CB (International Relocation: Domestic Abuse: Child Arrangements), Re [2017] EWFC 39

THE HONOURABLE MR. JUSTICE COBBThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No NE16P02355[2017] EWFC 39
IN THE FAMILY COURT
Date 30/06/2017
SITTING AT NEWCASTLE-UPON-TYNE
Family Court
Quayside
Newcastle-Upon-Tyne
Before
THE HONOURABLE MR. JUSTICE COBB
Re CB (International Relocation: Domestic Abuse: Child Arrangements)
Hearing Hearing dates: 20, 26 and 28 June
Elizabeth Mendoza (instructed by Ben Hoare Bell) for the Mother
Daniel Pitt (instructed by Direct Access) for the Father
Judgment
The Hon Mr. Justice Cobb :
Introduction
[1]The Court is concerned with the welfare of one child, a girl, CB, who is 16 months old. She is the only child of the parties – respectively “the mother” and “the father”. CB’s parents are not married, but the father, whose name is registered on her birth certificate, has parental responsibility for her. The parents live separately, and have done so for several months.[2]The parents have each made applications in respect of CB. The father’s application, first in time (9 December 2016), is for a child arrangements order to provide for CB to live with him or spend time with him, and for a prohibited steps order preventing the mother from removing CB from the jurisdiction. The mother has separately applied to the court (17 February 2017) for permission to remove CB from the jurisdiction to reside with her permanently in Portugal. Both applications are framed under section 8 Children Act 1989 to which section 1(1) and 1(3) (ibid.) apply. Proceedings under the Family Law Act 1996 brought by the mother against the father have been dealt with separately (see [14] below).[3]For the purposes of determining the applications, I have read with care the statements of the parties, from whom I have also heard oral evidence; I have read additional statements, and heard evidence from, the paternal grandmother, Ms. K (a social worker from Gateshead Metropolitan Borough Council (‘MBC’), the section 7 reporter), and Mr. M a social worker from the Family Intervention Team of Gateshead MBC. The social work representatives gave evidence by video-link (by agreement, and order of the court dated 12 June) given their concerns for their own safety in the presence of the father. The case was originally given a time estimate of one day; this was (as counsel before me readily acknowledged) wholly unrealistic, but with some creative listing, the case has been accommodated into my list while on circuit, and has concluded within three days.

