FJ v MH (no 2) (private law - welfare following fact finding) [2025] EWFC 283

IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] 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.

The draft judgment was emailed to the parties at 8.45 a.m. on 2 September 2025. Following a hearing for hand-down of the judgment at 12.00 p.m. on 2 September 2025, at which the Court heard submissions from Mr Rustin on behalf of the respondent wife and the applicant father did not attend, the Court sent out the approved judgment.

FJ v MH (no 2) (private law – welfare following fact finding)

[2025] EWFC 283

IN THE FAMILY COURT SITTING AT OXFORD

Date 2 September 2025

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF E, F and G

Before: HHJ Vincent sitting as a s9 Deputy High Court Judge

Applicant father

Respondent mother

The applicant father did not attend the final hearing

Between

FJApplicant

Applicant fatherApplicant

MHRespondent

Respondent motherRespondent

The applicant father did not attend the final hearingRespondent

Mr Jonathan Rustin for respondent mother, instructed by Lyons Davidson solicitors

Hearing Hearing dates: 1 and 2 September 2025

APPROVED JUDGMENT

This case is linked to FJ v MH (no 1) (private law – fact finding)[2025] EWFC 282

Introduction:

[1]I am concerned with three sisters, referred in this judgment as E, F and G. E is twelve, F is eleven and G is nine.

[2]The father, fifty-nine, is originally from [Country A]. He has lived in England for over twenty-five years. The mother, thirty-eight is originally from [Country B]. The parties met in [Country B] in 2010 and were married the following year. The mother moved to England in 2012. The parents separated in June 2022. Shortly thereafter the mother and the children moved to a refuge. This was the third time during the relationship that she had left with the children and moved to a refuge.

[3]This is the final hearing of the father’s application issued in July 2022, for a child arrangements order, and for prohibited steps orders to prevent the children travelling to their mother’s home country [Country B]. Initially, in December 2022, the Court determined that a separate fact-finding hearing into the allegations of domestic abuse raised by the mother in response to the applications was not required.

[4]In January 2023 the father issued applications for protective orders in respect of female genital mutilation (FGM). He asserted the mother or members of her family intended to abduct the children to [Country B] and to arrange for FGM to be performed on them.

[5]For the next six months the Court was primarily occupied with directions in respect of those applications, including obtaining expert evidence in respect of the issue of FGM and [Country B]’s law. Supervised contact between the children and their father started in May 2023. The various applications were listed for a combined fact-find and welfare hearing in October 2023. However, on the day of the final hearing, the Court determined that there should now be a separate fact-find. That hearing was listed to take place in March 2024. An order was made for contact to progress out of a contact centre and into the community, to be supported rather than supervised.

[6]The parties attended Court for a fact-finding hearing on 7 March 2024, but the QLR booked by the Court did not attend to assist the father. The hearing was adjourned to July 2024, and this time, the decision was made once more for there to be a combined fact-finding and welfare hearing. An order was made for contact between the children and their father to progress to unsupervised.

[7]The mother appealed the Court’s decision in respect of contact. The appeal hearing was heard by the Court of Appeal on 23 and 24 July 2024. The appeal was allowed and the case was remitted for hearing to me.

[8]I first met the parties on 2 September 2024. I made directions for a fact-finding hearing in October 2024, restoring the order for supervised contact in the interim.

[9]Very unfortunately, when the parties attended for the fact-find, yet again there was no QLR in attendance. I had to adjourn the matter yet again, to 10, 11 and 12 February 2025. Finally, at that hearing the father had the benefit of Ms Tariq, and the fact-finding hearing was effective.

[10]Following the hearing I delivered a judgment in which I made a number of findings against the father, including that he had perpetrated physical, emotional and sexual abuse against the mother. I found that the children had also been victims of domestic abuse. I did not find the allegations that the children were at risk of FGM to be made out, rather I found that the father’s applications that would have resulted in restricting the mother’s and girls’ travel to [Country B], were a continuation of a pattern of controlling and coercive behaviour, seeking to reduce the mother’s autonomy, and to isolate her from her family.

[11]I gave permission for the mother to travel to [Country B], accepting undertakings from her to return. I refused the father’s application for a FGM protection order. I directed that until the final hearing, contact between the children and their father should continue to be supervised.

[12]Thereafter, [RA] from Cafcass completed an addendum section 7 report (dated 11 April 2025). The father did not engage with her.

[13]The father applied for permission to appeal the fact-finding decision. Lord Justice Baker refused permission to appeal by order dated 2 July 2025.

