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K v D (Parental Conflict) [2015] EWFC 49

Judgment following final hearing in acrimonious private law Children Act proceedings concerning two children.

This was the final hearing in private law Children Act proceedings concerning two children, J and E, aged 12 and 10.  The case is characterised by a number of unusual features, including the level of acrimony between the parents, described by the judge throughout the judgment but in particular in his summary of the evidence of the CAFCASS Officer in the case.  She described both parents as being "intent on destroying each other" and stated that "the ante is being upped ever 5 minutes" (para. 5).

The Children Act proceedings took place against a backdrop of equally acrimonious, and extremely costly, financial remedy proceedings which are still ongoing.  The judge takes the unusual step of commenting on some of the family's financial arrangements (including the fact that although the family is "100% British it has no intention of paying tax here" (para. 7)) and the exceptionally high legal costs that both parties had incurred in both sets of proceedings.

The father is resident in Dubai and had formed a new relationship and had a third child, about whom he had never spoken to the children who were subject to these proceedings.

A further unusual feature of this case is that the mother had commenced a relationship with her solicitor (whose name and firm are redacted from the published judgment) shortly after she instructed him.  As the father had defaulted on the order for maintenance made at an interim hearing in the financial proceedings, the mother had not paid any of her legal fees and her solicitor had, in fact, been providing financial support to her and the children.  The solicitor had referred himself to the SRA, and the father's solicitors had also referred him.

The judge also  gives several instances of dates on which the father had hoped or expected to spend time with the children but the mother and her solicitor had made alternative arrangements.  The solicitor had also employed a private detective to follow the father, and the mother, her solicitor and the detective had dined together the night before the mother gave evidence in the final hearing.

In the judgment, Peter Jackson J makes findings in relation to two incidents of domestic violence perpetrated by the father against the mother (one in 2012 and one in 2013).

The CAFCASS evidence was that the children were resilient but vulnerable because of the tension between the parents and found transitioning between them difficult.  They wanted to see their father (although J's expressed wish was that he did not) but the circumstances had made them anxious about doing so.  They were particularly anxious about the violence perpetrated by the father and about their mother's financial situation, for which they blamed their father.  There was no evidence that the father intended to remove them from the jurisdiction.  The recommendation was that they should live with their mother and spend time with their father but without this involving any foreign travel for the time being to allow for a period of 'healing'.

The judgment is also critical of the father for leaving the mother and the children in a situation in which they were struggling financially.  The children were aware that their school fees had not been paid.  He is also criticised for not having been apologetic for certain aspects of his behaviour in the financial and Children Act matters.

The mother is also criticised for withdrawing her cooperation with supporting the children's relationship with their father and for allowing them to become too involved in the parental dispute.  She is described as having become 'proprietorial' about the children.

Having applied the welfare checklist, the judge makes an order that the children live with their mother and spend time with their father in line with the recommendations of CAFCASS, but taking into account the practical limitations of the father's circumstances which limit his ability to have face to face contact with the children in this jurisdiction.  He also orders both parents to attend a Separated Parents Information Programme, makes a family assistance order, and prohibits both from removing the children from the jurisdiction for a 12-month period without the permission of the other parent.  The mother's application for all of the father's contact to be supervised is dismissed.

The judgment ends with the judge offering firm words of advice about the impact of the financial proceedings on the children and about the propriety, in the circumstances of this case, of the solicitor continuing to act for the mother whilst they remain in a relationship.

Summary by Sally Gore, barrister, Fenners Chambers

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 persons concerned 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: CZ14F00194
Neutral Citation Number: [2015] EWFC 49


11 June 2015

Before :

Sitting at the Royal Courts of Justice

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Between :

D Respondent
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Jonathan Cohen QC and Rebecca Foulkes (instructed by [name redacted]) for the Applicant
Judith Murray (instructed by Mishcon de Reya) for the Respondent

Hearing dates: 8 - 11 June 2015
Judgment date: 11 June 2015
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JUDGMENT: K v D (Parental Conflict)

Mr Justice Peter Jackson:
1. These Children Act proceedings concern J, a boy aged 12, and E, a girl aged 10.  They began in June 2014 with an application by the children's mother for an order that any contact with their father should be supervised and for a prohibited steps order preventing him from removing them from England and Wales.  The latter application was granted on an open-ended basis by a District Judge at a hearing of which the father had no notice.  In August 2014, the father, who is currently based in Dubai, responded with an application to discharge the prohibited steps order and for a "live with" child arrangements order.