Background facts

[4]The mother is 29 years old; she is a Portuguese national. She has lived in England since 2010, when she arrived to undertake a degree course at the University of Newcastle. The mother’s wider family all reside in Portugal. The father is 35 years old; he is a British national. The parties met in 2012. Their relationship lasted for approximately 4 years, and they separated in October 2016 when CB was 8 months old.[5]The mother asserts that the relationship with the father was, certainly in its later stages, emotionally abusive; she complains that he was controlling and aggressive, and she felt unsafe. The parents had very different parenting styles, and attitudes to child-rearing which caused tensions between them, and increasingly disagreements. The final breakdown of the relationship was, in any view, difficult and highly conflictual – the parents argued regularly and there were occasional physical altercations. The father admitted to the police (when interviewed in relation to a harassment charge: see [6] below) that he regularly shouted at the mother. The mother asked the father to leave the home in September 2016, but he declined to do so. Over the period in which the parents’ relationship was breaking down, the police were contacted by one or other parent on no fewer than nine occasions over a period of 6 months. In September 2016, the health visitor made a safeguarding referral to Gateshead MBC, concerned about the effect of parental dispute upon CB.[6]In October 2016, the mother took CB to Portugal for a 2-week break. Over that time, the father telephoned the mother repeatedly; he admits now that he “bombarded” her with calls. On 12 November, he was arrested and interviewed under caution; he was later charged with, and in March 2017 convicted of, an offence of harassment, for which he received a conditional discharge. The note of the district judge’s sentencing remarks before me indicates that the judge was influenced in passing that sentence by the fact that at the time of the offence the father was unwell.[7]That is a reference to the fact that at or about the time of the relationship breakdown, the father was diagnosed with Graves’ Disease, an autoimmune disease which affects the thyroid; this frequently results in, and is the most common cause of, hyperthyroidism. Recognised signs and symptoms of hyperthyroidism include irritability, sleeping problems, and a fast heartbeat. The condition was apparently brought under control with prescribed drugs. The mother accepts that the father did indeed become unwell at the time of their break-up, and accepted that certain aspects of his behaviour changed when his condition developed. She felt, however, that the disease could not explain the inconsistency of his manner towards herself, and towards others. In this period, the father repeatedly accused the mother of being mentally unwell; he was sure that she was suffering from post-natal depression, and lacking capacity to make decisions for CB. The mother denies this and there is no evidence of the same; that said, the mother has suffered, and continues to suffer, from an eating disorder, although the evidence indicates that it was well-contained in the relevant period and indeed to date.[8]In November 2016, the father self-referred for counselling to help him with his behaviours; however, having been triaged for possible treatment, the therapist wrote to him: “I did not feel that it was the right time for you to seek talking therapy for your distress and worry. I felt these problems were appropriate given your difficult personal circumstances” (3.11.16). The father attended a further appointment with Gateshead Talking Therapies in March 2017, at which a mutual view seems to have been reached that their service “would not be the best service to meet your needs at this time”, and he was discharged.[9]In or around November 2016, the mother was referred to a MARAC assessed as a high-risk victim of abuse. On 10 April 2017, the MARAC considered that the mother remained at high risk of abuse from the father.[10]On 13 December 2016, the mother travelled to Portugal for Christmas with her family. On the previous day, the father had obtained a without notice Prohibited Steps Order; there is some dispute about when the mother knew of the order’s existence, and specifically whether she did so at the time she travelled. The mother returned to the UK on 14 January 2017. In the meantime, it is reported that the father had tried unsuccessfully to contact the mother and her family, and in desperation had contacted the police making threats to self-harm as he said he was concerned about the welfare of CB; the police checked on the welfare of CB remotely (by phone) and were able then to re-assure him.[11]Gateshead MBC had become involved with the family following the health visitor safeguarding referral (see [5] above). The health visitor’s concern was that parental conflict was affecting CB; she noted the parents’ markedly different parenting styles. When this referral was followed by separate police involvement, the Local Authority’s Family Intervention Team was engaged to support the couple; Mr. M from the Intervention Team was allocated to the task. Mr. M visited the home on several occasions, and spoke with both parents; he assessed the father to be interchangeably overtly and passively aggressive, and rejecting of advice. The father perceived Mr. M to favour the mother and her situation, and repeatedly suggested in his evidence before me that Mr. M “flirted” with the mother. It is evident from all that I have read and heard that the father became increasingly irritated, indeed angry, with the involvement of the social worker, specifically perhaps because he believed that Mr. M had wrongly encouraged the mother to leave him. The father further felt that what was needed was ‘child in need’ intervention, given his belief that because of the mother’s mental ill-health (as he perceived it), CB was at risk.[12]The documents before me contain various reports by social work staff that the father had threatened to “attack” Mr. M, and had expressed the hope that Mr. M would “break his legs” while on a period of leave; the father accepted that he had indeed made comments to that effect, though said that he had intended the “break a leg” comment to be a good luck greeting. It is reported that in December 2016, the father threatened to “go after” the social worker, Mr. M, and that he “could not guarantee” that he would not “do something” to him. The allegation was reported to the police. The father rejected the social worker’s advice to consult a solicitor, and appeared irritated (when giving his evidence to me) that this had been repeatedly suggested to him.[13]The social work records reveal that during his involvement Mr. M urged the mother to consider the father’s right to have a relationship with CB, although the mother refused to countenance this. The involvement of the Family Intervention Team concluded on 14 February 2017.[14]At the return date of the father’s Prohibited Steps Order on 23 January 2017, the key worker from the Local Authority social services team was directed to prepare a section 7 report; the mother (having indicated to the court her intention to do so) was ordered to file her application for permanent leave to remove. In the meantime, on 18 January 2017, the mother had applied for, and been granted, a non-molestation order; this expires on 18 January 2018.[15]All effective contact between the father and CB had broken down on 16 October shortly before the mother’s first trip to Portugal. When appointed to undertake the section 7 report, Ms. K indicated that she would not be able to report effectively without seeing the father and child together. Weekly contact was therefore set up following a court hearing in February 2017, with the agreement (albeit reluctant) of the mother, and altogether five sessions of contact (of up to 2 hours each) thereafter took place. They were of variable quality. It was reported that the father was “overbearing” and “loud” in the first contact, and did not always heed advice of the social worker; on at least one visit he was personally offensive to one of the workers. Although he was affectionate with CB, the contacts were not in the opinion of the social worker an entirely positive experience for her; CB constantly looked for reassurance from the contact supervisors.[16]There appears to be some recognition by the social workers (and the recordings bear this out) that the contacts did marginally improve in quality over time; although the record of the last (17 March) contact contains some concerns about the father’s ability to concentrate on CB (he was keen to complain about the Local Authority’s involvement, and wanted a male contact supervisor because he claimed to have been “abused by a woman for the last 6 months”), the note goes on to contain the following important observations:
“… [the father] watched CB play and had good eye contact with CB and she was happy to have eye contact with [the father] … she was very happy to cuddle up to dad and sit on his lap … CB was very calm and seemed to be happy in [the father’s] presence. CB fell asleep in [the father’s] lap.”
The section 7 reporter described this visit as “significantly better” than those which had gone before, with CB “much more at ease”; “this was considered to be very positive progress”.[17]The parents occasionally met in an unscheduled way at the handover for contacts; this situation was wholly avoidable on both sides – the mother had declined the offer for a social worker to convey CB to the centre, and the father, against firm advice, invariably arrived at the centre early. The mother complained that their encounters represented a breach of the non-molestation order made in January. At a meeting with the social worker on 28 February 2017, the mother made clear her continued and increasingly firmly-held opposition to the father having any further contact with CB. In the following month, after the contact on 17 March, and against clear social work advice, the mother cancelled all further (agreed) contact. She explained that the father had been “using CB” by having contact with her. She told me that she thought he was “doing it to antagonise” her, and he was breaching the non-molestation order. Contact has not occurred since that date.[18]Following the break-down of the contact, and in the run-up to this hearing at which the mother’s relocation application was to be considered, the Local Authority social workers report that the father has engaged in increasingly disturbed, hostile and aggressive behaviour towards them.[19]On 18 May, the father contacted Ms. K and asked to speak to her manager; he was plainly upset by the delay in the filing of court documents which had been due on 26 April. When the father was told that this was not possible, he accepts that he became angry. It is alleged that he threatened to “rip apart” Ms. K, and “rip apart all the walls” of the social services offices. The father does not accept that he used this language in this way, but states that he had said that “in court” the social worker would be “ripped apart”. He is said to have “screamed” down the phone (he accepts he shouted). The father then attended at the social services offices, and is reported to have shouted at members of staff, and become aggressive. The Team Manager, Mr. B, was brought to see him; the report refers to the father “leaning over Mr. B and jabbing his finger inches away from his face blaming him for ruining his life and saying he would give him a ‘bollocking’. He initially refused requests to calm down and sit down, saying that his heart and brain might stop working if he stopped moving”. His behaviour was described as “manic”, “chaotic”, “irate”, “very intimidating”. He was escorted from the premises. The matter was reported to the police, and the father is reported to have apologised for his actions.[20]As I have indicated above, the father last saw CB on 17 March 2017. The professionals have been unable to arrange any further contact given the mother’s stance, and their concerns for their own safety. An organisation running a local contact centre, Impact Family Services, has declined to commit to offering a venue for, or supervision of, contact pending this hearing.

