DG v KB & Anor (Re EMP (A Child)) [2024] EWFC 12 (B)

“The court also found that I lacked empathy towards [KB]. Our previous relationship was never considered and, indeed, I had nothing to offer the court as evidence. [KB] developed a ferocious temper shortly after EMP’ birth and I quickly learned that the best way to deal with that was simply not to engage if she was angry or upset, lest I inflame the situation. I concede that this would look cold and unfeeling to the outside observer.”

“4. I maintain my position that there was never an occasion where we had non-consensual sex, let alone an encounter where she was forced or begged me to stop (J218) as she insisted on many occasions. 5. I am dismayed that “compelling testimony” trumps the evidence from someone who has openly lied and exaggerated their other accusations. I maintain my position that [KB] made the rape accusation out of desperation to “win” and has convinced herself in the meantime that it happened. 6. The fact that the guardian, in her submission, couldn’t reach a conclusion on the subject is an example of how ambiguous the accusation was in the first place. 7. I also deny having tried to control [KB] in any way. She has always had full control and she regards it as an absolute; that EMP is “her ball” and I’m not allowed to play. The police didn’t identify any controlling aspects during her various calls to them. 8. [KB] has failed to consider or is ignorant of the damage she has caused to EMP’ emotional wellbeing and his relationship with his father.”

“[KB]’s stress at court proceedings is the result of her own actions and has refused to take any accountability for that.”

“I am disappointed that no firm findings of gaslighting nor coercive control were noted, despite being littered throughout the judgement. However, I accept the findings made and do not seek to challenge them. I also understand that findings are made when there is evidence available to support them, clearly my evidence didn’t meet the balance of probabilities for all of the allegations. I believe the Judgement reflects most of my lived reality in relation to the ongoing abuse both [EMP] and I have endured by [DG]. … Overall, I am in agreement with the findings of the Judgement.”

“The Fact Finding Hearing I found to be extremely traumatic… I found the watching of the police evidence videos to be a trigger… Giving evidence was exhausting in the truest meaning of the word… I am still traumatised by this court process. I have not slept a night the whole way through, since the hearing in December 2021. This has not changed waiting to hear the findings of the FFH and whilst awaiting the final hearing and subsequent order. Following the FFH I had approximately three months off work due to the stress caused by the court process.”

“My position regarding contact now, aligns with that of the Childrens Guardian and the current status quo, in that [EMP] should have no contact, neither direct nor indirect, with [DG]. This has been the position since April 2023 and there is a noticeable difference in [EMP]. He is more relaxed and happy within himself. He has expressed strongly that he feels unsafe with [DG] and that he does not want contact in any form. [EMP] confirmed that he does not wish contact in any form, including no indirect contact.”

“[EMP] clearly expressed to me the following; (i) That his father “hurts me and makes me feel unsafe” (ii) That “I do not want to be around him because he makes me feel unsafe” (iii) That “I do not feel comfortable being alone with him---I just don’t like it.” (iv) That [EMP] thinks the last time he spent time with his father “was at the start of Year Six and since I haven’t seen him I feel more happier” because “I feel safer.”

“[EMP] is a fine young person. What is particularly impressive is his innate kindness, his awareness of others feelings and his wish to be polite, considered and respectful. Such positive qualities also mean that [EMP] has a heightened emotional awareness and sensitivity to what is happening around him and to the needs of others, which in turn is also likely to have impacted his thoughts and feelings around his paternal relationship.”

“Whilst paternal contact offered EMP opportunity to spend quality time with his father, take part in shared outdoor activities and helped satisfy his identity needs including enabling his better understanding of paternal heritage, it has not met EMP’s emotional needs and indeed on occasions has been emotionally harmful given; (i) the stop start nature of EMP’s paternal relationship, (ii) the frequent incidents of parental conflict sometimes played out with EMP’s knowledge (iii) the continued presence of a third party (iv) his father’s parenting style (as determined by Judge Baker) being so at odds with the way he was effectively parented by his main care giver (v) EMP’ increasing sense of his mother’s feelings towards DG.”

“…any change in EMP circumstances for the purposes of paternal contact would be at odds with [EMP]’s strongly expressed wishes and feelings and any form of contact arrangement could not be directly or indirectly supported by [KB] and both of these factors are likely to further exacerbate the negative effect of change.”

