FY v MY & Ors [2016] EWFC 16

This judgment was delivered in private. The judge has given permission for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No FD13P01589

[2016] EWFC 16

Venue IN THE FAMILY COURT AT THE ROYAL COURTS OF JUSTICE

IN THE MATTER OF THE CHILDREN ACT 1989

IN THE MATTER OF K (A Child – born 15 th July 2000), L (A Child –born 19 th December 2002) & M (A Child – born 7 th October 2011)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/03/2016

Before

MS JUSTICE RUSSELL

Between

FYApplicant

MY1 st Respondent

K,L & M (Children) (By their Guardian) 2 nd-4 th Respondents

Teertha Gupta QC & Dorothea Gartland (instructed by Grosvenor Law) for Applicant

Alex Verdan QC (instructed by Payne Hicks Beech) for 1 st Respondent

Christopher Hames QC (instructed by Cafcass Legal) for 2 nd-4 th Respondent

Hearing Hearing dates: 18 th to 21 st January 2016

Judgment

The Honourable Ms Justice Russell DBE:

Introduction

[1]These are long running private law proceedings brought under the Children Act 1989 (CA) concerning three boys of dual British and Saudi Arabian nationality; K born on 15th July 2000 and 15 years old; L born on19th February 2002 and almost 14 years old; and M born on 7th October 2011 and 4 years and 4 months old. They are the sons of FY (their father) and MY (their mother) both of whom also have dual nationality and come from prominent and wealthy Saudi Arabian families. Two of the boys, K and L, were born in England, M was born in Jeddah and all the children have lived in England for the greater part of their lives. The issue before this court is what arrangements can be made for them to spend time with their father in keeping with their welfare needs. Their welfare is my paramount concern.

[2]K, L and M have lived with their mother in L in since 2012 and their father has not lived with them at all since December 2013, previously he had often be absent on business. There is a previous judgement dated 19th December 2013. In time between then and the hearing which has just taken place in January 2016 there have been contested financial relief proceedings which concluded before Roberts J in December 2015 and numerous return hearings in respect of FY’s application for contact (now child arrangements orders) issued by him on 26th August 2014. The boys are all represented by Cafcass Legal and the court has had the assistance of their guardian appointed from the Cafcass High Court Team, Mr Bob McGavin.

[3]In the previous judgement, which sets out the reasons why the application by FY to relocate the children to Dubai was refused, I made findings in respect of his abusive behaviour towards MY, and the children, and concluded that he was controlling, abusive and manipulative. The judgment had made reference to complaints made by both K and L about their father’s aggressive and violent behaviour towards them and his manipulation of them. However the court recognised that the children loved their father and that he loved them and contact was agreed between the parents. Unfortunately there were difficulties with contact from the outset, and, for reasons set out below, it was suspended because of the risks to the wellbeing of the children. A result the boys have not seen their father face to face (there has continued to be contact by Facetime or Skype and telephone) for the 7 months leading up to this hearing.

[4]Although, as the court is well aware, the two older boys have always wanted to see their father the situation has changed and their wish to see him is now tempered by their fears about his conduct towards them. Ostensibly M, the youngest, is in a different position as he has not made any complaints about his father’s behaviour, however his mother has observed behaviour has been affected by contact, and it is difficult to see how his contact could be considered in isolation as has been urged by his father.

[5]It was reported to the court (the facts about this incident were accepted by FY to some extent during the hearing) that within weeks of the hearing in December 2013, events took place during the older boys’ contact with their father on 1st February 2014; the two older boys returned from contact with their father complaining that he had physically abusive towards them. K and L told their mother that FY had kicked K under the table in a restaurant and that afterwards K and his father physically fought in the car. During the fracas L was struck on the side of his face by FY. Subsequently there have been prolonged periods of time, amounting to months, when there had been no contact at all; either because FY was absent abroad or because contact was suspended by the court due to concerns about the physical and emotional well-being of the boys.

[6]In the meanwhile in July 2014 decree absolute was pronounced and since then FY had met and subsequently married his second wife. She gave birth to their daughter in July 2015. The case returned to court on three occasions during 2014 and on 11th November 2014, because contact was not taking place satisfactorily, to ensure that their voices were heard and to ensure that their interests were independently represented, I invited Cafcass Legal to act on behalf of the children; an invitation which was accepted. It was agreed between all the parties that there should be professionally assisted supervised contact put in place with the support of Dr Asen and the Anna Freud Centre but the attempts to do have not succeeded, not least because FY has changed his mind about his participation and the participation of others without which the process could not advance. At this hearing counsel for the children, on the advice of their guardian, has asked that there is no order that the boys spend time with FY; their mother has reluctantly agreed.

[7]The hearing took place over four days from the 18th to the 21st January 2016: the court has heard the oral evidence of Dr Asen of the Anna Freud Centre, of Helena Ware (an Independent Social Worker -who has been instructed by the guardian to act as contact supervisor with the agreement of all parties) and from the guardian as well as the oral evidence of both parents, in addition to which I have read the parties lengthy statements and all the documentary evidence contained in the trial bundles.

Background

[8]K is now over fifteen years old. He is a vulnerable young person who has been diagnosed as autistic and has learning difficulties. Both his parents, but his mother in particular, went to considerable lengths during their marriage to ensure that K has had the best support and most appropriate education that could be provided and, as a result, K is a secure and sensible young person, but one who has an especial need for a stable school and home-life as well as a regular and predictable routine. K is happy and settled at his school; he needs to have physiotherapy to help him with his mobility and there is a regime in place for him which it is not necessary for me to set out here. K likes to know where he is – in all senses of that phrase- and is disturbed by changes in his routine. He also does not feel comfortable and safe if people around him, particularly his parents do not stick to the rules, including court orders. I shall return to what he has said to his guardian and others in due course about this and about his wishes and feelings.

[9]L is fourteen. He is an intelligent and sensitive boy who has been the most obviously affected by the break-up of his parents’ marriage and the behaviour of his father towards him following the separation and divorce. At the time of this hearing L and his father were not even in contact by phone or Skype or Facetime as his father had not spoken to him for some months, since before his birthday in December. It is an undisputed fact that FY did not contact L on his birthday which, obviously, upset the boy and had not called him since. L told his guardian that his father had made it clear through his conversations with K that he expected L to call him (FY) and to apologise to him before communication between them would resume. This was his father’s evidence to me.

[10]M is still only a little boy, just over 4 years old, and very much the baby of the family; he is very well cared for, secure and settled living with his mother. All the evidence before this court is that he is happy when he is with his father who is loving and attentive with him. He is the least obviously affected by this case and his parents’ separation. The fact is that he is still at an age when he is unlikely to challenge or oppose his father and it is when he does so that concerns about his physical safety are likely to arise.

[11]The earlier background to this case is set out in my judgment of 19th December 2013 when it was decided that the children would live with their mother and their father’s application to relocate to Dubai was refused; I do not intend to repeat my reasons for those decisions here or the history of the family leading up to that hearing; I shall set out the history of the case since then.

[12]At the hearing in December 2013 FY had agreed to give undertakings that, upon swearing upon the Qu’ran, he would not make any attempt, or take any steps to remove the children from the jurisdiction and he would return them to their mother at the end of contact. He also agreed to undertake not to commence any proceedings in any other jurisdiction concerning the children, their mother or the maternal grandfather. FY took some time to sign the undertakings and he has not adhered to the latter undertaking or to others that he gave subsequently (at the hearing on 4th September 2014) relating to his conduct during his contact with the boys; he had undertook not to denigrate MY or members of her family in the presence of the boys; not to discuss any proceedings in any country with them; not to use or threaten violence or to intimidate or harass the boys. By his own admission he has involved them in these proceedings by discussing the case with them throughout the currency of this case. In addition FY has never granted MY a divorce under Sharia law and the continuous law suits brought by him and/or members of his family in Saudi Arabia have made it impossible for the children and their mother to travel there. Lately he has appealed against the Islamic divorce she has obtained in Saudi Arabia and it is not possible to view his actions as anything other than a determination to pursue and continue interference in her life and to maintain control both over her and their children.

[13]It was to be expected that after the hearing and judgement in December 2013 the relationship between the parents would be tense and, indeed, not all issues were resolved between them both. FY had been living in the same building and had to leave, and has since lived, when in this jurisdiction, in an apartment which is situated less than five minutes’ walk away from the flat in which the boys and their mother live. There were and continue to be proceedings brought by him and/or members of his family against MY and her father in Saudi Arabia. There were disagreement between the parents about the roles and loyalties of the family’s nannies; and, the financial relief following their separation was the subject of acrimony leading to contested proceedings.

[14]Nonetheless after the December 2013 hearing staying contact was agreed between the parents and was due to start on 4th January 2014 but it was problematic from the outset. As FY said in his oral evidence he was upset and angered by the decision of the court and it is clear that he continues to be resentful about the proceedings which he considers to be an unwarranted intrusion in his life and, indeed, he blames the proceedings and those involved in them for the situation between him and his sons rather than any action or behaviour on his part. 2014

[15]On the 4th January 2014 FY returned to this jurisdiction and contact was due to take place as agreed between the parents, however as FY had not sworn to adhere to the undertakings he had given as part of the contact order as approved by the court contact did not take place. It did not take place on the 8th January for the same reason. FY was in contact with the children by phone and their mother says that he phoned the two older boys constantly, asking why they did not want to see them. He told MY he did not care what the judge had said. On the 9th January FY told K that he would take him out for dinner that night. Finally the next day on Friday 10th the undertakings were signed but instead of keeping to the contact agreement FY removed M from his nanny’s care when they were at a museum in the afternoon and did not return him until 7:30 that evening. He collected L from school as agreed and K a bit later. K and L were due to spend the weekend with their father but L returned home with his younger brother in the evening and did not want to go back. He said that he did not feel well and wanted to sleep in his mother’s bed. MY persuaded L to return to his father for contact on Sunday. K spent the whole weekend. Both boys returned home at 5:30 hungry, as they had not had dinner.

[16]On 13th January 2014 FY left the jurisdiction and did not return until the 25th January; in the intervening period there was correspondence between the parties solicitors regarding contact arrangements and it was agreed that that K and L would spend time with their father over the weekend between 10:30am on 25th to 7:30 pm on 26th January and again between the 30th January (Thursday) to the 2nd February (Sunday). MY’s solicitors was suggested future contact to take place at half-term and over the Easter holidays. On the 25th January FY phoned K and asked him to come over at 8:30 am rather than at 10:30. In response to MY’s refusal to change from the agreed times, through the children, and that changes should be made through her FY texted her and said, amongst other things that she was not to tell him what to do “Do not dictate what I do ever again”. FY continued to call K who puts him on speaker-phone, he was overheard by MY saying “Your mother is an idiot”; when MY took the phone to tell him not to be rude about her to the children he was abusive to her. She told K to stop answering the calls from his father as he was, by this time, upset. FY took issue with this and continued to text MY in abusive terms and demanded that K answer his calls. MY took K out for lunch because he was upset and he went to see his father at 3pm when M returned to his father’s after having a nap at home. L was sent by FY, on his own, to collect car keys from his mother’s home.

[17]FY then demanded that M be collected by his mother at 7 pm; this she refused to do and told FY that M needed to eat at 6 or 6:30 pm at the latest, but his father refused to feed M so his mother responded that M would have to be returned before 7pm. FY then sent a message that there was no hot water so the boys should all return to their mother to sleep. He asks K to go to his mother and collect the car keys which K did not want to do as he was scared of going out in the dark (it was also raining) and so while he left his father’s flat K remained in the apartment building for about 20 minutes returning without the keys. KY then sent L to get the car keys at 6:30pm but when L got home he refused to go out again. When MY phoned the boys’ father to tell him this he was again abusive to her, which was overheard by both K and L.

[18]On the evening of 26th January 2014 L was again reluctant to go out with his father but his mother persuaded him to go for dinner. Later the boys told their mother that FY spent the dinner denigrating her family, that he had shown K correspondence about MY’s behaviour and that he had started court proceedings in Saudi Arabia to fight for them and get them to move to Jeddah or Dubai. L told his mother that when he (L) said he did not want to hear any more his father called him a “little shit.” When K and L returned home they were both distressed and unhappy after the day’s events and the way that their father had behaved. The next day FY emails to say that the water should be on by Tuesday and that the boys should stay with him during the week. MY was reluctant to agree because of the chaotic way in which the weekend had unfolded and because of the disruption there would be to their weekly routine. There were texts exchanged about the arrangements with MY saying that they should not stay unless the heating is on and that the end of the week from Thursday to Sunday would be better for the boys and fit with their arrangements already in place; she asked about his travel plans so that contact could be arranged accordingly.

[19]On 27th January MY agreed to a request for M to go over to his father’s for a short time before his dinner and he was returned at 6:30pm. K had accompanied his mother in the car and his father took umbrage at the fact that K did not go up to his flat to say hello. He was abusive to MY saying in a text “U will live to regret this, there is no shadow of a doubt in my mind.” On 30th January MY sent a text to make contact arrangements for the weekend, including when FY would want to have M and told him that K had physiotherapy on Saturday morning. FY responded by texting that M and L should be sent over straight away and that he would not be take K to his physio. MY texted that she would send M over to his father that day after his “playdate” if it was not too late as he had not told her before then he wanted M that day. FY responded by being abusive and said, again, that MY “will live to regret this” and demanding that M be sent over regardless. He said, amongst other things; “U have used the kids in the worst possible way! Do not involve them or brain wash them with this legal process. I am their father, keep this simple and think of the long game term. U will regret brain washing them with this legal process.” That evening K and L went out for dinner with their father and returned to sleep in their home.

