A, Re [2024] EWFC 425 (B)

IN THE FAMILY COURT SITTING AT MEDWAY CASE NO: ME20P01402/CT23F00092[2024] EWFC 425 (B)IN THE CHILDREN ACT 1989 AND IN THE FAMILY LAW ACT 1996 AND IN THE MATTER OF RE A (D.O.B. 30.7.18)

B E T W E E N :

[1]These proceedings involve the welfare of one child, A aged 6 (her date of birth is 30.07.2018). The parents are the applicant mother, JH, and the respondent father, LK I will refer to them as "M" and "F". They were together and married for 2 years, and separated in September 2020. A lives with M and spends time with F.[2]This matter was listed before me as the final hearing in relation to M’s application for a child arrangements order which was dated as far back as 28th Sept 2020, and F’s application for contact dated 31st March 2021. I was asked to determine the following specific issues:a. How much time should A spend with F. The frequency and duration of contact and whether the contact needs to be supported or supervised. What orders should underpin such contact?b. Does F need to complete any further work prior to increasing contact and/or removing the requirement for supervision/ support? Specifically, whether he should attend a DAPP course.c. The paternal grandmother’s application for permission and contact.d. Should the court make enforcement orders?e. Should the court make injunctive orders (NMO) under the Family Law Act 1996?f. Should the court make a s.91(14) order? And if so against which party or parties?g. Should the court make any costs orders and if so against which party?[3]Issues a and b are interlinked.[4]Ms. Dowse, counsel for M, invited me to make the following specific findings, that:a. F has obtained public funding for legal representation in these proceedings by making false representations and thereafter he has used this funding certificate as a ‘blank cheque’ to continue his abuse.b. F breached his undertakings to the Court / bail conditionsc. F’s attendance at A’s sports day amounted to intimidating and/ or threatening/ or coercive and controlling behaviour.d. F’s referrals to social services amounted to a pattern of harassment against M. The current position[5]A has always lived with M and (since 25.10.22) contact with F has been supervised by the paternal grandmother “L” (“PGM”), paternal step-grandfather “R” (“PSGF”) or paternal great grandmother “MA” (“PGGM”) on alternate Saturdays 9am until 6pm and Sundays 9am until 5pm (M has the intervening weekend), and each Wednesday after school until 6pm. [I understand that Wednesdays have ceased by agreement due to F’s work commitments.] The positions of the parties going forward[6]F does not challenge the recommendations of Cafcass. In summary, Mr. Gay, on behalf of Cafcass, recommends that:a. M be granted a Child Arrangements Order that defines A as ‘living with’ her – this chimes with the status quo.b. The time spent between A and F be unsupervised and be on alternate weekends overnight from Saturday morning until Sunday late afternoon. [In evidence Mr. Gay said that he thought it would be a retrograde step and not in A’s best interests for contact to move back to supervised contact at a contact centre.]c. Very specific arrangements should be made for handovers.[7]M seeks a “live with order” fora. A. M opposes F’s application for unsupervised contact and overnight stays on the basis that he has failed to complete sufficient work to address his past abusive behaviour, and that as a result there remains a significant risk to A’s welfare. M submits that the risk assessment of Dr. Bose was significantly flawed, and that Mr. Gay’s recommendations are based on an inadequate assessment of F’s risk. M now seeks: a. Any holiday days agreed in the future (x1 additional day in a 7 day block).b. On the Saturday, contact supervised by Paternal Step Grandfather (“PSGF”). Handovers can be managed between them on account of M’s oral evidence that he is appropriate and safe for A;c. On a Sunday, contact to be supervised by PSGF, PGM or PGGM The Law[8]In making my determinations in this case I have borne in mind the following:a. The welfare of the children is paramount in all decisions I make and I must have regard to the welfare checklist in section 1 of the Children Act 1989.b. In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary.c. In considering what orders I should make I must have regard to PD 12J;d. I must not make an order unless I consider that doing so would be better for the child than not making no order at all.e. Any findings of fact that I make must be on the civil standard of proof, that is so that I am satisfied on a balance of probabilities.f. It is for the party making an allegation to prove it on the balance of probabilities. Accordingly, any allegations made by M that are necessary for the determination of welfare are to be proved by M with evidence or by proper inference and the on balance