A Child (No 2: Enforcement and suspended transfer of residence), Re

HHJ Willsteed:

1. This is a final hearing in long running proceedings relating to A, born in 2022.

2. A’s father is F and he is the applicant in these proceedings. He is represented by Hayley Manser of Counsel. His application was made on 13.6.22 and he applied for a Child Arrangements Order for shared care and contact, a prohibited steps order preventing international relocation by the mother with A and a specific issue order to be named on A’s birth certificate. Since that time his application has developed so that he seeks a transfer of residence for A to live with him and spend time with her mother. He has also put before the court an application for enforcement and for the mother to meet the costs of contacts which were ordered by this court and, he says, unreasonably frustrated by the mother’s actions.

3. A’s mother is M represented by Rhodri Jones of Counsel. In March 2022 she applied for a non-molestation order against F, made on an ex parte basis and founded upon allegations of serious domestic abuse perpetrated by the father. She seeks an order for A to live with her. She expresses a hope to move to another city but recognises that this has been refused twice by 2 different courts, and that there is currently no application before the court. She proposes alternate weekend staying contact for 1 night with the father with a 1-hour video call in the intervening week, until the criminal investigation has concluded, at which stage she tells me if there is no conviction for father for the offences I have already determined, she would be willing to extend the time A spends with him.

4. I appointed a Guardian under rule 16.4 of the FPR on 17.9.2023, after I had completed a fact-finding hearing to consider the allegations and cross allegations between the parents. Following a change in cafcass personnel, a new guardian took over on 7 February 2024 and has been represented by Emma Roberts at this hearing. Her conclusion highlighted the positives within the father’s time with A, but considers that the impact of a change of residence at this stage would be detrimental to her and disproportionate at this time. She gave her opinion that the mother has at times exaggerated concerns or sought to slow the progression of contact which has been detrimental to A’s developing relationship with her father. When considering the making of a shared care order she cites Cafcass policy which relies on the ongoing nature of a criminal investigation for a sexual offence that the recommendation should be for no contact. She recognises that the court is not bound by such policy and that the legal framework requires this court to progress on the basis of findings made and not appealed.

5. The full judgment from the fact finding has been included within the bundle for today’s hearing, and forms much of the background to this lengthy set of proceedings. The judgment arising from that hearing cannot be repeated within this judgment in other than the most broad terms: essentially, apart from the father’s admission to taking an intimate photo of the mother without her consent whilst on holiday in 2019, I dismissed the many and serious allegations made by the mother against the father, and found that she had fabricated them in order to frustrate the development of a relationship with his daughter. That judgment was handed down in September 2023.

6. Notwithstanding suggestions by the mother that she may still seek permission to appeal those findings out-of-time, and police disclosure recently received which indicates that officers undertaking a case review have suggested that they may still seek to prosecute the father for offences of coercive control and sexual assault, the legal basis is that I must proceed on the basis of the findings I made, unless or until they are the subject of successful challenge. No party seeks to challenge that as the appropriate legal framework in which I must consider these applications.

7. The final hearing was listed on an attended basis. Given the findings I made about the non-consensual taking of an intimate photograph, as well as my findings of fabricated allegations, both adult parties have been treated as vulnerable in line with PD12J and PD3AA. The mother observed evidence from the vulnerable witness suite, supported at times by a worker from a local domestic abuse support agency. When she gave her evidence she did so in the court room, with the father listening to evidence from the suite, but unable to see her. She had also requested that the screens be angled so that she was unable to see the father whilst she gave evidence which was also accommodated. F has additional vulnerabilities in terms of his learning profile, and earlier directions for him to have the support of a lay advocate, , were observed throughout this hearing. Questions were appropriately tailored to ensure that they were not overly complex or lengthy, and particular care taken to ensure that regular breaks were offered to both parents.

8. A press accredited journalist was permitted access to the hearing and chose to attend for periods of mother’s evidence via CVP link. Although not asked, mother volunteered that she had spoken to a journalist over the lunch break on day 2, whilst she was on oath, and provided voluntarily information about her previous communications with the journalist. These are of course provided for and not prohibited under the Transparency Order made on 17 May 2024, of which the journalist was aware. I refused an application to exclude the journalist from the hearing when she sought to attend mid-way through the mother’s evidence on day 2, made on the basis not only of the disruption to the mother’s evidence that the creation of a further link would cause, but also on the basis of the impact on the father of the risks of biased reporting in circumstances where the journalist had only spoken with the mother and had only chosen to attend portions of the mother’s evidence rather than observing the hearing as a whole. Father’s counsel raised questions about the value to the transparency of proceedings in such circumstances. That application was refused in light of my ex-tempore observations that these factors were always concerns present for parties where journalists had been permitted access, and that I had no powers or duties to compel an observer to remain for the entirety of a trial in order to achieve a wider understanding of the proceedings. In any event, the Transparency order did not prevent any of the actions volunteered by the mother. I did however permit some limited cross examination on the partial information that the mother had volunteered, on the basis that the father’s case is that the mother has fabricated allegations and frustrated contact even following the fact-finding hearing, and there was a legitimate limited enquiry that he was entitled to pursue following the mother’s volunteering of some information.

