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Re E-R (Child Arrangements)(No.2) [2017] EWHC 2382 (Fam)[1765]

Application for the variation of a child arrangements order by the “psychological” parents of a child.

The matter concerned T, a child aged eight, whose mother died in 2015. In April 2016, the court made a child arrangements order whereby T lived with her mother's friends, Mr and Mrs H, and spent time with her father and his partner, Ms B. The father and Ms B subsequently breached the child arrangements order, including failing to attend contact, failing to engage in phone contact, and removing the child from the area in which she was living, and Mrs H applied to vary the order. The father sought for T to be placed in his full-time care, though did not make a formal application; however, he did make an application a for a warning notice to be attached to the original child arrangements order, arguing that Mrs H did not abide by the contents therein.

After rehearsing some of the background history of the matter and the previous judgment in the 2016 proceedings, Mr Justice Cobb gave an update of events since the last hearing. In particular, he outlined the father's mental health difficulties, the father and Ms B's consistent hostility towards Mr and Mrs H, their breaches of the order, and their continuing lack of insight into their behaviours, both past and present. Their actions were such that Mrs H considered – and the Judge accepted – that T was more damaged now than she had been when her mother died. Indeed, T herself sought for contact to be reduced to two days per month.

His Lordship raised concerns that whilst proposing that T lived with them, the father and Ms B had given no thought or planning as to T's education, their finances, the impact on the household of the move, or the impact of such a move on T. In light of these factors, combined with the father's mental health issues, inappropriate behaviours, and lack of insight, the Judge held that it would not be in T's best interests to change her residence. He varied the order and reduced contact in line with the recommendations of the Guardian and the wishes and feelings of T. Whilst acknowledging T's love for her father and the importance of their genetic tie, the Judge emphasised that Mr and Mrs H had become T's psychological parents – "the adults who have cared for her, and who have nurtured her through an impossibly difficult time following the sad death of her mother" [54].

Likewise, the court refused the father's application for a warning notice to be attached to the previous order. In the first instance, there was already a warning notice attached so the application was otiose. However, Cobb J took the opportunity to make a number of final comments about the father and Ms B, namely that: it was the father who had principally, if not in fact exclusively, been responsible for the failure of the child arrangements, not Mrs. H; he rejected Ms B's assertions about the basis for the current application; and his concern that the father would not commit to visit T even monthly going forward.

Finally, Mrs H requested that the proceedings remain live and there be a review in 10 months time. This was opposed by the father and the Guardian. The court held that it would not be in T's best interests to prolong the proceedings, and instead proposed that Mrs H and the father engage in family therapeutic work.

Summary by Bianca Jackson, barrister, Coram Chambers

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[2017] EWHC 2382 (Fam)

Case No: FD16P00555
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/09/2017

Before :

THE HONOURABLE MR. JUSTICE COBB
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Re E-R (Child Arrangements)(No.2)

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Clare Renton (instructed by Everys) for the Applicant, Mrs H
The father and Miss B (his partner) in person on 31/8 and 1/9,
assisted by Mr. Shahriar Mazandi as their McKenzie Friend.
(The father did not attend for judgment on 11/9)
Mary Hughes (instructed by Walters & Barbury) for the child (T)

Hearing dates: 31 August & 1 September 2017
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Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


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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.


The Honourable Mr Justice Cobb:

Introduction
1. T is 8 years old.  She lives with Mr. and Mrs. H, who are family friends of her deceased mother.  Her mother died in 2015.  She has, and has had over the years, a disrupted relationship with her father whom she indisputably loves.  She performs well at school, and is generally healthy. 

2. I settled the arrangements for T's future upbringing, following a contested hearing in April 2016; my reasoning is set out in a judgment which I delivered at that time (see Re E-R (Child Arrangements) [2016] EWHC 805 (Fam) (8 April 2016)).  That judgment was reflected by an order of the same date. 

3. The child arrangements carefully laid out in April 2016 were sadly largely ignored, and indeed very soon breached, by the father and Miss B; I discuss this below.  In the circumstances, in late-September 2016 Mrs. H felt compelled to issue a fresh application seeking the court's further directions, specifically seeking further definition of the time which T was to spend with her father and with Miss B.   Over the months since that time, I have given directions in the case generally; I suspended the earlier child arrangements order and re-worked the child arrangements on a temporary basis.  I re-joined T to the litigation by her Children's Guardian, and have permitted the filing of evidence.

4. Within the last three weeks, the father has made it known (through his last witness statement, not by application) that once again he seeks for T to be placed in his full-time care; he confirmed this position at the outset of the hearing.  This is an about-turn of the position which he and Miss B took in December 2016 and February 2017 when they expressly deposed in their written materials to the court to the fact that they "accept that her main carer is now [Mrs. H] and her main home is in Cornwall."  It was notable that, in his closing submissions, the father made no further reference to seeking a change of T's main residence, which perhaps reflects his realistic appraisal of the prospects of my ordering the same.  However, I deal with the deemed application below. 

5. Alternatively, he has made an application for an order attaching a warning notice (under section 11I Children Act 1989) to the original Child Arrangements Order so that he can enforce contact as against Mrs. H; in fact, the order I made in April 2016 explicitly carried the automatic warning notice, as has been customary for child arrangement orders for many years.