[14]The final hearing listed on 8 and 9 July 2025 was also adjourned, by agreement of the parties, as [RA] was on long-term sick leave. It was hoped that she would have recovered in time to attend the adjourned hearing listed on 1 September 2025. Unfortunately, that has not been the case. The assistant service manager Ms Ruth Palayiwa attended Court in her place, ready to be cross-examined.

[15]The father did not attend the final hearing on 1 September 2025. His position throughout the proceedings has been that he seeks regular, unsupervised contact with his daughters, but since the outcome of the Court of Appeal’s decision, he has not participated in these proceedings at all. He chose not to speak with [RA]. He has not filed or served a witness statement setting out his response to her section 7 report, nor his proposals for contact. Mr Roderick, the mother’s solicitor, has made many attempts to contact him in recent weeks, including over the weekend and on the morning of the hearing, eventually reaching him by phone just after 10.00 a.m. The father said that he was unwell and was not able to attend Court. The father said he understood the court would decide the case without him being present.

[16]The children have not had any contact with the father since 18 January 2025. The father has not been in touch with the contact centre to make arrangements for supervised contact to take place.

[17]The father has not requested an adjournment. He has not engaged with Cafcass, the Court, or the mother’s solicitors. The proceedings have gone on for more than three years. There is a pressing need for the children’s futures to be settled, and for them and their mother to have some respite from the litigation. In all the circumstances, I considered it appropriate to proceed with the final hearing in the father’s absence.

[18]I released Ms Palayiwa, and heard submissions from Mr Rustin on behalf of the mother. Mr Rustin had also provided me with helpful written submissions in advance of the hearing.

[19]The only updating evidence since the fact-finding hearing is the addendum section 7 report and a witness statement from the mother in response, the sixth she has filed in these proceedings.

Section 7 report

[20]In light of the findings made by the Court, [RA] identified the following risks that might flow from contact between the father and the children: i. The children are likely to experience the father’s harmful parenting in circumstances where their actions, likes and interests do not align with his own expectations; ii. There are concerning honour-based abuse risk indicators including posts on social media regarding the mother’s infidelity and the father contacting family members making allegations, linked to religious shaming. This places the mother at risk of being ostracised by her family and the children being verbally abused and socially isolated; iii. There is a risk of inconsistency of contact, as a result of the father’s failure to attend court ordered contact consistently and his refusal to engage in indirect contact, which risks emotional harm to the children. iv. There is a risk of the father inappropriately questioning the children and voicing inappropriate views to the children, which would cause the children further emotional harm and impact on their sense of identity, undermining their relationship with the mother. v. There is a risk that the children will feel they have to gatekeep information about their lives, especially around potential sources of conflict such as religious expectations and their mother’s relationship and behaviours, such that they are likely to become increasingly hypervigilant and anxious.

[21][RA] concludes in relation to direct contact:

‘The children have made their wishes and feelings clear and do not wish for any direct contact with their father. Having considered the findings made, it is also sadly my recommendation that this the risk posed cannot be sufficiently mitigated to make any direct contact safe, for them or their mother under PD12J.’

[22][RA] considers that the father’s inability to reflect or take responsibility for his actions puts him at the ‘pre-contemplation stage of change’. In the circumstances, she concludes that there is an ‘extremely high likelihood that [the father] will continue to present a significant risk of emotional and psychological and physical harm to the children and [the mother], including in any supervised contact.’

[23]Due to previous inconsistency in the father’s compliance with indirect contact as well as concerns around the content of letters/cards if they were to be sent, [RA] does not consider that indirect contact should be directed.

[24][RA] recommends the making of a s.91(14) order for a minimum of three years.

[25][RA] further recommends the making of a prohibited steps order to prevent the father from removing the children from their schools or any person whom the mother entrusts to care for them.

[26]It is also recommended that the mother is not required to inform the father of the dates and times of any holidays abroad, nor any educational or health decisions that she takes (except in the case of a medical emergency).

[27][RA] recommends the mother continues to provide the undertakings about travel to [Country B] that she has previously offered, but they be amended such as to remove the requirement to facilitate any indirect contact with the father while the girls are abroad.

[28]She proposes an extension to the non-molestation order made at the conclusion of the fact-finding hearing, with consideration “of no expiry date”.

[29]She suggests the mother considers accessing counselling in relation to honour-based violence through Karma Nirvana.

[30]She proposes that permission is granted to share the final court order with relevant professionals working with the children.

[31]If the father were to make any further applications to the Family Court for contact with the children in the future, [RA] proposes that he should provide evidence to the court that he has, as a minimum, completed:a. A Domestic Abuse Perpetrators Programme which is RESPECT accredited for at least 26 weeks in length in person.

b. An anger management course.