9. I have read the bundle of these proceedings and heard evidence form the parties and from the Guardian.

10. I have received a summary of the law, which is agreed between counsel and which I endorse. I must keep as paramount in my mind when I make decisions about A’s upbringing her welfare as my paramount concern, with particular reference to the factors set out for me at s1 of the Children Act 1989 . I must make the least interventionist orders possible to achieve that aim. I must only make orders for A that are better for her than making no order. I remind myself that factors such as credibility and demeanour go the broader canvas of evidence, and that it is for a party making an allegation to prove it on the balance of probabilities. There is no reverse burden to disprove an allegation. Demeanour and credibility are relevant to my considerations, and I must keep in mind the Lucas direction if I am considering a parties’ dishonesty.

11. In terms of the application for enforcement, the alleged breaches pursued are accepted in fact, but the mother seeks to persuade me that she had a reasonable excuse for not complying with orders in place at the time. I must decide whether, on the balance of probabilities I am satisfied that it was, in fact reasonable at the time the breach occurred.

12. I heard first from the father. He was extremely nervous, at times tearful. He plainly continues to struggle to recall dates and sequences of events and was supported by an advocate by providing further context to questions which allowed him to give fuller answers. He was willing to give mother credit for the good care she takes of A but also expressed his deeply held concern that, given her actions throughout these proceedings, she does not intend to permit a full relationship to develop between him and his daughter. He considers that she has exploited loopholes to achieve this – in the reporting of sickness or diarrhoea which was unevidenced at times but reported to the contact centre who then refused to accommodate the contact in light of the familiar policies for sickness bugs, but also within these proceedings by refusing to accept my determinations and providing new information in the criminal investigation, aspects of which she now says she did not share with the police, and relying on that as a reason that he should not have a full relationship with their daughter. I found him, consistent with my earlier observations, to be an honest witness, and only driven to make the application for a change of residence out of a sense of hopelessness that any other order would be exploited to prevent a relationship with his daughter.

13. I also heard from the mother. She was confident and articulate in her evidence, able to frankly agree with counsel that she did not accept my findings (which I am conscious must be an uncomfortable and difficult answer to give) and able to recall dates, names and policies that supported her accounts. In some aspects she struggled to articulate or explain her actions: for example why she would have agreed to ‘supported’ contact (in her understanding of that term, which I shall return to) if it meant that someone was around but not supervising the father in a centre but did not agree to that same scenario taking place in a park which would have been more fun for A. I was concerned that she now denies that she provided very damning and untrue information to police which has formed part of their case reviews, at least as at July this year that the father was breaching the contact order when there is no foundation to that, expressing a desire to give a 3 rd ABE interview (which she describes as them asking her to which is not reflected in the police disclosure), that A calls him a nasty man and does not want to see him, that he is a bad father, that they are worried that he will sexually harm her so they mark her nappies so they know if he has changed her, all of which she denies saying. In her answers to me the mother denies having said almost everything in the note recorded by MP on 18.7.24, as well as the record made by officer GB on 10.7.24.

14. She was able to reflect after a period of cross examination on this topic that her decision to refuse contact on 8.5.24, because it had been arranged at 5-7pm - the only time available to avoid a 3-week hiatus in A’s developing relationship with her dad, was on the basis that it would disrupt her routine was unreasonable and detrimental to A. She also accepted that all professional observations of the father with A were positive, and that he was child focussed and attentive to her. It is clear that I have to take into account my earlier findings in respect of the mother’s credibility, although of course, having made previous findings as to her dishonesty does not mean that she has lied about everything, nor that she should be presumed to be dishonest. I must apply the same Lucas direction and scrutiny to the broad canvas of evidence available to me when making my determinations of disputed matters.

15. In evidence she acknowledged that she had not proactively shared information that would have supported A’s welfare, such as the cream used to soothe her eczema (or the powders, nappies or milk brands that exacerbated them) and that she had not shared details of A’s health visitor with him.

16. I heard next from the Guardian. She gave her evidence frankly, and withstood challenge on behalf of the father about the extent to which the recent cafcass policy changes had impacted upon her recommendation, agreeing that ‘but for’ the policy that states she should not recommend contact take place during a period of investigation for sexual offences she would have made different recommendations to this court. She was clear however that she did not consider that the threshold had been reached for the harm of a change of primary residence for A to be more beneficial than harmful to her welfare, irrespective of the policy.

17. She had no concerns for either parents’ ability to meet A’s basic care needs and confirmed that there was no evidence within these proceedings to support any suggestion that the father poses any form of risk to A whatsoever. She was worried about the mother’s motivation for comments she considers it likely that the mother has made to police and the impact those falsehoods would have had on the duration of the investigation and the case review, and she was worried about the harm it would cause A to be around a mother who was verbalising and feeling such hostile and negative thoughts towards the father during the period of developing the relationship.

18. She accepted that she had described the supported contact set up as being in a large room with other families and support workers around to the mother, as this was the set up that she was most familiar with, but was clear that when she learnt that was not the set up within the Children’s contact centre she confirmed that she agreed with the solicitor’s ’ email of 12 April that there was no safeguarding reason why that would not be appropriate for father and A.