6. The interim child arrangements orders have reflected as well as I have been able (on the information available) what I assessed to be in the best interests of T in the changed situation, since the case was last before me.  I have now heard oral evidence from the protagonists once again (Mrs. H, the father, Miss B and the Children's Guardian); I have read the significant file of documents.  This judgment explains my reasoning.

7. To set the relevant context for my review of the recent developments, I record that under the previous Child Arrangements Order, T was to have her home with Mrs. H and Mr. H, and was to see her father

i) One weekend in every three (this would take place in Cornwall; he lives in Suffolk);

ii) For two staying periods in the summer holidays 2016 (for 7 days and separately for 5 days);

iii) For one week in the Christmas holidays 2016 and 2017; T was to spend Christmas 2016 with Mrs. H if Mrs. H so elected;

iv) For three nights in each half term;

v) For one week at Easter 2018 and thereafter.

There was specific provision for Mrs. H to arrange for T to meet up with I (her half-sister). 

8. There followed this important provision in the order:

"Holiday periods in 2016 shall be in Cornwall (unless everyone agrees that T wishes to, and is ready to, travel to Suffolk the home of the father and Miss B);

At least one of the holiday periods in the summer 2017 shall be in Suffolk;
Thereafter the holidays shall be in Cornwall or Suffolk at the father's choosing.

Save in the case of emergencies, arrangements of dates, times will be made at least 30 days in advance.

There shall be indirect contact by telephone or Skype no less than twice weekly on Wednesday and Sunday at 6.p.m. The father and Ms B will otherwise have reasonable indirect contact with T by phone or Skype." (emphasis by italics added).

I had also indicated in my judgement, although this did not translate into the formal order:

"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."

The April 2016 judgment
9. For a complete understanding of the issues in the case, and the arrangements for T both historical and prospective, this judgment should be read with the earlier (April 2016) judgment.  I specifically wish to draw attention to the following:

i) It appears that my hope that the arguments about T's future living would abate following the hearing was ill-founded; the "hurtful and deeply destructive divisions between those who care most about T" have intensified; there has been no healing of the parties' differences (see §2);

ii) The background history, which is important for an understanding of context – see §7-§13;

iii) In particular, it should be noted that "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." (§13);

iv) I gave an earlier pen-picture description of T (§14-18); I supplement this below;

v) I described T's place in the care of Mr. and Mrs. H (§19-§23), esp. at §19:

"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";

vi) I set out in full, and accurately, the father's case; specifically, his reliance on Article 8 ECHR: §24-34; I invite note, in particular, of his overt criticisms of Mr. and Mrs. H at §25, and his dismissal of professional assessment of him (§26), including that of Dr. Gough and the Children's Guardian (who he described as a man of "astounding incompetence" §26).  It is worthy of note that I commented that Miss B had had "little impact on moderating" the views of the father about Mr. and Mrs. H (§30); at that time I formed a generally positive view of her: see §30 and §62;

vii) I set out the professional assessments at §35-46; I invite attention specifically to the unchallenged views of Dr. Gough:

vii.a) "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" (§37)

vii.b) "Dr. Gough considers that T has been able to identify Mr. and Mrs. H as alternative primary carers, for the following three main reasons:

vii.b.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; 

vii.b.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

vii.b.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.

vii.c) "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' 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." (§41)

vii.d) Note the sections extracted and reproduced from Dr. Gough's report at (§43), in particular the 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…. 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)."

vii.e) Dr. Gough was clear that all initial contact should be in Cornwall, and that T should visit Suffolk only "once she is older" and more secure in the relationship with Mr. and Mrs. H (§44).

viii) The discussion section (§47-67) is important; this includes my assessment of the father as someone who in April 2016 displayed:

"… 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," (§58);

I further described the father as a "somewhat insensitive man" and "emotionally rather disconnected" (§59);

ix) And my final comments are appropriately revisited now: at §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".

Events since the last hearing
10. I had made provision in my last order for the father and Miss B to spend extensive weekend and holiday time with T in Cornwall: see §7 above.

11. In the four months immediately following the final hearing (i.e. April – July 2016), the father and Miss B cancelled more than half (i.e. four of their seven) of their scheduled weekend visits with T.  There is no question but that Mrs. H had properly prepared T for the visits, and was ready to facilitate them.

12. In July 2016, it now transpires (though this was not known at the time) that the father attempted suicide; it was described as "quite a serious"1 attempt.  He blames Mrs. H for this.  Other evidence (reference the reports of the Children's Guardian) indicates that it followed a "split" from Miss B.  Dr. Hausmeister (the father's treating clinician) describes it as having been "a cry for help in a way of trying to adjust himself into a new situation" but is non-specific as to the circumstances. Miss B describes how following the final hearing the father "went downhill" (emotionally) with some "very bad periods of depression"; he became "quite reclusive and shut off from the family".   Miss B filed a position statement for a hearing in December 2016 in which she acknowledged a fact which is all too apparent, namely that "[the father] has had real difficulties coming to terms with the final order."  She spoke too of their "extremely serious" financial issues.

