Y (A Child), Re [2024] EWFC 462 (B)

[2024] EWFC 462 (B)Case No ME21P00924
IN THE FAMILY COURT
Date 07/06/2024
Canterbury Combined Court Centre
The Law Courts, Chaucer Road
Canterbury CT11ZA
Before
HIS HONOUR JUDGE SCARRATTRe Y (A Child)
Between
WApplicantXRespondentYRespondent
Mr Samuel Frost (instructed by DS Legal) for ApplicantMs Cara Radford (instructed by Clarke Kiernan LLP) for RespondentMr Mark Rawcliffe (instructed by Creighton & Partners) for Second RespondentHearing Hearing dates: 29 th, 30 th, 31 st January 2024 and 1 st, 5 th February 2024
Approved Judgement.............................HIS HONOUR JUDGE SCARRATTThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is complied with. Failure to do so will be a contempt of court.
[1]This is the judgment in the case of W v X, ME21P00924. The Court is concerned with Y, a child aged five. Y was conceived by sperm donation and not via a registered clinic. X is Y’s birth mother. Y was conceived with the consent of X’s then partner, W, the Applicant in these long running and very acrimonious proceedings. I shall, with the consent of the mothers, refer to them in the main as X and W.[2]Y for most of their life has lived with X. Contact with W has been at best, spasmodic. X lives in County A and W in County B with her parents and family. By an application issued on 17 June 2021, W applied for a Child Arrangements Order for Y to live with her. By an application issued in July 2021, X applied for a Declaration of Parentage to declare that W was not Y’s parent.[3]X’s application for a Declaration of Parentage was granted at the hearing before HHJ Robinson on 1 December 2022. This thereby deprived W of parental responsibility, PR, for Y, which previously she has had, by virtue of being registered on the birth certificate as a parent. At the same hearing, the Court granted leave to W to make an application for a Section 8 Order. Y was joined to the proceedings, and Z appointed as Y’s Guardian.[4]An Interim Child Arrangements Order was in fact made for Y to spend time then with W every other week. Contact did not take place as ordered, indeed there has been a problem with contact for most of Y’s short life, and Y did not see W, Y calls her Mummy W, for long periods of time. I shall return to the subject of contact later in this judgment. At the pretrial review on 8 January 2024, direct contact was to continue, to be no less than once per month for two hours, supervised in the community at a play centre and/or park, with the next contact being just before this final hearing on 17 January.[5]Y has a diagnosis of autism, and a diagnosis of ADHD is awaited. Y’s behaviour at school is such that currently Y is suspended from full time attendance and attends as I understand it for one or two hours each school day. W suffers from cystic fibrosis, prognosis is good though, and there is medical evidence to support her being able to parent Y on a full-time basis if the Court concludes that that is in Y’s best interests. The issue of parental responsibility is now agreed, and I shall make the order later this afternoon granting W parental responsibility.[6]This is a final hearing combined with a Fact-Finding Hearing. I have heard evidence from both mothers, a V and a U, and the Guardian, over 2½ days. I have read the bundle and the reports of the Guardian, as well as disclosure from Y’s nursery school and contact notes, child in need reviews, and reports from Dr Bentley, instructed during these proceedings.[7]The oral evidence is fresh in my mind, and I do not intend to repeat it all in this judgment. If I do not mention parts of the evidence, it is simply because other evidence is, in my judgment, more relevant and/or more important. I have all the evidence, oral and written, the entire canvas of evidence, as it has been put, in mind, when reaching the very difficult decisions I am asked to make regarding Y. All Counsel have made full submissions to me, and I am very grateful.[8]Dr Bentley, the instructed psychologist and well known to this Court, has not been required to give evidence by the parties. She highlighted the animosity as between the parents and diagnosed both women as having a moderate level of psychological difficulty. She did not have concerns in respect of X’s ability to meet Y’s needs, and opined that W cared about Y, and misses Y. She diagnosed Y as having difficulties, not least ADHD and possibly ASD.[9]In an addendum, when Dr Bentley was asked to listen to the recordings which I shall come to in a moment, Y being present when both parents were in the midst of a tirade of abuse from X, she considered Y to have witnessed:
“Angry and aggressive behaviour”
From X, neither parent protecting Y from harm, but Y did not appear to be distressed or reacting, and she opined therefore that there was thus evidence of emotional harm.[10]After hearing the recordings as between X and Y enroute to contact, she considered X’s behaviour, discussed later in this judgment, to be:
“Evidence of emotional harm.”
She considered that this recording was:
“More to prove a point about her promoting contact.”