2. This is the postponed hearing of those applications.  Over the course of no less than four days, I have heard evidence from the CAFCASS officer, Ms Helen Ingledew, and from each parent.  Having done so, I shall make a final order in the following terms:

(1) A final child arrangements order providing for the children to live with the mother and spend time with the father as provided for below. 

(2) A condition requiring each parent to attend a Separated Parents Information Programme (SPIP).

(3) A Family Assistance Order directed, with its consent, to CAFCASS for a period of 12 months.

(4) A prohibited steps order for a period of 12 months preventing either parent from removing either child from England and Wales without the written consent of the other parent.

3. As these applications raise questions concerning the upbringing of J and E, their welfare is my paramount consideration.  I shall refer below to relevant aspects of the welfare checklist.

4. Before summarising the history, I must make some general comments. 

5. The level of conflict between these parents is shameful.  They can take credit for having two lovely children but their current behaviour is making their children miserable.  I record these powerful warnings from the evidence of Ms Ingledew:





6. Ms Ingledew was the first witness.  One might think that the parents' own evidence would show that they had taken her earnest advice to heart, but there was little sign of that.  I record what she said in capital letters in case the parents will now decide to pay attention to these warnings.

Aspects of the evidence
7. I record ten aspects of the evidence that give the flavour of the situation.

(1) Although the family is 100% British, its has no intention of paying tax here.  The family home, a mansion bought in 2011 for £5.5 million, is in the name of a company registered in the British Virgin Islands.  Ms Ingledew described it as the most luxurious property she had visited in 20 years of professional life.  The living room alone is bigger than many people's houses yet J is anxious about bringing his friends there because most of the rooms are unfurnished.

(2) On 18 February 2015, this court made a financial order at a hearing at which not only the parents but two other entities (including the BVI company) were represented.  Having heard from no less than six counsel (three Queen's Counsel and three junior counsel) the Deputy District Judge accepted undertakings from the father to pay the bills on the family home and the children's school fees and ordered him to pay the mother monthly maintenance pending suit of £6,500 and a monthly litigation fund of £16,000.  The net effect is that for every pound of maintenance for the family a slightly larger sum is due to be paid for the maintenance of just one of the four legal teams.  In fact, since the order was so recently made and the undertakings given, the father has ignored it altogether.  Apart from a payment of £3,000 in May, he has paid nothing.  In four months, arrears of £113,000 have accumulated.  The effect on the mother, and consequently on the children, is obvious, and their school places are under threat.  Yet this is a man who was as recently as June 2013 given an unsecured loan of $1 million by a billionaire friend.

(3) The father has throughout his life worked in two fields: finance and property.  He started work at the age of 18 and has worked ever since.  In the course of his evidence, he now claims not to have been working at all since January.  He said that there had been changes in the global situation that led him to decide that it was time that he "took another direction ... it's not for me any more.  There's no joy in it."  He then described going for a job interview with a London-based company on the first night of the hearing.  If he is taken on, they may allow him to work in Dubai.  In that case, he would choose to continue his tax exile, with all its limitations on his availability to the children, rather than work in England. 

(4) The parents' legal bills have of course been rocketing.  Paid and owed, they already exceed £½ million after only a few months of hostilities.  The current figures, which do not include the costs of the other participants in the financial proceedings, are these:

Mother Children Act  £147,000
                Financial  £170,000
    Previous solicitors £47,300

Father Children act  £88,400
                Financial  £51,900

While I have every intention of concluding the Children Act proceedings now, the financial proceedings have hardly got into their stride.  Another two-day hearing is scheduled for July to deal with a raft of interim and case management issues, but there can be little optimism that this will take matters much further.  The children will therefore not get the benefits of the end of litigation unless the parents take note of Ms Ingledew's warnings, or at least reflect on whether they want to go on running up legal bills in this way.

(5) Despite the profligate accumulation of legal fees, it epitomises matters perfectly that the parties could not even agree on the trial bundle for this hearing.  Each party attended with their own version, while I was sent both and had to rule on which was to be used.   