19. Parties agree that I should determine the alleged breaches first, then move to welfare considerations, for which I shall refer to the schedule of breaches and responses.

20. 6.4.2024 and 14.4.24: I consider it necessary to look at these 2 missed contacts together. The Mother says that the first contact was missed as a result of A having been up all night with a sickness bug. It was also the first weekend where contact was due, following the stepped order I made on 8.3.24, to increase to supported rather than supervised. Mother is clear that she had understood supported contact not to vary significantly from supervised – that it would continue to be the father and A in a room with a professional – the only real difference that I could detect in her understanding being that no notes would be taken. Mother told me that she had looked at the website for the contact centre in advance to agreeing it as a venue, but can’t recall whether she looked at the definitions for supervised and supported contact.

21. It is plain that mother did not wish contact to take place in line with the order on a proper interpretation of the term “supported” – by which I mean the appropriate level of contact between a child and a parent who has not been assessed to pose a significant risk of harm, and for the purposes of permitting children to develop and maintain relationships with a non-resident parent. That can be seen from the email sent by her solicitors on 12.4.24 setting out that the mother “ has been advised by the contact centre staff that their supported contact consists of the parent being left unattended in the room with the child. Our client is significantly concerned about this and would argue that this is unsupervised and not supported. Our client does not agree to contact taking place in this way .” On the same day she also indicated through her solicitors her refusal to agree to contact moving outside the centre, even with the contact workers present, in the way that she has indicated she had considered to be supported.

22. Mother confirmed to me that she had looked up the information about the contact centre at the time she had first agreed to it being used. It is plainly recorded now on the face of that website that supported contact means that “ Staff and volunteers are available for assistance but there is no close observation, monitoring or evaluation of individual contacts/conversation. ” This is, I am satisfied, an issue that would have caused her anxiety from the point at which she became aware of it, so when she looked it up in March at around the time that centre was agreed. I am willing to accept however that it was only as the prospect of contact moving to unsupported around 6 April that she would have started to face the prospect of a progression that she had never agreed to (as can be seen from the order of 8 March 2024 specifically excluding the order for the progression of contact from the remainder of the order which was made by consent).

23. By 12 April, A’s solicitor had communicated to parties that because there were no safeguarding concerns, she would not anticipate this being a reason to halt the progression of contact. On the same day the centre were informed that the order provided for supported contact and that there were no safeguarding concerns, therefore contact should progress as directed. At 11.40am on 14.4.24 father called the centre to check it was going ahead that day and was told that as they had not heard from the mother they assumed it would proceed as ordered. They note that he had confirmed that he expected the contact to be supported. Following this the centre called the mother who said she was not happy with the arrangements for support and cancelled the contact.

24. It is hard to reconcile this factual chronology (which only became available during the hearing) with mother’s account in her statement at C110: That on 14 April as she was getting ready for contact she received a call to say that father did not agree to a contact worker being in the room and had refused for contact to go ahead. By 12 April it had been made clear that she did not agree with contact progressing to supported in line with the order & had received responses from the child’s and the father’s teams that it should proceed. It is, on the balance of probabilities, extremely unlikely, and I find unreasonable, for her to have proceeded on the basis that by Sunday contact would have reverted to supervised. I do not accept that she was planning to take A to contact that day. I also note the reframing of responsibility for the cancellation of the contact, when it is plain (and confirmed by the contact centre) that it was mother who cancelled it. This manipulation of facts is a pattern I have observed throughout these proceedings with references to professional advice mother has received in order to support her reasonableness in responding to such professional advice: for example, reporting A has been sick and therefore triggering the 48 hour policy meaning that she is not responsible for cancellation of contact. Other examples of this logic are relying on police or support network agency advice to move to another city, when that is based on her unevidenced reports that she is suffering harassment and abuse from father and his family, or more substantively for this hearing that she and cafcass cannot support progression in light of the ongoing criminal investigation and possibility of charges when in fact she is extending the investigation period by seeking to provide new evidence in the form of witness statements, a further interview and a phone after the conclusion of the fact finding hearing, and giving misleading statements such as that father poses a sexual risk to A, that he isn’t a good dad, that it is detrimentally impacting on A and that he isn’t abiding by the terms of orders. Similarly, the mother’s evidence that A is unsettled, and that father has not had the time to build a full relationship with her yet as an argument against the increase in contact is hard to sustain when it has been actively hindered by, as I find, her unreasonable interruption of contact which has led to A being unsettled. 13 months post fact finding, A has only within the last month or so been able to spend time unsupervised with her father overnight, notwithstanding the absence of any identified risk factors or professional concern. This delay is inimical to A’s welfare and is wholly outside the timeframes that these proceedings should have been concluded within: Not as a result of delays required for A’s welfare but delays occasioned by the mother’s conduct.

25. It is the case therefore that despite having had the benefit of input from the child’s solicitor, the opportunity to take (and having taken) advice from her own solicitors, and the alternative option of contact moving outside the contact centre but with a support worker present being offered but refused, the mother chose to instead breach the order and to cancel contact, having already missed contact the week before, which was an interruption to the developing relationship.