[20]On 31st January FY texted MY at lunchtime to say that he would be picking K up and that the “kids will sleep the flat [at home] tonight as no heating, it will be fixed 1st thing tomorrow. I want them all after school till 7ish.” MY responded to say that this would be confusing for the boys as they were expecting to stay the weekend with their father and offering the use of two portable heaters. His response was; “Ur one to talk about what is confusing. Pls keep your comments to urself. Kids will sleep in flat.” MY asked if he would take the boys out for dinner and if they knew they were not staying that night. FY said that he would not take them out for dinner and that they did not know as he had just found out himself.

[21]Later that day MY texted FY to find out what was happening as he has asked for M to go over yet told K (who told his mother) that FY did not want them to come as he would not be at home. The arrangements were further confused not only by FY attempting to make and change arrangements directly with K and L, bypassing their mother, but also he tried to make arrangement via the child’s nanny. MY texted to say that the children were confused and that K was upset because the plans kept changing - his father had then sent a message that K should pass by later on in the evening. Among the texts he sent to MY in response was the following “Please keep ur useless and ill-informed messages to yourself. I really have no time for them. I told the kids why they can’t stay, no need for u to tell me the story of your life. Keep your messages short. I will expect the kids tomorrow morning. I do not need u to get in between me and them when I say something to them. Thanks.” And, in response to a request for what time he meant in the morning and to be polite and civil; “U civil? That’s a good one. Time will show u the meaning of civil. Kids call me when they wake up and we take it from there. Stop wasting my time and your father’s loan by talking about the kids through lawyers. Keep it simple and civil. Once u learn to do that (and look up the meaning of civil in the meantime) u…”

[22]On the 1st February 2014 K and M went to spend time with their father at 11 am; L followed later at noon having completed his homework. At 9:30 that night L arrived at home saying that their father had hit K so L had run away. MY tried to call K’s phone, FY’s apartment and FY’s mobile phone and when the phone was answered she could hear K who was very distressed and crying. When K got home at about 10:15 pm he was clearly very distressed.

[23]The boys told their mother that FY had taken them to a restaurant and had made reference to a solicitor’s letter; a comment or response of L’s angered their father and L tried to explain to FY that he was not taking sides, at which point FY started to swear at them and call them abusive names. When K responded FY kicked at him under the table as a result of which K sustained abrasions and marks to his legs (which were seen the next day by his doctor and the court has seen the doctor’s report). They told their mother that their father kicked at L and punched his side. They left the restaurant and both boys sat in the back of the car as K did not want to sit in the front with his father. When K tried to phone his mother and his father saw this he told K not to call and tell her what had happened, but K continued to try to make the call. FY then attempted to take the phone away from his son whilst driving the car, by reaching around the car seats grabbing at K. L tried to intervene and became caught up in the altercation and said that he had been hit on the side of his face near his eye twice, he thought by his father’s elbow. From the pictures taken after the event it is apparent that L’s face was bruised and swollen on one side (the court has seen the doctor’s report about the injuries sustained by L).

[24]When they arrived outside their father’s apartment building, as the boys later told their mother, the struggle between K and his father continued with FY pushing K into the building leaving K with red marks to his the left hand side of his face. About five minutes later at 9:35 pm L arrived at home in a distressed state. MY immediately tried to call K on his mobile and, as he did not reply, called the land line to FY’s apartment. She says that FY answered and she could hear her son crying and asked to speak to him but FY did not allow her to and put the phone down. About 50 minutes later FY returned K to his mother’s home. K was flushed and very upset, he and L sit close to their mother with their heads on her lap, crying. Both boys did not want to see or speak to their father. They were seen and checked over by their doctor on the 4th February, who provided their mother with a short report which sets out their injuries and confirms they are consistent with the assaults as reported. I have seen the documents and accompanying photographs.

[25]The day after, on 2nd February 2014, according to their mother, K and L refused to speak to or see their father. FY phoned and asked to speak to L who did not want to speak to him. At about mid-afternoon FY called again and asked to see M, and for L to go to see him as well. L told his mother that he was scared that if he did not go his father will be angry with him. FY then started to call MY’s mobile phone, the landline and the nanny, repeatedly, to demand that L and M came immediately. MY told him, on the nanny’s phone, that M was on his way but that L would not be coming as he did not want to go. FY was abusive to MY and continued to make repeated phone calls which caused distress to the boys, their mother and the nanny. FY left the country that day and did not return until the 20th March 2014. He chose not to attend court on the 13th March 2014; a hearing which was to listed to review the contact agreed in December 2013.

[26]The boys have continued to be affected by the events of the 1st February. K has spoken to the teachers at his school about what happened and, entirely appropriately the school was concerned about what he had said and the events have been noted on his school records. It is their mother’s recollection that FY did not contact the boys until about 15th February when L spoke to him briefly but K refused to speak to him. On 19th February FY’s sister contacted K to try get him to contact his father but K was clear in his response to his aunt that he would not do so.

[27]On the 23rd February there is an exchange of text messages between father and son; K said that he did not want speak to or see FY “I already know the whole truth because you are a liar and mama is not.” In his response FY, again, raised the court case and texted “Didn’t u want to live in dubai?” K responds, “I don’t want to live with you you said you will never hit me again and you did …I wanted to live in Dubai but not with you.” His father responded “I did not hit u. I love u very much and I miss you.” K texted “You kicked me which is even worse”. FY went on in his text to say that K had hit him and that he had forgiven K, to which K responded “After you kicked me, and pulled my hair and scratched my face.” FY again made reference to the court proceedings and says that he was “fighting for” K and K replies “I don’t care about you and I don’t forgive you for kicking me.” When his father responded by texting that he forgave K and changed the subject to football but K texted; “Well I don’t and because you haven’t even apologised to me.” FY texted “I am sorry baba. I love u” and K texted back; “Fine I will give you one more warning but please don’t kick me again.” FY then asked K to apologise and promise that he will never talk like that to his father again. He was insistent that K posted (on social media) “something nice about ur baba in ur status message” and despite K’s responding three times that he wanted to sleep FY kept texting him. It was well after 10 o’clock at night when all this took place.

[28]Contact by telephone then resumed but it was interrupted at times when the boys stopped speaking to their father. It was their mother’s evidence that the boys had told her that FY would try to persuade them to ignore their mother, and to demand to see their father or to go and see him when he was in London without telling her. The boys told her and she observed that FY would say that the boys could only have something that they wanted or asked for if they came to see him or if their mother dropped the proceedings in England. When FY went further and told the boys to run away MY said she would have to curtail the calls, but she did not have to as the boys themselves would get upset and did not want to speak to him. Nonetheless their mother always encouraged K and L to keep in touch with their father.

[29]Although FY was in the jurisdiction during the first half of 2014 it was often for periods of no more than a few days (according to the information supplied by his legal representatives). There was no direct contact arranged between the parties but on occasion FY would turn up where the children were; such as in late March when they were having lunch with their mother and her cousin FY was in the same restaurant and repeatedly asked to speak to K. K became very distressed so his mother took his phone from him at which point FY appeared in front of K which distressed him even more. MY asked K to stand up and say hello to his father, who then caused a scene, pointing a finger at MY and remonstrating about K’s given names.

[30]FY turned up at K’s sport’s day, in late June 2014, but did not speak to his son which confused K and was in contrast to a later occasion when FY went to K’s school play after contact had been suspended and drew attention to himself in the audience which embarrassed K and caused him distress. FY chose not attend L’s Sport’s Day in July which L had asked him to attend which left L very disappointed and let down. In late July FY surprised M and his nanny when they were out walking in the park. He suddenly appeared and took M out of his buggy. Both M and his nanny were shaken by this event and, according to his mother, M was left unsettled and confused for the rest of the day. Around this time, on 18th July 2014, FY (who had just returned to England) appeared when MY and the children were having lunch in town and announced to the children that everything was agreed and that he would be taking them out and seeing them once more. FY then followed them out on to the street and followed their taxi on foot as it became stuck in the traffic. He banged on the window which the boys found funny; unsurprisingly MY found it intimidating.

[31]The communication between the parents was not productive; FY would not agree to the preconditions set out by the boys’ mother which were aimed at ensuring that an incident like the one in February did not happen again, including his successful completion of an anger management course. FY did not attend, nor was he represented at the CA hearing on 13th March 2014 (listed pursuant to the order of 19th December 2013) to consider the progress of contact and had apparently dis-engaged from the court proceedings; I reserved the case to myself at that hearing to provide for judicial continuity. In July MY applied to the court for a specific issue order relating to M’s attendance at the nursery attached to L’s school and for FY to pay the fees. Decree Absolute was pronounced on 25th July 2014.

[32]Meanwhile FY had changed solicitors and engaged the firm which currently represents him, and it was not until 28th July 2014 that he applied for child arrangement orders. This application was followed by an application dated 20th August 2014 for interim contact. This application quite wrongly set out that MY had refused to agree to any contact. Equally incorrectly both applications said that both parents were Saudi nationals omitting the fact that both of them, and their children hold dual nationality. The case came before me on 4th September 2014.

[33]At the time the application was made, and at hearing in September 2014, FY denied most of the complaints reported to have been made by the boys regarding the events of the 1st of February. He continued to deny most of what they were reporting as having said, except that to accept that he had “tapped” K on the leg, in his statement dated 10th October 2014 (made in support of his application for contact which was due to be heard on 30th October 2014).

[34]On 4th September 2014 the parties had agreed that Cafcass participation was not required in the case and no application for the involvement of Cafcass was made at that hearing. FY agreed to attend an anger management course and to give undertakings to the court so conceding to some of the preconditions that MY had asked to be in place in order for contact to take place safely and with minimal conflict for the children. In an attempt to re-establish some trust and because the boys wanted to see their father, and as he had told them he was in town and would be able to see them, MY offered to facilitate contact between the boys and their father to take place that evening. Instead of seeing his sons on his own in the presence of one of the nannies as was agreed, FY brought two family members with him.

[35]MY told the court that L complained later to her that both his uncle and his cousin had been hitting him, supposedly in play, and that had hurt and when he told his father he had responded by telling him never to show weakness. Although it did not cause any additional difficulties for the boys the purpose of the time they were to spend with their father was to start building some trust and it is of some concern to the court that FY did not want to concentrate on spending time with his sons after a gap of several months. It must have made the situation uncomfortable for the nanny and it is an indication of FY’s determination to dictate the arrangements for contact whatever had been agreed at court.

[36]On the 26th September 2014 FY applied for interim contact. The case was listed before me on the 3rd October 2014 and by that time the case came FY had undertaken an anger management course with a Dr A-M in Dubai. Doubts were raised about the efficacy of this course and it is a fact, as FY told me in his oral evidence, that Dr A-M is a friend of his of many years standing and that Dr A-M is now married to a member of FY’s family.

[37]I have not heard evidence during this hearing regarding the suitability or otherwise of the course that FY undertook but I question the wisdom of undertaking a course run by someone who a reasonable and independent observer would consider to be unlikely to be able to maintain the requisite objectivity to lead successfully. On the face of it a longstanding friendship would be more likely than not to compromise the ability of any professional to challenge the behaviour, mind-set and prejudices of the participant, and it must be the case that any anger management course must rigorously challenge aggressive behaviour and personal misconceptions of a participant in order to be effective.

[38]At the hearing on 3rd October 2014 the case was listed for the substantive hearing of FY’s contact application to take place on the 30th October 2014. The court was aware that the parties were trying to reach a compromise about the time the boys would spend with their father without the need for all matters to be aired in court. The issues that were to be resolved included the wishes and feeling of the children, whether members of paternal family should attend their contact with their father and the need and content and nature of the undertaking FY should give the court (and to an Imam) about his conduct during any contact. The conduct of FY complained of by the children gave rise to such concerns about the children’s safety such that I was not able accede to his application for interim contact at the hearing on the 3rd October. An agreed order was drawn up setting out the issues before the court and on hearing representations on behalf of the parties but it was agreed between the parties that it was not necessary to hold a fact-finding hearing.

[39]Notwithstanding the order of the court FY and the paternal grandmother went to M’s school nursery on the 7th October 2014. It was his birthday and they asked to see him. The head teacher of the nursery had been shown the court order and she told FY that he could not see M. It was the evidence of MY that the head teacher later told her that FY became aggressive and that the head of the nursery had felt shaken by the incident and his behaviour towards her which had including coming close to her face and talking in aggressive tone. She did not allow FY into the classroom but allowed the maternal grandmother to go in and give the child a kiss. I did not hear from the head of the nursery but I accept that is what she told MY and that the behaviour complained of is precisely the kind of behaviour that an effective anger management course would have taught FY to curb.

[40]On the 30th October 2014 when the case came before me again it was more than apparent that there was a divergence of opinion about what the wishes and feeling of the two older boys were regarding the time they were to spend with their father and about his conduct towards them. There was no disagreement about the boys spending time with their father in principle as between their parents but their welfare during contact remained an issue as did his conduct during contact. FY had undertaken not to discuss the case or the proceedings with the boys during contact, but this, too, remained an issue, as did the need for him to give the undertakings to an Imam.

[41]I was concerned to ensure that the boys’ voices were heard and their issues regarding their welfare put before the court independently from their parents therefore I decided that it was in their interests that I should invite Cafcass Legal to act on behalf of all the children (pursuant to rule 16.4 FPR 2010) and so had brought the case to the attention of Cafcass. As can be seen from the transcript of that hearing I was concerned that the boys as wanted to see their father that arrangements would be made by him with the boys by phone; I was concerned for their safety and that contact should have some structure, for that reason I allowed the parties to reach some agreement about contact which would form part of the court order that day. Contact was agreed, which was to take place over a meal in a restaurant in the presence of the children’s nanny, with no other party present; to take place on the 30th October, 4th November and 11th November 2014.