(6) The children have a paternal half sibling approaching the age of two who they have never met and about whom the father has never spoken to them.  In April 2011, he met a woman in Las Vegas who subsequently became his current girlfriend.  She became pregnant at the end of 2012 and the child was born in mid-2013.  This relationship, which involves gifts from the father to the girlfriend, some child maintenance and much high-end international travel was concealed from the mother and children until the end of 2014, when it was suspected by E, who told her mother.  In May 2015, the girlfriend visited London for a termination of pregnancy.  The only information that the father gave about this relationship before he entered the witness box appeared at Paragraph 58(p) of a witness statement dated 26 February 2015.

(7) For her part, in September 2014 the mother instructed her current solicitor (no purpose would be served by naming him and the firm's name is redacted in the title of this published judgment).  They began a relationship about six weeks later.  At the outset of the retainer the mother sold her car and paid the solicitor the proceeds of £20,000 for his legal services.  Since then, she has incurred some £300,000 of legal fees, all unpaid.  The couple has travelled abroad, with the solicitor taking the mother for a weekend in Barcelona in December and going with the mother and children to Paris during the February half term.  The solicitor spent Christmas in the family home with the mother and children and is a regular overnight visitor to the home.  As the father is in flagrant default in paying maintenance, the solicitor has been offering necessary financial support to the mother to cover some bills and expenses: instead of the client paying the solicitor, in this case it is the other way round.  The propriety of the mother's solicitor acting for her in the circumstances has been referred to the Solicitors Regulation Authority by the solicitor himself and by the father's solicitors, and I return to this below.

(8) As a result of the father's inactions and the mother's reactions, the children have not seen their father since 1 March 2015.  In September 2014, HHJ Nathan made an order for fortnightly weekend contact against the mother's wishes.  Before that, the father had not seen the children since leaving the family home seven months earlier.  After the order the arrangements were broadly successful for about five months.  The father then requested time with the children during the February half term, but this was declined.  Instead, the children went with the mother and her solicitor to Paris "on the spur of the moment", as the mother put it.  After that, the children spent the last weekend in February with the father, who became unwell, no doubt from accumulated stress, and was admitted to hospital on Sunday 1 March.  Communication between these parents is so poor that he did not contact the mother but arranged for the children to be returned to her by a friend after they had spent several hours at hospital with him.  The father then returned to Dubai and dropped off the radar, apart from the few offensive text messages to the mother and text messages to the children.  It is again a sign of the parents' current inability to communicate in a civilised way that the father did not notify the mother that he was not coming for contact and the mother did not ask for an explanation when he did not come.  In the middle of May the father's solicitor wrote peremptorily requesting a week's contact at the half term holiday later in the month.  This was refused without explanation.  The mother's excuse in evidence was that the children needed to be at home revising for exams.  Finally, on the weekend preceding this hearing the parents were incapable of arranging for the father to see E for a few hours, even with the active involvement of Ms Ingledew.  Last Sunday, instead of spending time with their father after his arrival in the UK, the children went sailing with the mother and her solicitor.  The mother says that the children had refused to go for contact despite her best efforts.  As matters stand, it is now 14 weeks since the children have seen their father.  There was lively Whatsapp messaging between E and her father until 22 May, the day on which the children saw Ms Ingledew.  Since then, the father has been sending messages to both children but neither has replied. 

(9) Although she initially denied it, the mother was compelled to accept that at various times since October, her solicitor has been employing a private detective who has, I find, been following the father and no doubt making other investigations on the mother's behalf.  The mother, her solicitor and the detective dined together on the night before the mother gave evidence.  The detective's fees amount to £4,200, unpaid.

(10) Despite his almost total default in meeting his financial obligations in 2015, the father, who has an empty property in Kent, stayed in a five-star hotel on Park Lane for four nights in May with his girlfriend and for six nights in the week of this hearing.

8. The parents were very young when they met in 1993.  The father was 21 and the mother 17.  They set up home together immediately and bought a 5-bedroom home in Kent in 1996.  The father worked, the mother remained at home, the children were born and in 2008 the parents married.  By this time, there was no contact with the mother's family, with the father being engaged in bitter litigation with her brother over a property development project in Portugal.  This led to a county court judgment in the brother's favour in March 2013, when the judge was highly critical of the father, and made a worldwide freezing order in respect of his assets.   That judgment remains unsatisfied.