26. I am not satisfied that this was reasonable in all the circumstances. I am satisfied that mother’s anxiety around the progression of contact, misplaced as I have found it to be, led her to disregard the terms of the order, in the absence of any assessed risk of harm to A, and in the face of contrary advice from the child’s solicitor. M is not a lawyer, but she does have access to legal advice and did at that time. Whether or not she had pictured a different scenario, an alternative set up, ordered by the court and endorsed by A’s solicitor was available and would have promoted the developing relationship between A and her father; the progression from supervised to supported was one which was ordered: not one which either had or required her agreement. I was struck by Mother’s response to a question about a subsequently withheld contact that, on reflection, when put to her in explicit terms she was able to recognise that contact had been unreasonably withheld, and that she had failed to take into account the detrimental impact to A of doing so. This, I find, has been mother’s default position: where there is a reason to prevent the progression or continuation she has done so, without being able to consider or balance the various harms to A of doing so.

27. I am satisfied that this was also the reason for the contact on 6 April being missed. I find it inherently unlikely that mother had not looked into the format of supported contact prior to speaking to the contact centre that morning to report A’s apparent sickness. The same misplaced anxiety would have been present, and the same tendency to do or say whatever was required to prevent it from going ahead. I am satisfied that on 6 April mother did not have a reasonable excuse to breach the order.

28. The contact session on 21 April should have been supported rather than supervised for 2 hours. Because of the difficulties in the sessions on 6 and 14 April, A by that point had not spent time with her father since 30 March, and there could be no confidence when the mother would make A available again if the father did not comply with the mother’s unreasonable demand for contact to remain, effectively, supervised and thus he was in no realistic position to do anything other than comply with her conditions. The progression of contact was a carefully crafted, stepped plan, designed to minimise disruption to A, and to permit the building of a paternal relationship which had been unreasonably denied solely due to the actions and decision-making of her mother. The disruption to this progression, where I have found contact to have been unreasonably withheld or curtailed, has had a direct impact on the development of that relationship. I accept the evidence of the guardian, given to outline the difficulties with a Family Assistance Order, that mother does not seem to accept that orders of this court are not for negotiation, and that if she has the ear of a professional she will manipulate that opportunity to further disrupt and delay the development of what is accepted by all parties to be a lovely relationship between A and her dad. This was an occasion where M levered her unreasonable demands to justify a departure from the contact ordered.

29. 28.4.24 : This contact ought to have taken place for 2 hours, supported. In the week prior to this contact the mother had been requesting that father provide pictures of his parents prior to them joining for a short portion of contact. She had, having made a referral to another contact centre, hoped that contact would take place that week at the new centre, who had arrangements for supported contact that she approved of. From the findings I have already made it can be seen that she would not be willing for contact to have continued on the supported basis in the current centre (by this point having had a conversation directly with the guardian on or around 19 April where the Guardian confirmed to her that the arrangements for support in a Contact Centre were safe) it is extremely unlikely that she would have permitted this contact to proceed, supported, in that centre. Mother’s account of why this contact did not go ahead is contained in her statement at C111, she says that she had to attend hospital due to a medical emergency. She says that her family members were at work, and her mother does not drive so could not take her. She says that she cannot force her family, who are unwilling to engage with father, to help her. She has produced medical evidence in support of her inability to make A for contact. The document records 2 NHS reports of rectal bleeding on 28 April (with no time these calls were made). The record itself does not indicate attendance at A&E on 28 April (although this is referred to in the letter from her GP). She has redacted details that would enable me to understand the totality of the document, but it confirms that the medication prescribed was suppositories and ointments, and that she was discharged home that day. It is not immediately obvious to me that this condition was sufficiently serious to prevent mother from delivering A to contact. Whilst it would be entirely consistent with mother’s prioritisation of her own wishes above A’s need to establish a consistent relationship with her father, on this very finely balanced allegation I am not satisfied that there was no reasonable excuse for mother to breach the order. Whilst the background to this contact not taking place raises serious concerns, I am not confident that no reasonable person would have sought to cancel contact in similar circumstances. From this however I draw that the maternal family are not in a position to support the time that A spends with her father. If they did, other ways would have been explored and utilised to prioritise A seeing her dad: taxis and buses would have enabled this to go ahead without an unreasonable effort or expense had the maternal grandmother recognised the value to A of it proceeding.

30. 5.5.2024 : Due to the mother’s decision to vary the contact centre at which the progression could continue, a second referral process was required. Both parties were given times to attend a pre-contact meeting, and it was plain that those meetings could not take place in time for a contact to take place there on 5 May. The father therefore made enquiries whether it could instead proceed at the original venue, the only times available at that late stage being 5-7pm.