“These proceedings have come at significant personal cost to EMP, KB and DG and have concluded with EMP having reached a very firm and established position. Both parents and EMP need time to reflect and recover from all that has gone before. EMP’ established level of paternal fear is of some concern and if he is unable to make sense of this over the passage of time, he may require further support around this to manage these complex and potentially emotionally unhealthy feelings and make better sense of his life story. Whilst recognising the impact on DG if the Court decides that paternal contact is not in EMP’s interests and what would be a natural wish for him to [issue] a further application to the Court within a short timeframe will be of no benefit to EMP as is most likely to cause him further distress and entrenchment of his position. That said, these highlighted issues need to be balanced against DG’s further right to apply to make an application to the Court should he wish to do so.”

"Where parental responsibility is shared by a child's parents, the statute (CA 1989, s 3) is plain that each of those parents, and both of them, share "duties" and "responsibilities" in relation to the child, as well "rights … powers … and authority"

“why did the court involve someone who treated my mother that way in my life?”

“4.1 Sections 91(14) and 91A are silent on the duration of a section 91(14) order. The court therefore has a discretion as to the appropriate duration of the order. Any time limit imposed should be proportionate to the harm it is seeking to avoid. If the court decides to make a section 91(14) order, the court should explain its reasons for the duration ordered.”

“30. Subsequent to the decision of the House of Lords in Dawson v Wearmouth, the Court of Appeal in Re W (A Child) (Illegitimate Child: Change of Surname), Re A (A Child), Re B (Children) [2001] Fam 1 , sub nom Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930 at [9] held that the following factors will fall for consideration on an application seeking to change the surname of a child, stressing that such factors are only guidelines which do not purport to be exhaustive, with each falling to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing: i) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria. ii) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way. iii) The relevant considerations should include factors which may arise in the future as well as the present situation. iv) Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight. v) The reasons for an earlier unilateral decision to change a child's name may be relevant. vi) Any changes of circumstances of the child since the original registration may be relevant. vii) In the case of a child whose parents were married to each other, the fact of the marriage is important and there have to be strong reasons to change the name from the father's surname if the child was so registered. viii) Where the child's parents are not married to each other, the mother has control over registration and, within this context, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.” i) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria. ii) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way. iii) The relevant considerations should include factors which may arise in the future as well as the present situation. iv) Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight. v) The reasons for an earlier unilateral decision to change a child's name may be relevant. vi) Any changes of circumstances of the child since the original registration may be relevant. vii) In the case of a child whose parents were married to each other, the fact of the marriage is important and there have to be strong reasons to change the name from the father's surname if the child was so registered. viii) Where the child's parents are not married to each other, the mother has control over registration and, within this context, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.”

"[12] When a court is considering an application relating to the cessation of parental responsibility, the court is considering a question with respect to the upbringing of a child with the consequence that by s 1(1)(b) of the CA 1989 the child's welfare will be the court's paramount consideration. By s 1(4), there is no requirement upon the court to consider the factors set out in s 1(3) (the 'welfare checklist') but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned. Given that the cessation of parental responsibility is an order of the court, the court must also consider whether making such an order is better for the child than making no order at all (the 'no order' principle in s 1(5) of the CA 1989)." 32. With respect to the factors to be taken into account, in Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048, Singer J held as follows at p.1052: "

"As in Re P, I find that, if the father did not have parental responsibility, it is inconceivable it would now be granted to him, and that this is a factor I should take into account when considering this application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make up parental responsibility which this father could, in present or foreseeable circumstances, exercise in a way which would be beneficial for D." 34. The decision of Baker J (as he then was) was upheld by the Court of Appeal in Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166, in which Ryder LJ (as he then was) held as follows at [13] and [14] with respect to the factors to be taken into account on an application to terminate parental responsibility pursuant to s.4(2A) of the Children Act 1989: "[13] The paramountcy test is overarching and no one factor that the court might consider in a welfare analysis has any hypothetical priority. Accordingly, factors that may be said to have significance by analogy or on the facts of a particular case, for example, the factors that the court considers within the overarching question of welfare upon an application for a parental responsibility order (the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order) may be relevant on the facts of a particular case but are not to be taken to be a substitute test to be applied (see Re M (Parental Responsibility Order) [2013] EWCA Civ 969, [2014] 1 FLR 339, at paras [15] and [16]). [14] An unmarried father does not benefit from a 'presumption' as to the existence or continuance of parental responsibility. He obtains it in accordance with the statutory scheme and may lose it in the same way. In both circumstances it is the welfare of the child that creates the presumption, not the parenthood of the unmarried father. The concept of rival presumptions is not helpful, although I entirely accept that the fact of parenthood raises the welfare question, hence the right of a parent (with or without parental responsibility) to make an application under s 8 of the CA 1989 without permission (see s 10(4)(a) of the CA 1989). There is also ample case-law describing the imperative in favour of a continuing relationship between both parents and a child so that ordinarily a child's upbringing should be provided by both of his parents and where that is not in the child's interests by one of them with the child having the benefit of a meaningful relationship with both. A judge would not be criticised for identifying that, as a very weighty, relevant factor, the significance of the parenthood of an unmarried father should not be under estimated." 35. Within the foregoing context, it is also important when considering an application to terminate the parental responsibility of an unmarried father to have regard to the shared nature of parental responsibility when the same is conferred upon both parents. In this context, in Re W (Direct Contact) [2013] 1 FLR 494 at [80] McFarlane LJ (as he then was) observed as follows: "

“Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their cooperation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them… But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable”. [38] Thus, where litigation conduct has been blameworthy, in the sense of being reprehensible or unreasonable, costs are potentially payable. In Re S (A Child) [2015] UKSC 20, at [19], Lady Hale deemed this exposition by Wilson LJ to be the “classic” encapsulation of why in Family Court proceedings involving child welfare the courts have generally adopted a “no costs” approach. [39] Of the seminal cases in this field is R v R (Costs: Child case) [1995] 2 FLR 95. In that case, the Court of Appeal explained why the practice of not awarding costs in child cases had developed. At pages 96-97, Hale J, as she then was, said: “The reasons why this practice has developed perhaps fall into three categories. The first is general to all family proceedings and was pointed out by Butler Sloss LJ in Gojkovic v Gojkovic(No 2) [1991] 2 FLR at page 237, that orders for costs between the parties will diminish the funds available to meet the needs of the family… The second reason which is given for there being no costs orders in general in children cases, is that the court's concern is to discover what will be best for the child. People who have a reasonable case to put forward as to what will be in the best interests of the child should not be deterred from doing so by the threat of a costs order against them if they are unsuccessful… The third reason is suggested by Wilson J in the case of London Borough of Sutton v Davis (Costs) (No 2) at page 570 to 571, when he points to the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely therefore to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child”. [40] At page 97, Hale J goes on to say: “Nevertheless, there clearly are, as Neil LJ pointed out, cases in which it is appropriate to make costs orders in proceedings relating to children. He pointed to one of those sorts of situation: cases where one of the parties has been guilty of unreasonable conduct”. [41] However, that is not the end of it. The policy to encourage, or at least not deter, active participation by those who have a reasonable interest in the welfare of the child is encapsulated in Part 28 of the Family Procedure Rules 2010 (“FPR”). Generally, in family proceedings, the court starts with a plain sheet in respect of costs, as part 44 of the Civil Procedure Rules (CPR) makes clear: the starting point is rule 44.2. This provides insofar as it is material: “(1) The court has discretion as to - a) Whether costs are payable by one party to another; b) The amount of those costs; and c) When they are to be paid”. a) Whether costs are payable by one party to another; b) The amount of those costs; and c) When they are to be paid”. [42] This principle is echoed in the Family Procedure Rules 2010 at rule 28.1. That provides: “The court may at any time make such order as to costs as it thinks just”

“Subject to rule 28.3 (this is concerned with financial remedy proceedings) Parts 44 (except rules 44.2(2)…) of the CPR apply to costs in proceedings”. [43] That rule that was expressly excluded by Family Procedure Rules 28.2 is as follows: CPR 44.2: “(1) The court has discretion as to - a) Whether costs are payable by one party to another; b) The amount of those costs; and c) When they are to be paid. (2) If the court decides to make an order about costs - a) The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”.