9. Returning to the chronology, in the middle of 2008, the family moved to Dubai, but returned to England the next year and the children started at a private school here.  In April 2011, the father met his girlfriend.  In May 2011, the large family home was bought.  In January 2012, the father moved offshore to Dubai with the mother's support, meaning that he can only be in this country for 90 days a year.  However, in November 2012, she served him with divorce proceedings.  An unsuccessful attempt at reconciliation followed and in February 2014 the mother, and consequently the children, resumed a relationship with the maternal grandparents.  At that point the father left the family home.

10. These proceedings began in June 2014 and the current prohibited steps order was, with respect to the District Judge, inappropriately granted on a without notice hearing.  In September, Judge Nathan's contact order was made.  In November, the first CAFCASS report was filed.  Its author was Ms Skoglund.  In December 2014 the matter was referred to the High Court because of the international aspect.  Financial hearings took place in January (two) and February (two).  In February, an expert opinion on family law in the United Arab Emirates was obtained.  The children's case was listed for hearing in March, when no judge was available and it was relisted for this hearing with a more realistic time estimate.  A further CAFCASS report was prepared by Ms Ingledew, Ms Skoglund by then being unavailable.

11. During the last years of the marriage, there were a number of incidents between the parents.  I am able to make findings about two of these.  In June 2012, the parents argued when the mother hid the father's car keys.  A scuffle broke out and the father injured the mother's arms after she tried to push him away.  The children were in the house and J found his mother in great distress after his father had left.  In August 2013, when the family was at its Portuguese house, the father lost his temper.  He threw the mother against a door and grabbed her by the throat.  This was seen by J, who told him to stop.  The father denies using anything other than defensive force.  Having heard them both, I prefer the evidence of the mother.  In relation to the first incident, she visited the doctor the following day.  After the second incident, she went to Relate for advice and support.  On both occasions, the father was very angry and his account is less likely to be reliable.  The mother makes certain other allegations as to which the evidence is inadequate for me to reach any conclusions.

12. I asked the mother what the significance of these incidents was for the children's current situation.  She said that both children are scared of their father and that he causes them anxiety with his unpredictable behaviour.  Consequently, contact should be reintroduced slowly to build up trust.

CAFCASS evidence
13. The children's plight is well reflected in the evidence of the two CAFCASS officers.  Ms Skoglund's report from November 2014 describes the children as engaging, mature, polite and very well presented.  They are doing well at school.  The children spoke of the arguments that they had heard and witnessed, some involving violence by the father.  Broadly, they wanted to see him but the issue was surrounded by anxiety and the impact of the parental conflict was significant.  Ms Skoglund regarded them as resilient but vulnerable and struggling with the transition between their parents.  No evidence was found that the father intended to remove the children from the mother's care.  It was recommended that they should live with the mother and that there should be a fortnightly staying contact and holidays abroad.  The parents should both attend an SPIP.

14. Ms Ingledew's report describes conversations with the children on 22 May, and discussions with the parents.  Two main themes are identified as being relevant to the children's current attitude: awareness of past violence and the impact of the financial situation on their daily lives.  In both these areas, the children hold their father responsible.  The children were also pleased to have resumed their relationship with their maternal grandparents, of whom the father strongly disapproves.  J is unduly vigilant about his mother's financial situation and is taking on a pseudo-parental role.  He told Ms Ingledew that he did not want to see his father.  He wants the proceedings to be over.  E seemed sad and at the end of the interview she began to weep, saying that she didn't know why her daddy doesn't come to see them.  

15. Ms Ingledew noted a strengthening in the children's feelings in recent months.  They clearly favour their mother as their consistent carer and source of comfort.  They are critical of their father but in reality they crave consistency and comfort from him as well.  They see him as being angry.  Ms Ingledew did not believe that there was a likelihood that the father would keep the children from the mother, but she did not recommend overseas travel with him at the present time because of the children's current views.  There needs to be a period of healing.  The father needs to address the family's material needs and to reflect on a pattern of selfish behaviour.  On the mother's side, she has not sufficiently prioritised the father's role in the children's lives. 

16. Ms Ingledew does not recommend a shared care arrangement.  The reality is that the children live with the mother and the order should reflect this.  She proposes arrangements for immediate restoration of contact, building to the point where the children spend a weekend with their father after about 12 weeks, and thereafter up to half the holidays.