[11]I have listened to recordings taken by W of altercations as between herself and X, and recordings taken by X of Y apparently wanting to avoid contact with W. I shall refer to them later. The content of the altercations is shocking, described as such by the Guardian in her final analysis, and I would not disagree. I have though, reminded myself that the recordings are part of the overall evidence, that I must not be overly influenced by them alone. I have to have regard again to the entire canvas of evidence, of which these recordings are only part.[12]The parties’ positions are as follows. W wishes to have Y live with her. That is a change of residence for the child. She seeks a Live With Order. X wishes for Y to remain living with her. Both mothers agree that direct contact should be on alternate weekends from Friday evening to Sunday evening, plus one half of the school holidays. I shall deal with the detail of any contact at the end of this judgment.[13]X denies the three allegations set out in the amended schedule. W’s case is that X has been controlling and coercive and abusive towards her, and that she has alienated Y from her by her behaviour over a period of time. She asserts too, implacable hostility from X towards herself.[14]I shall deal with the fact find first, with reference to the schedule, which should be appended to the approved version of this judgment. The law as regards fact finding is set out below, and I remind myself accordingly. In Re G-S, Baker LJ, as he then was, set out the following principles as guidance for judges in fact finding cases. In fact, Re G-S was a care case, but I have adapted the well-known principles for a private law matter such as this.[15]Firstly, the burden of proof lies with the Applicant, in this case W. The standard of proof is the balance of probabilities. Findings of fact must be based on evidence. As Munby LJ said in the case of Re A (A Child) [2015] EWFC 11:
“It is an elementary proposition that findings of fact must be based on evidence, including interferences that can properly be drawn from the evidence, and not on suspicion or speculation.” “Furthermore, when considering cases of suspected child abuse, [that case was about child abuse], the Court must take into account all the evidence, and furthermore, consider each piece of evidence in the context of all the other evidence.”
[16]As the President, Butler-Sloss LJ said at that time:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence, and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward [in that case by the local authority, in this case by W,] has been made out to the appropriate standard of proof.”
[17]The evidence of the parties in this case is of the utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing, and the Court is likely to place considerable weight on the evidence and the impression it forms of them.[18]Finally, I give myself what is known as the Lucas direction. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The Court must be careful to bear in mind that 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 matters does not mean that he or she has lied about everything, R v Lucas [1981] QB 720.[19]Controlling and coercive behaviour. I remind myself of the law in F v M [2023] EWFC 5. Hayden J considered a course of persistent and serious controlling behaviour by a father, making the following comments at paragraph 60 as to how allegations of coercive and controlling behaviour should be dealt with:
“Key to this particular form of domestic abuse is an appreciation that it requires an evaluation of a pattern of behaviour in which the significance of isolated incidents can only truly be understood in the context of a much wider picture.”
[20]In Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings) [2021] EWCA Civ 448, the Court of Appeal raised a concern about the utility of Scott Schedules. The principle concern arose from an asserted need for the Court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time:
“Abusive, coercive, controlling behaviour is likely to have a cumulative effect upon its victims which would not be identified simply by separate and isolated consideration of individual incidents.”
[21]Finally, I remind myself, as I must, of Practice Direction 12J, which provides the following definitions:
“Coercive behaviour means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim. Controlling behaviour means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape, and regulating their everyday behaviour.”
Domestic abuse has the same meaning as in the Domestic Abuse Act 2021.[22]I now turn to the Scott Schedule and the allegations, bearing in mind the law as I have set out.

Allegation 1, strangulation

[23]W’s case is that in 2016 the parties had been drinking in a flat let to V, a friend of W’s, and X commenced in drink, she accepts, to throw items around the room, including an iron, and grabbed W by the hair and neck, pushing her against a wall. V emerged from his bedroom, was verbally abused by X, and called the police. He locked X outside the flat. X was arrested and taken to the police station.[24]X’s account is quite different. She asserts that V was in the room and on the sofa with W. X gave evidence that it was V who attempted to strangle her when she tried to lift W from the sofa to go to bed. She was not taken to the police station but to a friend, U. She refers to the police report which only mentions the damage to the flat.[25]W’s evidence is that she was fearful of X, and that may have been a reason for not telling the police the detail, otherwise it is right to say that W cannot recall why she appears not to have told the police at that time about the assault.[26]V gave short evidence. He denies X’s case. He did not report the strangulation to the police because he said he thought that W would have done it. He was spoken to by the police separately. U did not witness the event at all. She told of marks on X’s neck and hearing angry phone conversations as between W and X and V. She was a former partner of X, and gave evidence to the Court of how loving and caring X was.[27]I prefer the evidence of W and V. They were straightforward witnesses in my judgment. W did not appear evasive, and had a clear recollection of events. As did V who was in the flat at the time and was aware of the commotion. He pushed X out of the door, and I find that consistent with X being the aggressor. The police arrested X and no one else. The police were called by V, not by X, who told that Court that she had been strangled.[28]U’s evidence takes the matter no further in my judgment. She was not present, and only tells the Court what she saw and heard after the event, and I note that she was a former partner of X’s. Of course there are minor inconsistencies. The event took place in 2016, but I am very much satisfied that W is telling the truth, and that her recollection is largely corroborated by V, present in the flat, and the in room, on the night.[29]In my judgment, it is more likely than not that the account of W and V is the truth, that X was the aggressor. I therefore find allegation 1 to be proved in respect of the attempted strangulation.