[32]The father did express an intention to take part in an anger management course back in 2023, but there is no evidence he did so.

[33]The mother agrees with each of [RA]’s recommendations and seeks final orders in those terms.

Child arrangement orders

[34]Section 1(1) Children Act 1989 applies; the children’s welfare must be the Court’s paramount consideration and the Court’s welfare assessment must be informed by an analysis of the factors in the welfare checklist under s.1(3).

[35]Further, s.1(2A) provides a presumption in favour of both parents being involved in a child’s life, unless that is proved to be contrary to the child’s welfare. That involvement need not be equal and may be direct or indirect (s.1(2B)).

Domestic abuse

[36]Pursuant to Practice Direction 12J of the Family Procedure Rules 2010, the Court must take into account a number of factors when considering whether to make a child arrangements order when domestic abuse has occurred. Paragraphs 35- 39 provide as follows: 35 When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child. 36 In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent. 37 In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;

(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;

(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse. Directions as to how contact is to proceed 38 Where any domestic abuse has occurred but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for the child, the court should consider what, if any, directions or conditions are required to enable the order to be carried into effect and in particular should consider – (a) whether or not contact should be supervised, and if so, where and by whom; (b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking intervention (subject to any necessary consent); (c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period; and (d) whether it will be necessary, in the child's best interests, to review the operation of the order; if so the court should set a date for the review consistent with the timetable for the child, and must give directions to ensure that at the review the court has full information about the operation of the order. Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supervised by a parent or relative, is not appropriate. 39 Where the court does not consider direct contact to be appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact.

[37]In the case of MS v MN

[2017] EWHC 324 (Fam)

per Moor J, an appeal was allowed against an order that a mother should make a child available for contact with a father who had been found to have perpetrated serious domestic violence upon the mother. In the course of his judgment, Moor J emphasises the need for the Court to consider Practice Direction 12J. He referred to comments of Wall J in the case of Re M (contact: violent parent)

[1999] 2 FLR 321

‘Often in these cases where domestic violence has been found too little weight … is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. Too often it seems to me the courts neglect the other side of that equation, which is that a father, like this father must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family; that he is not going to upset the children and harm them emotionally.’

[38]Moor J then cited the well-known case of Re L (A child)(Contact: Domestic Violence) & Ors

[2001] FLR 260

, perLady Justice Butler-Sloss, who was President of the Family Division at that time. At paragraphs 272-273 of her judgment, she said:

‘There is not, however, nor should there be, any presumption that on proof of domestic violence the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.’

[39]The Domestic Abuse Act 2021, incorporated into Practice Direction 12J expands the definition of domestic abuse beyond domestic violence, but the balancing act described above is a distillation of the task set for the Court by Practice Direction 12J.

[40]Returning to this case. The Court has made findings of domestic abuse that reached back for many years and continued after the parties had separated. The mother attempted to leave the relationship three times, by moving to a refuge with the children, but on the first two occasions was manipulated by the father into returning to the relationship. She was subject to his control financially, he sought to influence her family against her, and he put emotional pressure upon her. The children have witnessed him lose his temper and be physically violent towards their mother and to them.

[41]The abuse continued post-separation, with the father attempting to track the mother and posting deeply offensive content about her on social media. In contact, the father sought to split the children up and whisper things into the ear of one child when the supervisor was occupied with the other children. He has sought to put pressure on them by offering them gifts if they say they will spend more time with them, he has continued to abuse their mother verbally in their presence.

[42]I found that the father’s applications for prohibited steps orders to prevent the mother travelling and for FGM protection orders were motivated by the father’s need to control. He used the litigation in an attempt to restrict the mother’s autonomy. Before the relationship broke down, in November 2020 the mother and children had travelled freely to [Country B] to spend time with maternal family with the father’s blessing. While she was away, the mother sent a message to the father asking for a divorce. The father then took the step of reporting her to the police for abducting the children and claimed they were at risk of FGM. On their return to England they were taken from the aeroplane in full sight of all the other passengers and taken to a place where they were interrogated by police.

[43]During the proceedings the father sought orders preventing the mother and children travelling to [Country B] for the whole of the girls’ childhoods.

[44]The abusive posts on social media made by the father are extreme, and caused significant distress and anxiety to the mother. She was extremely fearful of the reaction of her own family and community to such comments, which were entirely and completely unjustified. She was called unfaithful, a prostitute, a sinner and he said she was pregnant with another man’s baby.

[45]The father has not taken any steps at all to reflect upon the findings that have been made, to accept responsibility for his actions, nor to demonstrate any desire to change his behaviour. During the fact-finding hearing he continued to assert that he was the victim, and had been the mother’s ‘target’. He did not accept that the children’s wishes and feelings were their own, but said they were the mother’s words in the children’s mouths. However, I am satisfied that the children’s wishes and feelings are borne out of their direct experience of their father.

