature of the case, not to mention the written evidence;

iii) The father had refused to contribute his one-third share of the costs of Dr. Gough;

iv) The father had funds available to him following the sale of a property in Cornwall; he had made no contribution to the maintenance of T.

73. The father opposed the application for costs; he stated that:

i) He was entitled to have taken the stance he did on the interlocutory applications;

ii) He remained convinced that he was correct in his assessment of the professional witnesses, a point which he proposed to revive on appeal;

iii) He had limited funds with which to make any payment of costs.

74. Section 51(1) of the Senior Courts Act 1981 provides that, subject to rules of court, costs shall be in the discretion of the court.  In family cases, the relevant rule governing the award of costs is Rule 28.1 of the Family Procedure Rules 2010 ('FPR 2010') which provides that:

"The court may at any time make such order as to costs as it thinks just".

75. Rule 28.2 of the FPR 2010 imports aspects of the CPR 1998 to costs in family proceedings, including of Rule 44 (though disapplying Rule 44.3(2), which provides that the unsuccessful party will be ordered to pay the costs of the successful party) and Rule 48.2, which deals with the court's approach to making costs orders against non-parties under Section 51 of the Senior Courts Act 1981.  Of the rules which are relevant to this issue I have noted specifically rule 44.3(4)/(5) of the FPR 2010 which read as follows:

"(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

(a) the conduct of all the parties;
(b) …
(c) …

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim."

76. The over-arching principle under which the litigation is conducted is contained in Rule 1.2 FPR 2010, which requires the court to give effect to the overriding objective, which is defined in Rule 1.1, including "dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues", and "saving expense".

77. The principles under which the court exercises discretion on costs in cases of this kind are to be found in a number of authorities including notably London Borough of Sutton v Davis (Costs)(No.2) [1994] 2 FLR 569 and Re T (Children: Care Proceedings: Serious Allegations Not Proved) [2012] UKSC 36 ) [2013] 1 FLR 133.  From these rules and authorities, I extract the following core principles:

i) I have a wide discretion in relation to the award of costs;

ii) Costs do not ordinarily follow the event in family proceedings, as they do in other forms of civil proceedings;

iii) "Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them." (Wilson J – as he then was – in LB Sutton v Davis (No.2) at 1319); see also Re S [2015] UKSC 20 at §23 ("it is important for the parties to be able to work together in the interests of the children both during and after the proceedings.  Children's lives do not stand still… stigmatising one party as the loser and adding to that the burden of having to pay the other party's costs is likely to jeopardise the chances of their co-operating in the future." (ibid.));

iv) It can generally be assumed that all parties to the case are motivated by concern for the child's welfare (Re S [2015] UKSC 20 at §22)

v) An award of costs in family proceedings may be justified if it is demonstrated that the conduct of the party (before aswell as during the proceedings and/or in the manner in which a case has been pursued or defended) has been "reprehensible or unreasonable" (Re T); "unreasonableness" is a consideration in awarding costs which can be usefully traced back at the very least to R v R (Costs: Child Case) [1997] 2 FLR 95;

vi) Orders for costs between the parties may diminish the funds available to meet the needs of the family – see Gojkovic v Gojkovic [1992] Fam 40, at 57.  Not making an order for costs may have the same effect.

78. I am satisfied that no element of any award of costs should reflect the fact that the Hs have broadly succeeded in this litigation, whereas the father has not.   I am further concerned not to jeopardise the chances of the father and the Hs co-operating in the future.   I must examine whether the father's conduct either in general, or in specific respects, could be classified as 'unreasonable' or 'reprehensible'.  Generally, I have concluded that the father cannot be regarded as having acted unreasonably in seeking to persuade me that T should reside with him; after all, as he pointed out, Judge Vincent considered that T should make her main home with him.  Moreover, I am satisfied that he earnestly wishes the best for his daughter and sincerely believes that he is the best person to raise her.  As her biological father, he had a respectable case, and I do not question that.

79. However, in pursuing his objective, I consider that the father has in some respects in this litigation behaved unreasonably.  I do not believe, for instance, that the father was properly considering T's best interests when he opposed the Alaska trip; whatever his beliefs about the safety or the wisdom of the travel, it was not reasonable for him to fail to engage with the H's legitimate requests for his response; his failure to reply to four e-mail requests seeking his permission, only then to raise what I believe to be largely spurious points of objection, was unreasonable.  His cavalier attitude to resolving the issue added to the cost; his unreasonableness was truly exposed when he chose then not to attend the hearing which was set up before Baker J. specifically to determine the issue.  The father's renewed application to replace Dr. Gough as the appointed jointly instructed expert in February 2016 was in my view doomed to failure, and the father was unreasonable in pursuing this along with many other applications were summarily dismissed (again, without his participation in the hearing).  The father's opposition to T attending the bereavement day in October 2015 organised by the local bereavement charity was wholly equally misguided.  I am satisfied, from what I have heard, that the Hs have incurred not insignificant costs of preparing for these individual hearings.  The costs of these hearings (for which I was provided with schedules) amounts to a little under £10,000.  I propose to round up the costs award to a total of £10,000 to include the additional costs (unquantified) incurred by the Hs in their responding to the evidence of KE and AF, which I rejected in its totality. 

80. In the circumstances, I consider that the father should make a contribution to the cost of the Hs in the sum of £10,000.


Application for permission to appeal

81. The father has applied for permission to appeal.  He did not feel able to articulate specific grounds of appeal, without the chance to analyse the written judgment. 

82. I am satisfied that I have faithfully applied the relevant principles of law, and applied them to the facts, having regard also to my assessment of the parties, and being guided by the clearest of expert evidence.  Any appeal, in my judgment, does not enjoy a realistic prospect of success.

83. I therefore refuse him permission; he can of course renew that application before the Court of Appeal. 

1 The Family Relations Test: Children's Version (FRTC) provides a quick and objective indication of the direction and intensity of the feelings and emotions (both positive and negative) that a child has towards each member of their family, as well as the child's estimate of their reciprocal regard for them.