Allegation 2

[30]This allegation concerns controlling and coercive behaviour. It is the Applicant’s case that there has been coercive and controlling behaviour throughout their relationship. She alleges that if she failed to abide by the Respondent’s rules, she would be met by verbal and derogatory name calling, and sometimes violent retribution. This she asserts, has continued post separation, with little or no thought for the emotional wellbeing and impact upon Y.[31]W relies on police disclosure and historical events. In 2017 I note there was a MARAC referral from Hospital. This evidence is W being very frightened about the consequences of her disclosure, and not wishing:
“To report incident to police.”
The report continues:
“She is very concerned about consequences if partner finds out.”
[32]The report at page 317 of the bundle notes W disclosing:
“Episodes of abuse which are sporadic and without warning.”
There is mention of early medical attention in 2016 due to open wounds in her arm and wrist. The report further notes that:
“Abusive episodes seem to be more aggressive in nature.”
Escalating from initially headbutting and punching arms and face, to then dragging by the back of the neck and head, and also being thrown against a bathroom window, resulting in medical attention.[33]This is evidence of W telling medical professionals, it appears, about episodes of abuse, including headbutting and the bathroom window incident mentioned, in fact, in the schedule. W further relies on an abandoned 999 call in January 2018. The police note is in the bundle at 324. The call was traced to the parties’ then home. Later, W disclosed to the police in 2021 that she had confronted X concerning her abusive behaviour, and that W threatened to call the police, the abandoned call, to which X had said:
“If you don’t put that phone down I will fucking kill you.”
[34]In fact, when the police traced the call they were sufficiently concerned to remove W from the address. They had heard, it is noted, X shouting at the police, and in an agitated state, as recorded in the report.[35]On 12 October 2020, I note an online referral from the Nursery to Police, raising questions about W and Y and the comment:
“In 20 years, I have honestly never had this level of behaviour from a parent. X’s behaviour is bizarre, and she lies and is extremely manipulative.”
That is at page 267 of the bundle.[36]On 20 October 2020, there is a police entry that W had reported that, over a period of four years, X has been violent towards her, assaulting her on numerous occasions, trying to control everything by telling her what she could and could not do, page 337. It is also at this time that Police are concerned about the video showing a lot of swearing and abuse by X, with no regard for Y who is present, and I shall turn to that in a moment.[37]W filed these various audio and video recordings of incidents in 2020, where Y was present. I shall read the precis of the recordings as set out in the schedule. The recordings are all numbered for clarity’s sake. W3:
“You fucking dirty little slag. I currently am assessing if you are going to see Y at all after what I’ve found out W, and your lies and lack of trust. Because you’ve got a terminal illness, everyone’s got to fucking make allowances for fucking W. No. Grow the fuck up, so fucking what, that gives you a free pass to be a cunt through your life, does it? I will talk to your dad about Y, and seeing Y, and nobody else, because the rest of your fucking family are exactly like you.”
[38]There are then other entries, W4, W5, and W6, and an entry called recording 5. I do not intend to read them out, and they can be appended to this judgment in due course. I note when viewing and listening to the videos, Y’s calm and unperturbed demeanor, as if this was behaviour and language that Y was familiar with.[39]Prior to this hearing, I acceded to W’s late request to admit a statement and audio recordings from a previous partner of X’s, a T. She did not give evidence as I only allowed the admission of the audio recordings having heard submissions from X. In my judgment the audio recordings amounted to similar fact evidence, if believed. They were relevant in a fact finding in respect of the balance of probability test, and indeed the interests of justice required in my judgment, the evidence to be admitted, see the dicta of Jackson LJ in the case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088. The admissions of the recordings alone in any event was not finally opposed by X.[40]The extracts of the recordings of X and T are as follows. This is X talking to T:
“What have you done? Sat on the edge of your bed like this, like a fucking silly little cunt that you fucking are. In the morning you’re fucking gone. Fuck. You’ve come down here like you’re some little fucking victim, ha. You fucking think I’m some kind of fucking mug, go to fucking sleep and disappear, that’s the best thing that can happen to either of us tomorrow. I don’t want you anywhere fucking near me. I’m going out for a fucking fag and when I come in, you either turn those fucking lights off and be in fucking bed or be downstairs, because if you’re not I will drag you, your dog and your shit, and I will fucking put you outside the front door, because you will not fucking change so take your arse to fucking bed. Pretend that you are fucking asleep and close the fucking curtains and then turn the fucking lights out because I literally do not want to fucking look at you any more sitting at the edge of the fucking bed like some sad little cunt.”
