A v S [2025] EWFC 331 (B)

In the Family Court Case Number: ZW21P00588

[2025] EWFC 331 (B)

THE CHILDREN ACT 1989

Heard in Barnet County Court

Venue Sitting in The Royal Courts of Justice

On 29 and 30 July 2025

Before

RECORDER BRANNAN

Between

AApplicant

Applicant FatherApplicant

SRespondent

Respondent MotherRespondent

Applicant Father

Respondent Mother

Ms Dunne instructed by SA Law Chambers Solicitors for Applicant

Mr Majid of Lawmatic Solicitors for Respondent

JUDGMENT AND REASONS

IMPORTANT NOTICES

Date 2025-07-30

[1]This is an anonymised version of the judgment given ex tempore in private on 30 July 2025.

[2]The names of the parties and the children are not to be disclosed in public without the permission of the court.

[3]The court gives permission for the original judgment along with any documents referred to in it to be disclosed to the Home Office and in any appeal by the applicant against a decision of the Home Office.

[4]Orders regarding disclosure following this judgment have been made separately.

The Children

[5]This decision concerns the welfare of two boys, M, born November 2015, and L born on October 2019.

[6]Their parents are A, born in 1987, and S, born in 1983.

[7]Until the end of the closing submissions, both children were referred to with the same surname as A. It came as a surprise to me that the mother changed M’s surname in 2019 to her surname and registered L with that surname when registering the birth. Names are in important aspect of personal identity. The mother should have informed the court at the outset of these proceedings that the names of the children were wrongly recorded by the court. The father should have informed the court as soon as he knew. In any case, I am not dealing with any application for changing any names.

The Hearing

[8]At the hearing I began by checking with the advocates the documents I am to consider in this case. These are:(a) The bundle of 256 pages

(b) The position statement of the father

(d) An email from the mother’s solicitors to father’s solicitors dated 19 March 2025 asking him to stop sending “unwanted gifts”

[9]I was told a witness template had been sent to the court but it had not reached me. We agreed a different witness template anyway.

[10]I dealt with the following preliminary matters.

[11]First, the father applied to adjourn the hearing for an addendum Cafcass report. The mother opposed this application. I gave an ex tempore judgment refusing this application at the hearing. In summary my reasons were:(a) it was not unfair on the father to proceed because he had known about the circumstances of this hearing for a long time and had not sought the report earlier despite having legal representation; and

(b) it was not in the interests of justice to further delay these proceedings and create additional cost. All parties were ready and able to go ahead with a final hearing.

[12]Second, Ms Dunne said that the father sought to be named on L’s birth certificate and to have parental responsibility. The mother opposed this and opposed consideration of this at the hearing. I decided it was in the interests of justice to determine this at the hearing. There was adequate time to do so and the evidence of the issue of child arrangements would also be relevant this question. It was good use of court time, fair and in the best interests of the child to determine this without unnecessary delay.

[13]Third, I raised the matter of immigration status. The father had said his status was “resolved”. I asked to see the document showing this. He provided a letter from the Home Office showing he had been granted leave to remain while these Family Court proceedings are ongoing as he seeks direct contact with his children. I explained that this was correct legally. The reason for this is that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 says: (6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

[14]In RS (immigration and family court proceedings) India

[2012] UKUT 00218 (IAC)

, Mr Justice Blake, sitting with Lord Justice McFarlane and Upper Tribunal Judge Martin said: 1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider: i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision? ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child? iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare? 2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies? 3. Having considered these matters the judge will then have to decide: i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings? ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast)

[2007] EWCA Civ 133

? iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings? iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?

[15]The father’s immigration situation had not reached the stage of Tribunal proceedings. The Home Office correctly identified that the father has a right to remain in the UK until conclusion of these proceedings in the Family Court.

[16]Fourth, I raised the issue of harm in relation to the mother’s proven allegations. Her allegations that were proven were dated(1) August 2013,

(2) September 2013,

(3) November 2013 and (5) January 2016. Allegation

(4) was dated “2015” found to be proven in part. That part was:

“the [father] attacked [the mother] in front of her parents”

. Her statement dated this as 4 August 2016 and there was a video of this, though I do not know if anyone saw it in court.

[17]Of the proven allegations, only number 5 and possibly the proven part of number 4 post-dated the birth of a child. I therefore explained that I needed to understand the issue of harm to the children in light of no proven domestic violence between at the latest, August 2016 until the father leaving the family home on 29 October 2019. I note that in fact both the August 2016 and 29 October 2019 are dates that have been resiled from by the mother and father respectively. I discuss this below.

[18]I then heard oral evidence from:(a) Ms Lambert of Cafcass

(b) The respondent mother

[19]The mother had the assistance of a Spanish interpreter. The father had the assistance of a Bengali Sylheti interpreter.