Proposals of the parties

[21]The father no longer seeks an order that CB lives with him, although he was keen to emphasise that he would be happy to take over her full-time care if the court considered this to be in her interests. He seeks an order that he spend time with CB three times per week. He acknowledges that for the time being that contact ought to be supervised, and proposes that his mother, the paternal grandmother, undertake that task. He contends that the contact should become unsupervised within a few weeks. He opposes the relocation of CB to Portugal.[22]He has offered an undertaking to the court not to use or threaten violence, nor to intimidate, pester, harass any professional involved in CB’s care including any social worker, Family Intervention Service worker, health visitor, general practitioner or contact supervisor.[23]The mother seeks the court’s permission to effect CB’s immediate and permanent relocation to Portugal. She does not propose that there be any direct contact between CB and the father thereafter; her plan is that the father should have Skype contact with CB once per month, facilitated by her family in Portugal. The mother says that she currently uses Skype for CB to communicate with the maternal grandmother. She maintains that she is “open to the possibility” of direct contact between the father and CB in the future, subject to him being satisfactorily assessed, and the father demonstrating that he can manage his behaviours. The mother is opposed to the contact being supervised by the paternal grandmother, given the paternal grandmother’s low level of acknowledgement of the risks posed by the father.[24]The parents would not oppose the court making a contact activity direction under section 11A/B CA 1989; the mother indicates that she would be prepared to return to facilitate contact in the UK but only if the father has completed the necessary work.[25]Both parents, on enquiry, have said that they would agree to the making of a Family Assistance Order

Section 7 reports

[26]Ms. K, a social worker from Gateshead MBC, has prepared a section 7 report, and three short addendum reports. Her principal report is dated 18 April 2017. She underlines clearly the point that the mother has “shown very little regard for CB’s right to a relationship with her father”, and posits that the mother and CB had a rather inter-dependent relationship, the mother seeing CB “as an extension of herself”. The report described the father as:
“a very enthusiastic parent who clearly loves his daughter and wants to develop a relationship with her … he has put a lot of effort into planning age appropriate activities to engage her during contact. He has also demonstrated some insight into how she might experience the situation… I consider that [the father] would benefit from further support and guidance around child development and he has stated he would be willing to participate in a parenting course .”
Ms. K went on to refer to the limited opportunities afforded to the father to play a role in CB’s life since separation, and advised that CB and her father “need support in re-establishing their relationship”, adding:
“whether or not this can be successful largely depends on [the father’s] ability to accept advice and guidance on how he can adjust his behaviour to make contact a more positive experience. [The father] has been extremely reluctant to accept advice and guidance in this regard.”
[27]This report draws the following conclusion in relation to contact:
“I cannot identify any reason why [the father] should not have contact with his child. This should be supported by a third party to ensure that [the father] behaves in a manner that is appropriate and child friendly… It would be preferable for this third-party to be someone who CB knows and trusts.”
And in relation to relocation, Ms. K says this:
“I believe it is in [CB’s] best interests for her to remain in the care of her mother. I consider that [the mother’s] application to relocate is reasonable and that her concerns regarding living in the UK are well founded. I consider that the benefits to relocation outweigh the negatives. This is because the evidence gathered within the chronology suggests that [the father] is unable to behave in an appropriate manner in the long term.… I consider that face-to-face contact is necessary for [CB] and her father to establish and maintain a close parent/child relationship.”
(emphasis by underlining added).[28]The report makes no mention of the conviction for harassment – a fact apparently not known to the social worker at the time.[29]The first supplemental report was filed on 16 June, only days before this hearing commenced; materially it reflects the events of 18 May 2017. This report concludes as follows:
“In my report, I recommended that [the father]’s right to have contact with his child be upheld; however given the concerns around his behaviour and the need for support in re-establishing contact I recommended that contact be supervised by a third party”… “Throughout Local Authority involvement [the father’s] reluctance to accept advice and guidance has been evident. Whilst it is recognised that [the father’s] situation has evoked feelings of upset, frustration and anger, it is his inability to manage his emotions appropriately that is of most concern. … [The father’s] level of hostility and aggression towards professionals has escalated alongside his sensing a loss of control. The risk lies in [the father’s] inability to control his emotions and subsequent unpredictability. This makes it difficult to identify how safe arrangements for contact can be implemented.”
[30]After she had concluded her evidence, I asked Ms. K for her views (in writing) about the value of a contact activity direction in the event that I considered such to be appropriate. Ms K promptly and helpfully submitted a second supplementary report on 28 June. She emphasised that the father has provided very limited response to advice and support from professionals thus far, and his reaction to such intervention tended to be “defensive and recalcitrant”. She was sceptical that the father would accept any support offered, but concluded:
“… if [the father] is in a position to accept accountability for his behaviour and embrace the opportunity to develop both his personal and parental skills, then potentially such an order would be of benefit, with [the father] seeking such supports independently.”
[31]Having heard counsel’s submissions at the conclusion of the evidence, I invited Ms. K to provide a yet further report on the merits of a Family Assistance Order, naming Gateshead MBC as the relevant authority. Impressively and helpfully, this report was provided by return. I deal with its conclusions at [73] below.

