EFM v EFF

1. I am concerned with the welfare of two children, EE aged 14 and FF aged 10.

2. The application before me is that of their mother, EFM, dated 17 th May 2021. By that application, the Mother seeks to vary a child arrangements order dated 14 th September 2020, which was made in the High Court by Mr Richard Harrison KC. The respondent to the application is the children’s father, EFF. I shall refer to the parties as the Mother and Father, with no disrespect intended.

3. The Mother has been represented by Ms Ellison and the Father, by Ms Cooper, both of Counsel.

4. At the Final Hearing I heard evidence from the CAFCASS Officer and the parties, followed by submissions. I adjourned overnight for the delivery of this oral judgment. BACKGROUND HISTORY

5. The Father is 45 years of age and is a national of Country X, in the EU. He speaks conversational English but has required the services of an interpreter. The Mother is 39 and is a UK national.

6. The parties met and commenced a relationship in Country X, where they were living when the children were born. The children resided in that country for the early years of their lives. The parties separated in December 2017. The children remained residing with their mother.

7. On 26 th September 2018, an order was made in Country X that the Father was to have contact to the children, starting at a contact centre, before moving to unsupervised. That order confirmed that both parents have parental responsibility.

8. By early 2020, the children were spending each alternate weekend with their father, although on the Mother’s account, not without difficulty.

9. In March 2020, the Mother left Country X with the children, with a plan to relocate to the UK permanently. The time for relocation coincided with the outbreak of the Covid-19 pandemic. She moved to reside with her parents and adult sisters in Yorkshire.

10. The Father then commenced proceedings pursuant to the Hague Convention, seeking a summary return of the children to Country X.

11. I have had sight of the relevant documents filed within those proceedings. The Mother alleged that she was the victim of domestic abuse at the hands of the Father throughout the relationship, including physical assaults, verbal abuse, and financial control. The children had been seeing a child psychologist in Country X because (said the Mother) of the harmful impact of the Father’s behaviour. The Mother also stated that the children did not wish to see their father. The Mother further alleged that the Father had assaulted EE by kicking her in February 2020.

12. The Father denied all such allegations. The children were interviewed by a CAFCASS Officer. A Report dated 27 th July 2020 stated that FF did not want to see his father, was scared of him and wanted to stay in the UK. EE also reported feeling scared of her father and wanting to stay in the UK. The CAFCASS Officer described the children as emotionally fragile and vulnerable and opined that that neither appeared to be ‘ scripted .’

13. The parties entered mediation, resulting in an agreement which formed the basis for the consent order dated 14 th September 2020. That order provided for the children to reside in the UK with their mother. It was accepted by the Father that the UK was now the country of the children’s habitual residence and on that basis, the Hague Convention proceedings were withdrawn.

14. The Mother was ordered to make the children available to spend time with their father. Between September of 2020 and Easter of 2021, that was to take the form of supported contact visits one week in each month, when the Father would travel to the UK for that purpose. Contact would then progress to overnight visits, initially in the UK. Thereafter, during term time, the Father was to have the children for contact in the UK one weekend in each month. Holidays were to be spent in Country X, one week at Easter, four weeks in the summer and one week at Christmas. In addition, an order was made for daily video and telephone calls.

15. In the event, because of the restrictions flowing from the Covid-19 pandemic, the first time that the Father could travel to the UK after September 2020 was January 2021. Pursuant to the order, he had contact visits in January 2021, March 2021 and finally, in April 2021. A total of 17 day time visits.

16. The Mother filed her application on 17 th May 2021. In her accompanying statement she repeated the allegations of domestic abuse that she had made in the Hague Convention proceedings. In fact, her statement cuts and pastes word for word the very same allegations. She objected to the next steps that were set out in the High Court order, which was for contact to move to overnight and then to Country X. She asserted that the children were reluctant to go with their father and set out incidents that were said to have occurred during contact visits at the beginning of January 2021. First, when hot chocolate was spilt upon FF and second, when the Father was said to have placed FF in a headlock, both of which had been reported to the police.

17. The Mother’s stated overall position was that she was wanted to promote contact but, in her view, it would be in the best interests of the children for contact to progress in England until they felt comfortable in travelling to Country X.

18. The first hearing and directions appointment took place on 21 st June 2021 in the High Court before Moor J. The position of the parties on that date is set out within his order- “ The applicant mother’s position is that the children are resistant to contact with the father and are resistant to travel to Country X to spend time with their father. The mother’s position is that there are safeguarding concerns in relation to the father, where there have been incidents where the father kicked EE in her genitals and FF spilt hot chocolate because the father pushed him in the back. The mother’s position is that contact between the father and the children has been limited due to the global Covid-19 pandemic and the children have not responded positively to the contact with the father and there have been incidents where the children have become upset. The mother continues to encourage the children to have contact with the father. The father’s position is that contact has been difficult due to it being supervised and would like for contact to progress to unsupervised as per the previous court order, so that he is able to establish a relationship with his children .”