of probabilities. F need not prove that the allegations are untrue.g. If the evidence in respect of a particular finding sought is equivocal, then the court cannot make a finding on the balance of probabilities as the alleging party has not discharged either the burden or the standard of proof.h. Any findings made must be established on the evidence available to the court, including influences that may be properly drawn from that evidence and not on suspicion or speculation.i. The expert evidence (Dr Bose and Dr Banyera-Maraike) is admissible to provide the court with specialists professional and technical knowledge not otherwise available. Expert evidence is important in the context of the evidence as a whole but decisions are made by the court. However, the court should not disregard or diminish the weight of expert evidence without good reason and proper justification. i. A witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress and the fact that a witness has lied about some matter does not mean that he or she has lied about everything. ii. I remind myself that, in the criminal jurisdiction, a lie is never taken of itself as direct proof of guilt. iii. Lies, however deplorable, are significant only to the extent that they affect the child's welfare and I must strictly assess the lies for their likely effect on the child. "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." The hearings before me[9]On 23rd and 24th September 2024 I heard evidence from Dr. Bose, Forensic Psychiatrist, Mr. Dan Gay, Cafcass Officer, and M and F. The matter was then adjourned to 2nd December 2024 for written and oral submissions. Is it in A’s best welfare interest to move to unsupervised contact with F at thisstage?[10]The central issue that I needed to determine in this matter was whether F’s contact with A should move to unsupervised contact (including overnight). This was opposed by M, but supported by Dr. Bose and Mr. Gay (of Cafcass).[11]The starting point is that increased contact between A and F is presumed to be in A’s welfare interests unless there is evidence to the contrary. However, in light of the history of domestic abuse by F, I must be satisfied that it is safe for contact to take place and if it does in what conditions. To do this I have had regard to PD 12J, and considered the extent to which F has insight into his past behaviour and whether the any risk posed by him has been / can be mitigated. The matters that F accepts[12]In considering the matters that F has accepted, I have taken into account the chronology of when the admissions and retractions were made, as well as the nature and extent of the admissions.[13]In this context I note that F initially made some admissions on 25th October 2021. The remaining matters were adjourned for a 4 day fact finding hearing. Almost ten months later (on 11th August 2022) F made further full and partial admissions, but the Court determined that it remained necessary to determine the outstanding allegations. On day 1 of the fact-finding hearing on 24th October 2022 HHJ Scarratt determined that in light of F’s admissions made to date it was not necessary to conduct a FFH to determine the remaining allegations in light of F’s admissions and partial admissions, and that F accepted that he had perpetrated:a. Domestic abuse against M;b. A pattern of coercive and controlling behaviour perpetrated on M over a period of time when F asserted that he may or may not have been taking his medication as prescribed.[14]The order also stated “M’s application to strike out [F’s] schedule and statement in support is dismissed as no longer necessary…[F’] Schedule dated 12 Aug 2022 and exhibits to his statement dated 7 Oct 2022 are disregarded by the court.” I understand this to mean that F’s allegations of abuse against M were not pursued and determined.[15]The Court directed that Dr. Bose be instructed to provide a psychiatric opinion on F. However, following an initial letter of instruction F’s position changed from that accepted at the hearing before HHJ Scarratt and Dr. Bose was advised that F:
“now states that he has accepted a pattern of poor behaviours but states that he did not accept controlling and coercive behaviour at the Fact Finding Hearing. The Father states that during the Fact-finding hearing, the parties could not agree on the ‘phrasing’ of this, and the Judge threatened to delay the proceedings by a minimum of 6-months. Therefore, F believes that in order to serve A’s interests and progress proceedings, he agreed for the wording to be included - F states for which the Judge was grateful. F now believes that M admitted at the Fact-Finding hearing to HHJ Scarratt that she has also displayed controlling and coercive behaviour against F and causing bruising to him when HHJ Scarratt made observations about both parties conduct within the relationship.”