[42]The evidence of MY, which was undisputed, was that on the 30th October FY called K and asked to come to his apartment despite the court order made earlier that day. He eventually took them to a restaurant for dinner. During the meal he phoned his sister and asked the boys to talk to her. On the 4th November 2014 MY and FY were not able to make the arrangements as FY would not respond to MY and insisted in making plans directly with the boys. FY took L and M and the nanny to a restaurant and K returned home as he had to study for a test. At dinner FY called his mother and asked the boys to talk to her. On the 11th November despite being told that M was not very well, the boys and the nanny all returned late from contact. In response to an email from MY to ask to be kept informed if they were running late FY pressed for more contact “without restrictions” and to say that the “litigious path you have chosen lead me down the unfortunate path of doing the same thing to you in saudi [sic]”; he tried to try to persuade MY to go to Jeddah; to repeatedly raised the financial proceedings and the maternal grandfather’s “role” in it.

[43]I pause in the narrative of the case to observe that as part of the background the parties’ financial relief proceeding continued before other judges of the Family Division; indeed the payment of M’s nursery fees was an issue raised before this court, as was payment for K’s physiotherapy. The time that FY spent in the jurisdiction was limited and often coincided with the court hearings in the financial relief proceedings. Those proceedings were bitterly contested and it was, and remained when the case was before me, a matter which FY sought to draw into the proceedings concerning the children. In particular it was his contention that the maternal grandfather was financing both sets of proceedings and controlling both the role his daughter played generally and the way she conducted the proceedings. Roberts J who heard the financial relief proceedings dismissed this suggestion in her judgement. There was no evidence before me, except for FY’s assertions, that the maternal grandfather was involved in the proceedings concerning the children.

[44]The fact the financial proceedings were being contested would, as a matter of common sense, add to, rather than detract from the potential for conflict in the CA proceedings but they were not a matter for this court and do not form part of this case. As a result of the financial proceedings and as a result of court decisions against him FY has been served with judgment summons; indeed this happen outside court on the 30th October and later outside the Cafcass office in February 2015. The judgement summons were issued by the court as a result of his being in arrears of maintenance while it may be desirable to have served FY away from the court or the Cafcass office the need to serve him was a result of judgements against him and I accept that as he was often in the jurisdiction for no more than a matter of days or a few weeks and that effecting service was not particularly straight forward. It is disingenuous to try to claim, as has been done on FY’s behalf, that his frustration and anger is a result of being served in this way when the need to serve him had been caused by his own action or inaction.

[45]That the events of the 1st of February affected the boys and continued to play on their minds was evident and can be seen from a poignant essay L wrote in school in November 2014; entitled “A Difficult Time” it read:

‘I was experiencing an extremely difficult time when my brother, my father and I were at a restaurant and my brother had made my father very exasperated because he was acting ungrateful and my father said “I am so ashamed to have sons like you, you never appreciate anything anyone does for you all you do is want and want, you’re never satisfied.” I felt so down in the dumps after my father stated that very disheartening sentence, I felt as if my heart was being cut like a five meter long cake into millions of pieces, a part of me was truly melancholy that that is what my father thought of me and my older brother. My brother replied to my father’s statement by saying “I hate you and I wish I had another father. And then I heard a bang and under the table and then my brother screamed “OUCH!!” I then realised that it was my father who had kicked my brother hard across the leg. My father said that he did not want to hear another word from my brother until tomorrow. We got into the car and started driving home. My brother took his phone out of his pocket and tried calling my mother but my dad snatched the phone from his hands and my brother sat up from his chair and smacked my father on the face. My father then turned round and attempted to slap my brother but as his hand was coming at my brother’s face it hit me in the eye and I started crying and screaming in pain. When we arrived home my father went to his bedroom and got a belt and started walking towards my brother and my brother was shouting and screaming “PLEASE DON’

T HIT ME, PLEASE!!!” I was so scared and I didn’t know what to do and just at that moment I heard a voice in my head saying “RUN SAVE YOURSELF!” So I had no choice but to run so I ran and no one noticed. When I was downstairs my father noticed I was gone so he looked out of the window and said “[L]come back now its [sic] ok come back”. But I ignored him and walked alone in the dark to my mother’s house. Then I heard my father again and he was shouting “if you don’t come back right now you will regret it for the rest of your life. I hear those word in my head to this day and I do regret it because now I am not allowed to see my father but is his fault or my fault, I did what anyone else would do and told my mother who then reported it to a judge of the court of law and the case is still going on to this day, I did the right thing right, right?’

[46]On 11th November 2014 the CA case returned to court. Cafcass Legal had accepted the invitation to act for the boys and Bob McGavin of Cafcass High Court Team was appointed as their guardian. Mr McGavin felt unable to endorse direct contact taking place because of what he rightly described as the “concerning history” and because he had not been able to make much in the way of enquires in the short time available to him. The parents agreed that further contact could take place and despite the misgivings of the guardian I accepted that as the parents had reached an agreement a limited programme of contact could take place subject to conditions, including the presence of the nanny, on dates in November & December 2014 and January & February 2015 and on one date in March 2015 all which were recorded on the court order. In addition to what was intended to be the ameliorating presence of the nanny all the contact was to take place in public in a restaurant (except that on the 19th December) and no third party was to be there. Only three contact sessions took place on 28th November, 4th and 5th December 2014 as FY had not been in the jurisdiction for the first three dates included in the order due to a death in his family.

[47]Although the contact on 28th November passed without incident it soon became apparent that FY did not intend to abide by the conditions in place for contact; conditions that were there to provide for the boys’ safety and well-being. The boys were taken to a restaurant in a department store by FY on 4th December 2014. FY brought the boys’ cousin to the first contact, in breach of the court order (to which he had agreed). On 5th December FY took the boys to a shopping mall to have a meal. On this occasion he arranged it so that he and the two older boys had their meal separately and in a different food outlet from M and the nanny. On his own evidence he discussed the case with K and L; and this was what the boys later told their mother. K told MY that his father had told them to say they wanted to see him all the time and sleep over with him. K later became upset when his father phoned him at home and kept pressing him to say what was going on at home. When MY took the phone away she then received a string of texts from FY to the effect that she would live to regret the situation, repeated reference to the paternal grandfather and “what goes around comes around.” The words and tone of the messages, and their repetition, were abusive at best and threatening at worse.

[48]FY told me in his evidence that they had to eat in separate outlets as the two older boys did not want to eat at the same place as their little brother; however, I do not accept that the boys would not have done as their father told them, and that the decision to split the boys in two places so that the nanny was forced to sit elsewhere to look after M was FY’s. As their father he, and he alone, was responsible for failing to abide by the conditions set down for contact taking place.

[49]As observed by Mr McGavin in his first report dated 19th December 2014, the action taken by FY effectively undermined the position of the nanny so that it would have been difficult for her to exercise any authority and to intervene should it become necessary. The guardian concluded that because FY had not complied with the conditions of contact on both occasions in December and that, on the information before him, he was not able to condone the continuation of contact as the boys would be placed at risk of physical and emotional harm, and that contact should be suspended. The 19th December 2014 was a Friday and the last day of the legal term. FY returned to the jurisdiction on the 22nd December (it is not clear from the information given to the court by his legal team when he had left England earlier in December).

[50]On the 22nd Cafcass Legal made an application to the Duty Judge on behalf of the children and their guardian to suspend contact. Mr McGavin was aware that the two older boys had mobile phones and would be in contact with their father; he said in his report that FY should be careful to abide by his undertakings regarding his conversations with the children and that he expected their mother to bring any breaches to the court’s attention. Newton J made an order on 22nd December 2014 suspending all direct contact.

[51]The children and their mother were due to be away for the holidays and went to the Caribbean with family and friends. FY found out from the children where they were staying and arranged for items to be delivered to L for his birthday (although according to MY he first asked for them to be put on MY’s bill which the hotel refused to do). The considerable fuss he made of L’s birthday in 2014 is in stark contrast to what happened in December 2015 when he refused to call or speak to his son on his birthday in order to punish him; a matter to which I shall return. 2015

[52]In the meanwhile the boys told their mother that they were feeling stressed by the ‘phone contact with their father; he would call many times in quick succession if they did not answer straight away and would often pass the phone to friends and family. When the case came back before me on 14th January 2015 the issue of telephone contact was dealt with by limiting the times at which phone contact was to take place to between 7 & 9pm during the week and 11am & 2pm at weekends; FY was to phone on the land-line and the boys could use their mobiles. Direct physical contact remained suspended as was recommended by the children’s guardian. The case remained set down for a hearing on 10th, 11th and 13th March 2015. In the intervening period Cafcass, through the offices of Mr McGavin, would carry out an assessment part of which would include meeting the boys to record their wishes and feelings.

[53]According to the evidence of their mother FY did not contact the boys for some time after that hearing. He sent her an email saying “I will not be calling any landlines or go through anyone to get to my kids. They have my number. The onus is on you to let them stay in touch with their father.” Both boys were upset that their father had said he would not call them and K did not speak to him for a while. L found speaking to his father upsetting as FY discussed the case with him and asked him about what he would say to Mr McGavin, telling K it was up to him to fight for his father. MY ended all calls that she was aware of when the case was brought up.

[54]FY continued to send emails to MY, some of which I have seen, that were abusive in tone. In his emails he made repeated references to the maternal grandfather and/or the financial proceedings, and to his claim that the maternal grandfather was orchestrating events behind the scenes; the repeated refrain of “what goes around comes around” regarding MY’s relationship with the boys was a constant feature of his communication. On being asked not to communicate with MY using such language FY responded by almost immediately sending further emails in a similar vein. It was around this time FY that was refusing to pay for physiotherapy for K (who has some difficulties with his gait) unless he was in charge of the engagement of the physiotherapist and attended the sessions with K.

[55]All three children were unsettled and unhappy. The situation seemed to have affected L particularly; he was in trouble for bad behaviour at school, including talking back to his teachers. The boys had been confused by their father telling them that it was solely their mother who was “responsible” for them not seeing him, which was at odds with their own experience of his behaviour. L received some additional support and counselling at school, indeed he had done so for some time. His form teacher in Year 6 had spoken to L in October of 2014 about how he felt and she had prepared a witness statement of what he said about what was making him sad. In the statement she said that L had said that he wanted to see his dad, who, he said had apologised to them. It was recorded that he said “The reason why we can’t see him was one time my brother made him angry – we went to a restaurant and my brother made him angry. He kicked him under the table and when we got back to the car my brother tried to call my mum to tell her and my dad snatched the phone off him and my brother started hitting him and he hit him back but got my eye instead. When I got home I got really scared and ran downstairs and ran home”

[56]During this interview with his teacher it was clear that L blamed himself for not seeing his father because he had then told his mother what happened. He did not blame his father, nor did he blame his mother. It is not uncommon for children to believe themselves to be at fault when the fault lies with the adults but in L’s case it would seem that this tendency for self-blame has been exacerbated by his father expressly telling L that he must fight for his father.

[57]When the matter came to court in March 2015 the Cafcass Case Analysis of Mr McGavin set out details of his meetings with the boys, their mother and their father. I do not intend to set out the details of report of 27th February 2015 but Mr McGavin concluded that he could not recommend direct contact resuming without the involvement of a specialist agency and suggested the Anna Freud Centre. He expressed considerable concern about the incident which had taken place in February 2014; describing it as a very serious incident and said he found that it was immensely concerning that it had taken place in a public location, over a period of time (in the restaurant, in the car and in the apartment), within six weeks of the findings made by this court and in the full glare of the court.

[58]Mr McGavin recorded both what the boys told him and how they reacted to their situation. He said that the two older boys had told him that they wanted to see their father, and for things to be normal, they said they wanted to go to Saudi Arabia with him, but, they spoke about the events of 1st February 2014 and, in Mr McGavin’s view were still traumatised by it. K referred to the 1st February 2015 as the anniversary of “the worst day ever”. He told Mr McGavin for him to be safe his dad would have to promise to very important people that he won’t do it again… “I want this more than going to Anfield, going to a Champion’s League final.” K wrote a letter to me when he saw Mr McGavin. In the letter he said he wanted the court case to end, and wanted to see his dad “without dates”, to go back to normal, and to go to Saudi Arabia. He ended by saying “PS I want everything to be safe and never get into fights with my dad ever again.” Mr McGavin reported that K found it difficult to add to his letter when he had finished it and so had told him he could add a PS which is what people often did.

[59]L had shown his real distress on each of the three occasions that Mr McGavin had seen him becoming tearful, cuddling up to his mother, and curling up in a ball on the floor. The school told Cafcass that L was unsettled and pulled in all directions; sometimes speaking fondly of his father and at other times not; sometimes he said he did not want to see his father at all, other times he said he wanted to see his father. He could be angry, distracted and attention seeking and got more warnings than other children. The school reported one occasion when L was quite distressed as his father had promised him a game and then L had not received it. In contrast to the ambivalence he expressed about his father the school reported that L adored his mother and they had a very good relationship. M had also shown signs of distress at nursery, struggling socially and behaviourally and it was reported that he seemed to be quite an angry little boy.

[60]Mr McGavin saw both parents. FY made it clear to him that he did not accept the findings of the court, he did not respect the court and told Mr McGavin that the family’s problems could have been resolved by his sitting down with his father-in-law for half an hour. He did not accept that the events of the 1st February had affected and continued to affect the boys. He denied causing injuries to K’s legs. He did not accept that the boys might say different things to other people than they said to him, or that would be any reason for them to do so.

[61]At the hearing in March Cafcass Legal made an application to instruct an expert, Dr Asen of the Anna Freud Centre. The case was compromised by agreement on the instruction of Dr Asen; it was recognised that the expert’s specific area of expertise is in the assessment and therapeutic intervention where contact is an issue and that the report ordered was necessary for the purpose of identifying how the children’s contact with their father could move forward. Some other issues in dispute were also agreed including that FY would pay for physiotherapy for K and that MY could arrange extra tutoring as required for K and L. It was intended that, in this way, with expert professional intervention and support the case could be brought to an end and the boys would be able to see their father safely.