19. A section 7 report was filed by a CAFCASS Officer dated 19 th August 2021. That Report was positive as to the Mother’s care of the children and their progress at school. The Officer reported that the children did not want to see their father, flowing from examples that they gave of the Father’s alleged bad behaviour whilst in Country X. The CAFCASS Officer explored options with the children but FF was refusing to see his father at all, whether remotely or face to face and EE was agreeable to remote visits only. In the opinion of Ms Harvey, the then CAFCASS Officer, the children’s views were clear. As she put it, their complaints are unsubstantiated “ but this should not undermine how the children see their past experiences and how this has affected them .”

20. She did not feel that what the children shared was rehearsed or planned but the children needed to develop a relationship and trust with their father. She recommended (1) weekly video contact, (2) the Father to write letters, in particular to FF (3) that the Father undertake a parenting course focussed upon his parenting style (4) no order for face to face contact at that stage because it would be counterproductive.

21. The hearing listed at the end of August 2021 was vacated as the CAFCASS Officer was on leave. In any event, the parties requested a Dispute Resolution Appointment and the matter was subsequently listed for that purpose on 13 th October 2021.

22. That hearing was my first involvement in the case. In light of the requirements of PD 12J, I investigated with the Mother and her legal representative, her allegations of domestic abuse and whether and how she pursued those allegations. The conclusion of that investigation is set out in my order of that date, which records- “ The court considered the need for a finding of fact hearing in light of the allegations that the mother makes in her recent statement in respect of the father’s conduct towards herself and the children. The father denies the allegations. In light of the fact that the mother does not oppose the father spending time with the children on the basis of behaviour that she has previously alleged of the father to herself and has consented in Country X and in the UK to court orders for the children to spend time with their father, she does not seek for the court to make findings in respect of any allegations made. The mother’s opposition to contact is in light of the children’s wishes and feelings. The mother understands that the court will proceed on the basis that the allegations have not been proven and as such, proceed on the basis that they have not occurred and she will not be able to raise these allegations in the future. The mother does rely on what the children have alleged against their father as forming the basis for their wishes and feelings as set out in the section 7 report. The allegations the children make precede the child arrangements order being made and relate to their time with their father in Country X and post-date the order when the father has spent time with the children in the UK. In respect of the allegations of the time in Country X, the mother does not seek for the court to make specific findings having considered the evidential burden. However, she does rely upon what the children have said about these incidents to professionals as forming a general background to the children’s views of their father. The mother does seek for specific finding to be made in respect of two incidents in January this year when the father had contact with the children. Those incidents to be set out in a separate Scott Schedule.”

23. The dispute between the parties could not be resolved and a final hearing was necessary. However, the CAFCASS Officer Ms Harvey had by that stage commenced maternity leave and a new Officer appointed. An addendum report was therefore necessary. The mother filed a Scott Schedule setting out her allegations relating to contact in January 2021. Unfortunately, significant delay ensued in reallocating the matter within Cafcass and an addendum report could only be filed as late as 22 nd April of this year. On that basis, I listed the final hearing before me for two days commencing 4 th May 2022.

24. The CAFCASS addendum was prepared by Ms Gordon and is dated 27 th April 2022. That document includes positive reports from the children’s schools. The Father had attended both of the children’s schools in March 2022. The report also narrates that all of the children’s needs, bar their relationship with their father, were being met by their mother and maternal family. Ms Gordon set out that the children’s wishes and feelings remained unchanged. She repeated the views of her predecessor that there was no indication that the views of the children were rehearsed or coached. She felt that FF was angry and resentful towards his father, whereas EE was more anxious and upset. She concluded that it was critical that the children resided in a stable environment, wherein they felt physically and emotionally safe. She recommended that video contact continue weekly if the children were willing to engage. She based that recommendation upon the children’s wishes and feelings flowing, said Ms Gordon, from the children’s fear of their father. Her report asked the court to consider making prohibited steps orders preventing the father from removing the children from their schools or the mother’s care and an order pursuant to section 91(14) of the Children Act 1989 , preventing further applications by the Father without the leave of the court.