[20]Both advocates then made closing submissions. These reiterated the position of the parties that:(a) The father seeks direct contact with his children beginning with supervised contact sessions and then moving to unsupervised contact with a view to eventual overnight contact.

(b) The Mother seeks no contact at all between the father and children.

Legal Framework

[21]The advocates agreed a legal framework I have slightly reordered for this judgment.

[22]The children’s welfare is my paramount consideration. This is the first and most important principle of Children Act 1989 (the “Act”).

[23]When I consider welfare, I must do so with reference to the checklist of factors at section 1(3) of the Act. These are:(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

[24]I must make decisions to avoid delay, and I must not make an order unless it is better for the child to make one that not to make one. The court is to presume, unless the contrary is shown, that involvement of a parent in the life of the child concerned will further the child’s welfare, if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.

[25]Each person involved in this case has a right to family life under the European Convention on Human Rights, and the Human Rights Act 1998. Any order I make will interfere with this right, and so my order must be both necessary and proportionate in its character. If there is a conflict between the rights and interests of the parent(s), and that of the child, the child’s rights will prevail.

Domestic Abuse

[26]PD12J is engaged as there have been findings made of domestic abuse. The following sections are highlighted to me: 5 […] Consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms. ... Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic abuse has occurred 35 When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child. 36(1) In the light of- (a) any findings of fact, (b) admissions; or (c) domestic abuse having otherwise been established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained.

(2) In particular, the court should in every case consider any harm- (a) which the child as a victim of domestic abuse, and the parent with whom the child is living, has suffered as a consequence of that domestic abuse; and (b) which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made.

(3) The court should make an order for contact only if it is satisfied- (a) that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact; and (b) that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent. 37 In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider – (a) the effect of the domestic abuse on the child and on the arrangements for where the child is living; (b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents; (c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent; (d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and (e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse. Directions as to how contact is to proceed 38 Where any domestic abuse has occurred but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for the child, the court should consider what, if any, directions or conditions are required to enable the order to be carried into effect and in particular should consider – (a) whether or not contact should be supervised, and if so, where and by whom; (b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking intervention (subject to any necessary consent); (c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period; and (d) whether it will be necessary, in the child’s best interests, to review the operation of the order; if so the court should set a date for the review consistent with the timetable for the child, and must give directions to ensure that at the review the court has full information about the operation of the order.Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supervised by a parent or relative, is not appropriate. 39 Where the court does not consider direct contact to be appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact. The reasons of the court 40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

Risk of Harm

[27]In Re M and R (Child Abuse: Evidence)

[1996] 4 ALL ER 239

[1996] 2 FLR 195

, the Court of Appeal set out how the court should consider harm and risk of harm:

“The court must reach a conclusion based on facts, not on suspicion or mere doubts [..] in our view risk of harm means the real possibility of future harm”

[28]I would add that Practice Direction 12J says at 4: Domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

No contact

[29]In the note on the law there are extracts from cases referred to in Re C (A Child) (No contact)

[2024] EWFC 366 (B)

. The law of precedent requires me not to find cases that have similar facts and decide this case in the same way, but to find statements of law in courts of record and apply this. This is neatly summarised in Re R (No Order for Contact: Appeal)

[2014] EWCA Civ 1664

where the Court of Appeal noted five key principles relevant to my analysis:(a) the welfare of the child is paramount;

(b) it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living;

(c) there is a positive obligation on the state and therefore on the judge to take measures to promote contact, grappling with all available options and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact;

(d) excessive weight should not be accorded to short-term problems and the court should take a medium and long-term view; and

(e) contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child’s welfare.

Declaration of Parentage

[30]The declaration of parentage is sought under the Family Law Act 1986. ED v MG

[2025] EWHC 1876

refers to a summary of the law at [23], which itself was set out by Mr Justice Cobb in paragraphs 19-21 of Re A and B

[2025] EWFC 41

. The relevant law is actually set out in paragraphs 17 to 22 which says: 17. The relevant parts of section 55A FLA 1986 read as follows:

"(1) Subject to the following provisions of this section, any person may apply to the High Court, or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named. (5) Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child. (7) Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration". (Emphasis by underlining added). 18. Section 58 of the FLA 1986 provides: "(1) Where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy". 19. These sections have unsurprisingly been considered by the court on a number of occasions. I was taken to Re S (a child) (declaration of parentage) [2012] EWCA Civ 1160 in which Black LJ (as she then was) observed (at [23]) that in considering an application of this kind, section 58 FLA 1986 makes clear that a judge "is deciding whether a fact is established, in this case whether this man is the father of this child"; it is not "taking a discretionary welfare decision or making a value judgment"

. Of the specific statutory provisions with which I am concerned, she said ([28]):