17. The oral evidence of this very experienced officer was equally helpful.  She explained why the parents need to attend a SPIP, and since giving evidence she has arranged for this to happen very soon.  This could, she explained, lead to relationship therapy if the parents wanted it.  She also suggested that the father should go on an anger management course and write to the children in apologetic terms.  She did not consider the children needed foreign travel for the time being.  She gave advice about introducing the idea of the father's new child to J and E in a positive way.  She was in favour of there being a family assistance order under which she could help the parents and children to restore their relationships to an acceptable state.  Overall, Ms Ingledew considered the parents equally culpable for the children's predicament.

18. Ms Ingledew was an impressive witness who has a firm grasp of the children's situation.  I accept the tenor of her evidence, though I shall tailor her recommendations to take account of the practical limitations arising from the father's limited availability for face-to-face contact.

Assessment of the parents
19. The father by his own description comes from a working-class background.  He is a man of some intelligence who worked his way into money.  He inhabits an offshore wheeler-dealer world in which large sums of money flow between friends and business connections, with trusts and companies being set up with a view to maximising profit, minimising tax and obscuring ownership.  It is in some ways a pressured environment and there are highs and lows.  By this year, the father may have begun to experience some of the lows, but he is unlikely to be down for long.  I mention these things because they are relevant to the atmosphere in which family life is conducted.  The mother and children have benefited from the father's business activities, at least from the financial perspective, but his chosen lifestyle is not calm or predictable.  Apparently it does not even allow him to live in the same country as his children.

20. The father nonetheless cares deeply about J and E.  Over the course of their lives, he has had a close relationship with them on a day-to-day, one-to-one level.  However, the breakdown of the marriage and the appalling state of the parental relationship has caused cracks to appear, worse in the case of J than E.  Ms Ingledew has explained the problem.  The children are anxious about the father being angry with them and with their mother.  I observed him to be a red-faced man whose face was often suffused with emotion.  I do not think that the children are frightened of him in general, but he must be alarming to them when he is aroused.  The second aspect of the problem is that the father is currently a failure in the children's eyes.  The family has operated on the basis that the mother is the homemaker and the father the breadwinner.  The children have seen the mother carry out her role consistently.  While the family was together, the father was an ample provider.  After the separation in 2012, support continued at a lower level.  This year it has stopped altogether.  It is not the purpose of this hearing to identify whether the father is unable or unwilling to support the family, though his history, lifestyle and connections may suggest where the answer lies.  What is relevant is that the mother is understandably very stressed by the financial problems that are multiplying and the children inevitably see this and are affected by it.  As a small example, the family watches television on a computer because the TV is broken and there is no money to repair it.  The children are also aware that their school fees are not being paid.  I doubt they discovered this by accidentally opening a letter in the way the mother describes, but the primary responsibility for the situation is the father's.  He sententiously expressed the view that what children need is love and time.  Actually, like everyone else, they also need money.

21. The father was able to commend the mother, I thought with some sincerity, for the way she looks after the children.  However, these commendations are empty if he does not give her the means of doing so.

22. There were aspects of the father's evidence that were untruthful.  I have already referred to the two violent incidents.  His evidence about his financial dealings was murky and information about his new relationship was not given willingly or, I suspect, fully.  He is not truly apologetic about any aspect of his behaviour.  He has not even apologised for his undeniable breach of the maintenance order.

23. In summary, the father's strengths as a parent are in his close knowledge of the children and the warmth that they share in normal circumstances.  He has shown the ability to share the world of childhood with them.  His weakness is in the adult side of being a parent: being dependable, calm and reliable.

24. The mother, like the father, is a person of some intelligence.  She is very close to the children and is naturally protective of them.  She has no work history and little direct knowledge of the father's business dealings.  Although she denied it, she is angry, and justifiably so, about aspects of the father's behaviour: the assaults, the concealment of the relationship and new child, and the flouting of the court orders.  Over the years, she has supported the father's relationship with the children and recognised its closeness.  Unfortunately, that has changed since the breakdown of the marriage.  From early in 2014, she has at best been compliant with the father seeing the children.  She has carried out her obligations under the order but the combination of the father stopping attending in March and making no meaningful payments this year has led her to withdraw her co-operation.  To a degree this is understandable, but it is relevant to the question of whether the children's current views are genuinely their own.  In difficult circumstances, the mother has, I am afraid, allowed the children, particularly J, to get far too involved.  The fact that her solicitor is in the home cannot help.  She has also become proprietorial about the children.  She does not prioritise their relationship with their father or give them the encouragement that they need.  Instead, she said: "They have free will.  If they want to see [him], I will make it happen." However unsatisfactory the father's behaviour, the mother's decisions in relation to the February half term, and in relation to more recent requests for contact show a lack of consideration, and the fact that the children are instead spending time with her solicitor throw salt in the wound.  If she wishes to encourage better behaviour from the father, her actions are calculated to achieve the opposite.