25. The position reached at the final hearing was therefore this.

26. Despite court orders being made in July 2019 and September 2020, only limited supervised visits had taken place between January 2021 and April 2021 and nothing more. There had been no face-to-face visits between the children and their father for some 13 months. EE was seeing her father for weekly video sessions of approximately one hour’s duration but FF was hardly engaging at all.

27. There was no dispute that the children should continue to reside with their mother in the UK. It was also not in dispute that the child arrangements order dated September 2020 required variation. The issue was how.

28. The Father’s position was set out in his statement dated 3rd May and in Counsel’s Note. He indicated his intention to undertake a parenting course, probably in Country X. He stated that he intended to write to the children and in particular, FF. He asked the court to make an Improving Child and Family Arrangements (‘ICFA’) referral alongside his parenting course to try to break the log jam and for the matter to be brought back to court at the conclusion of that work, in approximately six months’ time. He asked that contact be considered as part of the ICFA referral but otherwise contact should be limited to weekly video sessions as at present.

29. I record at this stage that an ICFA is a CAFCASS designed service, outsourced to specialist agencies. It is designed to help families to agree safe, beneficial, and sustainable contact arrangements when they are finding it difficult to do so on their own. The CAFCASS literature explains that there are four expected key outcomes for families. First, reducing barriers and resistance to agreeing arrangements and managing any risks so that these are safe. Second, promoting positive communications within families. Third, ensuring children’s wishes and feelings are heard and considered. Fourth, helping families agree a parenting plan to avoid future issues arising.

30. The work will be tailored and will include application of the learning from the Separated Parents Information Programme, which is a necessary precursor to any ICFA work. The ICFA work may include (1) meeting the parents together or individually to help resolve issues and prepare them for spending time with the children, (2) direct work with the children to prepare them for spending time with the adult and (3) observation of the adult spending time with the children in a contact centre, the home, the community or any other suitable settings.

31. It was made clear on the Father’s behalf that he was not seeking to force the children to attend contact. The CAFCASS Officer was asked at the outset of her evidence to consider the father’s proposal. She was not in favour of the ICFA. In her view, further work needed to be undertaken by the Father first. In any event, she was obliged (she said) to work from the basis that the children’s views and apparent fear of their father were genuine and flowed from their lived experiences and that there were therefore child protection concerns.

32. The Mother’s position was nuanced. She would be in favour of the children seeing their father if they wanted to do so and would have no welfare concerns in that eventuality. However, guided by the views of CAFCASS, in her view, the Father needed to show his commitment and recognition of his role in the impasse, by attending a parenting course first. She therefore advocated the ending of proceedings now. If, however, the court deemed an ICFA referral as in the children’s best interests, she was not opposed to that outcome and would cooperate in full. She sought prohibited steps orders preventing the father from removing the children from her care and from school but she was not pursuing an order pursuant to section 91(14) .

33. That was therefore the position at the final hearing. I had the benefit of a bundle of documents prepared in these proceedings in addition to the Hague proceedings bundle. I had up to date position statements from both parties.

34. The hearing was conducted on a face-to-face basis, save that the evidence of the CAFCASS officer was given remotely. LEGAL FRAMEWORK

35. The welfare of the children is my paramount consideration. In determining welfare, I must consider factors set out in the welfare checklist at s.1(3) of the Children Act 1989 (‘ the Act ’).

36. Pursuant to s. (2 A) of the Act , “ A court when considering whether to make or discharge a child arrangements order must presume unless the contrary is shown that involvement of each parent in the life of the child concerned will further the children’s welfare .” S.2 B defines involvement as meaning “ involvement of some kind, either direct or indirect but not any particular division of a child’s time .”

37. I bear in mind- (a) Delay is likely to be prejudicial to the welfare of the children; (b) The court should adopt the least interventionist approach if consistent with welfare; (c) The court must adopt a holistic, not a linear approach to the options that are available to it; and (d) The court must always respect the Article 8 rights of the parents and the children to a family life, although if there is a tension, the rights of the children prevail. DISCUSSION/ANALYSIS

38. I consider first the allegations of the Mother and of the children.

39. The Mother was given the opportunity of pursuing findings of fact against the Father within these proceedings, both with respect to domestic abuse and allegations of physical abuse by the Father of the children. It was her choice not to do so. That choice mirrored her choice in proceedings in Country X in July 2019 and in the UK in Hague proceedings in September 2020. The Mother told the first CAFCASS officer that her allegations of domestic abuse have been downplayed but it is she and she alone who has done so.