13. In August 2016, the father drove alone to Cornwall to collect T for his week's holiday with her.  Prior to his arrival in Cornwall he had texted Mrs. H with his proposed plans; he told her that he would be camping with T. In view of my order, no one would have supposed that this would be otherwise than in Cornwall.  In specific breach of the Child Arrangements Order (see above), the father drove T straight back to his home in Suffolk where they spent the week.  The camping story was a blatant lie; I find that at the time he sent the text he had no intention of camping with T in Cornwall.  On their return, in front of T, the father told Mrs. H that they had been on a camping trip.  More seriously still, he encouraged T (as I find) to lie to Mrs. H about where she had been for the week.  

14. The father and Miss B describe the week in Suffolk as successful.   Their positive description of their activities fails to take any account of the stress which, I find, T was feeling (as she later described) at being so far from home and Mrs. H.

15. Later that month, Miss B and the father reported Mrs. H to social services; they alleged that Mrs. H had given T sleeping tablets (which T had allegedly reported to them during the week's holiday).  This was investigated by social services; the enquiry concluded that there was no safeguarding issue.  I return to this later.

16. The father declined to take up the second period of holiday contact in the summer, which (given the deception over the earlier holiday, which Mrs. H had by now discovered had taken place in Suffolk) Mrs. H had proposed should take place over five sequential day visits, in Cornwall. 

17. The father had contact with T in September, but then cancelled contact in early-October.  Later that month, at the handover of T for the half-term visit (extended stay), I (the father's older daughter) was present.  It is common ground that I was extremely abusive to Mrs. H, shouting and "screamed rude words" at her (even on Miss B's account).  The father returned T a half day early from this contact, and with an injured foot (I have seen the photographs) without explanation.  A subsequent NHS report (Mrs. H having taken her to the hospital) refers to "bony tenderness" to the midfoot area, and described it as a "sprained ankle".

18. The father again cancelled contact with T in November (on two days' notice) as he said that the house in which they generally stayed in Cornwall was not available. 

19. The father did not attend for the contact on 3-4 December 2016, but Miss B did attend and T spent the weekend with her in Cornwall.  This appears not to have been a successful visit; T was upset when Miss B arrived to collect her.  T was taken by Miss B and KE to her deceased's mother's former home.  T was, it appears, distressed by this.  T alleged that that KE had hit her across her back.  Much later in time, T alleged that she had been locked in an attic there for 16 hours.  Mrs. H believed T.  Miss B and KE vehemently deny that they locked T in an attic or that either of them assaulted T.  This was reported to the police; social care took no action as the matter is already before the court.

20. On 9 December, the school wrote to the father and Miss B; the school advised that T "has been a little less settled than usual and rather tearful. She has been talking about her mum more…"

21. The case was listed before me on 12 December 2016 for directions.  The father did not attend the hearing; he was said to be "too unwell to attend".  A letter from his GP at that time referred to the father suffering from "an adjustment reaction manifested with depressive symptoms and a catastrophic reaction of attempted suicide."  Miss B apologised to the court for the "very serious breach of the order" (in relation to the August Suffolk trip) "… nothing excuses a flagrant breach of the Order".   I suspended the earlier Child Arrangements Order, and imposed a new set of arrangements.

22. On 28 December 2016, Miss B attended at Mrs. H's home to see T for contact, as contemplated by my order; in accordance with the agreed arrangements, the father did not attend.  T was very distressed and reluctant to leave Mrs. H's home to spend the day with Miss B.  The situation over handover worsened with the adults, in the home together, becoming stressed with each other.  There is evidence of angry exchanges, and cross-allegations of animosity and intimidation.    Mrs. H described the day as an "absolute disaster".   T's distress deepened; she became violently opposed to attending for contact.  Miss B openly blamed Mrs. H for T's reluctance to leave the home with her (as I find), and has subsequently deposed to Mrs. H "blocking" the contact.  T later told Mrs. H that Miss B was being "unkind" about Mrs. H and "us".  Miss B's adult son attended with her at one point contrary to the express wishes of Mrs. H (that Miss B should attend alone); Mrs. H felt that Miss B's son was hostile and menacing.

23. In December 2016, an anonymous referral was made to the NSPCC alleging that Mr. and Mrs. H were sexual abusers.  Social care took no action.

24. The case was listed for further directions on 16 February 2017.  I directed further contact between T and the father to take place once per month for two periods (consecutive days) for 4 hours provided that the father co-operated with an assessment from the Guardian;

25. Contact was offered at Easter 2017, but the father had still not been assessed by the Children's Guardian so could not take it up; he maintained that both of their cars had failed their MOTs and had therefore not been able to get to Cornwall for the meeting. 

26. The father was assessed by the Children's Guardian in June, and saw T again on 30 June, in the company of the Children's Guardian.  This was the first time the father and T had seen each other since late-October 2016. It was a broadly positive visit. The Guardian described the visit as "good", and "beneficial".  The father has had contact with T on three further weekends since that time.  It is agreed that in July Mrs. H offered the father an extended visit to make the most of the good weather; the father disputes the extent of the additional time offered (I prefer Mrs. H's account), but in any event, he declined it. 

27. T's own review of her contact with her father has been mixed.  T later told the Guardian that she had enjoyed much of the contact with her father, particularly when they went to the beach; she has enjoyed child-focused activities.  She does not like having her photograph taken (this is not altogether unusual for a child of her age, but I wonder if the father overdoes the pictures) and she had not enjoyed shopping for a birthday present for Miss B.    Overall, while there are niggles, the feedback has been positive, so I find.