25. Like the father, the mother is clearly under huge stress.  In contrast to him, she is markedly pale.  She was almost comically unable to say anything positive about him.  Asked repeatedly to describe any good points, her final answer was: "He is their father.  He lies to them, he lets them down, he hurts them emotionally." 

26. I am afraid that the mother was also an untruthful witness at times, for example in relation to her use of a private detective.  In fact, both parents hedged when asked about matters that might assist the other party in their great battle.

Welfare checklist
27. The children's greatest need is an emotional need for a resolution of the dispute and a return to relative normality.  This requires them to feel relaxed about their home, their school and their relationship with their father.  All of these are at the moment sources of anxiety.

28. The children are at an impressionable age, being just old enough to understand something of what is happening in the family, but too young to know how to deal with it.  Their background is that they are British children with an English base but with wide experience of international residence and travel.  They have become used to a life of plenty and are sensitive to anything that singles them out from their peers.

29. J's expressed wish is not to see his father.  E's expressed wish is not to stay with him.  I admire the children's courage in carrying on with life and doing well at school despite everything that is going on around them.  The antagonism between the parents was palpable in the courtroom and I consider that it is having a marked effect on the children's ability to express their true feelings.  Those are for a return to the relative normality.  The difficulties that now exist mirror the state of the parental relationship.  I am confident that J would like to have his father back but that the gulf the parents have created is too wide for any boy of his age to cross without help and encouragement.  As the parents are not fully able to give that, the court and Ms Ingledew must intervene.

30. I find that the children are suffering and are at risk of suffering emotional harm from the parental conflict.  I associate myself completely with Ms Ingledew's warnings.

31. As to other forms of harm, the mother has a real fear that the children might not be returned by the father if he had contact with them abroad, and particularly if taken to the UAE.  I return to this below.

32. As the children's good qualities demonstrate, the parents themselves have good qualities and are undoubtedly capable of meeting their children's needs.  However, in their various ways they are not doing this at the moment.  They are both stubborn.  They need to examine themselves and take steps to improve their parenting.

33. The court's powers when making a child arrangements order includes the power to make activity conditions under section 11C requiring an individual to take part in an activity that would help to establish, maintain or improve the involvement in a child's life of themselves or another party.  This gives the power to require attendance at a SPIP or an anger management course.  The court can make a family assistance order.  It can prevent international travel.  It can give directions about passports.  It can prevent the children from having contact with particular individuals. 

Decisions on the parties' applications
34. The father seeks a 'live with' order for two reasons.  He wants to send the message that he is an equal parent.  If he returns to live in England, he wants shared care.  Neither reason is persuasive.  The children live with their mother and the order should reflect this reality, which will not change even if the father was already living in England.  This is really an issue about contact, which the court will ensure takes place.  By adding a retaliatory claim for shared care, the father only adds to the anxiety experienced by the children and their mother.

35. The mother's application for contact to be supervised will be dismissed. 

36. I dismiss the father's applications for orders prohibiting the mother from bringing the children into contact with her brother-in-law or leaving them with her father.  The mother is to be trusted to decide these matters.

37. I direct each parent to attend an SPIP at the earliest opportunity so that, in Ms Ingledew's words, they can learn about the impact on the children of hearing negativity about the other parent and by this means provide relief to J and E.

38. I shall not direct the father to attend an anger management programme.  He may be wise to do so of his own free will, or to attend equivalent counselling, at least as a sign that he wants things to change, but any value would be partly lost if he was not attending voluntarily.