40. The Mother’s position is that the children’s wishes and feelings are determinative, whatever their origin. As she put it, “ It was the children’s truth that mattered, whatever the actual truth .” That position concerned me in October 2021 and it concerns me now. The Mother agreed in September 2020 an arrangement whereby the children would be spending weekends and holidays with the father in Country X. The Hague Convention application was compromised on that very basis. She was plainly not asserting that the children were at risk of physical or emotional harm from the Father and yet the same allegations, predating the consent order, were repeated word for word in these proceedings.

41. It is often the case that a parent only gains the emotional strength to pursue allegations of this nature much later and hence I gave the Mother a further opportunity of pursuing historical allegations. She decided, with the benefit of specialist legal advice, not to do so.

42. In October 2021, she did wish to proceed with allegations as to the father’s behaviour to FF during contact visits in January of 2021. I therefore made appropriate directions, including for the filing of statements and a Scott Schedule, bearing in mind that the mother had reported those incidents to the police. In the event, the Mother did not pursue findings in relation to those incidents either and did not file evidence from her sister, who was said to have directly witnessed both. Again, her rationale was that it would make no difference, as the children’s wishes, were their wishes.

43. The binary system demands that an event either happened or it did not. The Mother cannot decline to pursue an allegation but then rely upon the allegation as true when assessing the children’s wishes and feelings.

44. The CAFCASS Officer told me that she was put in a difficult position by the Mother’s approach. She was bound (she said) to accept the underlying factual matrix of the children’s allegations and her recommendations were made on that basis. Indeed, she recommended that the Mother attend the Freedom Programme as a victim of domestic abuse. On the other hand, the Mother herself was saying that she had no welfare concerns, absent the children’s wishes.

45. I am clear that in the absence of findings, I cannot and do not approach the Father as a perpetrator of domestic abuse upon the Mother or of assaults upon the children, either in assessing the risk of harm or the weight to be afforded to the children’s wishes and feelings.

46. That does not mean that wishes and feelings are ignored if based upon allegations that are not proven. There are plenty of situations where the court must grapple with complexities which the binary system does not solve. The children’s truth is indeed important but I repeat, the Mother cannot rely through the back door upon that which she failed to rely upon through the front door. I must assess the CAFCASS evidence accordingly.

47. I turn to consider the unfortunate passage of time and the impact of Covid and court delays.

48. Many cases, unfortunately, have been delayed after March 2020 as a result of the Covid-19 pandemic and that has impacted upon children’s relationships with their parents. In my judgment, that impact has been particularly acute in this case. Contact was taking place every other weekend in Country X until March 2020, before the Mother removed the children from that jurisdiction. It is not part of my function to determine whether that removal was indeed an abduction, because the proceedings were compromised, but the impact of the move is objectively clear. Between March 2020 and January 2021, there was no contact between the Father and the children because physically, there couldn’t be. That was particularly unfortunate after contact had been gradually built up from July of 2019.

49. When contact eventually restarted in January 2021, it was loosely supervised, but the Father was obliged to wander the streets of Yorkshire with the Mother’s sister or her friend in tow, as a result of the Covid limitations. That was no one’s fault but again, it was not conducive to a child-centred reintroduction to contact that had not taken place for some nine months.

50. Contact stopped in April 2021. The case was ready for a final hearing in August 2021 but the parties were not and the CAFCASS officer then started maternity leave. There was therefore a further eight-month delay with no ongoing contact. Further, the children had to be spoken to by a fresh officer. All the while parents and children alike were no doubt worried and in limbo and their positions were becoming entrenched. In my judgment, those delays have been unfortunate and have made the situation far worse.

51. I turn to consider the Mother’s approach to the Father’s relationship with the children.

52. The children are plainly very well cared for by their mother. They have a close relationship with her. There are no concerns as to their welfare, save for their lack of a relationship with their father. They are progressing well at school and have apparently adapted well to the move from Country X. They live with the extended maternal family and are close to important family members. They are described by the professionals as delightful children and I find that they are. In many ways, they are a credit to the Mother.

53. The Mother’s case is that she has not influenced the children against the Father. Indeed, she positively supports the resumption of direct contact if the children want to attend. That is why she agreed to orders in July 2019 and September of 2020 as she did. The Father’s statements in these proceedings assert that the children have been subject to parental alienation by their mother and indeed, her family members. In reality, however, that case was not pursued at the final hearing and was certainly not put to the Mother in her evidence.

54. I have considered all the written evidence and the chronology. I listened carefully to the Mother. In my judgment, this not a case of direct parental alienation, but it is a case where the children’s views of their father are likely to have been coloured by their mother’s actions and attitudes. I say that for several reasons.

55. First, the Mother has a poor view of the father and tells anyone who will listen that view. Even though she does not pursue the allegations, she has made those allegations to police officers and CAFCASS officers alike.