“(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – a) The conduct of all the parties; b) Whether a party has succeeded on part of its case, even if that party has not been wholly successful”. a) The conduct of all the parties; b) Whether a party has succeeded on part of its case, even if that party has not been wholly successful”. [46] Thus, there is a wide discretion. That discretion is conferred by statute and statutory instrument. It must be exercised in accordance, therefore, with the overriding objective. The FPR outlines the overriding objective at rule 1.1. That rule provides to the extent that it is material as follows: “(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. (2) Dealing with a case justly includes, so far as is practicable – a) Ensuring that it is dealt with expeditiously and fairly”. a) Ensuring that it is dealt with expeditiously and fairly”. [47] Thus, the question becomes: when would it be just to order costs in Children Act 1989 proceedings, and why? The reason for this application of the general costs following the event rule principle is a species of promoting both the overriding objective ambition of dealing with the case justly and having regard to the paramount principle of section one of the same Act. At section 1(1), the Children Act 1989 provides that “the child’s welfare shall be the court’s paramount consideration”. [48] Do, then, fact-finding hearings engage questions of the child’s welfare? By their definition, they do not: a fact-finding hearing is axiomatically about finding facts. It is those facts, once found, that then inform the welfare decisions of the court, but they are not in themselves about child welfare. One tests that proposition by asking whether one makes a factual determination taking into account what is in the best welfare interests of the child or simply by assessing the evidence and then making a determination of what is proved to the requisite standard, irrespective of the implications for the destination of the child’s living and contact arrangements. [49] It is essentially for this reason that in Re J (Children) [2009] EWCA Civ 1350, Wilson LJ found that a fact-finding hearing could be, as the judge put it, “ring-fenced” from the general welfare enquiry. That case was a case involving a fact-finding hearing. While the judgment of the Court of Appeal was delivered by Wilson LJ, as he then was, Ward LJ concurred with the judgment. Thus it is an authoritative court. [50] What had happened was that there was a fact-finding hearing that was conducted by a district judge in 2008. This was an investigation into the allegation by the mother within an application for contact made by the father that in the marriage he had perpetrated acts of violence towards her, including in the presence of one or other of the two children of the marriage, and indeed had to a limited extent been violent towards the older child. [51] At the end of the hearing the District Judge gave a judgment in which to a significant extent, but not completely, he found the mother’s allegations proved. The mother then sought an order for costs for the fact-finding hearing against the father. The District Judge refused the application and made no order. It was against this refusal to make no order as to costs that the mother appealed to a Circuit Judge; she lost again there. [52] The background was that the father had served in the British Army. In 2005, he began a tour of duty in Germany and the family moved there with him. There were difficulties and the marriage came to an end in February 2007, when the mother took the children with her and returned to England. A few months later, the father was transferred back to England by the Army, and the parents then lived in close proximity in west London. [53] Once he returned to this country, the mother refused to permit him access to the children, other than supervised contact at a contact centre. He therefore applied to the court for an order for unsupervised contact including staying contact, and in his application he reiterated that the mother was fabricating the allegations of domestic violence against him. In light of the mother’s allegations, the District Judge convened a fact-finding hearing. That was conducted on 18 and 19 March 2008 and both parties were represented by counsel. [54] At that fact-finding hearing the mother made 20 allegations against the father. The judge ruled that five of them had not been established to his satisfaction. He did not consider one of the allegations, but 14 allegations out of the original 20 were established. Those subdivided into three categories: one allegation which was established only to the extent of an admission by the father; four allegations which had been the subject of a partial admission by the father, but which were established to the more serious extent alleged by the mother; and also nine allegations which the father had denied completely, but were nevertheless established to the requisite civil standard. [55] Wilson LJ said that the District Judge’s findings were “entirely at odds with the tone of injured innocence struck by the father at the beginning of his written witness statement”

“I am not a violent aggressive individual and certainly not the man I am being accused of being through the evidence provided to the court by my wife and her ‘supportive witness’”. [56] The mother founded her application for costs on the basis that notwithstanding that the hearing had been the context of the father’s application for contact, and that it was rare for the court to make an order for costs in proceedings under the Children Act 1989, the hearing was a fact-finding enquiry into allegations that had been properly made by the mother. Furthermore, her claim had to a significant extent been denied by the father and had yet been subject of positive adverse findings against him. [58] The judgment of the District Judge was brief. He said: “I am not going to make an order in this case. I think the parties had a right to come to court and in those circumstances I am not going to make an order for costs”. [58] When that was appealed to the Circuit Judge, the Circuit Judge properly reminded herself that it was indeed unusual to make an order for costs in proceedings under the Act. She properly referred to a decision of the Court of Appeal in Re T (Order for Costs) [2005] EWCA Civ 311. It was submitted that the stance taken by the father at the fact-finding hearing was not “irrational conduct which had prolonged unnecessary litigation”. [59] In the Court of Appeal, Wilson LJ cited his own judgment that I have already mentioned: London Borough of Sutton v Davis (Costs) (No 2), and the passage at page 570H-571C. The judge continued that the reference to Re T “is an example of a case in which an order for costs was nevertheless made in proceedings under the Act”

“a. KB alleges that in various ways DG has been abusive to her and, to some extent, EMP. She makes a wide range of allegations against DG, which when taken cumulatively she asserts establish a pattern of coercive and controlling behaviour. Additionally, she alleges that DG raped her on an occasion in 2017; b. DG denies many of the allegations made by KB, asserting that in essence KB’s allegations are exaggerated or fabricated. He denies the allegation of rape; and c. DG asserts that in fact KB has engaged in a series of behaviours that have soured and frustrated his relationship with his son, including fabricating allegations about him within these proceedings.”