"… the thrust of sections 55A and 58 is that a declaration will be made unless there is a reason not to do so. Section 55A(5) does not simply invite the court to carry out an assessment of whether it is in the child's best interests to have a determination of the application. It empowers the court to refuse to hear the application if it considers that determining it "would not be in the child's best interests"

. By the time section 58 is reached, the impetus towards the declaration has become even stronger. It will be made unless to do so would not only be contrary to public policy but manifestly contrary to public policy". 20. At [31] of Re S, Black LJ described a theoretical but "obvious" and "radical" case in which the court would be likely to refuse to hear the application as not being in the best interests of the child, namely if it were to concern a teenager who is threatening suicide in the event the application is permitted to proceed, and where the evidence reveals that "should the proceedings continue, the child is at serious risk of emotional harm at the very least". Black LJ suggested two further examples at [32], namely that:

"… the child conceived in a rape or the child who is settled with adopters would potentially give rise to a power under section 55A(5) to refuse to hear the application"

. Those examples provide a useful and authoritative benchmark. 21. In P v Q and Others (Declaration Of Parentage)

[2024] EWFC 85 (B)

Gwynneth Knowles J, having referenced Re S above, went on to comment on statutory provision in section 55A(5) FLA 1986 (the 'Declaration Gateway' as she called it) as follows: "[27] When considering best interests pursuant to section 55A(5), the court is not required to consider whether hearing the application is in the best interests of the named child but only to consider whether hearing the application would not be in the child's best interests. Neither the paramountcy principle nor the welfare checklist in the Children Act 1989 are engaged in this exercise". (Emphasis by underlining added). 22. Mr Niven-Phillips invites me to consider the

Article 8 ECHR

rights of the parties involved in this application. In this respect, he cited MacDonald J in MS v RS (Paternity)

[2020] 2 FLR 689

, especially at [95]: "… any decision by the court not to accede to the father's request to legally determine whether he is the father of the children constitutes an interference with his right to respect for family life unless it is in accordance with the law, pursues an aim or aims that are legitimate and can be regarded as necessary in a democratic society. In addition, it would be unfair on the father, and arguably a further breach of his Art 8 rights, to remain indefinitely as the children's legal father by virtue of a presumption if that is not the biological reality. Beyond these factors, there is a wider public interest in the children's status being, eventually, formally settled and recorded in properly maintained records, not least to address potential future questions with respect to, for example, consanguinity". (Emphasis by underlining added).

Parental Responsibility

[31]Applications of this nature are determined in accordance with the child’s welfare. The court of appeal in Re H(Minors) (Local Authority: Parental Rights) (No 3)

[1991] Fam 151

, CA, 158 has identified three particularly important factors for courts to consider, namely:(a) The degree of commitment the applicant has shown towards the child;

(b) Their degree of attachment with the child; and

[32]The list of factors are not exhaustive (Re RH (A Minor) (Parental Responsibility) [1998] 2 FCR 89, CA, 94. In addition, satisfying these criteria may not be necessary in the individual circumstances (Re M (Parental Responsibility Order)

[1994] 1 FLR 504

, 508.

[33]A refusal to grant F’s application is rare and granting PR to F is seen to promote a positive image of him to the child which is relevant to developing the child’s own secure sense of identity (Re G (A Minor) (Parental Responsibility Order)

[1994] 1 FLR 504

, 508.

Facts

[34]I find facts looking at all the evidence in the round, except that much of the relevant fact finding was already done in the Judgment of District Judge Jabbitt dated 16 November 2022. Before I turn to this, however, I make a general observation about the facts in this case.

[35]When it comes to fact finding we lived in an imperfect world. The court determines facts based upon the evidence before it, which it considers in accordance with the law. The evidence for this case is more imperfect than is typical for three reasons.

[36]First, both parties have been significantly reliant on interpreters, yet the witness statements they have used show no sign of having been prepared with this in mind. There is no evidence of them having been translated to the witnesses in a language they understood. It is self-evident that aspects of them have not necessarily been understood. An example of this is the mother relying on a date of a proven incident of domestic violence that is in the schedule of allegations rather than her own statement adduced in support of that schedule.

[37]Second, there has been significant delay in this case. The delay has had three phases.

[38]Phase 1 was between the incidents of domestic violence and complaints about them. It is well known that memories fade and are altered by time. There was a gap of over six years the mother’s last claimed incident of domestic violence at the fact-finding hearing, and her statement where she explained this dated 5 May 2022.

[39]Phase 2 overlapped with the first. This was between the father walking out of the family home in 2019, and him seeking contact with his children through the courts on 20 January 2021.

[40]Phase 3 was in these proceedings. They have been going on for four and a half years.

[41]The result is that M has had no direct contact with his father, except on between one and five occasions in 2022, since 2019. I say between one and five because neither parent said there was only one contact, as Judge Jabbitt found. Whatever the exact number, L only had those occasions of contact.