56. Second, the Mother said that she left Country X in in an emergency, because the Father threatened to turn off the utilities at her property. Whether that was true or not – and I make no findings one way or the other – that is what the children were told was the reason for their emergency flight.

57. Third, the children are close to their mother, who is their sole care giver. They are and will inevitably be worried about her, as she about them. It would be remarkable in those circumstances if they did not pick up upon her fears and her attitudes.

58. Fourth, the children are residing with family members who are, at the very least, supportive of the Mother and not of the Father. And again, the children will inevitably know that fact.

59. Fifth, the Mother agreed to the order in September 2020. The first visit possible, in light of the Covid restrictions, was on 3rd January 2021. There was an incident during that visit where the Father grabbed or hugged FF and he spilt some hot chocolate on himself. At its highest, the Father was unwise to hug or perhaps tug his son when he had a hot drink, but it was not a crime. And yet, the Mother’s first reaction was to call the police and report it as a crime, even though she had not seen it. In my judgment, that demonstrates the force of her animus against the Father.

60. Sixth, the next day, there was an occasion during contact where the Father again hugged or grabbed FF. I remind myself again that the Mother does not pursue any finding. That may well have been an example when the Father was too rough with FF, who appears to be a sensitive child but again, it was not a crime. The Father and the children went for food afterwards and contact progressed as normal. This happened in WH Smith with the maternal aunt watching on. And yet, the Mother again made a report to the police.

61. Seventh, the Mother made a further report to the police two weeks later about a text exchange she had shared with the Father. The text exchange can be read in different ways given the Father’s poor English but, in my judgment, an objective reader would not classify the Father’s text as, as the Mother put it, ‘ a threatening message leaving her in fear.’

62. Eighth, when I asked the Mother in evidence as to the origin of the children’s wishes, her mantra was, “ I believe my children .” I asked her with respect to FF’s account that his father had tried to drown him in Country X while swimming, whether she was really saying that FF was correct in that or whether that was his interpretation of play gone wrong. The Mother vacillated between saying that what FF said must be true and her later acceptance that “ he had been a bit heavy handed in the guise of play that had upset FF. ” The point being that because of the Mother’s animus, everything in the family with respect to the Father is built up to extreme levels.

63. Ninth, I asked the Mother during her evidence whether the father was spoken about at all in the family home, out with practical arrangements. She told me that he was not. He has been excluded from their day-to-day lives in thought as well as direct visit.

64. I fully accept that the Mother believes that she is promoting contact and video contact, at least to EE, is still taking place. I fully accept that the Mother is not sitting down with the children and telling them, for example, to make up lies about their father. I do find however that her actions and attitudes have made it difficult for the children to view their father in a positive light and have attributed to the position that the children are now in. I must assess the children’s wishes and feelings and the way forward in that context. In my judgment, the Mother must reflect on her own conduct in this regard.

65. I turn now to consider the Father’s conduct.

66. It is plain that he loves his children very much. He has, in my judgment, shown significant commitment to seeking to maintain a relationship with them. I bear in mind that he is self-funding in these proceedings, whereas the Mother has the benefit of public funding. There are many fathers that this court comes across who would not have pursued these proceedings to the extent that the father has. In my judgment, that is to his credit.

67. I repeat that I cannot and do not find that the Father has perpetrated domestic abuse upon the mother or has assaulted the children. There cannot be a risk of harm based upon allegations that have not been made out. I also bear in mind the Mother’s evidence that if the children wanted to see their father, she would not object. In my judgment the risk of harm must be viewed in that context.

68. However, having considered the Father’s actions both before and after the issue of proceedings, in my judgment, his conduct has materially contributed to the present impasse.

69. First, I have the firm impression that the Father is not a parent who is instinctively attuned to the emotional needs of his children. He told me himself that he is not good at showing his love for the children. His personality is introverted. He told me, “ It is difficult for me to hug a person. I don’t have the ability to show my love as I should. ” I agree with the CAFCASS officer that the Father needs help in the areas of discipline and communication, even on his own account. I can well see that in that context, he gets easily frustrated and he is certainly the stricter parent. EE has said on occasions that her Father loses it and gets angry. I accept that account, but in the context of normal day-to-day parenting, rather than domestic abuse. He needs to become a calmer and a more balanced parent.

70. Second, my impression is that the Father prefers the physical aspects of parenting. There too, however, his parenting style is somewhat heavy handed in play and activities, on occasions making either or both of the children feel uncomfortable. I do not find for a moment that he assaulted FF on 3rd or 4th January 2021 but he did spill hot chocolate on his son and was manhandling him in WH Smith on the first visit that had taken place after nine months, with someone watching. That was, in my judgment, at the very least unfortunate.