There are two other recordings in the same vein.[41]W’s submissions are the recordings are shocking, and that together with the references to police notes, and MARAC intervention, she has demonstrated a course of controlling and coercive behaviour over a period of years. She points to Y being unfazed by being present during the tirade, as has the Guardian in fact, and she submits behaviour has been normalised, these outbursts by X being regular occurrence. W’s case is that these recordings, all of them, should not be taken out of context. They are a pattern, she says, of controlling and coercive behaviour.[42]X denies such a course of behaviour. She denied in evidence that the recordings with Y showed a pattern and said it was an isolated incident. She said she was ashamed of the way she behaved on that occasion. She said:
“I deny that I am either an aggressive or a violent person, and aside from the video have never displayed such emotions.”
She asserts that the recordings are only snippets of an argument concerning a possible new partner of W, and that W was being abusive too, out of sight and hearing, it would appear.[43]Dr Bentley, the psychologist had reported earlier in the proceedings, and who had listened to these recordings, thought that X had not minimised the videos in any way, and had in fact taken responsibility, which to be fair, X acknowledged in her oral evidence.[44]X considered that T had acted in ways earlier that had antagonised the situation, thus causing the argument and abuse on the tape. She pointed out too that W and T had been in contact, and that the Court should give little weight to T’s evidence. The Court heard from X about her stressful life, and her attempts at self-improvement, books and programmes geared to assist her to best attend to Y’s needs. She told the Court she had moved away from her previous circle of friends who drank. She was leading a new and child focused life. That was the thrust of her evidence.[45]Finally, X asserts that it was she who agreed to Y taking W’s surname as evidence that she was in fact not controlling. She further submits that the sets of recordings and other evidence submitted by W do not reach the required standard of proof to make a finding.[46]Having heard the recordings myself, I find as a fact that the shocking, abusive behaviour, for that is what I find it to be, is not an isolated incident, as X argues. The recordings made by T corroborate the behaviour, as do the documented reports of abuse as set out in the police reports. There is a striking similarity to the recordings, and in submissions my attention was drawn to similar interrogation tactics in both sets of recordings:
“I’m going outside for a fag, cigarette, and when I come back…”
[47]I find the behaviour of X to aggressive in the extreme, and abusive, and very threatening to W. I find Y’s demeanour in the recording to be that of a young child who has normalised this behaviour, and who, it is reported, has used the F word at nursery, aged about two. It is very apparent in the recording that X herself did nothing to remove Y from the room, nor did W in fact.[48]I noted too when X gave evidence that she found it difficult to acknowledge W as a parent. I picked her up myself on an occasion when she referred in the witness box to Y as: “My [child]”.[49]Counsel for the Guardian gave her opportunities to acknowledge W as a parent, and have a positive attitude to W. X proved to be reluctant, and in my judgment X showed throughout her evidence in fact, a marked lack of insight into the emotional damage to Y and generally.[50]I conclude, looking at the whole pattern of behaviour as I must, and evaluating the pattern of behaviour by looking at the wider picture, that I prefer the evidence of W as to the controlling and coercive behaviour of X during their relationship, not only because I find W to be the more reliable and credible witness, but because it chimes absolutely with all the independent evidence I have which I have referred to earlier in this judgment. I therefore find allegation 2 to be proved on the balance of probabilities.

Allegation 3

[51]The third allegation is that X has alienated Y from W and has shown a degree of implacable hostility throughout a course of conduct in the presence and/or in the hearing of this small child. She asserts that she has been portrayed in a negative way, and that this damages her relationship with her {child].[52]W again relies on the video recordings. After the parents’ separation, X’s existing behaviour aimed at diminishing W’s role as Y’s mother escalated, she asserts. The evidence shows that as early as March 2020, X had already made threats in respect of W’s contact with Y:
“I’m currently assessing whether you see Y at all.”