28. On T's birthday, the father's card to T bore Miss B's name; T was upset by this and tore up the card.

29. As earlier mentioned, in the nine months from April to December 2016, the father missed many of the contacts.  This may, in truth, have had more to do with the father's poor state of mental health than he is prepared to admit to the court or perhaps to himself.  He offered various implausible and frankly unworthy reasons for cancelling contact (bad back, a "bad cough and cold", financially inability, or a broken-down car) which have unsurprisingly not impressed Mrs. H.  The father has not attended the hearing at which this judgment is being delivered; Mrs. B has explained (though there is no medical support) that he has a 'bad back' today.

30. Furthermore, the father sent no letter or card or present to T in 2016 for her birthday; for Christmas, he sent a card and five balloons.  There was nothing at Easter 2017.  Notwithstanding my exhortation to the father to write to and communicate with T by sending her mementoes for her memory trunk, so that she knows he is thinking of her, he has not done so.  He tells me that he did not trust that any communication sent in the post would actually be received by T.

31. The father was, as is clear from [7] (above), permitted to telephone or Skype T twice per week on a Wednesday and a Sunday.  There is no dispute that the father has not telephoned or Skyped T in accordance with the terms of this order.  He did not phone for six weeks after the order; thereafter he phoned (on his own case) only a handful of times during the nine months of 2016. On one occasion in May, he concluded the call by saying to T "don't get shut in any attics"; this shows crass insensitivity, which inevitably impacted on T.

32. In early 2017, the father and Miss B set up a 'crowdfunding' web-page seeking financial contributions towards their legal fees.  In their 'pitch' they incorrectly complained that Mrs. H "is now trying to completely stop us seeking [T] entirely" (sic).  They go on to explain the outcome of the April 2016 hearing thus: "we have lost, as the courts don't listen to Litigants in Person".  On 28 January 2017, they tweeted news of their attendance in my court at the directions hearing on 16 December 2016, and asked for public support in "fighting him (I assume me) again".  I am wholly satisfied that the father and Miss B have been given every latitude as litigants in person throughout the proceedings over which I have presided, and their unrepresented status has had no bearing on the outcome of the case in April 2016, as it will have no bearing now.  I regret that this is an example (there are others) of them shifting personal responsibility for their distress at their situation onto others.

33. In June 2017, T made two very beautiful Father's Day cards; they contained adoring messages.  T gave these to the father at their visit in June.

34. In the last 18 months, Mrs. H has facilitated contact between T and her paternal grandfather and paternal aunts (the father's sisters).

T – an updated portrait
35. As earlier indicated, there is a pen-portrait of T in my earlier judgment at §14-18. 

36. In evidence filed for this round of the litigation, the Guardian has met again with T and describes her as an "articulate, intelligent and thoughtful girl who simply wants to see her father whom she clearly loves."  T's recent school report reflects a child who is "bright and hard working" with the "potential to achieve a high level academically".  Reassuringly, it confirms that she has "grown in confidence over the year"; she is a "popular member of the class, and a good friend to others".  It is said that "she always likes to chat about home and extended family". The headmistress describes the report as "fantastic".

37. I have commented at some length in my earlier judgment about the profound effect on T of the death of her mother; that we are 18 months on from those comments, and that T is 18 months older, does not dilute their meaning.   Indeed, the Guardian reports some important and worrying reflections from Mrs. H:

"T is more damaged now than when we lost [her mother].  She's very emotional, needs constant reassurance that we are not going to leave her. Constantly hanging off me, touches me, holds my arm. I had managed to get her dropped off at the school gate and walk in but I have had to wait 45 minutes to leave the classroom."

The Guardian is of the view that T is now experiencing significant anxiety issues in relation to contact, having lost trust in the father and Miss B.

The parties' respective positions
38. Inevitably the almost immediate failure of the arrangements for T to see the father have been frustrating to Mrs. H, as much as they have undoubtedly been frustrating and distressing to T.  Mrs. H makes the interesting observation that "T struggles with her loyalty to a man who is her father but who behaves towards her and around her in a way she doesn't understand or like."  It seems to me that this is probably a fair assessment.  Mrs. H, understandably in my judgment, felt deceived by the father in relation to the August 2016 holiday, when the father took T to Suffolk in breach of my order, and not in accordance with his stated plan.  She has received unwelcome messages and correspondence from the father and Miss B, and continues to feel beleaguered by unwelcome threats and abuse from them.  I recognise this.  She complains that the father and Miss B have contacted the work-places of herself and her husband with malicious e-mails, though I am not in a position to make any adjudication or finding in relation to this. 

39. Mrs H feels that she has gone out of her way to accommodate the father and Miss B's proposals for changes to the contact, even when these have interfered with her own diary and social life.  She has indeed done so, I find.   She has been justifiably exasperated by the father's multiple failures to comply with the contact as ordered.  Her final statement contains the following:

"If [the father] was genuinely interested in T and her welfare he would keep his promises to visit, he would keep his promises to purchase her gifts, he would stay in contact with the school.  None of these things involve contact with us. Instead, the whole time and effort is being used to continue to vent their anger at us, the Court and the professionals involved…"

40. Mrs. H has co-operated with the assessment of the Children's Guardian, and accepts his recommendation for the arrangements going forward.