71. Third, the Father has not really tried to understand the children’s viewpoints and how difficult the situation is for them. His position has been to deny that he has been in the wrong and to effectively demand the resumption of his relationship with the children on his terms. I agree with the CAFCASS officer that the Father’s attitude has been somewhat arrogant and unhelpful.

72. Fourth, he has not taken steps to improve his circumstances. In particular, he has failed until now to embark upon a parenting course. He was advised to do so by the CAFCASS officer as long ago as last summer and he has failed to make even the most basic enquiries. He could have completed a course by now. There are, in my judgment, twin benefits to that work. First, he could become a better parent and work on the aspects of his parents that are weak. He can gain the insight into his children’s difficulties, which at present he lacks. But second, it would form a tangible example to the children that their father was trying to meet them halfway. He now says that he wants to do so, no doubt with the benefit of sensible legal advice.

73. Fifth, the Father was also advised to write letters, in particular to FF. A letter is often a good way to break the impasse, if it is appropriately worded. But until now, the father has refused, taking the view that it would serve no purpose. That was again unhelpful. He has had a recent charge of heart, but very late in the day. His action in asking strangers to deliver a present to the Mother’s house whilst he loitered down the street was also, in my judgment, unwise. In this, as other aspects, he really has not helped himself.

74. Sixth, I understand that the Father will have been frustrated by the delays and a lack of progress with his relationship with the children. After all, he agreed that they could remain in the UK on the promise and the order that he would be seeing them often, in both the UK and in Country X, which did not even get off the ground. But it does not help him to be questioning EE so directly as he has. She has felt that he was probing her and in reality, he was. Asking her about the court proceedings, about what she said to the CAFCASS officer and why she did not want to see him are all, in my judgment, inappropriate. If he is worried that she has few friends and little social life, the last thing to do is to ask a teenage girl to list and even spell her friends’ names. In addition, turning up without warning at the children’s schools will have caused worry for the children at a place of education and safety. It was an action, I accept, born out of frustration and not malice but it was unwise nonetheless.

75. In my judgment, if the Father wants to re-establish a relationship with the children, he must stop simply blaming the Mother but he must look to himself and what he can do to alter the situation.

76. I turn to the children’s wishes and feelings. EE was described by the first CAFCASS officer as thoughtful and insightful and FF as a comical young man who knows his own mind. FF’s views have been firm throughout his interviews with the CAFCASS officer. He doesn’t want to see his father under any circumstances. He wants him out of his life forever. He has made extreme statements, such as that when swimming in Country X, his father tried to drown him and assaulted him. EE’s views have been more considered. She describes her father as getting angry and losing it. She expresses fear of him in certain circumstances. She is more comfortable with video contact, or face-to-face visits where there are other people around or activity based.

77. In my judgment, the combination of factors that I have set out together created the perfect storm under which, in my judgment, it is not surprising that the children have reacted as they have. The massive change in circumstances precipitated by the move from Country X, the heightened atmosphere of negativity and concern resulting from their mother’s attitude to the Father, the lapse of time and their Father’s lack of emotional sensitivity and in certain areas, his poor parenting have all acted upon them. It would have been remarkable if they had not. I repeat that I do not find that this is a case of direct parental alienation in the way that that phrase is commonly understood.

78. That does not mean that the children’s wishes are ignored. Far from it. It does mean that their wishes must be carefully unpicked. If the court had made findings that the father had behaved in a way that was physically abusive to the Mother and the children and the children said they did not want to see their father on that basis, the matter would be more straightforward, but that is not the position.

79. The children are 14 and 10. At 14, EE’s views must be afforded great weight. She is an intelligent young woman who has clearly thought a lot about her situation. At age 10, FF’s views have lesser but still significant weight.

80. I find it difficult to conceive that the court would make orders to force either or both to attend visits against their firm views. But I am clear that I have to balance the children’s views in the context that they have been expressed, against the harm that would be caused to them if they have no relationship with their father or paternal family and grow up thinking of him as a bad man, to be expunged from their lives.

81. Put another way, in my judgment, this is not a case where either of the children’s views are determinative, without more.