31. The mother addresses this contact at C111, and again the manipulation of facts to exculpate her own role in this breach is striking: She cites father “not engaging in the pre interview process” without there being any evidence for the same as a reason for contact not being achievable at the new centre in time. It cites the father’s pre-booking of a session as having delayed the process, as though this implied culpability made her breach inevitable. She cites A’s bedtime routine as meaning that the contact session was too late but fails entirely to consider the impact on A of interrupting the schedule of contact progression and her relationship with her dad. She appropriately in cross examination conceded that she had failed to consider this at all at the time. She misleadingly cites the Guardian’s view that 4.30pm was too late for a contact without setting out that this was a discussion some time ago, about a different scenario, and in fact that by 3 May (2 days in advance) she had received an email sent by the child’s solicitor confirming that contact should go ahead at that time. She goes on to say that the Guardian later agreed with her that the contact would have been too late, which is not supported by the Guardian. The mother accepted that this was an unreasonable breach of this order in her oral evidence, and she is right. It is a further example of her inability to work cooperatively within the terms of an order to prioritise the developing relationship with father. Worryingly she found it very hard to explain how it could affect A’s relationship with her father, and I am unsure of the extent to which mother is able to properly process this fact, in light of her intractable hostility to contact.

32. 9.6.24 and 16.6.24 : It is within this context that on 6 and 16 June M did not present A for contact, claiming that she had a sickness and diarrhoea bug over this entire period. She has produced evidence in support in the form of medical notes. On 3 June she took A to the GP reporting her becoming unwell towards the end of a contact with the father (which it is accepted he responded entirely appropriately to). She confirms no diarrhoea or vomiting. The examination was normal and produced no concerns.

33. On 7 June A was presented to the GP citing diarrhoea and vomiting on one day within the last week. She did not appear unwell to the GP. There was no mention at all of the sensitivity to cow’s milk that the mother cited in her oral evidence, which she said caused her to have an upset stomach, but which she nonetheless continues to give her in small quantities, and in cereal. It is on this basis that the mother says that due to the 48 hour policy she was prevented from making A available for contact at the centre. On 12 June she presented A to the GP once more, citing diarrhoea ongoing for 7 days and saying she had started to improve over the last 48 hours. The GP examination observes A to be well, and the mother reported that she was “eating sandwiches”. Again, there is no mention of any intolerance to cow’s milk. Given the level of anxiety that mother demonstrates around A, I find it highly unlikely that if A had indeed continued to present with diarrhoea and/or vomiting over a 6-7 day period that she would not have presented her more urgently for care, rather than waiting until 48 hours after she has started to improve. These contacts represent a further period at which a progression in contact was due: the paternal grandparents attending at contact. I find it extremely unlikely that if A had indeed been that unwell over the period of 6-7 days that at no stage did the GP note her to have the appearance of an unwell child.

34. Also on 12 June M spoke to police, apparently seeking an update following father’s further interview. On 16 May mother had made a further application to relocate to another city (although this was not issued in time to be determined at the hearing on 17 May), but at a hearing on the following day the mother pursued an application to suspend all contact pending conclusion of the criminal investigation, as well as seeking drug testing of the paternal grandparents (who were due to be introduced to contact). That application was refreshed at the hearing on 27 June, and that helps to put in context the mother’s perceptions of the value to A of contact with her father, and the introduction of the paternal grandparents, over this period.

35. I am satisfied that these contacts were unreasonably withheld due to the mother’s antipathy to contact continuing and progressing. I am satisfied that the creation of medical evidence was to achieve that end, and in order to shift the excuse for cancellation to the centre as a result of the 48 hour policy. There was no reasonable excuse for these breaches.

36. 14.7.24 : This should have been on an unsupervised basis. Again, to place this in a wider context this was 2 days after the mother’s appeal against my decision to progress contact notwithstanding the ongoing police investigation was dismissed as totally without merit by the High Court.

37. It was a fortnight or so after the Father reports that A had become unsettled in unsupervised contact after saying that she had seen ‘mummy in the bushes’ leading to contact ending early on 30 June, and subsequent contacts being curtailed to address A having become unsettled on that occasion.

38. Mother denies having followed the father during that contact. I am satisfied that on the balance of probabilities mother, in circumstances where she was seeking to prevent contact progressing in the ways I have set out already would have been unable to stop herself from interfering in this unsupervised contact.

39. This is supported by the email written by mother to the local authority on 1 July where she says she told her legal team on 28 June that she was going to ‘exercise her PR’ because she felt that ‘contact was unsafe’. In those circumstances it is likely that she did convince herself that it was necessary to observe the father’s contact in the way that A described. Further to this, the following day she reported to CSC that A had come back from contact with red marks under her arms, saying that her back and legs were hurting today, and under her arm she had noticed slight bruising (which the GP did not observe when taken that same day). She denies having described herself as “in a state” when she dropped off A (so, another professional fabricating comments that she has made). She informed CSC that she had taken a recording of A (not producing this to police, to CSC or for these proceedings) and she was unable to explain why that recording had been made when giving oral evidence to this court – A saying that her legs were hurting and ‘man pull leg’. I am concerned that this entire sequence was in pursuit of her applications to this and other courts to prevent the progression of contact and development of A’s relationship with her father.

40. She went on to describe the father as not being able to put her in a car seat and becoming angry (a description she now denies) and said he brought A back after 45 minutes because he couldn’t cope, rather than because it was the appropriate thing to do after A had become distressed by seeing her mum in the bushes. All of this demonstrates a wholesale disregard for the numerous and consistent reports of the father’s parenting capacity and the risks to A’s emotional and psychological wellbeing as a result of this extreme and disruptive behaviour. I found mother’s attempts to deny that she was accusing father of hurting A to be unconvincing: in her reports to CSC she says that she wouldn’t point the finger at him because she wasn’t there. In that case what was the purpose of her report to CSC? Again, I find this is a further manipulation of the reality, designed to make mother appear reasonable.