[62]Prior to the hearing in March 2015 there had been an incident when L, who was playing up at home and at school, argued with his mother and ran away to his father’s flat, a few minutes away. MY was given permission to file a statement about the incident involving L. L had been speaking to his father and MY gained the impression from L that his father had told him he could see FY; L had become confused and upset and asked his mother what she would do if he ran away. At this time L’s behaviour had been difficult to manage at school; he was asked to leave the band club and his Arabic teacher refused to teach him again. He was unpleasant to his mother and to his brother K. L tried to pick a fight with K and started to scream at his mother who told him to go and have a shower. It was 10 at night and he left the flat to go to his father’s apartment. MY, her cousin and cousin’s husband followed him and found him outside the apartment building; he was persuaded to go home. I have little doubt that FY encouraged L into taking this course; and, thereby, putting the child himself at risk.

[63]Two days later L and his mother spoke about how he was feeling. When MY asked him about seeing his father he became distressed and eventually said he did not know and it “depends”. He told his mother that he felt it was best to agree with his father or he would get angry and said “if I give an opinion and he does not agree, we get into a fight.” He told his mother that when his phone rings and he sees it is his father how he feels about the call depends on their last conversation and whether or not it was positive. This, she said, was like K who she had seen physically jump if his father was on the phone.

[64]After the hearing in March although contact remained suspended there were to be contact sessions supervised by Dr Asen and Dr Morris at the Anna Freud Centre (AFC). They filed a report dated the 25th May 2015. The summary of their opinion was set out at the beginning of the report and they record that the boys love their father and feel loved by him. While they record that FY has many excellent parenting skills he was not able to tune into his sons’ states of mind and their conflicted feelings about him. They observed their father as putting inappropriate emotional pressure on them. Although FY maintained that his past behaviour had not had a negative impact on the boys, they had made it clear that they had some anxiety about spending unsupervised time with him. Most worrying was their opinion that both children believed that it was their [not my italics] responsibility to prevent their father from losing control in the future.

[65]Drs Asen and Morris concluded that the risk of emotionally and physically abusive behaviour remained so they did not recommend unsupervised contact. They recommended weekly supervised, community based contact of up to 3 hours between all three boys and their father. They recommended future work to take place involving both parents and members of both extended families.

[66]As reported by AFC, FY had remarried recently and his wife was expecting their baby in July of 2015; his new wife has two daughters from a previous relationship. FY told AFC that he saw his ex-father-in-law as the driving force, or main architect, behind the entire divorce proceedings and contact, who was fighting a personal war against FY. MY told AFC that she was worried about the effects of their father’s behaviour on the boys. She spoke of him sending many text massages to them, punishing them by ignoring them, putting the phone down on them. He phones them many times in a day and, she said, they panic when they see it is him on the phone. She described the effect of contact on the youngest M who, wakes up 3 or 4 times in the night, withdraws from other children and becomes naughty.

[67]FY told AFC that he wanted his children to be respectful towards him but that K had been brainwashed by his mother and Cafcass had added to it; he had not spoken to him for two weeks. He said that her family were using the children as hostages. He described L as like Del-Boy in Only Fools and Horses and said L “is a commercial guy you can bargain with him”. FY said he was angry with K that is why he did not call him – “culturally in this case he needs to apologise…I tell L if K wants to call me then he knows how to get hold of me…this conflict is a cultural conflict, they turn the British system against me – she is bringing them up to have disrespect for me.” When talking of the incidence of physical chastisement FY said “I regret nothing regarding the children – the only thing was I was an idiot to let her come back to London.” When asked if the anger management course had proved helpful he said that he had “never had an anger problem.” These comments of FY are illuminating and reveal the basis of his case, his approach to these proceedings and his attitude towards his ex-wife and children.

[68]The boys’ attitude towards their father was, by contrast, more insightful, appreciative and loving, however it was equally revealing. L said that his dad was not like other Arabic dads who would buy you stuff but did not care because his dad did care. They spoke about FY not speaking to K because he had been watching football in a Sports’ Bar and Grill and K was unable to say where it was; their father was now waiting for K to say he was sorry. L told them that he had stood up for his brother telling him he had done nothing wrong, and, that they often had to apologise to their father, even when they had done nothing wrong, but they did it for the good of the relationship. K said he would not apologise if he had done nothing wrong.

[69]They spoke about the events of February 2014. L said he blamed himself for not seeing his father after that because he had told his mother what had happened in February. They described being in the restaurant and their father kicking them under the table; they said that he had kicked L too although he was aiming at K. They described FY pulling K’s hair and a scuffle in the car when FY was driving and K tried to phone his mother. L had been caught in the face and eye and he said suffered an impairment in his eye as a result. They described FY getting out his belt at his apartment. L said he told his mother and blamed himself for what had happened at court; his mother had repeatedly told him it was not his responsibility. Both boys then spoke to a doctor separately.

[70]L described in further detail about the events of 1st February to Dr Asen. K spoke to Dr Morris and told her about wanting to live in Dubai before but that he did not want to live there now. He described the incident in Cannes when his father got angry with him because he would not walk where his father wanted; his father pulled him by the hair and hit his head on a chair but it was a soft chair so it didn’t hurt, just the hair pulling hurt. I find his attempt at playing down how much his father had hurt him physically both touching, as an expression of his love for his father, and concerning as it was such a potentially dangerous act - to deliberately hit a child’s head on a piece of furniture. K wanted to go on seeing his dad “because he’s my Dad” and they used to do fun things. Later in another session K described seeing his father holding hands with a woman. His father had told them that it was a friend’s girlfriend and he was holding her hand as they were crossing the road. He said “why does he lie?” He pointed out that his father had also lied when he had said he would not hit them again because he did.

[71]When FY saw the boys for their first session of contact, after M had returned to his mother, he spoke to them about February 2014 and insisted that it was all in the past. While L was sympathetic and protective of his father saying he had apologised, K was less so as his view was that his father had apologised only once on request. K challenged him about the woman he had seen him with and FY then told the boys he had remarried and they were going to have a baby sister soon. The boys were visibly shocked. L lay on the floor and cried. L then left the room despite his father trying to stop him. K was confused and upset by L’s reaction and upset. When L returned he was over-excited and voluble, taking on responsibility for his father which FY did nothing to stop and, in the observation of the doctors, taking very little responsibility for the situation in which the boys found themselves. FY was observed to be unable or unwilling to hear that the boys were saying, repeatedly, that they needed to be sure they did not make him cross to ensure he did not hit them again.

[72]The second session was more successful, in that it was more enjoyable for the boys and there was “plenty of fun and laughter”. In between the two sessions the boys were seen by Dr Asen. L told him that his father had put a lot of pressure on him and that his mother had stopped FaceTime as his father had put his new wife and family “in my face a lot.” L said it had been too much and he wanted to have peace, and wanted to go and see his father and that he knew his father had a problem with his temper but that he, L, would behave himself so FY would not get angry. K said repeatedly that it was too much and he did not want to talk to them; meaning his father’s new wife and family. At the end of the second session L told Dr Asen that his father had put pressure on him to say that he and the other children wanted to see their father and that it was unfair of his father to have done so.

[73]The report concluded that there was no doubt that the boys all wanted to see their father. The AFC reported real concerns about FY’s seeming inability to be sensitive to K and L’s emotional needs when they were different to how he perceived them to be or would like. They were concerned by FY’s inability or refusal to accept that the boys would say different things to others about seeing their father and the effect that he might have on their ability to express themselves freely along with the pressure that he placed on L, and, in particular L’s wish not to upset his father which was seen in his clinging behaviour and his need to be approved of by his father at all costs. They recommended that FY could be assisted by some therapy to develop more understanding of his sons emotional needs, provided he accepted the need for such assistance, but feared that he would be unlikely to access such help as he saw the cause for the conflict as lying elsewhere and not, even partly, having anything to do with his own conduct and stance.

[74]Their recommendations for supervised contact and a need to adhere to the proscribed times for contact by phone or social media to reduce the children’s anxiety included a recommendation that FY was able to consider and to take up the therapeutic intervention they had suggested.

[75]The case returned to court on 12th June 2015 and the parties had received the first report of the AFC. As was recorded on the court order there was an agreement between all parties to implement the plan of reintroduction of contact as set out by Dr Asen. The plan included, in the short term, three periods of supervised contact in the community. The order recorded that it was anticipated there would a planned introduction of the boys to FY’s wife, step-daughters and the baby after it was born. Their mother was open to consideration of contact including extended members of the paternal family after the summer holidays; it was intended that there could be a session of contact in G when the children were on holiday in Europe during the summer holidays. The parents agreed to sign a parenting agreement with Cafcass once it was finalised on 23rd June 2015. It was recorded on the order that FY agreed to undertake personal therapy as recommended by Dr Asen. The case was set down for a 4 day hearing on 18th January 2016 and for a review prior to that on the 19th October by video link. The agreed intention was, as can be seen from the order that contact would progress with the assistance of Dr Asen and the AFC.

[76]On hearing that from his solicitor that FY had accepted the recommendations in their report the AFC provided the name of an individual therapist (a Moslem) who could see FY from August onwards. His solicitor informed AFC that FY was not available in August. Neither FY nor his solicitors contacted the AFC subsequently to arrange the individual therapy, and, although FY did contact the AFC later by email and by phone, there was never any mention of arranging the recommended therapy. In keeping with their recommendations the AFC offered joint appointments for both parents but FY did not respond to or acknowledge these offers, in contrast to MY who both responded and confirmed her willingness to take part in the appointments provided.

[77]On the 23rd June 2015, and contrary to the agreement reached at court, FY attended K’s school play. His attendance embarrassed and upset K. He finds it distressing when people do not stick to rules and conditions that are rules he is aware of himself and this includes court orders. Later (in September 2105) K spoke to Dr Morris about this and she reported that he had told her that it made him very uncomfortable.

[78]It was agreed by all parties that Ms Helena Ware should be the contact supervisor. Ms Ware is an experienced professional; she is, herself, an independent social worker of many years’ experience who has been called to give evidence in that capacity in the Family Court. Ms Ware has had experience of many cases where contact is difficult and/or has not taken place for some time. Contact was arranged to take place in June and July 2015 before the boys went to the continental Europe, with their mother, for their summer holidays.

[79]In fact only two sessions of supervised contact took place in July 2015. Following the second session FY had informed Cafcass that he wanted a change of supervisor. For reasons that I shall set out in the following paragraphs there has been no direct physical contact between the boys and their father since the 13th July 2015. Ms Ware prepared a record of each of the two contact sessions which took place on 5th and 13th July 2015 shortly after each session to report back to Cafcass and the AFC on what happened during contact; those records form the basis of the history I am about to set out; much of what was recorded has not been disputed.

[80]After the first session of contact supervised by Ms Ware which took place on 5th July 2015 she prepared a note or record dated 10th July 2015. Ms Ware met the boys at home with their mother before contact to introduce herself, she reported that she had found K was very keen to see his father but that L had said he did not want to see him. It was her observation that M did not have much understanding of what was happening but that he had wanted to be with his brothers. Ms Ware reported that MY had been encouraging L to see his father and that K had encouraged him as well. They met in a park nearby. FY had been delighted to see his children and was warm, affectionate and exuberant. He had brought his small dog with him which had run about with the boys running about after it. At first L had hung back and his father had been able to leave him to his own devices. Ms Ware described a scene where all the children and the dog had been running about, although M had wanted to be carried most of the time. They had all mostly spoken in English, however occasionally FY had spoken to the children in Arabic.

[81]Eventually FY had asked L what was wrong and L had told him it was because FY had not replied to L’s emails. Ms Ware reported that FY had denied getting the email and had started to talk about this case; he had said that he was fighting for L and his brothers and had considered giving up; Ms Ware had intervened. L had then cuddled his father and apologised to him. Ms Ware observed that of the three children L sought out his father the most and she had observed him as being desperate for his father’s approval and affection. L wanted to go to buy some Uno cards and FY said that he’d have to take the dog back to his wife and started talking about her and the impending birth of their half-sister and had said that the boys could could see her on the day she was born (the EED had been 10th July 2015). Ms Ware, again, had to intervene to say that the boys could not meet his wife and family yet, as the meeting would have to be planned as was set out in the court order. I pause to observe that FY, of course, had been well aware of this as he was there when the terms of the order were agreed. Ms Ware had waited with the boys in a taxi while FY took the dog into the apartment building in which he and his wife lived.

[82]The boys and their father, accompanied by Ms Ware, had then continued in the taxi to a department store. Once there M had been carried on his father’s shoulders and the two older boys went off in different directions, which had made it difficult for Ms Ware to keep track of them all. FY bought L what he had wanted, the Uno cards, and a computer game; K had not known what he wanted so FY had bought him a jigsaw of their favoured football team. They had walked back home from the store and FY had then said he had some signed football shirts which he wanted to give the boys but that they were in his apartment. Once again Ms Ware had had to intervene to say the boys were not permitted to go into his apartment under the terms of the agreement. They had then planned the future contacts but, despite the fact that three contact had been the number of sessions set out in the court order, FY had pushed for more. Ms Ware observed in her report that FY had been, “extremely polite but has little regard for the court process, the recent judgement and findings. He does not accept the need for supervision of any contact or any restriction on his contact.” This last sentence accords with what FY later said to the court both in his last statement and in his oral evidence.

[83]More generally she observed that M had needed a great deal of attention, L had wanted and sought attention and that K had been left out at times. They agreed that M would just spent the first hour with his father and that would give the two older boys more of their father’s attention during the latter part of the contact sessions.