In evidence before me F sought to explain this retraction on the basis that it had taken him a long time to “wrap around” the C&CB definition, and in 2022 he did not agree with the label (even though he had agreed to it in court and it was recorded on the face of the order). F also stated in evidence that what he had said about the Judge’s comments regarding M’s behaviour were true and that the transcript would confirm this. He denied that his allegations against M had been dismissed and insisted that the judge had said to Ms. Dowse that F and M’s behaviour was “mutual”.[16]On the 23rd May 2023, the first day of the third listed trial in the criminal proceedings, F indicated that he would plead guilty to an offence of controlling and coercive behaviour on a limited basis namely as set out in the basis of plea document. In summary, F submitted that the plea must be considered in the context of his mental health difficulties and learning disability, aggravated by the death of his and the Complainant’s unborn son and the behaviour of the Complainant as outlined in the bad character application.[17]During the hearing before me I asked for clarification as to whether there was any difference between what F accepted in the family and criminal proceedings. Mr. Shravat submitted that:a. Position in relation the schedule of admissions and partial admissions dated11/08/22. The father continues to accept this as his position.b. Position in relation to retraction on or around March/ April 2023. At the time of the hearing before HHJ Scarratt F did feel pressure to agree to coercive and controlling behaviour and reacted against this. He did not retract any of the component actions as accepted/ partially accepted in his response document but was concerned about the label of coercive and controlling behaviour and his intent in the context his own mental health difficulties, the lack of medication and the loss of his unborn child at the time.c. Basis of plea 23/05/23: The admissions F made in his basis of plea reflects the admission he made in the family court. Furthermore, having had more time to reflect on his conduct he understood how his actions amounted coercive and controlling behaviour as set out in the basis of plea. My approach to the matters that F has accepted[18]When determining F’s insight into his past behaviour and the future risk that he may pose, I have taken into account the following matters: a. F has accepted serious acts of abuse amounting to C&CB over a period of around 14 months. This abuse can be summarised as including pushing M in the face, slapping M in the face whilst she was holding A (causing A injuries when M fell), F saying to M “Do I have to say to you, if you don’t leave this house, I’ll beat you up”, and then mimicking hitting M with the back of his hand, calling M a “slut” and an “online slag”; calling PGF a “cunt” in the presence of A; sending messages to M on Facebook that she looked “like a slag” and her “arse [was] hanging out, criticising her for wearing make-up, telling her that she “looked like [she had] been bent over in the woods” and calling her derogatory names; telling M that she had to choose between him and her family; hitting himself around the head, and punching and breaking a double glazed window in the garage; repeatedly holding M against the wall by her shoulders; telling M her skin was his and that nobody else was allowed to see it, that M’s eyebrows were horrible, M was a “digital slut”; He wanted her to delete her Instagram account and said that to show him that she loved him she needed to delete her social media; F threatening to kill himself after being verbally and physically abusive to M; being verbally abusive to M and that A sometimes witnessed this. F’s explanation was that the recording was just after he was discharged from hospital for attempted suicide, he was not on his medication, and he does not know why he said it. This does not detract from the distress that would have been caused to M from having heard him say it. Moreover, it represents a classic factor in domestic abuse of the perpetrator blaming the victim. c. I do not accept F’s explanation for the retraction of his initial admission of C&CB after the hearing before HHJ Scarratt. He is a highly intelligent person, who was represented at the hearing and his assertion that he did not understand the concept of C&CB is not credible. Moreover, his assertion regarding the judge’s comments about M’s culpability is contradicted by Ms. Dowse who was present at the hearing (and whose account I prefer), do not appear on the order, and are further contradicted by the direction that F’s allegations against M be disregarded. I have considered whether there is an innocent explanation for F’s lies about these matters but do not think that there is. Instead, I find these are further attempts to control and manipulate these proceedings. d. F’s allegations against M were effectively withdrawn at the hearing before HHJ Scarratt. The order cannot be understood in any other way. Moreover, there has never been any FFH in relation to those allegations nor any admissions made by M. In fact, M denies them. Consequently, I have discounted F’s allegations against M for the purposes of the matters that I must decide. So far as the basis of plea is concerned, I do not think that this is determinative for the purposes of the family court proceedings. There was no trial and in any event the focus of the criminal trial is different to that in the family court – particularly in relation to the matters raised in PD 12J and the paramountcy principle.