The applicable law

[32]The applications must be determined by reference to the best interests of CB: section 1(1) and 1(3) CA 1989. Each decision should be assessed on its impact upon her (PD12B para.14.13). The welfare test is the “only authentic principle”, and applies to all relevant issues – contact, child arrangements, and relocation. As to its application in relation to relocation I note Black LJ’s comments in K v K [2011] EWCA Civ 793, [2012] 2 FLR 880 at [141]), in which she confirmed that: “Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child”.[33]Both counsel in this case have referred to Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052; I have regard to that decision only to the limited extent suggested by the Court of Appeal in K v K [2011] (above): see Moore Bick LJ at [86]:
“the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance. … the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child.”
And by Black LJ at [144] “Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. … It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.”[34]Of course, in Payne at [85], Dame Elizabeth Butler Sloss P referred to the fact that the “reasonable proposals of the parent with a residence order wishing to live abroad carry great weight”, and that “the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.” She invited a court dealing with such a case to consider whether “the arrangements [for relocation] are sensible” (see [83]), and added ([84]): “The ability of the other parent to continue contact with the child and the financial implications need to be explored. … There are, of course, many other factors which may arise in an individual case. … As in every case in which the court has to exercise its discretion, the reasonableness of the proposals, the effect upon the applicant and upon the child of refusal of the application, the effect of a reduction or cessation of contact with the other parent upon the child, the effect of removal of the child from his/her current environment are all factors, among others which I have not enumerated, which have to be given appropriate weight in each individual case and weighed in the balance. The decision is always a difficult one and has not become less so over the last 30 years”.[35]In Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882, Ryder LJ observed that:
“… a step as significant as the relocation of a child to a foreign jurisdiction where the possibility of a fundamental interference with the relationship between one parent and a child is envisaged requires that the parents' plans be scrutinised and evaluated by reference to the proportionality of the same.”
(emphasis by underlining added).[36]Counsel referred me to the decision of Re J-M (A child) [2015] 1 FLR 838 which, for its essential ratio, draws heavily from the Court of Appeal’s decision in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521 [2011] 2 912, in which Munby LJ (as he then was) reviewed the European case law, drawing together the essential propositions (at [47]) thus:• “Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.• Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.• There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.• The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.• The key question, which requires ‘stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.• All that said, at the end of the day the welfare of the child is paramount; ‘the child's interest must have precedence over any other consideration.”[37]The fundamental rights enshrined in Article 8 of the European Convention on Human Rights and the principles of European case law, to which Munby LJ referred, are most conveniently located, inter alia, in: i) Gnahoré v France (Application No 40031/98) (2002) 34 EHRR 38) “the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life”; and ii) Kosmopoulou v Greece (Application No 60457/00) [2004] 1 FLR 800, (paras 43–44) where it was made clear that these principles apply to public law cases and private law cases: “Art 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures” (para.44).[38]These propositions, buttressed by section 1(2A) CA 1989 (the presumption of parental involvement), must be cross-checked, on the facts of this case, to the procedural and substantive requirements of PD12J FPR 2010. I use the word ‘requirements’ advisedly: see InRe A (A child) [2015] EWCA Civ 486 at [48]-[59] (McFarlane LJ), and Re H [2016] EWCA Civ 988 (Black LJ). In a case where domestic violence or abuse is established, the court is required to afford appropriate weight to such findings and to conduct a risk assessment in accordance with PD12J – see [35] to [37]. Even before turning to my evaluation of the multiple allegations of abuse in this case, it is plain that this is a case to which PD12J applies, given the father’s conviction for the harassment of the mother in the context of their relationship breakdown. It is of concern that at no point in the earlier case management stages of this case was the need to consider PD12J identified either by the judiciary or by the lawyers for the mother (the father has, until this hearing, been representing himself); I raised it for the first time at the final hearing myself, the first occasion on which I had seen the case. I return to the specific provisions of PD12J in the context of my findings below: see specifically [45] and [71].[39]I have had to consider with care in this case the credibility of each of the parties, and in doing so, I have applied conscientiously the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 293: a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. I accept that a witness may lie for many reasons, for example, shame, panic, duress or distress; the fact that a witness has lied in respect of one matter does not mean that he or she has lied in respect of everything[40]Finally, in reaching my findings, I approached the task by following the clear and straightforward guidance set out in the Supreme Court’s decision in Re B [2008] UKHL 35 at [2]: “If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”,