41. The father and Miss B again make common cause in this round of the litigation.  They consider that my decision to leave T in the care of Mr. and Mrs. H in April 2016 was a "travesty of justice" (an oft-repeated phrase to describe the outcome of the April 2016 hearing), and they repeatedly complain that their Article 8 ECHR rights have been violated. 

42. They invite me to dismiss Mrs. H's application for a change in the child arrangements as an "abuse of process" and ask me to order Mrs. H to "desist from unwarranted litigation"; "to order [Mrs. H] not to breach orders of the Court by impeding contact …". 

43. The father makes complaint that Mrs. H is denying him all contact: "it is our belief that [Mrs. H] wishes to prevent us from seeing T entirely".  He and Miss B allege that Mrs. H is "acting in an uncaring and unsympathetic and damaging way in front of T".  They describe this as an "intractable hostility case", and claim that T is being "alienated" from the father and Miss B.  In early July 2017, the father and Miss B sent purported letters before action to Mrs. H's solicitor; in those letters they refer to Mrs. H's current application as "hopeless", and my previous decision as a result of "legal error".  They indicate an intention to appeal "the original order".

44. The father and Miss B specifically asked to address me part-way through the hearing; I agreed. They indicated that they wished to make an 'opening statement'.  This was delivered by Miss B.  In this statement, they repeated warnings (expressed elsewhere in the documents, and in the letters before action) that Mrs. H "may wish to consider the consequences of an action against her"; they further warn the Children's Guardian of the implications for his professional standing by being added to the "action".  They advise that they are considering the "civil and criminal liability" of the professional parties, and speak of Mrs. H being imprisoned for her role in this litigation which they describe as "this charade".  They indicate a clear intention to appeal this decision (though they did not of course know what the decision would be).  In a purported gesture to settle the case they openly propose that:

i) T moves to live with them immediately,

ii) I should write a judgment, or re-write the April 2016 judgment, declaring the precedence of "biological kin" over adoptive or fictive parents,

iii) That previous costs orders against the father be discharged (he has still not satisfied these orders);

iv) Mrs. H makes a "full apology" for "the hurt and anxiety she has caused so many of us". 

45. The father and Miss B are concerned about possible abuse of T's inheritance, and suspect that Mrs. H and her husband are caring for T only for prospective financial gain.   The father continues to make no financial contribution to T's upbringing.

Guardian's position
46. The Children's Guardian, Mr. Michael Coleman, has prepared three further short reports for this round of the litigation.  He records T's view that she wishes to see her father once per month, for two consecutive days and no overnights.  T was "very clear" that she did not want contact with Miss B, or with her maternal aunt (KE2) at this stage.  He makes this pertinent observation:

"I remain concerned, as I have throughout these and the previous proceedings, as to the lack of insight and attunement to T's needs exhibited by [the father] and Miss B.  I remain further concerned as to their acceptance of Court orders and their willingness to abide by them. I am of the view that it is possible that T will suffer further periods of distress caused by her father's behaviour at contact and attempts by Miss B and KE to contact T against her wishes.  However, I am of the opinion that T would be even more distressed if she were not to have contact with her father and therefore the benefits outweigh the risks".

47. He rejects the father's case that T shows signs of 'parental alienation', commenting that T's reactions to her father:

"…do not follow that definition.  She does not reject her father.  She wishes to see him and she loves him"

He further explains that:

"… T lost trust when she was taken to Suffolk by subterfuge and against the Court order.  Further trust was eroded when she was taken to her deceased mother's house by Miss B (not her father) and found that experience highly distressing…".

48. The Guardian opines that T:

"… lives in a stable and loving environment where her physical and emotional needs are met.  She is progressing extremely well at school and she clearly feels loved and appreciated. T is coping well with the loss of her mother.  T wishes to have a relationship with her father."

The Guardian does not recommend any form of review beyond this hearing; he considers, as do I, that T "needs to be free from further Court proceedings and be allowed to continue to progress and reach her lifetime potential."

49. I set out the detailed proposals of the Guardian below.   In essence, he recommends that contact visits should take place once per month for the father only, on two consecutive days; initially this should be for a 4-hour visit, extending to 8-hours if they are successful.  He recommends that the father should be able to telephone T once per week.  

50. He considers, as do I, that the relationship between T and her father is "fragile"; for this reason, I consider that the relationship needs to be nurtured carefully.

51. The father and Miss B challenge the Guardian for failing adequately to explore the circumstances of the contact on 3-4 December 2016, and criticise him for (as they see it) accepting T's account, without full investigation.  In fact, Mr. Coleman did not accept T's account; he considered that the allegations reflected a sense of unhappiness with her situation and a protest that the adults are being insensitive to her feelings.

Discussion
52. Future child arrangements for T must be crafted by reference to the guiding principle that they meet T's best interests; it is my duty under the Children Act 1989 to make arrangements for her which promote her welfare, having taken into account the range of factors adumbrated in section 1(3) and more generally.  That the arrangements imposed now are different from those imposed in April 2016 reflects the changed, and changing, position in which we now all find ourselves. 