[19]It is in light of the above analysis that I will now move on to consider the evidence of Dr. Bose and Mr. Gay. Dr. Bose[20]Dr. Bose is a forensic psychiatrist. He was instructed to provide a report in relation to F for the purpose of these proceedings. His substantive report is dated 20th December 2022, the addendum report dated 11th May 2023 and the further addendum report dated 1st November 2023. I have considered the reports, and I also heard Dr. Bose give evidence before me.[21]Following Dr. Bose’s evidence, I expressed my significant concerns to the parties as to the extent to which I could rely on his opinion in this matter. These concerns can be summarised as follows:a. His knowledge and understanding of the concept and definition of coercive and controlling behaviour (C&CB) was misconceived and wholly insufficient to provide an expert opinion in this area. When asked whether he was familiar with C&CB his response was that he was “very familiar with actual domestic violence” and that he was most used to dealing with “real” physical assaults…” But it was fair to say that he was not as familiar with C&CB pattern of behaviour as “classic domestic abuse”.b. When asked what he understood the term C&CB to mean, it quickly became apparent that Dr. Bose did not understand the legal definition. Dr. Bose initially said that it was not for him to define it. He then accepted that he was not aware of the statutory definition in the Serious Crime Act 2015. He said “I didn’t look it up in this case.”c. There then followed an extremely concerning part of Dr. Bose’s evidence in which he opined that even if F had exerted C&CB towards M, this was not directly relevant to assessing the risk to A. Shortly afterwards he stated “My opinion is that what was going on with M was not a risk to the daughter.” [This flawed approach reflected his answer in his addendum report to the question “Please comment upon the Father’s perception that the mother has made false allegations against him, and the risks that the failure to accept this and lack of any demonstrable insight poses to A.” Dr. Bose responded – without more - “In my opinion, the father’s perception of the mother does not necessarily increase any risks to A.”]d. Later when he was asked whether the fact that in some of the incidents towards M, A was present meant that there was a risk to A Dr. Bose said “No, because when F was looking after A, M was not present…” He later said “People can have completely different feelings towards the child and towards the ex-partner.” This reflects his stated view in the further addendum report:
“In my opinion the fact that the father has been found guilty of coercive and controlling behaviour towards the mother does not have a bearing on his behaviour towards his child, particularly now they have separated.” e. Dr. Bose was taken to PD 12J and stated that he was not aware of it. When taken through it he accepted that, although it was highly relevant, he had not taken the factors into account when setting out his opinion on future risk. He sought to explain away the importance of this by stating “The most important thing is his relationship with A, everything said so far is relevant if there is violence in the current relationship.” f. Dr. Bose was unable to provide a satisfactory explanation as to why F had initially admitted C&CB but had then retracted it (and was still denying it when he saw Dr. Bose.) I considered the suggested explanations that it may be connected to the ADHD, inflexibility, stubbornness or that F was agreeing to something for short term benefit, all deeply unpersuasive. In addition, Dr. Bose did not appear to investigate the reasons for F’s retraction nor what impact this would have had on the risk assessment that he was instructed to carry out. When asked whether he asked F what he meant when (despite denying C&CB) he had said that “he has accepted a pattern of poor behaviours”, Dr. Bose said “No. I wrote down what he said.” g. Dr. Bose was asked about paragraph 30 of his first report in which he noted: F stated that HHJ Scarratt stated that M physical and psychological abusive behaviour towards F was equally as poor, and that she has prevalent issues. F stated that in response, M’s Barrister said, “my client accepts this. This F’s view and not supported by M or the Court.”