Findings of fact on disputed evidence

[41]There are a number of allegations and inter-linking disputes on which it is appropriate that I should make factual findings: i) The conduct of the father towards the mother, and separately towards professionals; ii) The mother’s willingness to promote contact in the past, and currently, and the implications of her attitude for the future; iii) The mother’s plans and reasons for relocation.[42]The father’s conduct: The father described himself to the social worker as “arrogant” and “non-conformist”; these descriptions are, in my finding, broadly accurate. He displayed from his oral and written evidence a firm and sometimes patronising belief in the merits of his own views and opinions, and is not easily swayed. He had a critical, disparaging and wholly unjustified attitude towards domestic violence support groups, including Women’s Aid. From my assessment of him in the witness box, I accept the reports of him being quickly driven to anger, with little appreciation of the impact of his behaviour on others – whether that be the mother, the professionals or the court. Even allowing for witness box nerves, his evidence was characterised by pressure of speech; he delivered his answers at great speed and intensity, and was difficult to interrupt, often veering significantly away from the question posed. His witness statements – acknowledged to be prepared without the benefit of legal advice – were lengthy, and obsessive in tone. His interview with the police in November 2016 was in the same vein.[43]I accept the broad thrust of the mother’s evidence that the father’s behaviour towards her during the latter stages of the relationship and in its breakdown was emotionally abusive and ‘overbearing’ (a word used to describe the father’s conduct in contact). I accept that he was or certainly became controlling towards her in the way in which he sought to impose his will, whether it be in relation to parenting, or otherwise; he was, I accept, unpredictable. It is difficult for me to accept that the father’s abusive behaviour was always as serious as the mother contends; she accepts that she misled me about the extent of the father’s behaviour towards her over Christmas 2016 (the report of having “received countless messages from [the father] all threatening to take me to court, which was a breach of [the father’s] bail conditions” was not, she accepted, accurate), and had, I find, a general tendency to exaggerate.[44]Overall, I accept the accounts of the social work professionals in their descriptions of the father’s behaviour towards them throughout their period of involvement. There are consistent accounts from multiple social work witnesses attesting to the father’s aggression and lack of control. Ms. K told me that the father was unpredictable, and that he has responded adversely if he hears something he does not want to hear. I accept that; it accords with my own assessment of him. I further accept that in May he said to Ms. K that he would “rip [her] apart” (as she remembered it, not as he did), and I do not accept the father’s explanation for the comment about his hope that Mr. M would suffer broken legs given his feelings generally about Mr. M and the context of all the other threats to him (see [12] above). The incident on 18 May took place largely as described in the addendum section 7 report, in my judgment, and was – it is clear – extremely serious; it showed the father to be unpredictable, extremely aggressive with professionals, and hostile. His angry outbursts to the social workers first on the phone and then in person were interrupted by a gap in time while he made his way to the office, and cannot therefore be explained by a momentary loss of temper. Nor can these outbursts be attributable either in part or at all to his hyperthyroid condition, given that the illness was by then ostensibly controlled by medication.[45]There is no doubt that the father was immensely frustrated by the mother’s intransigence in not offering contact; his ability to contain his frustrations were to some limited extent hampered by his medical condition. That said, I am satisfied that the father’s behaviour demonstrates “a pattern of incidents of controlling, coercive or threatening behaviour” (PD12J @ [3]). This is a case where, in my judgment, the father has engaged in an “act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support” (ibid.); there remains a “risk” of violence or abuse in the future to which I consider CB may well be exposed. I am satisfied that unless checked, this behaviour would be likely to cause CB direct physical, psychological and/or emotional harm and she may also suffer harm indirectly where the violence or abuse impairs the parenting capacity of her mother.[46]The father showed some, but only very limited, insight into his behaviours. He told me that he recognised he had difficulties in controlling his anxiety; he realises that he should not have behaved as he did when the mother was in Portugal in the autumn of 2016 by repeatedly phoning her. He acknowledged to some extent the effects of his behaviours on 18 May; he told me that he was “not best pleased” with himself for how he behaved on that day. He was not able easily to explain how or why he behaved as he did, before, worryingly, going on to try to justify to himself (and the court) what he had done: “I taught him [Mr. B] a lesson … I pulled the wool over his eyes … the social workers were being cheeky with me. I blew up with him; I did not swear, but I was pacing. I wanted him to know what he had done. It was an opportunity for me to tell them how difficult… it took 10 mins. Then there was silence”.[47]When I asked whether he felt that he needed help in managing his behaviours, he said:
“I don’t have an anger problem. I thought about this myself. I organised some counselling. I thought that I may be going down a route I could not cope with myself. My vicar helped me. I have tried to look after myself. I have a fantastically clever GP. I cancelled the counselling. Everyone confirmed in me that I was frustrated, depressed and tired. None of them expressed concerns …”