[84]The second contact session in July 2015 had taken place on 13th. Ms Ware made a note which dated the 14th July, she told me in her oral evidence that she had, in fact, prepared the record on the same day, but not at the same time as the contact took place. Ms Ware had been aware of the birth of FY’s baby daughter on the 10th July 2015. The boys and their father had been due to meet in the park as on the previous occasion but it had been pouring with rain and so Ms Ware had phoned and asked FY to come to the entrance of the building where the boys lived with their mother. FY later said in his oral evidence that it was not true that it had been raining at all.

[85]Ms Ware had recorded that as it was raining when she arrived at the boys’ home they discussed what to do and MY suggested going to a shopping mall or bowling; she had also suggested taking a nanny who could help with M, so that FY could give more attention to the older boys. The nanny could then bring M home early if necessary. Ms Ware had thought that bringing the nanny was a good suggestion as M was not familiar with Ms Ware and as FY had already told her that he had thought that M took a great deal of his attention. FY had then rung K and asked him to bring his mail, but MY told him not to has said she would sort it out. The nanny had taken M down in the small lift in his buggy and the others followed; there was not sufficient space in the lift for all of them. Ms Ware had observed that L had been difficult and rude to his mother.

[86]When they got to the lobby Ms Ware had seen that the nanny and M had gone outside when FY had been waiting. On getting out of the lift, but while still inside the lobby, K and L had seen a woman standing outside with FY (it was another nanny previously one of the family’s nannies, now employed by FY) and the boys had told Ms Ware that they refused to go out while she was there. Ms Ware had then gone out to explain to FY, who was holding M, that K and L would not come if the woman remained. FY had told Ms Ware that she was just there to collect the mail; he later told me she had just turned up without his knowledge.

[87]The woman left and they went outside where Ms Ware had observed a car running by the side of the building and the boys had asked their father why he had the car as it had it as it had been the family car which they knew had to be towed away. FY had then asked K about the mail and when Ms Ware said that their mother had said that she would deal with it FY had complained. Ms Ware had quickly become aware that there was not enough room in the car for three adults and three children, and that there was no child-seat in the car for M. She had then said so to FY to which he had responded that M could sit on the nanny’s lap. Ms Ware had said that they could not travel without M in a child-seat and when FY had insisted that he could Ms Ware had said she could not agree and would have to cancel contact. Where upon Ms Ware recorded that FY had thrust M into her arms and had told her that she “should cancel contact then”. Ms Ware could see that K and L had become upset so she had said it was not necessary to cancel contact. FY had then accused Ms Ware of shouting at him. L had said that his mother would want M in a child’s car seat to which FY had responded that L’s mother was trying to ruin contact.

[88]Ms Ware reported that L and K had rung their mother to ask if there was a car seat. She said that FY had accused Ms Ware of changing the arrangements and bringing the nanny without telling him. It is noteworthy that this was despite the fact that he had not objected to the nanny’s presence at the outset, indeed he had suggested that M travel on her lap. L had gone into the building to get the car seat while FY had continued to insist that MY did not use a car seat. Ms Ware reported she had said to FY, that as the supervisor, she could not countenance any child travelling without a child-seat as it was unsafe and illegal. FY had then rudely dismissed the children’s nanny and had been shouting at Ms Ware. FY and L had struggled to put the seat in the car, and while they were doing so K asked Ms Ware why his father hated the nanny.

[89]After they had driven off it had become apparent to Ms Ware that the child-seat was not properly secured. As they had continued their journey Ms Ware and L had tried to secure it but could not, so she had asked FY stop the car to do this; she described the atmosphere in the car as having been tense and uncomfortable. FY had stopped the car by the side of the road but he had not been able to secure the seat himself. Ms Ware said that he had appeared frustrated and that suddenly he had told them to get a taxi and had said that he would meet them in a department store and not at the shopping mall they had been intending to go to. He had given K money for a taxi and driven off. FY left Ms Ware and the boys, who were upset, by the side of the road and she said that it was raining again. L had asked to go with his father whose response had been that he (FY) would be put in prison and he had said “see how hard I am fighting for you all”.

[90]When they had arrived at the store and they had waited for the boys’ father, who, on his had then ignored Ms Ware until they sat down for lunch when he began to talk to her politely. FY had ordered a great deal of food and offered Ms Ware some of the dishes. The boys and their father had chatted about football. I note that this is a subject that K and L have described during their sessions with Dr Asen as a safe subject to discuss with their father. Ms Ware said that L had then started to “lobby” his father about getting him a Segway (hover board). After the meal they had all gone to get a birthday present for K and L had continued to go on and on about the Segway until his father had lost patience and become cross; he had told L that all he ever did was ask for things. L had appeared to be quite wounded and Ms Ware said that he had wanted his father’s approval and attention so he apologised to FY.

[91]The boys returned home with Ms Ware in a taxi. Once at home Ms Ware had explained why she had insisted on a car seat and had told the boys that children should not be involved in disagreements between adults. In her observation Ms Ware had noted that it was apparent that FY did not like being challenged and that he had become hostile and rude towards over the child-seat. She said that she had found his behaviour quite unacceptable and would have cancelled contact had it not been for the disappointment it would have caused K and L. She said that FY need to avoid talking about the children’s mother in a derogatory way and involving the children in the proceedings. She noted that indirect contact was not managed in any way and that this could have an impact on direct contact.

[92]After the contact on 13th July 2015 had taken place FY asked for a change of supervisor. The guardian discussed contact with Ms Ware and he concluded that FY did not respect the authority of the supervisor which, in turn, undermined the parenting agreement signed by the parties and as far as Mr McGavin was concerned was a key requirement underpinning the safety of contact. The guardian cancelled the third contact session. In order for contact to be safely resumed the guardian, through Cafcass Legal, requested a three way meeting between FY, the guardian and the supervisor. This could not be arranged before the children went away on holiday on the 18th July so it was suggested it take place in September, three dates were put forward as possible dates for the meeting. Cafcass and the guardian never received any response from FY.

[93]I have set out the contact in July 2015 as FY had disputed the version of events given by Ms Ware and had asked that she gave oral evidence. In his evidence FY said that it had not been raining on the second occasion; that his family’s nanny had appeared at the boys’ address without his knowledge; that he had not shouted at Ms Ware but that it was she who had been shouting and was rude to him; he denied saying anything to L about going to prison and continued to insist that MY did not use a child-seat when in the car, implying that there was no need for him to have done so. To deal with this last point first, even if it were true that MY did not use a car seat (and there is no evidence before me to suggest this is the case as she had a child-seat at home for M) it is no excuse for him to decline to use one; the only purpose of its use is to ensure his young son’s safety. Moreover to insist that a professional countenance such potentially reckless, unsafe and illegal behaviour can only have one aim which is to undermine her authority as supervisor. I shall return to the rest of these episodes during contact later.

[94]During the summer of 2015 the children, particularly L, continued to have plenteous “indirect” contact with FY electronically and by phone. When he was seen by Dr Asen at the AFC in September 2015 it was their opinion (contained in the report dated 9th October 2015) that while some of the contact was good there had been occasions when L had felt pressurised and distressed by it. Drs Asen and Morris wrote in their report that it was evident that all three children very much love their father and they do miss seeing him and that this had contributed to the high levels of “indirect” contact that took place.

[95]During the summer L’s difficult behaviour was of increasing concern to his mother, and, as she told Dr Asen when she saw him on 3rd September at her request, she had found L difficult to handle. They suggested that they should see L. When FY was informed he initially objected to L being seen by Dr Morris resulting in a scheduled appointment being cancelled; he then changed his mind and requested another appointment. If this is an example of his capricious and ultimately controlling behaviour it is hard to see what else such behaviour could be described as.

[96]MY told Dr Asen that L was mean or nasty to his brother K and often put him down; that he had become preoccupied with material things asking everyone and anyone for a Segway (including people that it was not appropriate to ask); he would not stop being rude to people and showed no remorse when told off; and that she had ended up arguing with him and told him to go and live with his father. She had immediately regretted it and was seeking help from the AFC in dealing with the situation. She said that her sons had told her that their father had said he was “not going to fight to see you any more” and that it was up to them to take responsibility, “you have to do it”. K had said that FY told him “it is about time you realised the truth about your mother and that she is just out for the money.” She said she found it impossible to regulate the contact by phone and social media in practice. MY told Dr Asen that K had also displayed aggressive behaviour which was out of character and which had led to his suspension from school for one day.

[97]After his father’s intervention L was first seen by Dr Morris on 9th September 2015. At his instance his mother was there for the initial of the session. When alone with Dr Morris he immediately said that it was not fair and that everyone was picking on his father and that he , L, was the only person standing up for him. That the child had apparently, and inappropriately, taken on this responsibility for his father’s “fight” was further demonstrated by his being defensive of his father and his need for his father to see and know he was standing up for him. He said his father had promised him a Segway. He did not complain about any form of physical or emotional abuse from his mother and ended by saying he wanted things to be better and communicate better with his mother.

[98]FY sent several emails to the AFC around the time of this first meeting. He said that L had phoned him in “complete distress” a few weeks before saying his mother had punched him. When asked if he had reported this incident to the police or social services he replied that he wanted to hear her side first but at the very least he believed she had emotionally abused him. He wrote an email expressing his reservations about L seeing Dr Morris and had told them that he had contacted Cafcass. FY said that “given the magnitude of the allegation, I wish to know, urgently, the outcome of the meeting with L and whether he reiterated the allegation.” FY would then make an “informed decision” about whether to report to social services or to the police. FY told them that L had given his father “a brief of how his meeting went with Dr Morris. He mentioned to me that he made his wishes and feelings absolutely clear about him wanting to see me.”

[99]The AFC informed FY of their planned assessment and that L had made not any allegations against his mother and about their concern that FY had apparently questioned his son about the session. FY responded by saying he was not giving his consent for L to see Dr Morris; as L may have been made aware of his father’s objection they cancelled the next appointment. FY then tried to re-instate it but it as the email was received on the morning of the appointment it could not go ahead.

[100]In her final statement MY set out what happened that weekend of the 18th and 19th September 2015 and the difficulties that L was experiencing in dealing with his father. FY had told L he would buy him a Segway (as L told Dr Morris) and it was supposed to come on that Saturday. On Saturday FY had taunted L by saying he had it but had decided that L could not have it. He then said that he could have it but only if he met FY in the park and L was to meet his step-sister and step-mother. He then told L to tell his maternal grandfather that he was a coward. L became very upset and FY hung up on him. L tried to ring his father back but he did not answer. L then, as his father must have intended him to do, blamed his mother for not getting the Segway.

[101]That evening L sent his father a text message which he had shown to his mother, it read“DON’T HANG UP ON ME LIKE THAT I DIDN’T DO ANYTHING AND I CANT FIGHT FOR YOU IM ONLY TWELVE FOR GODS SAKE SO YOU CANT MAKE ME FIGHT WHEN YOU SHOULD BE LISTENING TO THE COURT INSTEAD OF MAKING US FEEL SO BAD AND MANIPULATING US SO WE CAN DO WHAT YOU WANT AND IF YOU REALLY LOVED US YOU WOULD NOT HANG UP IN MY FACE AND SAY BYE IM GOING NOW LIKE YOU COULDN’T CARE LESS ABOUT WHAT I WAS TRYING TO SAY SO KEEP THE SEGWAY I DON’T NEED IT BECAUSE ALL ITS DONE FOR ME IS MAKE ME OBSESSED AND I DON’T NEED THAT ESPECIALLY FROM MY OWN FATHER SO JUST STOP DOING WHAT YOURE DOING AND FOR ONCE JUST LISTEN TO THE COURT BECAUSE IT WILL STOP YOU FROM MAKING ME K AND M FEEL BAD ABOUT OURSELVES. HOW DOES IT MAKE YOU FEEL KNOWING THAT WHEN M GROWS UP HE GONNA THINK OF HIS FATHER AS THE GUY WHO COULDN’T CARE LESS ABOUT HIS CHILDREN, THINK ABOUT THAT AND STOP TRYING TO BLAME [MATERNAL GRANDFATHER] FOR THIS, HE DIDN’T DO ANYTHING HE DIDN’T START ANY OF THIS SO LEAVE HIM OUT OF THIS AND FOCUS ON YOUR OWN ACTIONS INSTAED OF MAKING UP OTHER PEOPLE’S BAD ACTIONS [MATERNAL GRANFATHER] IS JUST AN OLD DEFENCELESS MAN SO WHAT IS HE DOING TO YOU. YOU ARE PUTTING THE BLAME ON HIM WHEN HE HAD NO PART IN THIS. I’VE HAD IT, TRYING TO DEFEND A LOST CAUSE FOR TWO AND A HALF YEARS WHICH JUST HAPPEN TO BE THE WORST OF MY LIFEGETTING CAUGHT UP IN THE MIDDLE OF ALL THIS CR*P BETWEEN YOU GOING UP AGAINST MAMA AND [MATERNAL GRANDFATHER] SO IM NO LONGER GOING TO DEFEND YOU SO YOU CAN CHOSE EITHER TO LISTEN TO THE COURT AND LET ME, K, M AND MAMA AND YOURSELF LIVE A HAPPY NORMAL MANIPULATION FREE LIFE OR YOU CAN LET US BE MISERABLE, YOUR CHOICE!”

[102]After he had sent the text message L told his mother he felt a relief at sending it. His father had then replied saying that he had never asked L to defend him and that his grandfather had paid a million pounds to stop L from seeing his father. Later when FY spoke to L on the phone he hung up on his son again.