[46]Ostensibly he has said that he wishes to spend time with his daughters, but in practice, unless contact with his daughters takes place on his terms, i.e. unsupervised, then he has not taken any steps to spend time with them or to send them letters or cards.

[47]The children have expressed clear views about seeing their father. In a letter to me, E wrote that she did not feel comfortable seeing him. In a letter she wrote:• He told me to keep myself below my sisters and to make sure that I’m responsible for everything they do. I felt uncomfortable when he said this;

• At the beginning of the most recent meeting with him I felt very guilty about not calling him during new year’s eve. He said he had been crying all alone in his room because of that;

• Before that around April 2024 we had an argument he said some bad things about mum and then said go read the court papers. I felt horrible after the argument.

• The phone calls were always weird. He would keep talking about how great his house is and how me F and G should come there;

• I could never tell him how I felt about things. If I did I fear he would be angry and disappointed in me. So because of all this and more that’s happened before (that I spoke to RA about) I don’t feel safe or comfortable about seeing him.

• I’m disappointed and sad, and angry because he doesn’t really care about how I feel and I don’t think he will ever change about how he treated me, mum and my sisters. He’s acting like he hasn’t done anything at all and that really annoys me a lot.

• I’m not sure about any cards or letters. I don’t really want any letters.

[48]F said her father ‘talked rubbish about mum’. She said when they used to see their father in [place name redacted] she felt left out because her father would always ‘pick G’, so she asked to go out more, but then her father had offered ‘to buy me anything I wanted and do different countries because he knew how much I wanted to do that’, but in return she had ‘to lie’ about wanting to live with him. She then described him stealing her toy called ‘silly duck’ after this by refusing to return it when she no longer wanted to see him. She said, ‘last time I told him to stop saying things, but then he did it again, so I told mum’. She told [RA] that ‘I don’t really want him to say more bad stuff about mum’, and that she feels that he looks like a good dad because he is always buying things, but this is not the case, ‘because now he keeps asking, ‘why doesn’t mum get you that stuff’ and this ‘makes me sad’. She has said that she no longer wishes to see him or receive letters or cards from him.

[49]G told [RA] that when they had contact with their father they went and looked at things in shops and had sushi. She said that when the supervisor was not close her father would ask ‘weird questions’ in contact like ‘is your mum married to a man’. She said she would be quite relieved if there was no more contact because, ‘he wouldn’t be able to ask more weird questions’. She was conscious of her father’s disapproval of a book she had chosen, explaining he pulled a particular expression and said ‘ok, ok, ok.’ She said receiving letters from her father would be the most comfortable for her.

[50][RA]’s report is based on a full appreciation of all the evidence, the Court’s findings, and her own enquiries with the children, their mother and their schools. [RA] has carried out a balanced and thoughtful welfare analysis, identifying the risks to the children and to the mother should the Court order them to spend time with their father, and ways in which the risks might be mitigated.

[51]The father chose not to speak with [RA]. He has not filed a statement of evidence, nor put forward any proposals as to contact. He has prioritised his own wish to see the girls on his terms before maintaining his relationship with them. It has been his choice not to see them since January. He does not appear to have been able to reflect upon the impact that would have had on them. He has been aware of the concerns raised about him seeking to manipulate and influence the girls, and of speaking negatively to them about their mother for a long time, but has not sought to provide to the Court any reassurance that he would behave any differently in the future.

[52]In all the circumstances, I consider that making an order for direct contact, even if supervised, is not in the girls’ welfare interests. There is no real prospect of the father engaging with supervised contact now. Even if contact were to continue and to be supervised, there is no evidence that the issues raised by supervisors, by [RA] and the girls directly, would have abated. The father has not been able to show any ability or any intention to change the way he speaks to the girls. He continued to put emotional pressure on them, to show them his disapproval and they continue to demonstrate significant anxiety at the idea of him continuing to speak badly about their mother, and about him continuing to pressure them to say and do what he wants them to do, and of incurring his disapproval.

[53][RA] wrote, ‘the tentative progress in the children’s confidence in their relationship with their father seen in the addendum report dated 29 January 2024 has significantly deteriorated and coincides with further conflict when the children challenge his decisions for example why they are not allowed on holiday to [Country B], inappropriate responses such as to look at court documents, inconsistent contact at the contact centre, and exposing the children to negative views about their mother during supervised contact. Although it is clear that each still loves their father, and were able to talk about positives of time with him in the community, they are both sad and angry (particularly E ) that he has not changed. [This] served to significantly undermine their confidence, reinforced that they cannot enjoy a positive relationship with their mother or be prioritised to just enjoying time with them, free from this focus. As such, the children have justifiably estranged their father due to his harmful behaviours and ongoing attempts to coercively control them and turn them against their mother.’