82. I turn to consider the impact on the children of the loss of contact or a relationship with their father. As I have already set out, the court works on the presumption that it is better for the children to have both parents involved in their lives. The presumption is strong but not absolute. Moreover, the presumption of involvement does not necessarily mean direct contact. The basis for that presumption is the body of evidence that shows the negative impact upon children if they do not see both of their parents. And if they do not see one of them, they are growing up with a negative view of that parent. If they view their father as a bad man, then psychologically, they will grow up thinking a part of them is bad too. It is far better for the children’s emotional wellbeing to learn that no parent is perfect but that both of their parents love them and want the best for them. The children’s sense of self-worth will be damaged if they think otherwise.

83. The position is particularly acute in this case where the children have left Country X and have no contact whatsoever with the wider paternal family or indeed, their Country X heritage. To date, the children have grown up bilingually with dual nationality. It would therefore be detrimental practically and emotionally if the Country X side of their family and their identity was lost to them. I remind myself that contact in Country X had progressed, from supervised visits to full weekends, on the basis that professional observers said that it should do so. I can only work on the basis that such visits were successful and beneficial to the children.

84. I also must consider the impact on the children if attempts are made to force them to see their father against their wishes. If the children do not feel emotionally safe, forcing contact upon them will be harmful. In any event, it cannot be done, given their ages.

85. There is a proper balance to be struck. I agree with the CAFCASS officer’s analysis that the children reside in a stable environment where they feel physically and emotionally stable. Further, in my judgment, if the issue is pressed too far, it risks pushing the children further away from their father. He should be alive to that fact, which is why it was unfortunate that he questioned EE as he did in video contact and attended the children’s schools without warning.

86. In light of my findings, I turn to consider the way forward.

87. Firstly, by consideration of the CAFCASS officer’s evidence. The CAFCASS officer fully accepted the difficulty that the court faced in following her approach. She has approached the case on the basis that the children’s wishes and feelings reflected their lived experiences and those of the Mother. From her perspective therefore, the Father needed to accept his conduct as complained of and to make amends. She was surprised to hear the Mother say that absent the children’s wishes and feelings, she had no welfare concerns. As she put it, “ I have to consider the safeguarding context when I consider wishes and feelings .” But in the absence of findings or any party seeking findings, the correct safeguarding context is not how the CAFCASS officer has approached the case.

88. The CAFCASS officer was not against an ICFA referral but in her view, we are not there yet. She thought that the Father should work on his communication and discipline strategies before that was considered. However, there was no timetable to that plan and no real confidence that it would lead anywhere, not least because proceedings would have ended. The first CAFCASS officer did not rule out direct contact but rather advocated a stepped approach.

89. For the avoidance of doubt, I proceed on the basis that the opposition of the CAFCASS officer is not a bar to the court ordering an ICFA. Both parties have proceeded on that basis and when the CAFCASS officer was cross-examined, she was certainly not saying that absent her consent, it could not happen. I remind myself that a Separated Parents’ Information Programme is a prerequisite to an ICFA.

90. I return to the choice that I have to make. Either I make an order which involves work with the family with the goal of progressing towards the resumption of direct, supervised contact or I do not and simply leave the position as it is.

91. I have reached the firm conclusion that it would not be in the children’s best interests to simply leave the position as it is. I will be making an order for both parents to attend a Separated Parents’ Information Programme if they have not done so already and thereafter for an ICFA referral. That referral should be made now so as to ensure that no time is lost. However, I expect the Father to access parenting support over the next three months and to be able to evidence the work that he has undertaken and the lengths that he has gone to, both for the court and the ICFA workers.

92. That will be a particularly useful tool with the children for the preparatory work that will need to be undertaken and that should be recorded in my order. The ICFA report will be filed and then an addendum from the CAFCASS officer advising on the next steps. I will list a further dispute resolution appointment in approximately six months’ time with a time estimate of half a day on an attended face-to-face basis. I will order position statements to be filed by the parties seven days in advance of that hearing.

93. In the meantime, video contact should take place between 6 and 7pm each Saturday. I order the Mother to encourage both children to engage. As to indirect contact, the Father is at liberty to write cards or letters at a frequency of no more than fortnightly. I will order the Mother to encourage the children to respond. My advice to the Father is to keep that correspondence light. Tell the children what you have been doing. Ask them open questions only. Under the direction for the ICFA, I will order the Mother to make the children available for any supervised visit that the workers deem appropriate, bearing in mind (1) the children’s wishes and feelings and (2) that preparatory work will necessarily be undertaken before any direct work is considered by the professionals.

94. My decision flows from the findings that I have made, which I do not intend to repeat.

95. In summary, however, if I do not make further efforts now, it is likely in my judgment, that the children will not see their father for the long term. I cannot see that a stepped approach, which does not have any work with the family as a whole, will work. The Father undertaking parenting classes on his own will, in my judgment, change very little. That would represent a significant loss to the children. He is a parent with failings but he is their father, who loves his children and is committed to them. There are no safety concerns to the resumption of contact, at least not supervised visits.