[103]The AFC discussed the case with the children’s guardian, and in particular about MY having punched L. The guardian who told the AFC that he had seen the boys’ mother and discussed L’s being punched with her. In his report dated 20th October 2015 Bob McGavin sets out the conversation that he had with L and his mother. The incident when his mother punched was described by L to his guardian when he was asked directly about it. L saw Mr McGavin on 22nd September 2015 and started by saying, “my daddy is probably not going to turn up to the next hearing. He says he is not going to fight any more, it’s in our hands. If we want to see him just go, no-one has the right to stop us.” He told Mr McGavin that he still blamed himself for having no contact because he ran away after the events of the 1st February 2014. (I add, in parenthesis, that what L told the guardian proved to be right for FY failed to attend the next court hearing.)

[104]L then spoke about how he felt he had to care for his dad, and to make sure he does not lose his temper. He told Mr McGavin about the difficulties that he had in school. He said that things were not as good as they had been with his mother and said that he had been acting up, annoying people. He was asked by Mr McGavin about the incident when he was punched by his mother and replied by saying he thought it was all over. He said to the guardian that blamed his dad for making an issue of it. Mr McGavin asked him again about the incident and his account was similar to the account given by his mother; that he had been being aggressive to K who had been annoying him and she had punched him on the arm to stop the brothers from what they were doing. He said it had hurt and there was a bruise but he had not told his mother about the bruise.

[105]During his meeting with the guardian L had gone on to say that he could not see his dad in “rehab” and when asked what his father needed rehab for L said it was “to control his anger issues, to take responsibility for a child. I believe with my help I can care for my dad.” He was referred to the message he sent his dad and spoke of his father manipulating him, saying that his father had told him to tell his grandfather to come and see him (FY) personally and added “I don’t know why he’s blaming him”. K spoke warmly of his grandfather to the guardian saying he was more of a dad than his actual dad. K agreed that his position remained that he would like to see his dad but needs to know he would be safe. K said that Helena Ware had been “nice enough not to ban contact but you did” and went on that he was sad contact was banned, but only for a short time adding that it was his father’s fault not his.

[106]On the 24th September Dr Morris saw L for a second session. They discussed the text that L had sent his father and the fact that his father had apologised to him. He was more positive about his relationship with his mother and felt that she had supported him, and gave examples of this support to Dr Morris. L accepted that his father still tried to contact him outside the agreed hours set out in the court order. He questioned the need for supervision of contact and said that Ms Ware had “pressed his father’s buttons”; this was an example of L feeling the need to defend his father by placing the responsibility for his father’s bad behaviour away from FY and on to someone else.

[107]By contrast when K saw Dr Morris on the same day he said that he had felt very uncomfortable about his father’s behaviour at contact and had kept telling him to calm down. Dr Morris found him to be apparently unconcerned about not seeing his father at his birthday and he had spoken happily about how he spent the day. He told Dr Morris that he was very annoyed when his father had turned up at his school play. He said his father had been mean to L and that he was also mean to his mother. At a later session K said that he did not know why L stood up for his father as he always lies about his mum not letting them see his dad when it is the court. About Ms Ware and his father K said that L had “said she got it all wrong and it was a misunderstanding but it wasn’t”.

[108]The report of the AFC of the 9th October 2015 described, in some detail, the difficulties that were facing L in particular, and made recommendations aimed at supporting the children and re-establishing direct contact. The report also dealt with the need for some constraints to be placed on the level of contact by phone and social media with a view to imposing some boundaries. I shall return to this report, and its recommendations, and those of the guardian below.

[109]When the case came back to court there had been a breakdown in L’s relationship with his father. According to his mother’s written evidence (contained in her final statement dated 8th January 2016) FY had continued to contact the boys, particularly L outside of the times set down in the court order. He continued to make reference to, and discuss, these proceedings with the boys. He had also attempted (and sometimes succeeded) in engineering encounters with the boys, for example to contrive to see L pass by on the bus to or from school. In isolation this latter action on FY’s part would be innocuous but it was part of a pattern of behaviour designed to go behind court orders and to involve the children in flouting the orders of the court. FY had become angry with L when his son told him that he had to comply with the court timetable for telephone contact. In any event the order was a generous one for contact to take place every day.

[110]MY’ evidence was that it was sometime around the 16th of October 2015 that FY last spoke to L and told him to “listen…listen carefully”; and, whatever the content of the conversation his mother said both in her written and oral evidence that L ended up screaming at his father down the phone saying that his father was ruining his life. L had not spoken to his father since. Nor has his father spoken to him or even tried to; his father told me during the hearing in January 2016 that he was still waiting for an apology from L; he betrayed no sign of the hurt and confusion he must be causing his son and it was obvious that he not only considered himself to be in the right but that he also considered himself, a fully grown man, to be the wronged party at the hands of a distressed and unhappy young adolescent. From the evidence before me it was not possible to say exactly when this incident on the phone took place but it was certainly before the hearing on the 5th November 2015.

[111]When the case came back to court on 5th November 2015 direct physical face-to-face contact had not taken place since 14th July. Dr Asen and Dr Morris had filed their further report in October (to which I have already referred). They were greatly concerned about the level of “indirect” unsupervised contact and the effect that it was having on L and his brother K. FY had not taken up any of the appointments offered to him either by Cafcass (for a three way meeting to re-establish contact after the summer holidays) or by AFC (to have a face to face meeting with Dr Morris which he had asked for to put his point of view across). They had concluded that it was unlikely that FY would engage with therapeutic work as there was an established pattern in his behaviour whereby he was unwilling or unable to carry through what he would say he was going to do. They said that this characteristic personality feature is likely to make it difficult for any professional to work with FY collaboratively or consistently; a view that had been borne out by the evidence before this court.

[112]The AFC recommended a reduction in the electronic, social media and phone contact as they considered that L, personally, was in a precarious position, caught between his mother and his father and having an intense need to champion his father’s cause. They were aware of the ambivalence of L’s feelings about his father and had observed this in the way that he stood up to his father and then felt sorry for him and backed down. It is obvious to this court that FY had played on the feelings of sympathy that L had for him, and that he must have done so quite deliberately for he could hardly have mistaken the boy’s reactions and need for his father’s approval and attention and made use of those feelings. It is, bluntly, unacceptable that he should use his son’s love for him, susceptibility to his father’s disapproval and his sympathetic kind-heartedness in this way. The constant use of the term “champ” and “my champ” when sending messages to L coupled with outright demands that L fight for him in his texts to L can only be seen an attempt to recruit L to his cause.

[113]They observed that K, too, had mixed feelings and considered that he was ambivalent about whether contact should be supervised or not, as he had said that everyone should be given a second chance but said that his father had hit them before and that he might do it again. K had said that his father should speak to them no more than twice a day as sometimes he called a lot which he found “really annoying.” As a result of their concerns about L, and K, but to a lesser extent in respect of K, they recommended that telephone contact was reduced to two hours on one day each week. Their concerns went further than L managing the telephone contact; they thought that L’s challenging behaviour at home was fuelled by his father (as could be seen in the texts and emails he sent to L which formed part of the evidence before this court).

[114]The AFC considered that the messages sent by FY were inconsistent and confusing for L, and the negative comments about his mother and her family had contributed to L being stressed and overburdened by his need to keep his father’s demands and exigencies in mind. The AFC’s view as contained in their report was that this had presented considerable problems at home which may well have led to him taking it out on his brother, K. They were aware that MY had found it difficult and had asked them for help with L’s behaviour and, although she had acted quite inappropriately on at least one occasion, they were not overly concerned about her ability to cope with L generally. The AFC recommended that there should be direct supervised contact for 3 hour once a month, provided that FY was able to respect the supervisor; they said that although he had not done so before, it was hoped that in the interests of the children he would put his own needs and views to one side during contact and prioritise the children. This contact would lead to an opportunity for the boys to meet their half-sister. They did not recommend more frequent contact because of the risk that it may destabilise the placement with their mother.

[115]As a result of this advice from the AFC, Cafcass filed their case analysis with the court dated 20th October and made an application for telephone/social media contact to be restricted. I dealt with this application, by agreement, on written submissions from the parties and contact was reduced to once a week for two hours, when the children were then at liberty to call their father.

[116]At the hearing in January 2016 MY gave oral evidence about the difficulties she had with L’s behaviour at home including the incident when she had punched him on the arm. In her evidence MY described, as she had previously told the guardian that L had been unpleasant to K and called him stupid. Unsurprisingly K is particularly sensitive to such terms of abuse and the two boys started fighting. L had backed K into a corner and as K is bigger and stronger she was afraid he would retaliate and hurt or injure L; when MY was unable to get L to stop by remonstrating and telling them both to cease fighting she was very worried about what would happen if the scuffle escalated so she punched L on the arm. He was very surprised and stopped. She said L had never complained about what she did either at the time or later and this is consistent with what he told the guardian and the AFC. MY has never denied that the incident took place, indeed, she reported the incident to Cafcass. As she had taken the appropriate action by going to the AFC for assistance with L’s behaviour the guardian, in consultation with his manager, took the decision not to take the matter further.

[117]At the hearing in January 2016 FY no longer denied kicking K in February 2014 and in the course of the hearing FY sought to use this incident as one way of excusing his own behaviour; indeed he went as far as to say in his oral evidence that it was acceptable for MY to have punched L, something that she not only did not believe herself but which caused her concern as it was another example of FY excusing physical abuse of the children. I share her concern. In respect of what she did, however, there is a tangible difference in hitting a child to stop a fight between two adolescent boys getting out of hand and kicking and hitting your child because one is affronted or angry about what they said; the circumstances are discrepant.

[118]To return to narrative of the case, FY did not attend the hearing of 5th November 2015, but was represented by leading and junior counsel. It was agreed, the court was led to believe on FY’s instructions, that there would be supervised contact (although the identity of the supervisor had not yet been agreed) and that contact would be subject to a meeting having taken place at which conditions for contact would be decided prior to its resumption. The case was listed for a further hearing on 26th November 2015 when it was intended that the supervisor would have been identified and contact could go ahead. FY was ordered to attend that hearing. Within five days FY’s solicitors wrote to Cafcass withdrawing his consent and citing cultural and religious reasons, in those general terms and without specifying the reasons, and that FY would “not engage further with any supervising individuals or meet with a new Independent Social Worker”. No issue of either culture or religion had been raised by FY previously.

[119]His solicitors made an application to vacate the hearing on the 26th November because of his wife’s ill health and the case was adjourned to the 16th December 2015. At the hearing FY confirmed through leading counsel that his position was there was no need for his contact to be supervised. On the 19th December 2015 it was L’s birthday and despite being urged to do so by his mother, at court, to phone the boy FY did not contact his son.

[120]Mr McGavin filed his final analysis dated 13th January and before he did so he saw the boys to ask them their wishes. After they had seen Mr McGavin, and once again in breach of the court order, FY spoke to K about the case and what he had said to Mr McGavin; he asked K to send Mr McGavin an email. FY was still not speaking to L so he did not discuss the case with him. I shall return to this flagrant attempt to influence K and what he said, through his guardian, to the court, below.

[121]In her final statement and oral evidence (which I have already referred to above) MY described how L had stopped speaking to his father after a phone call in which he stood up to his father, got very angry with him and ended up screaming at FY. His mother described the scene as heart-breaking; and while she accepted that L was rude to his father she also said that she kept praying FY would calm him down, to no avail. After that L kept asking her –“is baba going to call?” She said that it broke L’s heart when his father did not call him on his birthday. In her statement she described an occasion in early December when L heard FY’s voice when he had been speaking to K. She said that L was so distressed that he went into “meltdown” and “fell apart” and that he had to sleep in her room that night, for comfort and reassurance.

[122]MY told me that this lack of communication and any rapprochement between FY and L and had made it much harder for him; and that she tried to make it better by reminding them that FY had been a good father to them and that he did love them. The latter may be true but his behaviour towards L is, to use plain and ordinary words, nasty, cruel and deeply unkind. It is a further example of the emotional wounds he has inflicted on his children and is a product of his overwhelming need to be in control. The only tool FY had left was the phone contact and he deliberately and unapologetically used it as a weapon against his own child.

Cafcass report 2016

[123]L and K saw Mr McGavin it was on 12th January 2016 before the hearing. In his report and oral evidence the guardian described K as talkative and forthcoming; he told his guardian about school, his likes and dislikes; about football; he said that things with his mum were fine. He raised the fact that L had not spoken to his dad not even on his birthday; he said that his father would not talk to L and had said to K that L had to call FY to apologise. His father had told K that Mr McGavin was an “idiot” and that was because he had banned contact. When asked for his views on unsupervised contact K’s response was “that’s not going to happen because last time he kicked us”. Mr McGavin had explained to K that he would be telling the court that he recommended no face to face contact which did not surprise him nor did K challenge Mr McGavin; Mr Gavin felt that they had developed a relationship in which K could challenge his guardian if he wanted to. K told him that FY “keeps texting me every day he keeps breaking the rules” and that he had told his father he would not respond outside the times permitted by the court order. It was the guardian observation that K welcomed the external authority of the court in regulating affairs within his family and particularly contact. K likes rules and likes to know where he stands; and, he is well able then to tell his father what is and what is not permitted. It offers him reassurance.

[124]From the description given by Mr McGavin L appeared to be very despondent and unhappy on 12th January 2016. He had laid his head on the arm of the chair in the waiting room and in Mr McGavin’s room; it seemed as if his head was “heavy with his worries”. L had repeated several times in the meeting with the guardian “I don’t want to see him.” L told his guardian that his father had not called him on his birthday and had that his father had said, via K, that he was “more than welcome to call me and apologise.” More positively L had said he was doing better at school (this accords with his mother’s evidence and from the school) and had spoken about the various establishments that they were considering for his next school. L had said he might like to board to get away from the problems with his father. He said that he wanted to change his family name to that of his mother’s. Mr McGavin told him, as he had done K, what he would recommend to the court and about his father’s refusal to have contact supervised and failure to attend the AFC.