41. The contacts did go ahead on 14 and 21 July, but the father pursues it as a breach on the basis that it was curtailed as a result of the mother’s actions on 30 June. Whilst I am extremely concerned by the mother’s actions, I am satisfied that notwithstanding her at the very least contributing to A becoming unsettled, it was not unreasonable to comply with the guardian’s agreement to shorten the timeframe for that discrete session, which the father also adopted as a reasonable response to put A’s needs first after the inappropriate actions of the mother.

42. 28.7.24 was not pursued as a breach.

43. Consequences of breaches : I am satisfied that it is appropriate for mother to bear the costs of the contact sessions paid for and not recoverable by father. It was an unnecessary waste of his money, at a time when he had no option but to pay for these sessions in order to spend time with his daughter. I am mindful of both parties’ limited means, but these wasted costs were avoidable and arose solely as a result of the mother’s unreasonable breach of my order. Similarly, where contact was cancelled by the mother with insufficient notice to prevent the father’s unnecessary travel to the venue, it follows that he should recover his travel costs. The mother does not oppose this in principle (nor has she challenged the 45p per mile figure) but has taken issue with the father’s calculation of a 20 mile round trip. In support of this she attaches 2 RAC mileage calculations which provide an average round trip of 19.76 miles (and thus £8.89 per journey, rather than the £9 claim by the father). No party gave evidence on this small dispute, neither did any advocate address me on the difference, and so working proportionately with what I have available to me I approve the slightly lower figure.

44. Welfare:

45. A is 2 years and 8 months old. She is described as an inquisitive and fun young child, meeting her developmental milestones with advanced language skills. She has, for no justifiable reason, been denied a relationship with her father for most of her young life, only having the opportunity to start to build a relationship with him in January of this year, when she was nearly 2 years old. Whilst her basic care needs have been well met by her mother; she has had a near total absence of interaction with her father or paternal family for most of her life. It is said, although unevidenced, that she has an intolerance to cow’s milk, and eczema exacerbated by certain nappies and detergents, although these have not been specified.

46. She has exhibited happiness in her mother’s care, but notwithstanding what I have found to be the unreasonable interruption of introductions to her father, has demonstrated comfort and enjoyment in his presence, as well as a comfort in his home and with him and her paternal grandparents. A is far too young to be asked her wishes, but from the professional observations of her I am satisfied that she would wish to have a meaningful and consistent relationship with both of her parents if that can be safely maintained. I accept the Guardian’s view that A would wish to stay in her mother’s primary care if that were not to be to the detriment of her relationship with her father.

47. The harm that A has experienced is emotional and psychological. She has, as a result of her mother’s fabricated allegations, been denied a full relationship with her father and paternal family for the majority of her life, and throughout important periods of development. He has been excluded from important decisions and moments in her life, such as her baptism, the choice of God parents, and a unilateral relocation to another city (and subsequent return). She has, I am satisfied, been exposed to the maternal family’s negative and untruthful narrative of the father and paternal family, albeit perhaps not deliberately, by reason of their preoccupation with bolstering and prolonging the criminal investigation and frustrating the development of contact to that end. Instead of having a consistent, regular programme of time spent with her father, building to a fulsome relationship within a sensitively planned and considered period she has been unnecessarily presented to medics, questioned and recorded and referred to children’s social care, and caused emotional harm by breaks in the reintroduction to her father. It is unsurprising in those circumstances that A demonstrates being unsettled.

48. No party, not even the mother, seeks to persuade me that there is a legal framework in which it would be appropriate for me to make decisions based on anything other than the factual matrix established in these proceedings over a year ago, and are unchallenged, despite the mother’s unwillingness to accept the same. The reasons are clear: criminal investigations take an unacceptable portion of a child’s life and decisions simply cannot await such a lengthy and uncertain process. Father was arrested on the basis of the mother’s allegations over 2 years ago. The police are still unable to present a file to the CPS to ask them to consider whether a charge is appropriate. There is still no meaningful timeframe to that process. Whilst the mother points to the indications from police that they may yet charge the father, it is plain from the disclosure received that the police have been proceeding on the basis of incorrect updating information, either as mother asserts because they have simply fabricated things that she has never said which amplify the risks presented by Father, or as I have found more likely, that she has misrepresented information to them which she now seeks to distance herself from, because it is plainly not true. Either way, their analysis so far is partial, and has taken into account information that cannot be sustained, and so any suggestion that it is a feature I should be bound by is even less persuasive. I am however able and willing to take into account the impact on the mother of her unfounded and irrational anxiety surrounding the father’s relationship with A, and also the future possibility of risk in the event that the father were to be charged and convicted for offences against the mother, meaning that a relationship which has already developed may cease, leaving A confused and upset. These risks are, of course, speculative, and not ones which I have sufficient evidence to place significant weight on. They are no worse that the mother’s current proposals which would reduce the positive contact recently established.