[54]These concerns are not about the father having a different parenting style than their mother, or presenting as sterner or of a more disapproving nature. The father has been found to have perpetrated significant domestic abuse of which the children and the mother are victims. The children have experienced their father’s disapproval in the past, and seen that when he is challenged, his emotions can turn quickly to threat, to anger and at times to physical violence.

[55]The mother has been subject to the father’s control for many years and continues to suffer the impact of her experiences.

[56]In all the circumstances, and having regard to each of the factors on the welfare checklist and to the PD12J factors, the risks of the father continuing to act towards the mother and the children in the same way that I have found him to have done in the past continue. There is no evidence that measures can be put in place to reduce or manage these risks; the behaviour continued even in a supervised setting, but in any event, the father has not shown himself willing to continue with supervised contact. There is no evidence that the father has or is currently willing to engage with professional support to help him understand the impact of his actions on his family and to set about making meaningful change.

[57]In the circumstances, I cannot be satisfied that the physical and emotional safety of the children or their mother can be secured before, during and after contact. I cannot be satisfied that the mother will not be subject to further domestic abuse by the father. It follows, that applying practice direction 12J, I cannot make an order requiring the mother to make the children available for direct contact with their father. His application for a child arrangements order to that effect is dismissed.

[58]I have considered carefully whether or not the mother should make the children available to receive letters from the father.

[59]This was previously offered to the father and he said he did not wish to send letters to the children. There is no evidence before the Court that he has changed his mind. He has not made any proposal to the Court or to the mother’s solicitors about how this might happen.

[60]During these proceedings there has been the possibility of sending letters through the mother’s solicitors. Once the proceedings have concluded, any correspondence would have to go straight from father to mother or else their schools or some other third party would need to be involved.

[61][RA] writes, ‘I have no reassurance that the children will not be exposed to further inconsistency in this regard, nor that father will be able to refrain from voicing inappropriate views and questioning the children. This would cause the children further emotional harm and impact on their sense of identity. There is a high risk in any continued contact that [the father] will continue to make comments regardless of the orders of the court. This would continue to undermine the children’s relationship with their mother.’

[62]Had the father attended the final hearing and engaged more with the proceedings the possibilities of indirect contact could have been explored. However, in the absence of proposals or reassurance form the father, and having regard to [RA]’s recommendations, I decline to make an order requiring the mother to make the children available to receive any form of indirect contact.

Restricting Parental Responsibility

[63]Mr Rustin relies upon two authorities.

[64]In Re A (Parental Responsibility)

[2023] EWCA Civ 689

(CA, Sir Andrew McFarlane P, Moylan LJ and Dingemans LJ), the father had been guilty of violent, abusive and coercive/controlling behaviour by towards his wife and children, both before and after separation, such that they had had to move to a confidential location and change their names. The mother had, by a combination of prohibited steps and specific issue orders, been given the right to exercise parental responsibility exclusively and without reference to the father. When setting out the legal framework, Sir Andrew McFarlane remarked as follows:

‘10. Irrespective of whether or not there is a statutory power to bring parental responsibility to an end, in every case the court may control and limit a parent’s ability to exercise parental responsibility through the making of prohibited steps orders, and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues…Whilst a prohibited steps order and/or a specific issue order may normally be made to regulate one or more aspects of the exercise of parental responsibility, it is accepted that, where the facts of the case justify it, the court may make a combination of orders which have the effect of prohibiting a parent from taking any step in the exercise of his or her parental responsibility and clothing the other parent with the exclusive right to exercise parental responsibility without reference to any other person who holds parental responsibility.’

[65]T-D (Children: Specific Issue Order)