53. I have recorded T's wishes and feelings; she wishes to see her father.  She loves her father.  But she is stressed about the arrangements for seeing her father.  I accept the Guardian's comment (set out at §37 above) that T is now experiencing significant anxiety issues in relation to contact, having lost trust in the father and Miss B by reason of their conduct since the last hearing.  I reluctantly accept Mrs. H's comment that T is more damaged now than when her mother died.  Regrettably, the father and Miss B have to take significant responsibility for this.  I am as sure as I can be that her repeated stomach aches are a manifestation of her stress in response to the tensions which surround contact; those tensions are largely generated, and significantly stoked (though not exclusively), by the father's attitude towards Mrs. H and his anger at the current situation.  

54. I don't propose in this judgment to rehearse all I said in my previous judgment about the status of parenthood, and the multiple ways in which this can be demonstrated (see §47-52).  I recognise the unique and crucial biological and genetic tie which T and her father have with each other; but T's psychological parents have become – over the last three years – the adults who have cared for her, and who have nurtured her through an impossibly difficult time following the sad death of her mother, namely Mr. and Mrs. H.  The father and Miss B need to accept this.   The future arrangements for contact lie in large measure in my assessment of their capabilities to honour the arrangements and routinely deliver child-focused experiences for T.

55. The father has many qualities, of that I am sure.  He loves T, and she loves him.  That is equally clear.  But his approach to the sensitive issues engaged in this dispute, in relation to T and her upbringing, is significantly infected by an underlying anger at what he sees as an injustice in Mr. and Mrs. H raising his daughter.  That anger is passively, and occasionally aggressively, directed at Mrs. H; T has been directly and indirectly, and sadly repeatedly, caught up in that hostility.   It is highly regrettable for all concerned that the father is unable to credit Mrs. H in any respect for her care of T, nor is he able to acknowledge her contribution in raising her.  It reflects poorly on him.  He has limited understanding of the effect of his actions on T; he was not truly in my judgment able to recognise the effect on T of repeatedly cancelling his visits at the last moment.  He does not appreciate T's profound disappointment at his non-appearance.  Nor does he appreciate that Mrs. H makes arrangements for T's social and recreational weekend life around the schedule of weekend time, which cannot so easily be unscrambled when the father at the last moment indicates his unavailability for contact on the appointed weekend. He has limited respect for the authority of the court, specifically for the Child Arrangements Order, believing that only he should decide when he sees T.  He told me that he had "not really read" the court order from April 2016, and professed ignorance and surprise when I pointed out that pursuant to that order he could have phoned T twice per week.

56. While Miss B has many qualities too, which I outlined in my earlier judgment, she has over the year following my judgment in April 2016 proved herself either powerless or unwilling to stand up to the father.  I find myself having to revise my earlier relatively positive view of her influence on the father; sadly, but perhaps unsurprisingly, I find that she has taken on some of the father's anger, which she has periodically unleashed in correspondence to Mrs. H, to Mrs. H directly, and behind Mrs. H's back.  T has inevitably become aware of this at handovers and on the contact – perhaps particularly on 3-4 December – and this has affected T's formerly benign view of Miss B. On the occasion that the father drove to Cornwall to collect T in August 2016, Miss B plainly knew that he would be bringing her back to Suffolk; she said that she tried to discourage the father, explaining that there would be a breach of the order, but she failed.  Miss B described the deceit as "accidental and ill thought-through".  There was nothing "accidental" about it.  More significantly, the deceit was inflicted on T aswell, she left Mrs. H's home thinking she was going on a camping holiday. 

57. Mrs. H continues to offer high quality care to T; that much is plain from the Guardian's researches, and from the glowing school report.  She is, in this respect, honouring the promise which she gave to T's mother.  Inevitably, Mr. and Mrs. H are not unaffected by the hostility to which I have referred.  Mrs. H gives the fairly strong impression of being exasperated by the father's and Miss B's conduct (with some justification I may add); while she has managed to contain her views, at times this has caused her to become fractious with them.  She remains somewhat dogmatic in her views about what is best for T; in part, this has been deployed in order to assert her role as primary carer, which must seem to her (again with justification) to be constantly under threat. Her occasional brusque manner with the father and Miss B may in part be a reflection of these, and other perhaps more complicated, factors.  I am conscious that she has to deal with the unreliability and untrustworthiness of the father with which, I believe, she struggles; I have some sympathy with that.  She has the burden of protecting T from the frustrations, disappointments and distress which surrounds some of the contact, and in that regard I am sure she has done her best.  Quite apart from all that, she must be dismayed at having to be embroiled in litigation once again, at her own expense.  That all said, she has made clear that she feels that the family should persevere with the contact arrangements; she feels that although telephone calls are not always successful, they are important as at least T knows that her father is thinking about her.  She would like the father to take more interest in T's schooling.