[48]He told me that he would accept my view, if I were to advise him, through this judgment, that he needs help with his anger management. Let me make it clear: he does need help, and urgently. I do not believe that he has had appropriate help thus far. I am not satisfied that his outbursts can be attributed to his Graves’ Disease; nor can they be mitigated by the frustrations generated by the mother’s resistance to him having contact with CB. If he is to stand any real prospect of reviving a relationship with his daughter, he needs – with professional help – to prove that he can appropriately manage his behaviours and his emotions.[49]The mother’s view on contact: The mother has been CB’s primary carer, and has demonstrated generally good parenting skills; CB is meeting all her developmental milestones, and is a settled and healthy baby. She is thriving in her mother’s care.[50]The mother has achieved this while undoubtedly suffering, in my judgment, within an emotionally abusive relationship with the father. The mother, from an early stage of the relationship breakdown, had formed a reasonably clear view that she could not or would not support contact between CB and the father. The parents undoubtedly had different parenting styles, but the section 7 reporter indicates that the mother “was unable to offer a reasonable explanation for this [position on contact], and referred to the fact that she felt [the father] had not shown enough interest in CB during the relationship”. The mother’s witness statement simply makes the point that she does “not believe that direct contact would be in [CB]’s best interests”, and that she is “no longer willing to support direct contact between [the father] and [CB]… as I am highly anxious of the efforts the [father] may take to control me”. The mother’s inflexibility on contact plainly inflamed the already difficult relationship yet further. The father’s reactions became increasingly offensive and aggressive; the mother’s resilience to his abuse wore increasingly thin.[51]I find that probably during the relationship, but certainly since the separation of the parties, the mother has been or become rather possessive over CB. The section 7 reporter concluded that the mother “insisted” on a particular approach to parenting CB, and “dismissed” the father’s views. The social worker described how the mother referred to CB as “my” child; she gave me the impression of being protective, probably over-protective, consistent with the social worker’s observation that CB was not “accustomed to being separated from her mother”.[52]The mother has refused to let the contact support workers collect CB from her home to take her to the contact centre for contact with the father; this has meant that on occasions the mother has encountered the father there herself. When she has seen him there (he has been early) she has complained that he has breached the non-molestation injunction.[53]The mother states that she has “attempted to facilitate contact between [CB] and the father on many occasions but he has refused”; this is not in my finding accurate. She maintains that the father has shown little true interest in CB but has pursued the applications for a Child Arrangements and Prohibited Steps Order merely in order emotionally to control/abuse her. I find that the predominant reason for the father’s application is his desire to play a full part in his daughter’s life; however, I am alive to the fact that the proceedings may have the effect of which the mother complains. I recognise that if I decline the mother’s application and extend the proceedings in this country, I may well be causing or at least acquiescing in the continuation of the coercion of the mother.[54]The mother has a mild and chronic eating disorder, and has received medical attention over the last nine months and it has been well contained. The mother told me that she has had regular contact with the mental health team on a weekly basis. Her psychologist does not consider that this has any impact on her parenting of CB, and I accept this. I bear in mind that she remains vulnerable in this regard, and her tolerance cannot be over-tested.[55]The mother’s plans and reasons for relocation: The mother came to this country to study and now finds herself unable to work to any great extent, and is reliant on state benefits. She has been harassed by the father, as his conviction confirms; she has been abused by him, I accept, and she now feels that she is socially isolated and relatively friendless. She maintains that she misses her family in Portugal, and is homesick. She claims not to have funds to make regular trips to Portugal; the father has made virtually no financial contribution towards CB’s care.[56]The mother’s mother resides in Lisbon, and the family own a property on the Algarve. The mother proposes that if granted permission, she would relocate with CB to live in her mother’s home; she maintains that there are good local nurseries and schools. She maintains that CB would be privately educated in Portugal initially. She has adduced no evidence of the living arrangements in the grandmother’s home (the father maintains that the second bedroom cannot accommodate two single beds, or a single bed and a cot), has provided no details of the nursery or schooling, nor evidence of the source of the funding for private education; she was not even able to say what the cost would be. There is an extended family in Portugal, but it is not clear who, or where they live. The mother has been offered some paid work in Portugal in her sister’s shop which would be flexible; she hopes to be able to undertake some studio art. She says that she would have assistance with child care from her mother. The mother gave evidence, in support of her case that the grandmother is fit and able to offer help, that she cared for her nephews as babies; only in cross-examination did she reveal that this was approximately 20 years ago. The father is disparaging of the location of the grandmother’s home, asserting that it is in a poor quarter of the city associated with drugs problems.[57]The mother deposes in her statement to the fact that if she is granted leave to relocate the father would have “less” contact with CB than presently; of course, the father currently has no contact. Her proposal at court is that he would have no direct contact in the future, at least for the time being, proposing only indirect contact monthly by Skype.[58]I have no doubt that the mother’s application is driven by a strong desire on her part to return home, to the supportive milieu of her family; it is influenced to a significant degree by her wish to create distance between herself and her daughter from the father given his destructive and distressing behaviours. The plan is however not well-formulated.