49. Whilst the guardian was questioned about the compatibility with the recent cafcass guidance which prevents her from recommending a framework of living arrangements for A that would otherwise be in her best interests due to the ongoing police investigation, she was clear that whilst she is bound by that policy she recognises that the court is not.

50. The risks posed by father are limited to those identified in these proceedings and arise from an intimate photograph he took without permission of the mother in 2019 whilst on holiday. This was 5 years ago, and whilst his response at the time was immature, harmful and concerning, I agree with the Guardian’s analysis that he has since reflected and demonstrated real insight into the impact of non-consensual intimate photography on mother. There is no evidence before me that father poses any risk of sexual, physical or emotional harm to A, and no party suggests that this finding alone would justify the significant restrictions on his relationship with A that the mother contends for.

51. The risks of harm posed by mother, if she continues as she has since the outset of these proceedings, are significant emotional and psychological harm to A. The impact on her emotional wellbeing if her mother continues to frustrate arrangements and to interrupt and interfere to prevent a meaningful relationship with her father are extremely harmful. She will be denied from knowing an entire half of her family, half of herself, all of whom love her very much and have remained committed to her throughout this painful and lengthy process. She will be exposed to a negative and untruthful narrative about her father, which is likely to cause her insecurity, low self-esteem and feelings of loss and rejection. She risks being moved at short notice to new locations (whether within this jurisdiction or outside given the strength of the mother’s feelings and the lengths she has been willing to go to within these proceedings, and in light of her established familial links abroad)or increasing attempts to create or manipulate situations in order to persuade professionals, or investigating officers, that action should be taken against the father. I am very concerned indeed, and disappointed that this has been the mother’s focus since the fact-finding hearing, rather than internalising and digesting the professional recommendations as to what will best meet A’s needs.

52. In terms of parenting capacity, the only criticism which has been levelled against father relates to his relative inexperience in parenting, which of course is in no way his choice. He has responded appropriately to advice from professionals; he has been positively assessed in his abilities to manage A’s basic care needs and in this situation perhaps even more importantly to meet her emotional needs. The Guardian does not doubt his willingness and ability to promote a relationship between A and her mother notwithstanding the appropriate caution he demonstrates in any interactions with the mother and maternal family in the circumstances. He has made reasonable enquiries as to changes he could make to his employment contract if A were to move to live with him and has in place proper and suitable arrangements for support in response to his early starts.

53. No criticism has been made at all about mother’s basic care of A. The concerns relate primarily to her ability to promote and facilitate any sort of meaningful relationship with her father. In light of my findings that risk remains present. She has, until these proceedings, failed to see any value in or need to proactively keep the father appraised of important aspects of A’s life which would enhance the quality of parenting that father is able to offer, such as which milk and nappy brand she uses to avoid rashes forming, what eczema cream best soothes her rashes if they develop, even down to the fact that mother has started to potty train A and how she is going about this so that it can be maintained whilst in her father’s care.

54. She has deliberately set about harming A’s ability to settle into a consistent routine with her father, leading to A being unsettled beyond what was already anticipated. She maintains a wish to relocate to another city, a city at such a distance from A that her proposals to return her for regular contact with the father seem not only implausible but actively detrimental to a child of this age. Notwithstanding her reliance on her privately rented flat in another city being a central plank to her asserted risk of street homeless, she has not made enquiries about whether she needs to give notice on the tenancy, the fixed period of which expires in less than a week, a failure which has actively prevented her from seeking to go on the housing list here or from being in a position to identify accommodation in the private rental sector once she is no longer committed to paying rent in [another city]to avoid living in such proximity to father. When asked whether the mother was capable of promoting a relationship with father, the Guardian carefully explained that she believed she was capable of doing so, however the question in mind is whether in reality she is likely to. On the basis of the findings I have made that is a very significant concern. It is also of concern that mother is now so entrenched in her pursuit of criminal sanctions against father that she has been entirely unable to reflect upon the harm that her own actions have caused A.

55. The range of powers before me are wide. On the father’s case, supported by the case law made available to me there is a strong argument that following my analysis the best order for A is to order her immediate transfer of residence to the parent I do feel is able to meet her holistic needs, including a relationship with the other parent, notwithstanding the short term distress and confusion that this will cause her on the basis that her long term needs will be better met. The Guardian advises against that, regardless of the new cafcass policy and tells me that the threshold is not yet met for such a significant and harmful rupture to A’s living arrangements with her mother.

56. In the alternative, the father says that I should make an order for a conditional change of residence of the sort set out by Jackson J in Re M [2012], so that the mother in effect has one final chance, but in the event that there are 3 further unreasonably missed contacts with the father, or if the mother once again unilaterally relocates or otherwise unreasonably breaches the order, that this should trigger an immediate transfer of residence based on my findings. The Guardian supports this way forward above an immediate transfer of residence.

57. In that scenario, I am asked to make an order for shared care, important I am told by the guardian and the father to reinforce in the mother’s mind the importance of father in A’s life, and to enable him to properly exercise his PR. That shared care, I was told by the Guardian, ‘but for’ the new cafcass policy should be reflected by A living with her father from Friday afternoons through to Sunday afternoon or Monday mornings on alternative weekends, with 2 overnights in the intervening week, and with an equal shared time with each parent during school holidays. She considered that this arrangement would not put A at any risk and would best meet her needs to maintain her primary residence with her mother, and to develop and maintain her relationship with the father and the paternal family.