Dr. Bose said that he could believe that it was untrue and “that’s what is in his head even though entirely untrue.” domestic violent relationships.” He then accepted that it was in fact about the perpetrators. i. When asked if F represented a manageable risk he said that it is important to talk to the current partner, K. If there is no evidence of volatility there would be a very low risk. There was no evidence before me regarding a risk assessment of K.[22]In terms of drivers for admitted behaviours Dr. Bose stated that F was not on the right medication, whether he was taking it or not, exacerbated with alcohol and cannabis, and he had high anxiety and depression. Dr. Bose said that if F does not take medication this would be a risk to the child. Does F present a risk and if so, can it be managed?[23]There are two main concerns arising from the analysis of the above evidence. a. Firstly, I find that F has limited insight into his abusive behaviour. He has sought to play down the extent of his behaviour and blame M (for example, regarding 25.1.20 incident claiming that his intention was “solely defensive in nature”, albeit “disproportionate”; and telling Dr. Bose that “he was under stress from M and he has not behaved like that outside of that relationship.”) F stated that there was something peculiarly toxic about his relationship with M that made him act in a negative manner towards her, this was backed up by his domestic violence course. His interactions with his current partner are totally different from how acted at the tail end of his relationship with M.” There is no evidence regarding his current relationship with K. i. The judge’s comments about M’s culpability, and sought to manipulate these proceedings when he retracted his admission to C&CB shortly after the hearing before HHJ Scarratt. ii. His statements to Dr. Bose and Mr. Gay regarding his attendance on a course to address his domestic violence. He had not attended such a course. [When asked about this in evidence F said “ I told them that I made disclosures in my behaviour”. He denied that he had used the term domestic violence when describing the course he had undertaken. I do not accept this explanation and find that the reason F lied was in order to present himself in a favourable light and to manipulate these proceedings.] c. Secondly, I have concluded that I am unable to give any weight to Dr. Bose’s opinion regarding either F’s insight, nor the causes of his accepted abusive behaviour.[24]Having identified that F presents a potential serious risk to A I have considered whether such risks are manageable. It is against this background that the question arises as to whether the requirements of the suspended sentence have addressed the risk factors, or whether F’s failure to complete a DAPP course leaves the risk unquantified and unmanaged. Part of the problem is that, as Mr. Gay said in his evidence, the MOJ cut the Domestic Abuse (DAPP) courses (such as Building Better Relationships [BBR]) as a Cafcass resource. He is not able make referrals to such courses, although a parent can pay privately to attend these.[25]The parties’ positions in relation to these issues can be summarised as follows: inadequate to allow a proper risk assessment to be made and that he should take the DAPP. M had offered to pay for F to attend a DAPP course on three separate occasions, but he refused. M further asserts that F’s abusive behaviour is continuing. b. F submits that his past abusive behaviour was caused by his unmedicated ADHD and depression, and the loss of their unborn son. He has now admitted his past behaviour, addressed these issues and is on medication for his ADHD. Dr. Bose, Dan Gay and the author of the Pre-Sentence Report for the criminal proceedings all attest to his remorse, insight and wish to avoid a repetition of his past behaviour, and therefore absence of an unmanageable risk. As part of his suspended sentence, he has undertaken and successfully completed a course that addressed domestic violence, and that whilst this was not a DAPP course it addressed the same issues. In evidence, F said that he had refused to do the DAPP course (that M had offered to pay for) because he had been advised against this by his previous counsel, and had “done an incredible amount to restore my good character to show her I care and have done everything in my power. I have done more than enough to show everyone I have changed.” He added that he has already done the work with probation, no expert has ordered a DAPP course, and “it would just duplicating everything I have done.”[26]I have considered whether the work carried out by F as part of the suspended sentence requirements (under the auspices of the probation service) are sufficient to identify the risks posed by F and mitigate them.[27]The PSR recommended 30 Rehabilitative Activity Requirement (RAR) Days which “would provide F with the opportunity to speak with his Probation Practitioner to address F’s criminogenic factors…” Whilst the feedback from probation is that F has complied with these requirements and engaged well, I do not find that the requirements of the suspended sentence adequately address the risks posed by F for the following reasons:a. F was not sentenced to a ‘domestic abuse programme’ which would have been the Building Betters Relationships programme. He was expected to engage with the Skills for Relationship Toolkit which takes derivatives from said programme. Probation stated that “as far as I can tell, F would meet the criteria for our Building Better Relationships programme, which focuses on domestic violence, and should we find the order being returned to court e.g. for a breach for instance, this is something I would look to recommend be added to the