That is in the recording exhibit W3, and in W4 recording, X says this:
“This morning W I was willing to let Y go Friday to Wednesday and for you to see Y every other weekend for a long weekend. You are fucking lucky, lucky, if Y even fucking goes with you when you leave here.”
[53]A similar threat related to W’s parents in exhibit W4, in which X says:
“If I can’t trust them to look after you, they won’t even be seeing Y, do you understand?”
The very fact that X can be heard saying: “I will decide what happens with my [child]” in exhibit W5, it was submitted, is consistent with W’s narrative as to X’s attitude to W’s role in Y’s life.[54]The following sequence of events, helpfully set out by W’s Counsel in the schedule, it was submitted is supportive of W’s case. In October 2020, in minutes of a meeting, X advised that Y was not to be released to W, and that she was taking legal action to have her name removed from Y’s birth certificate.[55]In December 2020, County Council social services record the following:
“It was put to X that her insisting on questions being answered before W could see Y could be seen as controlling and thinking of her own needs, rather than Y’s. X disagreed, saying she needed to know what situations her [child] was going to be placed in, if what W responds with is acceptable then they can have conversations about contact.”
Later in the same note from County Council, I read:
“It is very important for Y to be able to see both parents and be encouraged to maintain a relationship with W.”
[56]In April 2021, there is a text communication between X and W in which X says:
“Y is not coming to see you on Wednesday until I am confident you are disciplining Y properly. Y won’t be coming here.”
[57]In June 2021, W issued her application for private law orders, and on 7 July the scheduled contact that W was to have with Y is cancelled by X. In the same month, July 2021, X signs an application for a Declaration of Parentage, and in September 2021 X tells professionals in the initial child in need meeting that W:
“Is the last person Y should see.”
[58]County Council records its view that it is worried that Y’s contact with W has been stopped by X. In October 2021, X tells professionals at a child in need meeting that:
“People are intent on Y having a relationship with W, which X does not agree with.”
[59]County Council repeated its view and it is worried that Y’s contact with W has been stopped by X. At a separate child in meeting on the same day, W tells professionals that she continues to send cards to Y via post to X’s address every Monday.[60]In February 2022, there was a hearing before me, and I indicated that the order should contain a reference to indirect contact, and the order stated that X should:
“Ensure that Y reads them or that they are read to Y,” referring to letters and cards. In December 2022, X’s position for a hearing in that month was that she was opposed to any form of contact taking place. She told the Guardian Z that: “She had not shared any direct contact from W with Y, and refused to do so.”
[61]In January 2023, contact took place, and it is recorded in the children’s services records:
“They demonstrate warmth towards each other and appeared at ease in each other’s company.”
At the same time, X informed the supervisor that:
“Y had had a meltdown in the car. Y parted easily from X.”
[62]In January 2023, later that month, despite how well the contact on 10 January went, X alleged that Y again had a meltdown, and refused to attend contact. She records the interaction, and I have listened to the recording. X appears to cross- examine Y:
“Why do you think you’ve had such a bad day, darling?”
To which Y protests:
“You’ve asked that a lot of times.”
This, W submits, of the repeated questioning and their nature, across multiple videos, is consistent with X’s manipulative evidence gathering, and on 7 February 2023, Y again refuses to enter the contact centre.[63]Again, X records their conversation, and W submits that this passage is illuminating. X states this: X:
“Why don’t you want to see her?”
Y:
“Because she isn’t nasty.”
X:
“She isn’t nasty? What do you mean Y?”
Y: “I don’t like her.” X: “You don’t like her?” Y: “I want you to take me straight home.” X: “Y, what do you mean she isn’t nasty? Do you mean she is nasty, or she’s nice?” Y: “Is nasty.” X: “She’s nasty? Why?”[64]The Guardian reports in her analysis I note, that X asked her that if contact was going well:
“Whether that squashes the live with application.”