[125]It was Mr McGavin’s evidence that the boys had a good relationship with him and could say what they wanted to him and I accept his evidence. He is a most experienced guardian and there is absolutely nothing in the way of evidence before me which could support FY’s case that Mr McGavin had told, or even suggested to, the boys what they might say about seeing their father. On the contrary he has assisted them to get their views across by encouraging them to tell him what they wanted the judge to know. The questions that he asked were open and when he told them of his recommendations there was never any suggestion that they were expected to go along with him. Both he and the Cafcass Legal lawyer were aware of the need for separate representation should it arise and had discussed it and kept it under review.

[126]After this interview K had spoken to FY who, again, had discussed the case and the contents of Mr McGavin’s report with him. FY told me he had sent K the Cafcass report. He was entirely unrepentant his discussions with K in his oral evidence, he accepted it was in breach of the court order and was clearly of the opinion that he had not only done the right thing but that in doing so he had undermined any case that K did, in fact want contact supervised. He encouraged and prevailed upon K to send an email to FY, so that he could produce it in court, it read, “Hi baba, I am writing to say that. Yes I want to see you and hang out with you like I used to, I want to travel to Jeddah, Dubai, Middle East. And I just want to travel anywhere in the world with you. I know you have anger issues. So I will try not to be rude to you so you don’t end up hitting us. Thank you”

[127]In my all my experience as both advocate and judge I find it hard to think of a more blatant example of attempted manipulation. The email, however, does not support FY’s case. The final two sentences are a reference to the previous physical abuse inflicted by FY on his son and to the unpredictability of FY’s temper, along with the fact that he places the responsibility for his abusive behaviour on the children, rather than with himself as their parent and the adult. It is a further example of FY’s controlling and manipulative behaviour. There can be little wonder that L used the word “manipulative” in his text to his father when he complained to him about his behaviour.

[128]Mr McGavin concluded in his final analysis and in his oral evidence that the end of the road had been reached. This was based on repeated attempts to re-establish contact each of which had failed because of FY’s lack of co-operation and engagement with the professionals involved. In the end he withdrew from the process altogether. Neither boy had said wanted to see their father in the present circumstances, but the guardian was sure that they would both want to see FY if they knew they would be physically safe and emotionally safe. Mr McGavin asked that in view of K’s special needs a ‘no contact’ order should be made until he was eighteen, although this would be unusual and exceptional. He felt that K had his own vulnerabilities and that he needed the reassurance of the court order both for his own sense of security and to enable him to stand up to his father until he reached his majority.

Anna Freud Centre

[129]Dr Asen gave oral evidence, as did Ms Ware and their evidence was challenged on behalf of FY; I shall deal with their evidence further below. The AFC had considered the evidence filed, including that of the guardian and his detailed contact recording of contact between the boys and their father which showed how positive contact could be. Dr Asen told the court that it was his view that there is no doubt that FY loves his children and he could often remain child focussed; he, too, had observed some excellent contact and parenting skills but considered that aspects of FY’s parenting were so detrimental that he had, reluctantly, concluded that the children should have no further direct face-to-face contact with him for at least 12 months. FY parenting and behaviour had fluctuated during all the contact that had been observed. A striking example of this, which comes to mind when considering the views expressed by Dr Asen, was the abrupt switch in his behaviour on 14th July before and after they arrived at the restaurant in the store.

[130]Dr Asen considered that even the “indirect contact” was harmful to the children as they were continuously being exposed to undermining and damaging comments about their mother and her family (also their family) and at the receiving end of toxic remarks; and their father was unable or unwilling to see the impact of his actions from the children’s point of view.Dr Asen accepted that it was extremely difficult to monitor or supervise “indirect” contact and that although it could be done the experience to date had been that FY had totally rejected supervised contact. Dr Asen recommend that indirect contact should take place not for 2 hours but for 1 hour and that each child should have phone contact sequentially for 15 minutes each, then all three children together for 15 minutes. All other contact including texting and social media should be excluded from the order as it placed additional stress and pressure on the children; as an example of this, in his oral evidence, he referred to L receiving 30 texts in one day.

[131]Dr Asen told me that the children, needed some closure and some certainty and if told of the outcome that will help them accept and stabilise them emotionally. There should be no face to face contact. He accepted that it was a long time until the end of M’s minority but considered that there should at least be no further proceedings, for a year or more. The contact had undermined the children to the extent that it was to the detriment of their mental health as could be seen in their behaviour and their, separate, reactions to contact. It was his opinion, in respect of treatment for FY to enable him to understand the effects of his behaviour, any treatment of less than a year was unrealistic. He had identified a Muslim therapist earlier to work with FY when the AFC was told the children’s father had accepted their recommendation for therapy, but FY had not taken it up.

[132]Dr Asen was asked about the need for an order in respect of K, given his age, and said that K was vulnerable, with cognitive difficulties and that he required some protection from his father’s fluctuating behaviour and his constant undermining K’s (maternal) family of origin. It would help K from an emotional point of view as he is very critical of his father breaking court orders. M was less obviously at risk given his age, but Dr Asen would not recommend a different regime for him as it would be likely undermine the siblings as a group and lead to resentment. I accept that this is so but I add to that the present risk of emotional manipulation and the risk of physical abuse as he grows older and more confrontational.

Law

[133]This case consists of s8 CA applications by FY for contact with the three boys which are now known as child arrangement orders. There has been no real dispute as to the law which applies. The court is concerned with the welfare of these children and as such its principal concern is the children’s welfare. The paramountcy principle as set out in s 1(1) of the Children Act (CA) 1989 applies to the applications before this court and to this end I have in mind the welfare checklist contained in s 1(3). In addition to the application for child arrangement orders under s8 of the CA 1989 (as amended) I have been asked, by counsel for the children and their guardian to make an order restricting FY’s ability to make further applications pursuant to s91 (14) of the CA. The time that the guardian suggests that the restrictions should apply is two years. It is agreed that “indirect” contact will continue although the details have not been agreed.

[134]The decisions I must make are governed by the CA 1989 and the Children and Families Act 2014 ‘CFA’. The standard of proof in all cases involving the welfare of children is the balance of probabilities as set out by the House of Lords in the case of Re B (Care Proceedings: Standard of Proof)

[2008] UKHL 35

[2008] 2 FLR 141

, confirmed by the Supreme Court in Re S-B (Children)

[2009] UKSC 17

[135]Although I was given a bundle of authorities counsel did not refer to them at length in their written submissions. As I have said there was little, if any disagreement, about the law contained in their submission; it was said by Mr Hames QC on behalf of the children that, “No challenge is made to the propositions of law contained at paragraphs 31 to 41 of the position statement dated 15 January 2016 on behalf of the father.” The document referred to made references to several cases where the factual matrix differed considerably from the issues in this case, not least as this court had previously found that their father had physically abused the children and is now being asked to make findings that he did so again within weeks of that original judgment being handed down.

[136]The court is well aware that the amendments to section 8 of the CA and section 1(2A) includes the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further the child’s welfare. This presumption is subject to the requirement that the parent concerned may be involved in the child’s life in a way that does not put the child at risk of suffering harm. Section 1(2B) of the Act defines ‘involvement’ as meaning involvement of some kind, either direct or indirect, but not any particular division of a child’s time. It is not suggested that there is no involvement of FY by any of the parties, but I keep in mind that the level of his involvement will be informed the children’s safety (from further physical harm) and their emotional well-being.

[137]I am being asked to make an order in respect of K and keep in mind s 9(6) of CA which provides that a section 8 order may only be made in respect of a child who is 16 years old if I am satisfied that the circumstances are exceptional. This decision depends on K and his circumstances specifically, he is a vulnerable young person with special needs who finds the structure of a court order of assistance in bring structure to his life.

[138]I am reminded of the judgment of the Court of Appeal given in Re J-M (A Child)

[2014] EWCA Civ 434

in particular to paragraphs [23]-[25] which set out some guidance where the Court is considering making an order for no direct contact as follows:a. “The welfare of the child is paramount;

b. It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living;

c. There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact;

d. Excessive weight should not be accorded to short term problems and the court should take a medium and long term view;

e. Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child’s welfare.”

[139]I keep that guidance in mind and the need to ensure that any decision reached must be compliant with the obligation under the Human Rights Act 1988 s6 (1) not to determine the application in a way which is incompatible with Art 8 rights that are engaged and is consistent with the principles outlined by Lord Justice Munby (as he then was) in Re C (Direct Contact: Suspension)

[2011] EWCA Civ 521

[2011] 2 FLR 912

. And I am aware that European case law has continued to emphasise the positive obligation to respect family life as cited recently by the Court of Appeal in Re F [2015]EWCA Civ 882. Mr Gupta QC for FY refers to Re M

[2013] EWCA Civ 1147

in whichthe Court of Appeal allowed a father’s appeal against a Judge’s order for no contact in circumstances where he sought unsupervised contact as a disproportionate response and to paragraphs 18 and 24, but the circumstances of that case related primarily to the safety and emotional stability of the mother and not, as in this case the children themselves and thus has limited application in this case in terms of the facts.

[140]I am mindful of the United Nations Convention on the Rights of the Child, indeed I had it in mind when I ordered that the children be joined as parties to ensure that their voice were heard, and for each child’s right and need for a relationship with both of their parents in this case. In ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

;

[2011] 2 AC 166

. Lady Hale in considering article 3(1) said that: “[23]…… In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.’ [My emphasis.]

[141]It was the view of the guardian, which must be shared by the court that it is not in the children’s best interests for there to be a continuation of these already prolonged private law proceedings as this will only create anxiety and instability and lead to further conflict. I say the view of the guardian must be shared by the court not only as such it is in the interests of the children to curtail the proceedings concerning them but also as his view is congruent with the law following the enactment of the CFA. As I have said the guardian invited the court to make an order that further applications by FY in respect of K, L & M should be restricted to those applications where he has been granted the court’s prior permission pursuant to s91(14) CA 1989 for the next two years.MY shares the concerns of the guardian and endorses the imposition of such an order. FY resists it.

[142]The approach to be taken in considering applications under s91 (14) CA 1989 have been set out by the Court of Appeal in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage)

[1999] 2 FLR 573

and in numerous decisions since which follow that approach. The court must carry out a balancing exercise between the child’s welfare and the right of unrestricted access of the litigant to the court. The jurisdiction of the court to restrict applications is discretionary and I must weigh in the balance all the relevant circumstances in the exercise of that discretion. I shall return to this application at the end of my judgment.

Evidence

[143]Many of the facts of this case are agreed but some factual issues remain to be decided by this court. When FY finally accepted in his oral evidence that he had, in fact, kicked K his description of events differed in significant ways from that of his sons. He said that K had been rude at the table and “kept burping and farting in the restaurant” and because of that he’d kicked him. Both boys have said that it was because K had said something his father did not like about this case. He said that he had never gone to get a belt when they arrived back at his apartment. He said that he had apologised and that both boys had put it behind them. This does not accord with what has been written and said by boys themselves and can be seen in the history of the case as set out above. They have not put it behind them and were deeply affected by their father’s behaviour that night.

[144]I find that he kicked at K under the table and it is more likely than not that his shod foot connected with the boys’ legs more than once causing the injuries seen and recorded by the GP shortly afterwards. FY then continued the argument in the car when driving which was not only frightening for the boys but was a reckless act and dangerous in itself. He pulled K’s hair and hit him and in the process caught the side of L’s face causing the injuries which were seen by their GP shortly afterwards. Once at his apartment he got his belt, at which point L ran away. It was late at night and he was very distressed and crying. Both boys were thoroughly frightened, hurt (both physically and emotionally) and have retained memories of the events of that night which continue to affect their relationship with their father, a fact that he refuses to acknowledge. Moreover he continued to deny that he had assaulted the two boys, in particular that he had kicked them, for some considerable time, and in doing so effectively labelled them liars. As a direct result of his behaviour they have both suffered physical and emotional harm at the hands of their father, further to that which I had found in December 2013.

[145]Since February 2014 both supervision and limited physical contact have prevented any further physical harm to the children but they have continued to suffer distress, hurt and emotional from the words, actions and manipulative behaviour of their father and there are many examples of such episodes that have caused further emotional harm set out in the history of this case above.

[146]FY’s written and oral evidence was characterised by his inability or unwillingness to begin to see, never mind accept, his own responsibility for the boys’ reactions or feelings about him and how his behaviour had affected them. As Mr Verdan QC, counsel for MY, said in his closing submissions there are many examples but that two of the most obvious and closest in time to the hearing are his refusal to ring L on his birthday and his determination not to ring him unless L rings first to apologise, and, FY’s discussion with K about the proceedings on the eve of the hearing. Not only did he discuss the case he sent K the guardian’s report in order to use it in an attempt to undermine the guardian’s recommendations by pressurising K into to sending him an email confirming “his wishes” as his father wanted them to be presented. It was more than apparent from FY’s oral evidence that he is unwilling or unable to understand any of his children’s emotional needs and does not accept that he has caused them distress, upset or harm, despite the evidence before the court of their obvious distress. His own ability to take umbrage at the behaviour of his young teenaged son when L became angry with his father for the pressure he was putting on him speaks volumes for FY’s need to put his own feelings and amour-propre before the needs of his child, therefore, to suggest that he can safely have contact with M alone is nothing more than a further manifestation of this wilful or inherent deficiency in his parenting.

[147]I accept the submission on behalf of MY that it is nonsensical for him to assert that ‘he had no bad feelings for MY’ and wanted to speak to her in a constructive way. His actions and word to the court, in correspondence and, most seriously, to their sons over the last two years is evidence which is in stark contrast to his assertions. It was apparent from his oral evidence that FY is little short of obsessed about the maternal grandfather’s alleged role in these proceedings. I have found before, and there is no evidence to change my findings, that MY is an independent, sophisticated and intelligent woman who was not in 2013, and is not now in 2016, being controlled by her father in respect of these proceeding or, indeed, any other aspect of her life.