58. Mother contends for an order that A lives with her and spends time with the father one night every other weekend, Saturday morning to Sunday afternoon, with a 1-hour video call in between. She could not seem to reflect upon how A would interact with her father over a video call for one hour, nor could she reflect upon the impact on A of reducing the time A is currently spending with her dad. This pattern was proposed for the first time in oral evidence, having set out an in-principal opposition to overnight contacts at all in her final statement. Mother did not explain the change. She considered that this pattern should not increase until the conclusion of the criminal investigation at which point she invites me to accept that she would willingly enter into discussions to extend this arrangement, albeit frankly accepting that even if father were charged and acquitted, she would still not be willing to accept the outcome of such proceedings. The Guardian does not think that this adequately provides for A to have a meaningful relationship with her father, and I agree.

59. I am satisfied that an order is required in order to ensure that the mother does not unilaterally frustrate a relationship between A and her father.

60. On balance, even taking into account the risk that A’s relationship with her father will be impacted upon by either her mother’s intractable hostility or with the impact of ongoing criminal proceedings, I am satisfied that her welfare requires the continued development of what is described by all to be a very positive and valuable relationship with her father, and her wider paternal family. She is happy and safe in his care. He is committed to meeting her needs and has shown commendable resilience and commitment through what have been extremely difficult proceedings.

61. My decision on how that relationship is to be managed is extremely finely balanced, however I am persuaded by the Guardian’s finely balanced and careful assessment of the detriment to A and the risk that it could in fact compound the mother’s behaviours which would be communicated to A if I were to transfer residence. The mother should however be in no doubt whatsoever if that she continues to fail to comply with court orders moving forward that the next stage will be a transfer of residence to her father’s care. Such a situation would require a careful reconsideration of the mother’s parenting capacity and whether it would remain safe for A to be exposed to the intractable hostility demonstrated by the mother and maternal family at all, let alone in a mirror image of the arrangements I will go on to specify under the shared care arrangements that I am satisfied will best meet A’s needs.

62. I am satisfied that this conditional order should be termed as shared care: I accept the Guardian’s recommendation as to the value of that in supporting in mother but also in A’s mind the important role her father has to play in her life.

63. A will live with her father every other weekend from 3pm or thereabouts in the afternoon on Fridays until 9am on Monday mornings. I suggest that for the first weekend that the contact is increased to 2 nights before moving to this pattern. The increase will not be held up by ill health or other events: mother will come to learn that caring for an ill child is both the pleasure and the responsibility of both parents, and there is nothing to suggest to me that father and his family are unaware of how to do so. In the intervening week A will live with father for 2 nights, from 3pm in the afternoon or thereabouts until a time which is agreed upon for drop off. I will leave it to the parents to seek to agree which 2 nights this should occur on, but I note that for the minimisation of handovers this should be 2 consecutive nights. Handovers should take place between the maternal and paternal grandmother, unless the parties are able to agree another way forward. It is not appropriate for the mother and father, or the maternal grandmother to be involved directly with the father, in these handovers, particularly in light of the mother’s pursuit of criminal sanctions. These parties will need to find a way to encourage their families to support what is in A’s best interests as determined by this court, not by themselves, and if that is not possible, it is likely to lead to breaches which will require reconsideration of the conditional order I have made.

64. Although A is not yet at school or nursery yet, I anticipate that she shortly will be, and this order is hopefully one which will not require revisitation, and as such I make an order that in principle she will share her holidays equally between her parents.

65. A’s passport will be held by father. I am satisfied that this is necessary given the risks I have identified of mother seeking to take further action to evade my decisions. I have heard no evidence to suggest that father presents a similar risk, nor that he would unreasonably withhold his agreement to A going on holiday if provided with appropriate information. In light of mother’s evidence, I have little reason to have confidence that she would behave and/or respond in this way.

66. I am satisfied that this is a necessary and proportionate order which best meets A’s needs now, and for the future. I will reserve any further applications to myself, and I implore mother to take stock of the advice she has received from professionals in this matter as to what A requires of her.

67. I have been asked to make a ‘liberty to restore’ provision for 6 months following the making of this order. This is on the basis of any significant changes which arise for example in the criminal investigation which may require a swift response from either party and the court in order to ensure that these arrangements remain in A’s best interests. I am concerned by the evidence given by the Guardian that this may have a similar impact on the mother as the making of a Family Assistance Order: that it would give this impression that this determination is not final and that there remains scope to negotiate or vary its terms in a way which may undermine the bedding in of these new arrangements. There is no s91(14) direction, and any future applications in this matter will be reserved to myself, and I am satisfied that it is proportionate for the parties to make an application in the event that it is truly necessary to return the matter to court. It is my hope that this hearing will spell the conclusion of at least the Family Court’s involvement in this family’s lives. As mother said in her evidence, they are both A’s parents, and they will need to find a way to make this work for her benefit.