Welfare review

[59]This is by no means a straightforward combination of applications, having particular regard to the following facts: i) CB is only 16 months old; since the separation of the parties in October 2016, she has seen the father only five times, under supervision; ii) When the father has been observed in supervised contact with CB, he has been able to demonstrate some good and loving interaction with her; iii) The father has in my finding abused the mother; he has a conviction for harassing her; he has been aggressive and hostile to professionals working with the family to the point that the professionals are extremely reluctant to work with him; iv) The mother is clear that if granted permission to relocate permanently, she would offer no direct contact to the father for the time being.[60]This combination yields no straightforward solution. The proposed outcomes contended for by each parent present the court with a stark choice, combining no common features. I am not of course obliged to adopt either parent’s proposal; indeed, in being faithful to my obligation to divine an outcome for CB which is in her best interests, I have had to consider whether there is a third or even fourth potential option. In conducting this exercise, I have applied the legal principles outlined above [32]-[40] to the facts as found, and overlaid these with my consideration of the welfare checklist factors.[61]I note the close relationship which CB enjoys with her mother, and the clear recommendation of the section 7 reporter, which I accept, that CB should remain in the care of her mother. I also note the quality of the relationship which she has, or certainly could have, with her father; in the last supervised contact (17 March) they made regular eye contact, and CB felt sufficiently settled in his company to fall asleep in his arms. I acknowledge the harm to which CB was potentially exposed by the destructive breakdown of her parents’ relationship, and the risk of harm to her by a resumption of that abuse and/or by the father’s loss of temper or control in her presence. I have in mind the ‘capabilities’ of the parents – the mother’s ability to offer good quality care to CB despite her own trauma; the father’s enthusiasm, as a “parent who clearly loves his daughter and wants to develop a relationship with her”, with a degree of “insight into how she might experience the situation…” (see [26] above). On the other hand, the inability of the mother to contemplate contact, and the father’s abusive characteristics, which I have discussed extensively above (see [42]-[44] above). I bear further in mind the extent to which the capabilities of the mother have been, and may yet further be, eroded by the clear and discernible impact of domestic abuse upon her. The mother’s plans to relocate to Portugal would represent of course a significant change in her circumstances, albeit at CB’s very young age, this would not have an impact on schooling or friends.[62]The implications for CB of relocation to Portugal have not been easy to evaluate in the absence of detailed proposals from the mother. I have scrutinised the proposals with care, as I am required to do (see [34] above) but her written and oral evidence were notably light on detail (see especially [56] and [57] above). I have little impression of the accommodation to which they would move, or the maternal grandmother’s ability to offer daily practical support to the mother in the care of CB. I was provided with no information about nurseries or schools, and although the mother deposed to plans privately to educate CB in Portugal, there was no evidence of how this would financially be achieved. The mother’s evidence of work prospects was unsupported. I acknowledge that the mother’s primary motivation in seeking to relocate is to return to her home and family, but that intention is laced with a wish to terminate the father’s role in her or CB’s life.[63]I bear in mind that if the mother is given leave to relocate CB to Portugal, this would be likely to consign CB never to having a relationship with her father. Although the mother can articulate at a theoretical level the importance of CB knowing her father and having a relationship with him, I did not detect that this is heart-felt; she has resisted social work advice to facilitate contact after 17 March, even when professional supervision has been on offer. The history in the case leads me to conclude that she would be unlikely to honour any commitment to return to the UK to facilitate contact between CB and the father if she were advised that the father had successfully completed a course of anger management or the like. Skype contact is no real substitute for direct contact, particularly for a child of this age; I accept the view of Ms. K that “face-to-face contact is necessary for [CB] and her father to establish and maintain a close parent/child relationship” (see [27] above). When giving her oral evidence she told me that she felt that there needed to be an order for contact. Thus, when the test of proportionality is applied to the relocation plan (see [35] above), in this context it is in my judgment found wanting.[64]That said, contact must be safe for the child, and currently, and while the father is unable to demonstrate a reliable ability to contain his strong emotions, I have considerable doubts that it can be confidently and safely managed. The agency identified to offer professional contact supervision, Impact Family Services, has indicated that in view of the incident in social services offices on 18 May 2017, it is “unlikely” that it would accept a referral to offer supervised contact, adding:
“… we would not make a final decision until [the section 7 reporter] received clarity relating to the Local Authority’s position. If the outcome of this was that contact was deemed too unsafe, then we would definitively say that we would not accept the referral to supervised contact at our centre.… We may consider the referral again; but we would require copies of the Local Authority’s section 7 report and their records of observation from their supervised contact sessions… The decision in this instance would be made at the time based on updated information; though I was very clear that we may still choose not to facilitate contact if the evidence suggests that [the father] does pose a risk to staff.”
[65]I should briefly mention here the paternal grandmother. She filed a statement in the proceedings, and gave brief oral evidence. Although the grandmother told me that she felt warmly towards the mother, the witness statement – which I find had many hallmarks of preparation by the father – contained no such sentiment; rather the reverse. The mother told me, with some justification, that the paternal grandmother “does not understand the situation. She does not understand why the social worker said that he needs supervised contact. I could not trust her to supervise the contact herself.” The paternal grandmother would not, in my view, provide objective or safe supervision of the father’s contact for as long as she could not see her son’s shortcomings. That said, in the last six months there have been at least two successful occasions of contact between the grandmother and CB in the presence of the mother, and these contacts should be repeated at similar intervals.