39. I make a family assistance order requiring CAFCASS (if possible Ms Ingledew, and if not her Ms Skoglund, if she is available) to advise and assist the parents and to befriend the children for a period of 12 months.  I direct that under section 11G a report is made to the court if either parent fails to attend the SPIP promptly.  If the situation progresses well, an application can be made to me in writing for the FAO to be discharged early: section 16(6).  Under the same subsection, I direct that the CAFCASS officer should refer the matter back to the court no later than 10 months from now if it is her view that the prohibited steps order preventing the children's removal from the jurisdiction should be discharged within the next 12 months or extended beyond then.

40. I next consider the mother's application for the father to be prevented from removing the children from the jurisdiction.  I have been directed to the familiar authorities, particularly Re A (Prohibited Steps Order) [2013] EWCA Civ 115. 

41. Having considered the evidence, I conclude that there is no risk that the father would retain the children if he was allowed to take them abroad on holiday.  His evidence on this, which I accept, was: "I wouldn't take the children away and not bring them back.  It would not be the right thing to do.  I want to see them, be with them and be treated equally.  There would be no upside in that.  I would be looking over my shoulder for the rest of the children's lives.  We moved back because of the children's education.  It doesn't work."

42. I am well aware that the father is in default of the financial order and I have not accepted his evidence in other respects.  I recognise that in an evil hour he might contemplate hurting the mother through the children.  I note that in 2009 a most improper threatening letter was written on the father's behalf by the private office of a member of the Abu Dhabi royal family in the context of the litigation with the mother's brother.  However, taking account of all of this, and however black the father is justly painted, I formed the clear view that he can be trusted on this issue.  He rightly appreciates that the children would never accept being separated from their mother.  Although E has said that she is afraid her father might take her away, I accept the evidence of Ms Ingledew that the children do not really believe this.  I do not disparage the mother's anxiety, but the evidence does not show the father to be an abduction risk and it is in the interests of the children for anxiety on this issue to abate.

43. I therefore decline to make a prohibited steps order against the father on the grounds that the mother advances.  Nor will I impose any continuing requirement on him to hand in his passport when he is in this country. 

44. This conclusion renders it unnecessary for me to consider issues of safeguards under UAE law.

45. There will be warning notices attached to the order in support of the obligations on the part of the mother to allow contact (section 11I) and of both parents to return the children to the jurisdiction after foreign travel.

46. There is however another aspect of the matter.  In the current circumstances, the children's relationship with their father needs to be repaired through regular contact in England.  Contact abroad would be too big a step in the short term unless the children saw that their mother supported it.  Likewise, it is not, in my view, in the children's interests for there to be discrimination as between the parents on the question of holidays abroad.  The mother would like to take the children this summer to the family villa in Portugal, which is under threat of repossession.  I understand that, but no child, J and E included, needs foreign holidays every year.  At the moment, the far greater priority is the re-establishment of their relationship with their father. 

47. The order I make will prevent the children from being taken abroad over the course of the next 12 months by either parent without the consent of the other.  If the parents want the children to have foreign holidays during that period, they will have to cooperate.  After that, they can each take the children where they want for holidays, provided the usual travel and contact details are supplied.

48. The order will not prevent the children from travelling abroad on any school trip.

49. In considering what order is appropriate for the children to spend time with their father, I apply the following considerations.  Firstly, the decisions are not ones for the children to make, though their views have to be carefully considered.  As the parents cannot agree, the court must decide.  Secondly, the matter must not only be approached sensitively, but also with determination.  I note that the approach taken by Judge Nathan rapidly re-established successful contact after a much longer gap than the present one.  Thirdly, the arrangements must make best use of the father's ability to come to England.  Fourthly, the forthcoming summer holidays offer a good time for progress to be made.  Finally, the children should go for contact together if at all possible – it is not fair to E to bear the brunt of the situation.

50. The father seeks a resumption of visiting contact on three occasions with overnight contact by the middle of July, a week in August in the UK, a weekend in September, a week abroad or in the UK at October half term, a weekend in November and a week in Dubai at Christmas.

51. The mother proposes a 16-week ascending programme of visiting contact leading to staying contact for one night every four weeks from the beginning of October or thereabouts.

52. I acknowledge that Ms Ingledew spoke about re-establishing staying contact over a 12-week period.  I recognise the need for sensitivity, but also consider the court needs to make an order that reflects its confidence that contact is in the best interests of the children.  Requiring the father to come over to England for the next three months for contact periods of 2, 4 or 8 hours would in my view send an unduly timorous message.  Bearing in mind the experience gained from the September order, I propose to use the available time to make faster progress.  