[148]In his oral evidence FY obfuscated, avoided answering questions and dissembled; at times he displayed an almost complete inability directly to answer a question put to him and would use the witness box to air his own feelings of hurt, despair and, at times, apparent bewilderment. Mr Hames’ submission that FY’s answers were a catalogue of grievances against the mother, her father, the professionals and even the children (as when he blamed L for not apologising to him) has some force. He claimed that he hadn’t seen or read critical documents or failed to recall important details about events or conversations put to him. He had no explanation of why he used phrases such as “so ashamed to have sons like you” to L and it was extraordinary that he claimed never to have read the L’s essay (set out above) before giving evidence. Where his evidence conflicts with other witnesses I must and I do reject it.

[149]Both MY and FY are dual-nationals; well-educated and cosmopolitan members of wealthy families who live an international life-style and to suggest anything else is dissonant with their own oral evidence and is not congruent with the totality of the evidence before this court. There is no substance to the claim that there is a cultural or religious aspect to the case that undermines FY’s position; is it something he barely alluded to in his evidence. When he was asked questions about K watching football in the Sport’s Bar and Grill and his complaint was not about alcohol being served but about the fact that K was there without his knowledge or permission and that his mother should have asked FY first. He was also upset that he was not watching the football team they both support with K, which is, perhaps, more understandable.

[150]Both sides of the children’s family are Saudi in origin, and culturally the children are a reflection of their parents’ cosmopolitan milieu; they have lived most of their lives in England and the USA. They and their parents speak English and text, email and converse in English. While of the Islamic faith they are not strictly observant in their practice of the faith. In terms of the law of England and Wales the children’s welfare has the same priority for their welfare as any child over whom this court has jurisdiction.

[151]FY’s evidence and his actions throughout the past two years have made it clear that constructive communication with MY and co-parenting is simply not possible. I have already had to make an order allowing MY to accept offers for school places for L and cannot come to any other conclusion that he would use co-parenting as a further device for control. FY will be kept informed, as he must be and as is his right, but MY will have to be able to take decisions for the children without constant reference to him. Of their two parents it has always been MY who is able to put the children first.

[152]I find that MY is remarkably child centred mother who is focussed on her sons’ individual emotional needs. I accept, and it is the case that all the professionals who have been involved in this were of the view, that, notwithstanding the parents’ difficult relationship and FY’s often abusive treatment of her, she remained committed to ensuring the children have a relationship with their father. This has been my experience of her throughout these proceedings, she has, time and time again agreed and made arrangements for the children to see their father and was visibly distressed when giving evidence about the breakdown of L’s relationship with his father and the need to stop direct contact, I have little doubt that she would support the boys in seeing their father and that it is her instinct that they should. Dr Asen and the guardian have said that she was and is open to taking advice and a very reflective person. This, too, was apparent in how she gave her evidence to me and the thoughtful way in which she answered the questions put to her. MY felt an obvious conflict about the court making a ‘no contact order’ “… so bad for the children. It breaks my heart but I can’t let the children continue to be hurt”.

[153]MY readily accepted that she was wrong to have punched L in stark contrast to FY she showed genuine remorse and apologised. Without delay she referred both L’s difficulties and her punch to AFC. I accept her evidence and her assessment of the boys’ emotional state and their relationship with FY and where her evidence differs from that of FY I prefer her evidence.

[154]I accept the evidence of Mr McGavin; he was thoughtful, dispassionate and compassionate and I rely on his evidence in respect of both issues of fact and on opinions based on years of experience and careful child-centred analysis.

[155]Helena Ware’s evidence was matter of fact and unambiguous. She has no reason whatsoever to manufacture evidence in respect of the contact and studiously strove to deal only with the facts and her observations of what had taken place; in respect of the facts I accept her evidence and I prefer her evidence both written and oral to that of FY.

[156]Dr Asen is a well-known expert of some renown and many years of experience. He is compassionate and child-centred and did not readily or easily recommend no contact but did so after thought and discussion with his professional colleagues, based on the evidence of their observations and interviews with L, K and their parents. I am not bound to accept his recommendations but I can see no reason or grounds to depart from them. The children need time to bring an end to the emotional turmoil they have experienced and recover from the emotional damage and harm they have suffered and they need to be able to benefit from further therapeutic work with AFC in peace and in security.

[157]They need their father to change, to allow them to enjoy a positive and beneficial relationship with him, and to stop continuing to feel it is their responsibility to ensure their father does not lose control of himself and hurt them.

The children’s wishes and feelings

[158]K’s wishes are easier to discern than those of L whose expressed wishes have fluctuated widely. K would like to see F if it is safe; and he considers that it is not as there is a risk of a physical outburst because, as he observed, it has happened before even after his father said it would not; he would prefer someone else to be there. L has said he does not wish to see or speak to FY but I must take into account the hurt he is currently experiencing as a result of his father’s cruel treatment of him. I accept MY’s evidence that L has been much calmer since not seeing F and doing better at school. Dr Asen commented that may be significant and I find that it can be nothing else as it is no coincidence. The boy’s wishes and their opinions of FY come from their experience of him; and I accept that as their mother told me, “their trust is broken…he needs to fix it…and he is the only one who can.” He could have done so by taking up the supervised contact and building on that; he chose not to.

[159]The expert evidence from Dr Asen and the guardian is that M’s needs are not different to those of his siblings. Although he is younger and has had less direct experience of his father than his brothers, to treat him differently to them would be to undermine his relationships with his mother and brothers and place him at risk of physical and emotional harm, such as suffered by them when he acted in a manner that angered his father or when he defied FY.

Discussion and analysis

[160]In addition to the findings I have made it is a fact that it is FY who is responsible for the last attempt at supervised contact failing to start. This court has been actively managing the case for well over a year and I have made a variety of orders to try to re-introduce contact. FY can have little legitimate complaint. When his previous legal team, including very experienced leading counsel, had agreed on his behalf to one final last chance to make supervised contact work he instructed his solicitor to reject it just four days later and in so doing he denied the children a chance to have direct face to face contact with their father.

[161]In re-examination, FY somewhat tendentiously suggested that if the court considered supervised contact was appropriate, he would agree but that had never been his case and I cannot rely on that suggestion as genuine particularly given his previous oral evidence, the uncompromising contents of his statements and his repeated failure to accept a need for change or for supervision and his failure to take up appointments offered by the AFC.

[162]Moreover it was part of FY’s case that Cafcass had fabricated and finessed evidence of what the boys had said; there was no evidence to support his contention. I accept that the guardian has properly recorded and represented the children’s wishes and feelings and that his actions and decisions have been a correct and proportionate response to the situations he encountered in attempting to put contact for these children in place. The guardian himself, in his oral evidence, expressed his frustration at the way FY’s conduct has deprived the children of his many positive attributes. The criticism of Cafcass is another example of FY determination to blame others for his and his children’s present positions and his inability to shoulder any responsibility himself. The last ditch attempt to suggest that the children should have been separately represented to the guardian a matter that was not raised at the beginning of the trial (or pursued by his counsel at the end of it) yet again demonstrates his need to blame anyone but himself..

Conclusion

[163]Dr Asen concluded, and I accept that FY has a characteristic personality feature which makes it difficult if not impossible for him to implement even what he says he would like to do. I previously found that FY was manipulative, controlling and aggressive and had posed a threat to his children. Nothing in the evidence before me and his conduct over the past two years when several attempts have been made safely to put in place contact have given me cause to resile from my previous judgement. As I referred to above FY is unable or unwilling to comprehend how his fluctuating views and emotional states can disorientate, upset and confuse the children; he takes no responsibility for the children’s difficulties and I must conclude that his capacity to change is minimal.

[164]FY presents a risk to the children of physical and emotional harm. I accept the evidence of Dr Asen that if contact were to be unsupervised, there is a real risk of L developing a severe anxiety mood disorder with features of depression, aggression and possible self-harm. K is likely to suffer feelings of distress. These are risks that could only ever have been managed by professional supervision; FY chose, and I do not know why, to make supervised contact impossible. Repeatedly he has not adhered to the restrictions imposed on him by court orders and was expressly unwilling to engage with or respect the role of supervisors.

[165]It is my conclusion that it is both in the children’s best interests and proportionate for there to be an order for there to be no direct (face-face) contact between the children and their father. There have been repeated incidents of violence directed against the boys and the need for them to be physically safe is no small matter to be weighed in the balance. When he was no longer able to punish them physically FY’s response was to make L’s upset and distress when directed at his father was to make his life as miserable as he possibly could by withdrawing any semblance of support, understanding or affection. Having regard to this behaviour and because of his special needs, for K’s protection and his need for certainty, the no contact order for him is extended in the exceptional circumstances of this case to his 18th birthday. All three children need to be given an opportunity to develop emotionally free from manipulation by their father and free from the oppressive and damaging effects of a background of continued litigation and conflict.

[166]I have, quite deliberately, used parenthesis in the term “indirect” contact and as a matter of fact and logic, as Dr Asen would agree Face-Time or Skype is direct face to face contact and the same risks apply in respect of emotional harm with the corresponding need for supervision. With that in mind I will order that contact is limited to telephone contact as recommended by Dr Asen; one hour, 15 minutes for each boy and 15 minutes at the end. I will hear the parties about frequency.

[167]The children need time out, time to recover and to grow. The changes which the father needs to make before reintroduction of contact will take at least 12 months on the best prediction and while Dr Asen plainly considers that the father may not be capable of making the required changes it is to be hoped that he does. The need for a section 91(14) direction is supported by Dr Asen and the guardian as it is their view that it is required to give the children respite that they need to recover from the harm they have suffered as a result of their father’s manipulation and emotionally controlling behaviour. I conclude that it is in the best interest of these children for the proceedings to be brought to an end 2 years.

[168]The guidance given by Lady Justice Butler-Sloss (as she then was) in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [ibid] and approved by the Court of Appeal in numerous subsequent decisions includes necessity for the court to carried out a balancing exercise between the welfare of the child and the access of a litigant to the court. The welfare of the child remains the paramount consideration but I must balance the competing rights and interests of FY. In this case there is no suggestion that there should be cessation of all contact or all of FY’s involvement in the lives of his sons. Direct telephone contact will continue and FY will have the opportunity to be involved with, but not to dictate, major decisions that may be taken about the boys lives. It is to be hoped that he will take the opportunity to take up the offers of assistance in understanding the effects of his behaviour on the children that have been made by the AFC.

[169]During the trial the need for supervision of the telephone contact featured in the evidence of Dr Asen and Mr McGavin as it was suggested that some initial supervision of telephone contact would help to ensure that the boys were no longer involved in attempts to, or put under any pressure to circumvent court orders, or to listen to their mother or members of the maternal family being denigrated by FY. No-one was identified as a supervisor, however, and it is most unlikely that any supervision would work without the explicit support and co-operation of FY; the evidence is that is unlikely to be forthcoming. If FY would willing participate then supervision of telephone contact would be of assistance to the boys but in the absence of his willing participation it will simply add on another layer of stress and reduce any chance of positive contact taking place as it is more likely than not that FY would undermine the authority of any supervisor, as he has in the past.

[170]While there was no formal application made prior to the hearing starting for a s91 (14) order FY and his representatives were able to deal with the application fully as the issue was one that was dealt with during the course of the trial and his counsel was able to question the guardian and Dr Asen about their reasons for the imposition of a such a restriction. There will be a restriction on FY bringing further applications without the permission of this court. I do not impose conditions but no further application can be made without permission. If FY were to agree to supervised Face Time or Skype contact that would be a demonstration of his willingness to put the needs of the children first; as it would be if he took up work with a therapist such as the person suggested by AFC last year. It is to be hoped that such steps will lead to the re-introduction of contact.

[171]The restriction will remain in place for two years, by which time K will have reached his majority after which whether he has contact with his father or not will be a matter for him. This two year period covers the time during which L will have moved to his secondary school. This is a difficult and demanding time for any child and he needs to be able to move and to settle into secondary school and concentrate on that with support from his family and those surrounding him; FY’s behaviour towards L has been distressing to him and emotionally damaging and undermining. When L has chosen to stand up to his father and been able to contradict him in the past his father has responded as he did with K by using violence against him.

[172]FY has been emotionally abusive to all three of his sons as his behaviour towards K and L when M was there will have affected him too. M needs to be able to start at primary school without the negative effects on his behaviour that were observed by his nursery. Not only would such behaviour disadvantage him amongst his peer group it is likely that continued exposure to that behaviour, or to be singled out for some contact to take place would detrimentally affect his emotional development. In any event because of the physical abuse suffered by K and L the court would not be able to sanction unsupervised contact as M is growing up and will, as a consequence, be more likely to confront or disobey his father.

[173]The order that I make under s 91(14) is in the interests of these three children and their well-being and the restriction on FY of being able to bring an application is proportionate; he will continue to have an involvement in their lives and can apply to the court for permission. The level of distress and disruption that he can cause will be proportionately reduced.

Proceedings in Saudi Arabia

[174]The children’s mother and maternal grandfather have had proceedings brought against them in Saudi Arabia by FY, his mother and his sister. In October 2014 there were, apparently, five sets of proceedings extant; the first in time being those brought by FY in September 2013, a fact that this court was kept in ignorance of in December 2013. It is a matter of record that FY had undertaken to this court not to bring proceedings in Saudi Arabia against MY; he clearly had no intention of adhering to his undertakings any more than he obeyed the orders of the court not to speak to his children about this case. The result of these actions is that is not safe for the children to travel to Saudi Arabia a restriction on them and their mother for which he is responsible.

[175]This is my judgment. [Further submissions from counsel will be sought before any order is drawn]

Cited in 1 later judgment

MT v FY 2020