[65]X rejects in her evidence the allegations of alienation and hostility towards W. Indeed, she points to the fact that recent contact between Y and W has been good. She accepts that she stopped contact in September 2020 because W had taken Y to her new partner’s home and bed. She had thought Y was with her parents. X submits that because she had concerns that W would not return Y to her care, she stopped contact again in June 2021. It has restarted only months before in January 2021.[66]This was not put to W in evidence, but there is reference in the police notes at page 347 that W had not wanted to return Y to X in the context that she was frightened of X, and had reported: “Nasty historic assaults” to the police.[67]The Guardian was told by X that she had no intention of giving or reading letters and cards to Y from W. X, explaining this in evidence, said that the cards were confusing for Y, and so she had kept them from Y, but kept them in case Y wanted to look at them in the future. X’s evidence is that contact is far better outside a contact centre, and that this is enjoyed by Y. She relies on Dr Bentley’s initial report which did not envisage, at that time, direct contact, but she does support the current direct contact outside a centre.[68]She accepts that there was no contact for periods of time documented, but does not accept the allegation that she has attempted to sabotage contact by speaking with Y and effectively cross-examining Y as the recordings might show. Her reasons for the recordings are that she wanted Y to express Y’s feelings concerning contact. She wanted to understand Y’s wishes and feelings and Y’s reasons, and X points to passages where she encourages Y to attend, if only for: 69. and reminding Y of a previous: “Good time.”[69]X relies too on Dr Bentley’s assertion, having heard the recordings, that they did not in fact show parental alienation. X therefore denies parental alienation and implacable hostility as alleged in the schedule.[70]I have looked very carefully at all the evidence documented, and that which I have heard orally in Court. Dr Bentley was not called as a witness, and of course has not heard all the evidence. The recordings in my judgment when heard, amount to X cross-examining a very young child who is clearly distressed and very emotional.[71]I agree with W’s submissions that the recordings at the very least are suggestive of X manipulating the situation in the lead up to this final hearing, in an attempt to gather evidence and contrive possibly a situation where Y refuses to attend contact. That is wholly unacceptable parenting in my judgment, in any circumstance.[72]I have heard the evidence of the Guardian in her final analysis that X was resistant, or appeared so, to progressing contact. The Guardian opines as follows:
“I find it disappointing for Y, we are not further down the track in respect of contact with W. Should Y have progressed to a more normalised relation with W, and X more positive supporting that relationship, there would be little reason to consider a change to Y’s arrangements being required. Unfortunately, X has presented as resistant to progressing the arrangements aside from in July 2023, when I believe the realisation of W’s application triggered her to attempt contact. In October 2023, X remained resistant to absenting from contact, and for there to be any progression from monthly supervised contact. There then appeared to be a brief increase in contact which was again reduced, X asserting Y’s behaviour had again deteriorated. I am unclear if X asserts it is contact that destabilises Y and negatively influences behaviour. From what I have read, Y’s challenging behaviour predates any introduction of contact. It is possible there has been negative influence of Y by X, whether intentional or not, possibly due to her own feelings towards W.”
[73]Dr Bentley highlights both parties’ feelings of animosity towards each other, and I am sure that is right:
“W leaving the relationship for another partner remains a significant issue for X, and it was raised again in my most recent discussions with her, when she said, ‘She was given the opportunity to coparent but she didn’t stick around, and started a new relation in County B.’ X asked me, ‘If contact was going well, whether that squashes the live with application’ and it seems X made efforts to try and get contact progress due to the fear of W’s application. The recordings X made of Y rejecting contact in the contact centre suggest at the very least X is not always in tune with Y and Y’s needs, and I’m worried there may have been further messages to Y prior to these recordings, as certainly Y would not be able to articulate why Y feels a certain way, and I’m not surprised Y seemingly becomes angry at being asked.”
[74]Taking account of the wide canvas of evidence in respect of this allegation, I conclude that it is more likely than not that X did pursue of a policy of alienating Y from W, and that she was implacably hostile to her. The recordings of X in my judgment, say it all:
“I will decide what happens with my [child].”
[75]Contact was far from smooth, and there were long periods when Y did not see their other parent. This is, on the evidence as a whole, the fault of X, I find. I have cited the Guardian at length already in my judgment, and I, with great respect, entirely agree with her. I find X’s argument that contact is now going well to be both specious and unsound. When recording Y, X was attempting in my judgment, to sabotage what had been achieved after a long period of time of no contact at all.[76]I find too that when she told the Guardian that she had not shown any of W’s cards to Y, in direct contravention to an order of this Court, she had no real intention to assist Y in understanding family dynamics, or in fostering contact with Y’s other parent. This allegation is proved on a balance of probabilities.[77]Having made the findings as set out in my judgment, I turn to consider Y’s welfare in the light of the very serious findings I have made. Y’s welfare is paramount, and the welfare checklist pursuant to the Children Act 1989 is engaged. A transfer of residence is sought, and consequent orders for contact within the context of controlling and coercive behaviour and alienation and implacable hostility, as I have found to be the case. The law is agreed between the parties and is set out in the skeleton arguments.[78]Perhaps the important dicta is contained in the case of Re L (A Child) [2019] EWHC 867 (Fam), a judgment of the President, Sir Andrew McFarlane, where he discusses transfers of residence, and says this in respect of the previous terminology used, such as a weapon or a tool. The President said:
“I would wish to distance myself from language used, insofar as it refers to a decision to change the residence of a child as being a weapon or a tool. Whilst such language may be apt in discussion between one lawyer and another in the context of consideration for forensic options available to a judge who is seeking to move a case on, such language in my view risks moving the focus of the decision making away from the welfare of the child, which must be the Court’s paramount consideration.”