“The hearing was devoted exclusively to the court’s consideration of serious and relevant allegations against the father of what can only be described as misconduct on his part. Over two thirds of the mother’s allegations were true… Of the true allegations, nine had been falsely denied by the father…”

“CG1, the Guardian, was professionally negligent in her practice by failing to not only identify Domestic Abuse, but in failing to safeguard my child and I due to her practice being negligent and outdated in considering the rape to be historical and therefore irrelevant. Irrelevant to the point that she failed to make mention of it in her report. Furthermore, both CG1 and her solicitor were negligent in their court practice such that they failed to direct HHJ Dodd to consider PD12J and PD3A as is required by law where allegations of abuse are made. Neither CG1 or the Solicitor were able to identify ANY practice direction nor did they make reference to any case law. In addition, CG1 was negligent in her practice when acting as the Family Court Adviser before the Magistrates, she allowed cross examination of the perpetrator by the DA Survivor. These actions are unlawful. Both DG and I were LiPs and CG1 a Court adviser should have recognised this practice to be unlawful. As a result of the CAFCASS Guardian wrongly advising the Court in December 2021, I have incurred a considerable amount of costs, as per the attached N260 costs schedule. These costs are only since the December 2021 hearing, not prior to this date. I believe that both the CAFCASS Guardian and their representative are responsible for providing the judge with unlawful advice, and both have been professionally negligent in their respective positions. Had they applied the law and case law correctly, the outcome may have been considerably different and my child may not have been harmed.”

“1. This position statement addresses the issue of costs. The Court were informed at the conclusion of the hearing on the 14th December that costs were not being sought against CAFCASS. 2. Placing that into context. Dr Proudman’s position statement was received on the 11th December 2023 confirming that the costs application was being made against the father. The Court will note the absence of CAFCASS within that section of the position statement. In addition, clarification was sought prior to the hearing starting and confirmation was given by Dr Proudman that [KB] would not be seeking such costs. 3. The goal posts have moved when at 16:30 after evidence had concluded for the day, and with now only 3 hours of Court time remaining, [KB]’s position has altered and the parties were informed that she now seeks costs against CAFCASS and the father. That is procedurally irregular at such a late stage. 4. In light of such a clear position being set out within the position statement of behalf of KB instructions have not been sought from CAFCASS senior management, or indeed CAFCASS legal. Indeed, had that position been made clear within the position statement that would have been done. 5. If the court are minded to deal with costs, absent a substantive application from KB, which is it submitted it should not, and following the changing position. Costs would not be a matter which can be addressed within the course of this hearing. Separate skeleton arguments should be directed as to the issue of costs and the matter listed in the new year for a separate costs hearing. At which point instructions will have been taken from senior management in CAFCASS and CAFCASS legal.”

“(1) Subject to paragraph (2), where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished— (a) the quality of the party’s or witness’s evidence; (b) in relation to a party, their participation in the proceedings. … (3) Where the assumption set out in paragraph (1) applies, the court must consider whether it is necessary to make one or more participation directions.”

“(1) The court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions. (2) Before making such participation directions, the court must consider any views expressed by the party about participating in the proceedings.”

“A barring order would be gratefully appreciated and I have made the application for such for five years. The constant threat of or actual litigation has been exhausting for many years. I have spent a phenomenal amount of time researching case law, reading practice directions, searching for examples that support my case and that is time that I cannot recover to spend with [EMP]. … The constant fear of what court papers may arrive in the post, not to mention the actual threats and relentless public humiliation on social media by [DG] has compounded the stress and anxiety I have felt for the past four years. I believe the barring order will provide [EMP] and I with some peace of mind, knowing at least for the ordered years, that we can live our lives as we wish, without these fears being realised.” order: i. There shall be an order preventing the father from making further applications with respect to section 8 of the Children Act 1989 without the leave of the court pursuant to section 91(14) of the Children Act 1989 until the date of the child’s 16th Birthday; and ii. Service of any subsequent application for leave should be prohibited until the court has made an initial determination of the merits of such an application.