53. The programme for contact will be:

(1) Contact tomorrow evening for two hours.  E will attend (alone in the sense that it is not intended that she will bring a friend) and I strongly urge that J should also be there.

(2) Contact on Sunday for four hours attended by both children.

(3) In the week of 11-18 July, there will be contact for eight hours on two non-consecutive days and a single overnight stay at the Kent house at the end of the week.

(4) In the week of 3-10 August, there will be contact for eight hours on one day and two overnight stays on non-consecutive days at the Kent house.

(5) In September there will be one weekend from Friday evening until Sunday evening.

(6) At October half term, there will be five days and nights staying contact in England and Wales.

(7) At Christmas, there will be a week's staying contact in England and Wales.

(8) Thereafter, there will be a programme of weekend contact every four weeks, periods being extended to incorporate up to half of the holidays and half terms.  A calendar for the next 12 months should be attached to the order.

(9) Any of these arrangements, including the embargo on foreign travel, may be varied by written agreement between the parents.   

(10) The parents shall follow the advice of Ms Ingledew concerning the father writing a letter of explanation to the children and in relation to how the issue of the new half-sibling is best approached.

54. I reserve any future application relating to these children to myself.

Other issues
55. I turn to two final matters.

56. The first concerns the financial proceedings.  The prospect of these continuing in their present course is directly linked to the welfare of the children.  The court has a responsibility to deal with the financial applications energetically and thereby control costs.  Were I giving directions in that matter, I would fix a final hearing before myself lasting about 10 days at the end of this year.  The prospect of the case settling seems remote and the likelihood of it harming the children is obvious.  Being on circuit, I am not able to take the July hearing, but I direct the parties to bring these observations to the attention of the judge who does. 

57. The last matter concerns the position of the mother's solicitor.  I have not been asked to make any order about this and do not do so.  However, it is a matter that is plainly relevant to the interests of the children and the integrity of the court proceedings as a whole. 

58. The mother wishes her solicitor to continue to act and the solicitor considers that he can do so. 

59. There may be no absolute bar on a personal relationship between solicitor and client but in this case I see grave difficulties for a number of reasons: 

(1) This is a highly acrimonious dispute and the personal involvement of the mother's solicitor exacerbates it. 

(2) In the course of this hearing alone, there have been several moments when the mother has been challenged about situations in which her solicitor would be a compellable witness.  Two examples arose in relation to events on Sunday and Tuesday of this very week.  Another example concerns the visit to Paris at half term.  The father says that E was told not to tell him about this.  The mother denies that.  Where does that place the solicitor? 

(3) Another concern arises about the solicitor also acting for a Mr C, who is providing information to the mother about the father. 

(4) I refer to the solicitor's response to the concerns raised on the father's behalf.  Four letters have been written asking for an explanation of the nature of his relationship with the mother.  The only reply has been this: "The meetings between [the mother] and representatives of our firm are subject to legal professional privilege.  However, without prejudice to that privilege, we can confirm that no discussions concerning the case have occurred or will occur in the presence of or in the hearing of the children."  That entirely unsatisfactory and, I am afraid to say, disingenuous response (and the fact that every subsequent request for information has been ignored) demonstrates that the solicitor is in a situation where he cannot give independent professional advice to the mother. 

(5) I have serious concern about the mother's position should her relationship with the solicitor come into difficulties at any time in the future, and about the solicitor's position should he be challenged about his professional service. 

(6) Lastly, at the end of the hearing, the parties asked me to determine an issue about distribution of monies due to be received by the father and subject to a freezing order.  Those submissions revealed that in February, when the District Judge ordered the father to pay the mother £16,000 for her monthly legal bills, the solicitor's relationship with the mother was not revealed to the father or the court.  It was plainly a material and disclosable fact on such an application and I was surprised to hear a contrary submission.  I shall not direct the release of litigation funds at this stage.  The hearing in July will be an opportunity for the father to put his case on the issue.  

60. I am aware that the mother would be placed in great difficulty by the withdrawal of her solicitor, but the ends cannot justify the means if it is not proper for him to be acting.

61. I direct the parties to refer these observations to the SRA and, if the solicitor continues to accept instructions, to any judge conducting future hearings.