The President continued:

“Having considered the authorities to which I have referred and others, there is in my view a danger in placing too much emphasis on the phrase last resort used by Thorpe LJ and Coleridge J, in the case of Re A. It is well established that the Court cannot put a gloss on the paramountcy principle in the Children Act 1989 section 1. I do not read the judgments in Re A as purporting to do that. The test is, and must always be, based on a comprehensive analysis of the child’s welfare, and a determination of where the welfare balance points in terms of outcome. It is important to note that the welfare provisions in the Children Act 1989 section 1 are precisely the same provisions as those applying in public law children cases, where a local authority may seek the Court’s authorisation to remove a child from parental care, either to place her with another relative or in the alternative care arrangements. Where in private law proceedings the choice, as here, is between care by one parent and care by another parent, against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care.”
[80]He uses the phrases such as last resort, and draconian cannot and should not indicate a different or enhanced welfare test:
“What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider the elements in the section 1(3) welfare checklist which apply, and the facts of the case, and then taking all those matters into account, determine which are of the various options best meet the child’s welfare needs.”
That last sentence I have in my judgment, emphasised.[81]The Guardian required in this case, a determination of the factual matrix before the Court could make the most appropriate welfare decision for Y. That has occurred now, and I have found X to have been domestically abusive, and coercive and controlling towards W, and furthermore that she has attempted to both marginalise Y’s relationship with W, and I found as a fact that she has attempted to alienate Y from W, all within an atmosphere of hostility.[82]The Guardian in these now determined circumstances considers that Y may be better placed in the principal care of W. She opined that otherwise, X will continue her behaviours towards W, not recognise W as a parent, and Y’s relationship with W would be severed. This would be, she says, a significant loss to Y, when:
“W is likely to be a positive role model and influence on Y’s life.”
[83]The issue for the Court to decide in the light of the findings made, is the balance of harm test in respect of Y living with X or W, having regard always to the paramountcy principle, and the welfare checklist always at the forefront of my mind when considering these issues. This holistic welfare exercise involves the Court weighing up the short term disruption in a move by Y to live in County B, as against the long term benefits of Y living with W, weighing up the advantage to Y of remaining in a home Y knows well, as against a move which will cause Y upheaval, at least in the short term.[84]Y’s views are not known. Y is five years old and has significant behavioural difficulties. Y has not been spoken to by professionals, quite rightly so in the circumstances. Y has been suspended from school and attends for one or two hours each school day. Y is awaiting a finalised EHCP with the recommendation being, it is thought, that Y needs to attend a specialist school yet to be found in County A. If Y lives with W, she has made enquiries of a suitable school, and subject to the EHCP, Y will be able to attend that establishment in the foreseeable future.[85]X submits that if Y moved, Y would lose their friends and a key worker at their current school, and of course Y would move from their primary attachment. This is true, but of course Y is barely attending school currently, and in any event, and almost certainly, Y will need to move to a specialist school in County A. X submits that she has changed, that she has worked upon herself by way of self-help books and programmes. That the recordings of her by W when Y was present witnessed a very stressful period of her life. Similarly with her own recordings of Y.[86]She is noticeably clear that she considers that Y would be at risk of harm if Y moved to live with W now, and I take all that into account when considering the balance of harm test. The Guardian was impressed by the way W responded when she asked how she would deal with Y when Y was angry and playing up. She thought W would be the more nurturing parent, as she put it in evidence, and thought that W’s example of using faces on eggs was appropriate, and put in a nurturing and understanding way.[87]By contrast, as set out in her analysis, and having heard the evidence, she did not resile from her conclusion that X was: “Bordering hostile” and was unwilling for Y really to have a proper and parental relationship with W. The Guardian said that Y’s behaviour would worsen if Y remained with X, who remained hostile to W and consumed by hated of her, she concluded.[88]The balance of harm to Y must be considered in the context of where Y should live. I have made the most serious findings against X. I shall not repeat them again. I agree with the Guardian’s final analysis and her recommendation. I prefer the evidence of W to X when I evaluate and weigh the welfare checklist elements and balance of harm.[89]If Y remains with X as primary carer, I am satisfied that Y will face, as Y has done and as has been proved, a cocktail of harm which would be significant when I evaluate what has occurred in the recent past. If Y remains with X, Y will be open to witnessing X’s abusive behaviour. She has yet to engage in any therapy of note with other partners, and importantly, cessation of all contact with W is likely to occur.