order.”b. The Pre-sentence report, and the recommendations, was written on the basis of F’s basis of plea, and the interview with F in which he stated “he wished for the harm inflicted upon him by M to be formally acknowledged” because, inter alia, M’s actions would remain unaddressed, and that whilst he accepted that he should not have used offensive language or resorted to violence with M and, it is currently believed, F’s offending behaviour was disinhibited by his emotional state and the turbulenceof his relationship.” The author of the PSR concluded that “It is my assessment, F’s pro-social thinking skills were disinhibited by a decline in his emotional state, following the death of his son and the reciprocal negativebehaviours demonstrated by both F and M.” I have rejected these assertions in the absence of a fact-finding hearing or admissions relating to the allegations against M.c. The PSR’s recommendations also relied on the author’s conclusion that F “accepts full responsibility for his recent offending behaviour and expressed sincere regret for his actions…” In light of the above, I reject this conclusion.[28]I have considered Mr. Gay’s reports and his evidence before me. I do not accept his analysis or recommendations because he relied extensively on matters that I have analysed and rejected, namely the opinion of Dr. Bose, F’s allegations against M, and the work carried out by F as part of the suspended sentence.[29]In light of the above, I have reached the following conclusions:a. F has shown inadequate insight into his abusive behaviour;b. The PSR recommendations were based on an analysis of F’s behaviour that I have rejected;c. The work that F has engaged with as part of his suspended sentence is inadequate and does not address the risks because it is not a DAPP course and is based on a flawed analysis of his behaviour;d. Dr. Bose’s opinion cannot be relied upon in assessing risk;e. Mr. Gay’s recommendations cannot be followed because they are based on the above matters.f. F should complete a DAPP course as soon as practicable. Conclusions on F’s “spends time with” application[30]There are clearly positive factors in F’s relationship with A, and the goal is to progress to unsupervised contact with overnight stays if the identified risks can be addressed and mitigated. However, at this stage I am not satisfied that F recognises or accepts the extent of his abusive behaviour and the impact that this had and continues to have on M and A.[31]I have considered the welfare checklist and taken into account Mr. Gay’s observations about A and her ascertainable wishes, and I recognise that A would wish for a relationship with F if it can be facilitated in a safe manner. However, the determinative factors at this stage are my concerns regarding the harm that A is at risk of suffering, and the ability of F to meet her needs in the context of his lack of insight regarding his abusive behaviour.[32]As to the way forward, F should complete a DAPP course as soon as practicable and a mid-way and final report should be provided to the Court before any changes are made to the existing contact arrangements.[33]In addition:a. Evidence should be obtained from F’s current partner, K, as to the relationship with F.b. An up to date GP letter should be provided regarding F’s medication and current mental health;c. Cafcass should then provide a further report with an updated risk assessment and recommendations. M’s “live with” application[34]I make a live with order in favour of M. This reflects the reality of A’s living arrangements and will regularise her position. Additional findings[35]I have not found it necessary to make additional findings in relation to F’s use of the legal aid fund (for which, in any event, I have insufficient evidence to determine the point), and the allegations that F breached his undertakings to the Court / bail.[36]So far as the allegation that F’s attendance at A’s sports day amounted to intimidating and/ or threatening/ or coercive and controlling behaviour, I make no finding. However, I do find that F’s actions in attending at such short notice – and his statement that he was “entitled to attend” - demonstrated a lack of insight into the likely detrimental impact on M.[37]Finally, I do find that F’s referral’s to social services amounted to a pattern of harassment against M.a. The evidence on this matter was that during these proceedings F made 12 referrals to social services about M and 5 to the police. The referrals included reporting A had issues with her genitals and bottom and suggested that A would act in a sexualised manner.b. No action was taken by the police or social services against M, and A’s GP replied to a Social Service inquiry stating that they had no concerns about M’s ability to meet A’s needs. She had been seen privately at the hospital and had the ultrasound which was normal and there were no ongoing concerns regarding her health. He agreed in evidence that the referrals were inconsistent with F’s statement that M was an excellent mother. d. F denied that he had not made a referral since November 2020 and that the rest were as a result of his mother making the referral. I do not accept this explanation as the correspondence from the social services as late as March 2024 refers to F’s concerns about the referral. Other matters[38]In light of the above findings and conclusions I adjourn consideration and determination of these additional matters to the conclusion of the proceedings:a. The paternal grandmother’s application for permission and contact.b. Should the court make enforcement orders?c. Should the court make a s.91(14) order? And if so against which party or parties?d. Should the court make any costs orders and if so against which party?