[2024] EWCA Civ 793

(CA, Sir Andrew McFarlane, P and Peter Jackson LJ) concerned a specific issue order made at the conclusion of care proceedings granting the father overriding parental responsibility in the event the parents could not agree on schooling, therapy and communications with social workers and medical professionals. This was in the context of the trial judge’s assessment that the parents’ inability to negotiate agreements made the orders necessary to regulate the exercise of parental responsibility. The judge said he trusted the father to put the children’s needs first, but not the mother. The appeal was allowed on the basis that the order was disproportionate, unworkable and the parental conflict could best be resolved by the trial judge determining which school the children should attend. In considering the legal framework, Peter Jackson LJ states: 45. The great majority of private law cases arise from immediate parental disagreements that can (subject to the no order principle) readily be addressed by one or more of the Section 8 orders. There will be other situations where orders can be made to resolve an issue that is likely to require a series of future parental decisions, although the details may not yet be known, or where an order may be needed to prevent an issue from arising in the first place. The court’s powers are equal to all these situations and more. 46. In a few cases, conventional, issue-specific Section 8 orders may be inadequate to the scale of the problem, and the court has been driven to go further. Sometimes, using its statutory power, it has removed the parental responsibility of an unmarried father. In other cases, notwithstanding the view expressed by the Law Commission, it has used Section 8 orders to deprive one parent of the right to exercise parental responsibility in one or more broad domains, or altogether. Such a power undoubtedly exists. 47. However, as seen above, these orders have only been made in extreme cases. It is one thing to interfere with a parent’s ability to make an individual decision, and another to deprive them of decision-making power more generally. Where a conventional order can be made, it may be disproportionate to go further. In other cases, nothing less will be adequate to protect the welfare of the child. 48. It can also be seen that in these extreme cases, the court has generally deployed a prohibited steps order as one means of achieving its objective. Where parental responsibility is being removed in specific domains, a properly drafted prohibited steps order will have the advantage of clarifying what the affected parent can and cannot do.66. The mother’s position on this aspect of the case was headlined as a limit to the father’s parental responsibility. However, it is perhaps better described as seeking orders in specific areas to clarify the extent to which the mother may act without reference to the father in specific situations, consistent with the authorities to which Mr Rustin has referred me. In this way his parental responsibility is maintained but there is some clarity and definition about the ways in which it is exercised in certain circumstances.

67. The mother should not be required to share her address with the father.

68. The mother seeks an order permitting the mother not to inform the father of the dates and times of holidays abroad with the girls, nor the locations where they are staying. It is consistent with a need to preserve confidentiality in respect of where the mother and children are, and to prevent the father from seeking to interfere with their freedom to travel and spend time with the maternal family.

69. The lives with order will provide that she may take the girls abroad for a period of up to a month without seeking the father’s consent or the permission of the Court. She asks that the period be extended to six weeks, so as to cover the school summer holidays. Her intentions are to spend that additional time with family members. In all the circumstances, I consider it reasonable that she should not have to return to Court or to seek the father’s permission to extend summer holidays by that margin of time.

70. I will continue the prohibited steps orders to prevent the father from removing the children from their schools, from the mother’s care, or from any person to whom she has entrusted their care.

71. E has had surgical treatment for [redacted]. Recently, the father’s consent was sought for G to undergo surgery. The father did not provide it (rather than refuse, my understanding is that he did not respond to the request.) The surgery did proceed without his consent, but there had been a delay as a result of contacting the father and awaiting his response. The mother seeks the Court’s permission to override the father’s consent in future. This is a more difficult issue, because it is difficult to predict the kinds of issues where consent may be given. Ultimately, I consider this to be an issue which is more properly resolved by clinicians at the time of treatment.

72. There can be no hesitation in making it clear that the mother may exercise her parental responsibility on a day to day basis with regard to medical issues that may arise without seeking the father’s consent. I have in mind making the decisions about whether or not to seek medical treatment, accepting and administering prescription drugs, agreeing to minor procedures such as x-rays and scans, having a mole removed or a leg put in plaster. But for more significant illnesses requiring surgery or other significant medical intervention, I would expect a clinician to be free to use their discretion as to whether to consult with all those with parental responsibility. I do not consider it appropriate to make orders that cut across clinical process and procedure. However, it is important that doctors are aware that the mother’s address is to be kept confidential and to be aware of the circumstances, that the children do not live with the father, do not see him, and the reason they do not see him arises from an assessment that he poses a risk of harm to the mother and to the children.

73. I would give permission for the mother to share a copy of the final order in the case with clinicians so that they are aware that the father is not involved in the girls’ day to day lives. That may well inform their approach.

74. In respect of education, while on the face of it the father may be entitled to know where his children go to school, and about their academic progress, in the particular circumstances of this case, there is a risk that if he discovers the names of the girls’ schools or their teachers, or is inadvertently copied in to correspondence, he may discover their address or find a means of tracing and following the mother.

75. The mother says that the father has not so far shown any signs of wanting information from the girls’ schools, nor has he sought information about health matters. It is not something he has raised as an issue in these proceedings. He did not attend either day of the final hearing when he would have had an opportunity to make submissions on these issues.

76. It is a matter for the discretion of the headteacher as to the information that may be shared with other parents with parental responsibility, but it is right the decision should be fully informed.