[90]Having heard all of the evidence, and like the Guardian I have no confidence at all that Y would enjoy any fulfilling contact with the absent parent, W. Y has to leave school almost certainly in County A for a yet to be found specialist school. Y barely attends currently anyway, and I find this minimises that aspect of disruption that is their schooling.[91]In my judgment the risks involved in transferring Y’s residence to W are outweighed, as the Guardian opined, by the long-term gains in Y avoiding the significant harm Y is more than likely, on the evidence, by living with X. This is the option that best meets Y’s welfare, having regard to the balance of harm test, and having regard to the welfare checklist throughout.[92]I am satisfied from what I have heard from W that she is well prepared for Y to live with her and her parents in a suitable home. The weight of evidence supports her role as a parent to Y. She has made enquiries and found a school. She has backup from parents and a brother who will facilitate contact. She can purchase whatever Y’s difficulties require Y to have, and above all she loves Y very much.[93]There will, I am certain, be difficulties for a while whilst Y settles, short term pain, but I am satisfied the longer-term gain is absolutely in the child’s best interests. I am also very satisfied that W will promote Y’s contact with X. This is very important, and like the Guardian, I am satisfied that she is well placed to do this with the assistance of family members.[94]I will in all the circumstances, therefore, make a Live With Order in respect of W. Parental responsibility is agreed by the parties, and the final order can reflect that agreement.[95]Contact with X will be of the utmost importance. The parties have to their credit, agreed alternate weekend contact, wherever the Court decides Y should live. I agree with the Guardian’s submission that Y must have a period of settling in in their new home in County B with W and her family. In my judgment, this is very important. Y will almost certainly have difficulties in settling into a new home and routine if every fortnight Y travels back to County A for a weekend with their other parent.[96]The Guardian’s recommendation is for a four to six week break from weekend contact, and I agree with that. The Contact Order therefore will be as follows. Y will travel to live with W tomorrow or Wednesday. It is not in the child’s interests at all to delay any move as the Guardian again opines. I hope that this can be agreed between the parents with the Guardian’s assistance. Perhaps W’s brother or parents will travel to collect Y with W, I do not know. The evidence does not lead me to suggest that X takes Y to County B, unless they are able to meet at a mutually agreed venue, and not at W’s home.[97]Y will have direct contact with X from Friday 22 March to Sunday 24 March, that is six weeks’ hence, and fortnightly thereafter, simply to have a Saturday night staying contact rather than a Friday and Saturday, in my judgment is too rushed for the child, taking account of travel, and Y will then have sufficient time to enjoy being with X. It is in Y’s best interests.[98]Provided all has gone well, I see no reason why Y should not spend half of each school holiday with X, commencing in the summer holidays this year. Until then, the alternate weekend regime stands. After the summer holidays, again, provided all has gone well, Y can spend half of all future holidays with X, including half terms. The fortnightly regime will then operate in term time only. Dates of holiday contact must be agreed by the parties at least 56 days in advance of the commencement of the school holiday.[99]I make no order for indirect contact, again taking the steer from the very experienced Guardian in this case. Y is almost certainly going to find this move difficult. Y will want reassurance from X, which I sincerely hope that she can give Y, and it will be up to W to field phone and video calls with X as and when she feels they are required, taking her steer from Y themself. Such contact though should be at least three times each week until the first direct contact in March as ordered.[100]Y’s difficulties are well documented. Y will require equipment and specialist information. I trust X to assist W with all that she will require. There will be expense involved for W as Y will probably need equipment etc. in both homes.[101]Y requires a break from litigation, as do these parents. I have considered a Section 91(14) Order. This case is not one of repeated and unreasonable applications in fact, it is an order of last resort for the obvious reasons set out in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573. In Re A (A Child) (supervised contact) (S91(14) Children Act 1989 orders) [2021] EWCA Civ 1749, a much later case, in as the Court described, a changed landscape, King LJ said this:
“There is now considerable scope for the greater use of these protective filter in the interests of children.”
[102]In my judgment, it is absolutely in this child’s best interests to benefit from a protective filter in respect of possible applications to this Court. I therefore intend to make a Section 91(14) Order in the circumstances, for three years, that is until 5 February 2027. Any applications made for permission during this three years period should be listed before me, if available.[103]Finally, I urge both parents to put behind them the animosity that has permeated these proceedings and Y’s entire life thus far. They both need to support Y, to back Y, and do their utmost best to ensure an absolutely smooth transition for Y, and to give Y the best life going forwards. That is the judgment of the Court.