58. A number of allegations have been raised in the dispute; I do not deal with them all as many have no bearing on the outcome.  I have determined these allegations by reference to the civil standard of proof, having had regard to the judgment of the House of Lords in Re B [2008] UKHL 35: "The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened.".   I deal with the most significant:

i) I find that T suffered an injury to her foot during the October half-term contact visit, while she was in the care of her father.  There is absolutely nothing to suggest that this was deliberate; I am indeed as sure as I can be that this was an accident.  I am reasonably satisfied that the father will have known that it had happened.  It would have been negligent if he had not.  The father did not mention it to Mrs. H when he returned T.  He should have done.  He did not do so because there is currently no level at, or language in, which the father and Mrs. H currently converse about the welfare of T.  He probably feared that Mrs. H would criticise him for failing adequately to care for T, whereas of course accidents happen, and he would have been much better off acknowledging that fact;

ii) In relation to the events of the weekend of 3-4 December, I note T's vivid account – which she has given to Mrs H and, in part only, to her friend, Mrs C.  I note that Mrs. H believes T's account, in part because she believes that T is fundamentally a truthful child.  I have noted the clear and detailed refutation of those allegations from Miss B. There is of course the possibility that T was indeed locked in the attic and assaulted as she alleges, but it seems, overall, to be unlikely.  The circumstantial evidence does not tend to support such a finding.  As I have earlier indicated, the court does not work on the basis of possibilities; while I find that T did say what she said, I do not find as a fact that T was locked in the attic on 3 December, nor do I find that she was hit by her aunt.  I will proceed on the basis that these events did not happen.  My view is that it is far more likely that T made these complaints as a vehicle for expressing her upset with the situation and with Miss B and KE in particular – for the confrontation with Mrs. H at the handover, or for taking her to her mother's home (I note that T specifically told the Children's Guardian "I felt sad because the house gives me memories of my mum.  I didn't know it would upset me"), or perhaps (as T later described) for speaking disparagingly about Mrs. H and her family during the visit; I wondered whether her description of being locked in an attic was a childish metaphor for her sense of being trapped in this unpleasant situation between the adults;

iii) I do not find that T has been given sleeping tablets.  This has been investigated by the social services and not proved.  It may be that T has been provided with an antihistamine which may cause drowsiness, and this may explain her comments. 

iv) The father and Miss B characterise this as an "intractable hostility case"; they claim that T is being "alienated" from them.    I reject this.  I am satisfied that Mrs. H has prepared T for all the scheduled contacts, both practically and emotionally; I find that she has facilitated contact to members of the paternal family; I find that she has been instrumental in T preparing at least one of the Father's Day cards for the father in June.  There is nothing in T's presentation which suggests that she is being alienated from her father by the conduct of Mrs. H as the Guardian observes.  On the contrary, I warn that T may be or become alienated from her father by his own actions and inactions.

59. I turn therefore to the decisions.

Transfer of primary care
60. The father has made no formal application for the transfer of T's care, but as I have earlier indicated, his aspiration was set out in his final witness statement filed on 6 August.  He confirmed his position at the hearing.  The lack of an application is not material in itself, save that it perhaps reflects a lack of preparation or planning for what he proposes.  Only when I asked him directly about education in Suffolk for T did he confess that he has not even investigated whether there would be a school place available for T at the local school in Suffolk; term was scheduled to start the week after the hearing.  In evidence filed earlier this year, Miss B advised the court that the couple are financially extremely strapped; she indicated that they can barely afford their living costs "let alone afford to see T", adding that "three weekly visits is not actually affordable at the moment".  Given that the father makes no financial contribution to Mrs. H for T currently, it is difficult to know how he would manage financially supporting the demands of an additional member of the family.

61. No consideration seemed to be given to (I certainly heard no evidence of) the impact on the household of the father and Miss B, the relationships between T and Miss B's sons who are around the home, nor to the practical arrangements for T's care, given that the father and Miss B both work full-time. 

62. More worryingly, the father was unable to consider at any genuinely emotional level what the impact on T would be of a move.  In answer to my question in this respect, he referred to the fact that she would be "losing school friends".  He did not refer to the loss of the home in which she has lived for three years (including for a time with her mother), to the break in the continuity of care which she has received, and the relationships which she has formed with Mr. and Mrs. H.   He worryingly responded to my query about impact of change by observing that "T is a very outgoing child" as if this indicated that she would thus be insulated from the inevitable upheaval; this calls to mind a passage from my April 2016 judgment: "her courageous external presentation disguises underlying psychological vulnerability, and persistent anxieties" (§13 [2016] EWHC 805 (Fam)).  Most materially, he added as his concluding remark: "There is actually no reason why she should not be with me and [Miss B], and seeing the people she should be seeing" (by whom I inferred he meant members of the paternal family).

63. Had these factors not in themselves been enough for me to refuse the father's application (and for the avoidance of doubt, they are), I would have been concerned to establish more about the father's mental and physical health.  The father was too unwell to attend the hearing on 12 December 2016; the letter from his GP explained the ongoing depressive symptoms.  In January 2017, Miss B said that the father was still on anti-depressants.  Although the father had been discharged from the mental health team's care in September 2016, I am not sure that I have really received the full picture.   He is said to be too unwell to attend for this judgment.

64. The father has not, in all the circumstances, been able to establish any, or any substantive, case for a transfer of primary care for T in her best interests and I therefore reject it.

Warning Notice
65. For several reasons, I reject the father's application for a warning notice to be attached the child arrangements order of 8 April 2016.  First and foremost, there is already a warning notice on the Order of 8 April 2016; had the father looked at the order (he said he had not looked at it carefully) he would have seen this.  That disposes of the application, but the fact that it was made and needed to be adjudicated upon gives me the opportunity to make three further important comments:

i) I find that it was the father who has principally, if not in fact exclusively, been responsible for the failure of the child arrangements, not Mrs. H; 

ii) Miss B indicated in her oral evidence that she and the father were relying on a failure of contact prior to the 8 April 2016 hearing in making this application; she further illustrated the 'breach' because Mrs. H would not volunteer a substitute day when they themselves cancelled the contact; I reject both arguments – the first because the complaint (even if well-made) predates the last order, and the second because there was no obligation on Mrs. H to accommodate changes often imposed on her and T at the last moment.

iii) The father has been unable to give me a commitment to visit T even monthly going forward.  