77. Given the history of coercive and controlling behaviour and the non-molestation order in place, I do not consider it should fall to the mother to provide updates to the father about the girls’ education. The mother should be able to apply for school places for the girls without needing to obtain the father’s consent.

78. I would give permission for a headteacher and the designated safeguarding lead at the children’s schools to receive a copy of the two judgments in the case and this final order, so that they may make an informed decision about what is shared about the girls to the father.

Section 91(14) order

[79]By operation of section 67 of the Domestic Abuse Act 2021, Section 91(14) of the Children Act 1989 was modified by a new section 91A, which provides as follows: 91A Section 91(14) Orders: Further Provision(1) This section makes further provision about orders under section 91(14) (referred to in this section as ‘section 91(14) orders’).

(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put –

a. the child concerned, or

b. another individual (‘the relevant individual’), at risk of harm.

(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to ‘harm’ is to be read as a reference to ill-treatment or the impairment of physical or mental health.

(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.

[80]Practice Direction 12Q of the Family Procedure Rules 2010, inserted to accompany the addition of Section 91A Children Act 1989, sets out a number of ‘key principles’ to consider when deciding whether or not to make an order under section 91(14). The new provisions were reviewed by Gwynneth Knowles J in A Local Authority v F and others [2022] EWFC.

[81]Drawing those sources together, the Court’s approach to an application for a section 91(14) order should be as follows: i. If findings of domestic abuse are made, even if the victim did not apply for this relief, the Court is now bound to consider whether or not to make a s.91(14) order. ii. While such an order is ‘the exception and not the rule’, it does not follow that the case or its circumstances must somehow be adjudged to be ‘exceptional’ before such an order could be made. iii. The Court should bear in mind that such orders represent a protective filter – not a bar on applications – and that there is considerable scope for their use in appropriate cases. iv. Whether the Court makes an order is a matter for the Court’s discretion. There are many and varied circumstances in which it may be appropriate to make such an order. These may include cases in which there have been multiple applications (‘repeated and unreasonable’), but that is not a necessary prerequisite. They may also include cases in which the ourt considers that an application would put the child concerned, or another individual, at risk of harm (without the need to find the ‘risk’ to be ‘serious’ or the likely ‘harm’ to be ‘significant’ or ‘serious’). v. If the Court decides to make an order, it must consider: i. its duration, as to which, any term imposed should be proportionate to the harm the Court is seeking to avoid, and in relation to which decision the Court must explain its reasons; ii. whether the order should apply to all or only certain types of application under the CA 1989; iii. whether service of any subsequent application for leave should be prohibited pending initial judicial determination of that application. vi. In all of this, the welfare of the child is paramount. That said, any interference with a parent’s otherwise unfettered right of access to the Court, including the duration of any such prohibition pending permission, must be proportionate to the harm the Court is seeking to avoid.

[82]In the case of F v M

[2023] EWFC 5

there were findings that the applicant father had coercively controlled the mother throughout the relationship by preventing her access to ante-natal care, isolating her from her family, friends and peers, controlling her money and food and deliberately curtailing her freedom, also amounting to emotional abuse. The Court found that the father had raped the mother. The Court found that the father had caused emotional harm to the child of the relationship and that it would not be possible to safeguard the child from his emotionally and psychologically abusive behaviours until he had undertaken behaviour change work.

[83]The order made was for indirect contact once a year. A section 91(14) order was made. In his judgment, Hayden J at paragraph 18 he said: ‘Section 91A was inserted into the Children Act on the 19th May 2022 pursuant to the Domestic Abuse Act 2021 ss. 67(3), 90(6), SI 2022/553, Regs 1(2), 2(1)(b). In Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders)

[2021] EWCA Civ 1749

, King LJ referred to a prevailing and "changed landscape", not least in consequence of social media and wide access to smart phones. She considered that this opened considerably wider scope for the greater use of Section 91(14) which, to my mind, had always been intended to provide a protective filter from inappropriate applications. The filter exists to protect the child and, not infrequently, the parent with whom the child lives. It is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice. Where a Court identifies an issue that requires to be resolved, the case will proceed but where it does not, the child and the primary carer are protected from the stress and uncertainty of a misconceived or vexatious application. Anticipating the introduction of the amended Section 91A reforms, which had received Royal Assent, but not yet come into force at the time of her judgment, King LJ said: "[45] …It is worth however noting that the proposed new section 91A dovetails with the modern approach which I suggest should be taken to the making of s91(14) orders. In particular the provision at section 91A(2), if brought into effect, gives statutory effect to Guideline 6 of Re P (see para 39 above) by permitting a s91(14) order to be made where the making of an application under the Children Act 1989 would put the parent or child at risk of physical or emotional harm."