Discussion and conclusion

[66]The relationship of CB with her father, and the prospect of a life without him in any meaningful sense, currently hangs in the balance. In resolving how that balance tilts in this case, one powerful consideration is my obligation under Article 8 to do what is necessary and proportionate to protect and enhance CB’s rights to family life with her father, and the father’s rights to a relationship with his daughter. I am quite satisfied that contact between a parent and child is such a fundamental element of family life that it should be terminated only in exceptional circumstances, and where there are cogent reasons for doing so (see above). I recognise my positive obligation to “take measures to maintain and to reconstitute the relationship between parent and child”, in short, to restore contact. Munby LJ in Re C (see [36] above) referred to the need for a court to “grapple with all the available alternatives before abandoning hope of achieving some contact”, even if short-term transient problems (i.e. the delay in disposing one way or another of the mother’s relocation application) arise. The medium-term and long-term implications of my decision weigh heavy. I am satisfied that if CB leaves from these shores now with her mother, CB’s emerging but disrupted relationship with her father would swiftly fade, and expire altogether. The mother has been unwilling to support this relationship for some time, and I am satisfied that she would have little if any incentive or pressure to facilitate the relationship.[67]On the other side of the balance is the right which CB and her mother also enjoy to mutual Article 8 rights; their relationship deserves to be protected from disturbance from the father. The mother has a right to be protected from abuse. The mother and CB are entitled to the Court’s protection of their family life free from coercion, harassment and abuse.[68]Given all that I have said above, it is, in my judgment, in CB’s interests that one final time-limited opportunity is offered to the father to demonstrate that he can be a good parent to CB, and could co-parent CB with the mother; he needs help with this, which I am not sure he has yet received (see inter alia [8] above). This conclusion draws heavily on the obligations to which I have just referred, but is also influenced by the original recommendation of the section 7 reporter that the father “would benefit from further support and guidance around child development and he has stated he would be willing to participate in a parenting course” (see [26] above). In my judgment, he would gain from some focused specialist domestic abuse prevention work, and/or from further advice, guidance or counselling on managing his behaviours. Whether he is emotionally ready and able to access this remains to be seen; however, he needs to be able to offer re-assurance to the mother, the professionals, and the Court that he can participate in his daughter’s life safely. While conscious of the general principle that “any delay in determining” the important questions of relocation and contact is likely to prejudice the welfare of this child (section 1(2) CA 1989), I consider that delay in this case is purposeful, and is a proportionate interference with the rights of the parties.[69]I have no information (from the parties or from the Local Authority) as to the relevant resources locally which provide the sort of specialist assistance which I consider the father urgently needs; although ideally I would like to adjourn the case to obtain this information (see [32] of PD12J), I am keen not to delay the progress of the proceedings, nor an ultimate decision for CB. I shall therefore place the responsibility on the father urgently to self-refer (or seek a referral through his GP and/or through Cafcass and/or with the assistance of the reports of the section 7 reporter) for professional high-quality treatment, counselling or guidance as is appropriate. He should consult a specialist domestic abuse practitioner to receive “advice, treatment or other intervention”; this will be a precondition to any substantive child arrangements order being made.[70]I would ideally like to make an activity direction under section 11A and section 11B of CA 1989 – that is to say, a direction requiring the father to take part “in an activity that would, in the court's opinion, help to establish, maintain or improve the involvement in the life of the child concerned of that individual”. Such a direction would ordinarily be commissioned and approved by Cafcass, but Cafcass has not been involved in this case. I am not in a position to make such an order as I cannot at this point specify the activity nor the person providing the activity (section 11A(4)). PD12J (at [33]) contemplates that such treatment or other intervention could be considered outwith the remit of section 11A “as a means of assisting the court in ascertaining the likely risk of harm to the child and to the parent with whom the child is living from that person”, but I would prefer to invoke the element of compulsion included in section 11A. I will give the father leave to file further information relevant to the assistance he proposes to obtain, within 21 days, and I will consider precisely the form of order at that stage.[71]I propose to adjourn the case for at least 5 months to allow the father to commence (and I hope largely complete) a programme of work. I shall reconsider the parties’ cross-applications at the end of 5 months; for that hearing, I would wish to see a further section 7 report (as contemplated by [30] of PD12J) whichwilltake account of the contents of this judgment, and any intervening treatment. I shall reserve any interlocutory applications to myself (see PD12B [10.2], and PD12J [31]).[72]This adjournment will also give the mother chance to present a more coherent and detailed proposal for relocation, supported by corroborative evidence. It will be easier to evaluate the merits of the mother’s case when more comprehensive information is placed before the court, and the father’s progress in addressing his behaviours is known. I propose to vary the prohibited steps order to the extent of letting her remove CB from the jurisdiction for two periods of up to six weeks each between now and the final hearing. In the intervening period, the mother can gather support from visits from her own mother, who I am told “often comes to stay” with her in the UK.[73]I had given thought to making a Family Assistance Order under section 16 CA 1989. The parents formally agreed to the making of such an order if I considered the same to be indicated. Ms. K has opined on this proposal in her third and most recent supplemental report filed on 29 June, as follows:
“… the evidence to date suggests that [the father] has no intention of working with the Local Authority in any constructive manner. [The father’s] aversion to working effectively with the Local Authority is clearly documented by the father himself in numerous parts of his own statements to the court… Furthermore, [the father] has made several threats towards professionals involved with this case … It is the view of the Local Authority that a Family Assistance Order would not be appropriate in these circumstances and therefore not in [CB’s] best interests due to the substantial evidence which indicates that [the father] has no intention of conducting himself in a manner that would enable assistance to be effective and also due to the fact that [the father] continues to present as a risk to the safety of professionals within the Local Authority.”
Given these firmly held views, which seem to me to be justified on the evidence which is available at this stage, I recognise that it would not be appropriate to require this authority to make an officer available for this purpose.[74]I shall require the Local Authority to nominate Ms. K, or such other officer as they consider appropriate, to complete a further section 7 report. That officer shall consider facilitating further supervised and limited contact between the father and CB for the purposes of that report but only once the father has demonstrated to the satisfaction of the Local Authority social worker (by the production of a report) that he has engaged sufficiently with, or (better still) completed, the programme of work to which I have alluded. The physical and emotional safety of CB is my principal concern; the safety of the section 7 reporter, which is also a concern, should be secured by virtue of the undertaking to which I have earlier referred.[75]To summarise, the orders I propose to make are as follows: i) I shall accept the father’s undertaking which he has offered, set out at [22] above; this undertaking will remain in place until 5 December 2017; ii) For the avoidance of doubt, the non-molestation order made on 18 January 2017 (see [14] above) will continue to be of full force and effect to protect the mother until 18 January 2018; iii) I shall adjourn the mother’s application for permanent leave to remove CB from this jurisdiction and the father’s application for a Child Arrangements Order; these applications will be re-listed on 4 December with a time estimate of 1-2 days; iv) I shall vary the Prohibited Steps Order currently in place (23 January 2017) by providing that the mother have interim leave to remove CB from the jurisdiction to travel to Portugal for two periods not exceeding 6 weeks each before the final hearing on 4 December; she is to notify the father and the court of the dates when she will be out of the jurisdiction; v) I would like to make an order under Section 11A/B (1), (1A), (2), (3)-(5) CA 1989 requiring the father to take part in a domestic violence prevention programme or other “programme, class, counselling or guidance” designed and delivered to help him to manage his behaviours, with a view to helping him to “establish, maintain and/or improve” the quality of his involvement in the life of CB; I cannot make that order without specifying the activity and the person providing the activity (section 11A(4)). In any event, I shall direct that the father submit his proposals for treatment to the mother, the Local Authority and the court within 21 days; the mother and Local Authority must by 25 July submit any comments on the proposal in writing; I will give a ruling on the form and nature of the order on or before 28 July; vi) Contact between CB and: a) the father shall be supervised and limited, and shall be only as the section 7 reporter considers appropriate if/when the father has demonstrated to the satisfaction of the Local Authority social worker (by the production of a report) that he has engaged sufficiently with, or (better still) completed, the programme of work to which I have alluded, in the circumstances outlined in [74] above; and b) the paternal grandmother shall take place on at least 2 occasions between now and the final hearing. This contact may take place in the presence of the mother. vii) I shall direct that the parties shall file statements of evidence in readiness for the adjourned hearing in December; the mother’s statement should provide greater detail of her planned relocation (with supporting evidence), and specifically her proposals for future contact; viii) I regard it as ‘necessary’ for there to be some medical evidence (from treating general practitioner or physician) filed by each parent addressing issues relevant to their current mental and/or physical health; ix) I shall further direct Ms. K, or such other social worker as Gateshead MBC shall identify, to prepare an updated section 7 report to the court on the issue of future contact between the father and CB, and on the issue of relocation; for this purpose she shall further interview the parties; x) I shall give leave to the parties to disclose this judgment to: a) Gateshead MBC; b) Impact Family Services; c) Cafcass (for the purposes of requesting that they assist in making a referral to a domestic violence prevention programme, or similar); d) Such providers of specialist domestic violence prevention programmes, or other therapeutic or counselling professionals as the father may consider appropriate in the context of participating in the activity contemplated by my order.[76]That is my judgment.

Cited in 2 later judgments