Variation of the child arrangements
66. Having considered matters in the round, having regard to my findings and assessments of the parties, and with T's best interests as the prominent and guiding consideration, I am satisfied that I should vary the child arrangements order which I made in April 2016.  I have listened carefully to the views of all the protagonists, and conclude that the Children's Guardian has pitched the frequency and manner of contact appropriately.  

67. I propose that the order should reflect, for the avoidance of doubt:

i) the undertakings given by the parties prohibiting each from making disparaging remarks about one another in front of T or in the presence and hearing of T until further Order;

ii) the continuing obligation, pursuant to an existing order, for the father and Miss B to notify Mrs. H of any change of address;

iii) the provision permitting Mrs. H to remove T from this jurisdiction for up to 28 days (paragraph 3 of April 2016 order);

and

iv) There shall be a recital on the face of the order that the court expects the parties to attend for mediation, conciliation or for family therapy; if they wish to attend for family therapy, I propose that they contact either Dr. X [name has been supplied to the parties] or Dr. Y [ditto]; they are based reasonably locally to Mrs. H.  Miss B and the father have indicated that they would accept (indeed prefer) mediation to further litigation and I encourage this.  I deal with this further briefly below.

68. I propose to make the following arrangements for T to spend time with her father; these arrangements shall be expressed to be the minimum and shall apply unless otherwise agreed between the parties in writing:

i) There shall be weekend contact once per month in Cornwall.  The contact should be of four hours duration; this can extend to up to 8 hours per day, and then to overnight visits only when agreed in writing between the parties; in due course I hope that the contacts can extend to multiple days of overnight staying in the school holidays, but that is currently some way off;

ii) The contact should be for just the father and T at present.

iii) Contact with Miss B should be indirect contact until T wishes to include her in her father's visits; this should be sensitively managed; Miss B should wait a while before sending a card, given T's current feelings; 

iv) Contact handovers shall be at a neutral venue

v) If contact is to be cancelled by the father for any reason, he should give Mrs H no less than 21 days' notice in advance in which case the court expects that Mrs. H will offer an alternative date or dates for contact; any cancellation by the father within 21 days of the visit does not generate the same expectation; if the contact is cancelled by Mrs. H, the court expects her to facilitate an alternative date.

vi) I require the father to text Mrs. H 5 days before the weekend visit to confirm that he will be attending; further he must text her 24 hours before the phone call to confirm that he will phone;

vii) Contacts can coincide with T's pony club;

viii) There shall be a prohibited steps order restraining the father or Miss B from removing T from the county of Cornwall during contacts unless agreed in writing with Mrs. H, or further order of the Court;

ix) The father shall telephone T once per week; the phone calls shall take place on Sunday at 6.45pm, once per week; if a missed call is shown, Mrs H will telephone back to the landline for T to speak to her father;

x) I shall give leave for the judgments and the reports of the Children's Guardian to be disclosed to the mediator or family therapist selected by the adults to work with them.

Should there be a court review?
69. Mrs. H has indicated through counsel that she would wish me to direct a court review in 10 months' time; she argues that this will enable (a) the arrangements to develop, and hopefully be expanded upon by the court in the middle of 2018, and (b) to retain the involvement of the Guardian as a moderator and advocate for T.     This is opposed by the father and Miss B, and indeed by the Guardian.

70. I do not regard it in T's interests to prolong the litigation; Miss B made a revealing comment in her evidence about the fact that as soon as the litigation was underway she and the father did not focus so greatly on T, but on preparing their documents instead.  It follows that the limited circumstances in which a review can/should be ordered in private law cases are not established here (see PD12B FPR 2010, para.15).  In any event, Mr. Coleman for his part could not guarantee continuity of involvement in the case; if he were not to be available, the value of the review would be much diminished.

71. There has been too much hurtful said and done in this case for me to assume that once the order is sealed all will be well.  I therefore propose that Mrs. H and the father engage with some family therapy, involving to the degree which is thought helpful Mr. H and Miss B.  Following the conclusion of the evidence (having learned from the Guardian that he was unable to make a recommendation) I have subsequently conducted my own research and have provided the parties with the names of two family therapists (above).   They may decide to instruct another.  I do not propose to make a contact activity condition or section 11(7) condition as an adjunct to this order.  However, I do expect that both the parties will submit (at their joint expense) to at least one introductory session with the family therapist or mediator jointly instructed.  I hope that this will lead to more sessions, and indeed to some active work with this family to enable them to communicate better in the interests of T. 

72. I can make clear that if this matter were ever to be restored to court again, it will (a) at least for the time being be reserved to me, and (b) I shall want to know what steps have been taken to access family therapy, or conciliate or mediate, out of court before being drawn into making further orders.

73. That is my judgment.

_________ 

 

1 Per Dr Hausmeister

2 See earlier judgment where she is discussed especially at §32 and §33.