[84]At paragraph 20 of his judgment, Hayden J said as follows:

‘The provisions within Section 91A are transformative. The section provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm. This amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and Judges must be assiduous to identify when this occurs, in order to ensure that the Court is not manipulated into becoming a source of harm but a guarantee of protection.’

[85]This litigation has lasted for the whole of the three years and three months since the parents’ separation. The mother has experienced the litigation as a continuation of the abuse that she and the children were subjected to during the marriage. She was prevented from travelling to see her family in [Country B]. She had to relive her experiences when giving her own evidence, and she listened to the father’s continuing attacks, attempts to humiliate and undermine her when he gave evidence. The children have had some positive experiences with their father in contact, but have also felt pressured, felt uncomfortable and upset when he has continued to speak badly of their mother and ask questions of them, and as he has continued to try to manipulate them to saying or doing what he wants them to. They remain anxious of incurring his disapproval and about him hearing they may have said things that he would not like to hear.

[86]If the father were permitted to issue further applications in these proceedings, before he has demonstrated that he has understood both the nature of his actions towards the children and their mother, taken responsibility, and shown that he has changed, then the mother and children would be subjected to the risk of further harm from the father’s behaviour towards them.

[87]I found that the litigation itself has been used as a means of continuing the coercive and controlling behaviour that predominated in the parties’ relationship. So I must be cautious before inviting a return of that behaviour without any check or balance being in place.

[88]In all the circumstances, I consider it appropriate to impose a filter on any future applications.

[89]The father would not be prevented from making an application to the Court at any time while the section 91(14) is in place, but the restriction, as it is designed to do, would place the onus on the father to show that he has changed.

[90]The Court must consider the length of time of any section 91(14) order. Any interference with a parent’s unfettered right of access to the Court, must be proportionate to the harm the Court is seeking to avoid.

[91]The impact of domestic abuse is not time-limited, and can be lifelong. By imposing an arbitrary period of time of three or four or five years, the Court would be inviting the mother and children to take that time to recover themselves sufficiently so that they may then be in a position to face any future applications that come their way, irrespective of whether or not the father has changed his attitude towards them or his behaviours.

[92]E will be sixteen in just over three years so it might make sense to impose an initial period that lasts to her sixteenth birthday. But why then should F and G be exposed to the risk of litigation at that point? In three years’ time, F will be starting year eleven, and G will be just a year behind.

[93]In all the circumstances, I consider that it is reasonable to impose a section 91(14) order until the youngest child has reached the age of sixteen.

[94]The imposition of a section 91(14) acts as a filter, not a bar. The father would not be prevented from making applications to the Court for a variation to the existing child arrangements orders at any time. But the onus would be upon him to establish, with evidence, that there has been a material change of circumstances since the order was made.

[95]The Court cannot be prescriptive about the evidence that would be required to meet the test of a material change of circumstances before permission would be given to bring a fresh application. Whether permission is given will depend on the circumstances at the time. However, it may be helpful for the father to refer to [RA]’s recommendation, that he should complete an in-person RESPECT-accredited domestic abuse perpetrator programme (DAPP) of at least 26 weeks in length and in addition an accredited/a professionally recognised anger management course, such as through counselling or therapy, for a considerable and meaningful period of time. It is noted that the mother’s position is that an in-person anger management course would be of the most benefit to the father.

[96]I shall provide that the father must share with any DAPP and/or anger management course provider a copy of the Court’s judgments, [RA]’s addendum report and the Court’s final order to consider before commencing any work with the father.

[97]I will hear submissions from the mother about whether or not she would wish to be notified of a future application before the Court has decided whether to let it proceed.

Non-molestation order

[98]On 24 April 2025 I made a non-molestation order forbidding the father from going to or entering any address where he knows or believes the mother or children to be, attempting to locate them or track them, send threatening or abusive letters, texts or voicemail messages, or calls, communicate with the mother, or post on any social media website or public internet forum information about the respondent or children.

[99]The order is in force until 24 April 2030.

[100]Mr Rustin asks that the time is extended by another eighteen months or so, to cover G’s eighteenth birthday.

[101]The order is justified as a result of the father’s behaviour to the mother and the children. It tells him not to engage in conduct that would constitute harassment of the mother and children and put them at risk of harm.

[102]The order may be varied or discharged upon application.

[103]In the meantime, in all the circumstances of this case, I consider it reasonable to extend the time that it remains in force until the youngest child of the family is eighteen.

[104]I have written a letter to the children explaining my decisions.

[105]That is my judgment. HHJ VincentFamily Court, Oxford 2 September 2025