96. That loss would be particularly acute given that the children have no other contact with their paternal side of the family and with their Country X heritage. The children would be left with negative memories of their father. Thus, not only would they not see him, but they would have a negative perception of him, which is not balanced against the positives that he can bring, not least his love and commitment.

97. The court must take all reasonable steps to promote a relationship with both parents, if consistent with their welfare. In this case, the process itself has damaged the relationship or at least the chances of developing that relationship. In reality, all that has happened since the issue of proceedings is that two CAFCASS officers have asked the children what they wanted and the parties have set out their stalls. The delays have been particularly unfortunate.

98. There is something to be built upon. EE is seeing her father on screen and FF knows that. The Father is still in their lives to that extent. The parenting work and the correspondence that I have ordered will both help.

99. The children’s wishes have been considered and respected. No face-to-face contact is being forced upon them. The most that will happen in the next six months is that they will be encouraged after introductory work to attend supervised visits with the Father where they will be and will feel safe and supported. The video contact will continue as it is.

100. For the avoidance of doubt, the order that I am making does not guarantee face-to-face contact. If contact takes place, it will be supervised and reported upon. In that way, the children will be reassured and the court will be informed. I remind myself that the Mother originally made this application only to stop contact taking place in Country X, not to stop it in its entirety. I emphasise that I cannot envisage anything other than short, monitored or activity based visits in the UK for the foreseeable future. The Father must, in my judgment, work on that basis. But even that sort of contact, if it could be made to work, would potentially be beneficial to the children and I am sure, a pleasurable experience for the Father.

101. I have considered the CAFCASS officer’s recommendation but in the final analysis, I have gone against it. First, she expressly accepted that the basis upon which she had made her recommendation would and could not be the basis on which the court must assess the case. Second, the issue of an ICFA referral is a matter of timing and not principle. She did not think the time was right, but I do. In my judgment, parenting work and an ICFA can proceed side by side or at least overlapping. It is crucial that no more time is wasted.

102. Although I have not listed each of the factors in the welfare checklist, I have had regard to each of them and have them well in mind. I have considered in particular the children’s wishes and feelings, the risk of harm to them now as well as in the long term and how capable each of the parents are in meeting their needs.

103. I will be ordering a transcript of this judgment as a helpful tool for the professionals that will work with the children.

104. It is crucial that the children understand the decision that I have made and why I have made it. I say this to them.

105. First, your father loves you very much and wants to see you and to show commitment to try to do so.

106. Second, he has accepted that there are things that he needs to work on with his own parenting and he has told me that he is committed to seeking help with that.

107. Third, your mother has told me that she very much wants you to see your father but wants you to be comfortable in so doing. I have told her that she needs to encourage that relationship.

108. Fourth, the professional work that I have ordered is to try to build bridges with the family. You are not being put in any danger.

109. Fifth, I respect and I have listened to your wishes and feelings. Face-to-face contact for the foreseeable future will be limited to supervised or supported visits only and your views will still be important.

110. Those messages are clearly particularly important to be delivered, both by the parents and by professionals that will be speaking with the children in due course.

111. In the final analysis, I have decided that it would be contrary to the children’s best interests to give up without a further attempt. I have taken a long-term view in light of all the difficulties to date. It may well be – and the Father accepts this – that the attempt is unsuccessful. In my judgment, it will still have been worth it. I expect both parents to view the way forward positively and to do what they can in their respective roles.

112. I turn finally to consider the ancillary orders sought. Firstly, a prohibited steps order. The Mother has the benefit of a child arrangements order that the children live with her. The Father has not made any attempt to break that order or to take matters into his own hands. On the basis of my findings, he visited school in frustration, but that was it. The Father, from his perspective, has had the benefit of two orders which the Mother has disobeyed, albeit perfectly properly bringing the matter back before the court. I accept what the Father tells me that he has no intention of removing the children from the Mother’s care or the children’s school. In my judgment, therefore, there is no need for prohibited steps orders and I decline to make them.

113. The CAFCASS officer has raised the prospect of a section 91(14) order, but in fairness to the Mother, that was not pursued by her and in my judgment, it would have been manifestly inappropriate even if she had, not least because of the findings and the decision that I have made. There will be fresh orders for contact and the provision of ICFA with the recordings that I set out in this judgment.

114. I invite Counsel to agree upon and provide a draft order for my approval in due course. That is my judgment. HHJ. Alexander W. Kloss 9 th May 2022