[42]Such delay means I am now looking at the welfare impact on the children of incidents that happened over a decade ago.

[43]Third, I have a paucity of independent evidence on the current wishes and feelings of the children. My decision not to grant an adjournment for this purpose was correct because it would entail even more delay. But it does make the job of the court harder as I have to piece together information from multiple sources and draw reasonable inferences, rather than having the direct observations of an independent person.

[44]Judge Jabbitt, at paragraphs 28 to 33 and 35 of his judgment made the following findings:28. I am satisfied to the civil standard that [A] is principally concerned with regularising his immigration status, in making this application. [A] came to the UK in 2010 on a student visa, [A] seeks to blame his solicitors, but the fact remains that he has never attended any educational institution. [A] and [S] were married in an Islamic ceremony on 31 May 2015, [S] was already pregnant with their first child M, who was born [in November 2015]. [A] subsequently obtained a family visa, supported by [S], on 23 November 2018, with an expiry date of 23 November 2023. [A] did leave [S] in 2019, [A] says it was October, [S] says it was August. [S] was again pregnant, giving birth to L [in October 2019]. [S] in August 2020 asked the Home Office to cancel [A]’s visa.

29. I am satisfied on the evidence that [A] simply decided that he did not want to continue his relationship with [S], despite the fact that this might affect his immigration status. [A] still did have a visa at the time both of his NMO application and the CAO application, he was well aware that unless he could establish a direct relationship with his children, it was likely that he would be unable to establish a family life sufficient for him to be permitted to remain in the UK. I note that the NMO application was made on 19 February 2020, without any admissions of fact by [S], and the CAO application was made in January 2021.

30. After [A] left [S] in 2019, [A] did not have any contact with the children, nor did he seek contact. L had not even been born when he left [S]. Thus, his relationship with the children was severed, and the only method [A] has to establish a relationship is by blaming [S] and her family and making allegations of domestic violence and controlling behaviour. [A] has only seen the children once at Westfields shopping centre in February 2022. [A] has not taken up the indirect contact that was ordered by the court on 24 August 2022.

31. It is asserted on behalf of [A] that [S] has admitted that the main reason that she will not permit contact for [A] with the children is because he took money from her during the relationship and has failed to pay any maintenance. Whilst that of itself should not be a reason for denying contact, I am to a degree sympathetic towards [S], which will be apparent from my findings of fact.

32. In relation to money, I am satisfied that [A] did have access to [S]’s account, and gambled away a large amount of money, somewhere between £8,000 and £10,000. [A] was careless with her debit card; I am sure that [S] was able to discover her PIN and make substantial payments to Power Leisure Book. Just because the amounts that leave her account, as shown on the bank statement she has produced do not add up to the amounts, does not mean she is lying. I do not find credible the assertion that [S] and her friend [R] spent the money on gambling, and now [S] is seeking to pin the blame on [A]. It is one of [S]’s central complaints that [A] took money from her, and I believe [S].

33. Mr Gazzain has pointed to the fact that [S] cannot give precise dates of the allegations, nor produce any evidence of injury or of reporting the incidents to the police. I would not expect an individual to recall with precision events that occurred several years before, and the lack of recorded injury is not of itself unusual. [S] has never stated that she was seriously injured. It is well documented in the criminal law that abused partners will endure such behaviour for prolonged periods before seeking help, this applies equally in family law, where abused partners similarly will normalise and accept such behaviour, for a number of reasons. ... 35. There are some anomalies in [S]’s evidence, it is evident, and I find, that [S] did, at times, want the relationship to continue, and [S] has not been truthful about her visits to Whitechapel in 2020, and the meeting with [A], with the children in February 2022 at Westfields Shopping Centre. I am sure that [S] did go to Whitechapel to try and meet [A], and the meeting at the shopping centre was arranged.

[45]Judge Jabbitt went on to reject four allegations made by the father against the mother, and find proven four and a half of five allegations of made by the mother against the father. Those are described at paragraph 14 in the judgment as: Allegation 1 — August 2013: The Respondent alleges that “the Applicant attacked her with a knife, called her daughter of a bitch, pushed her against the kitchen wall, and physically assaulted by kicking her on thigh legs” Allegation 2 — September 2013 — The Respondent alleges that the Applicant called a slut, and often humiliated her by saying things about her physical structure. Allegation 3 — November 2013: Respondent was slapped across the face, pushed over the door and thrown on the floor by the Applicant after she told him to stop gambling with her money. Allegation 4 - 2015: The Applicant attacked her in front of her parents. The Applicant forcefully had intercourse without the Respondent consent on many occasions. Allegation 5 - January 2016: Applicant physically assaulted her by pinching her cheeks viciously.

[46]The half allegation that was found not to be proven was in allegation 4, that the father forcefully had intercourse without the Respondent’s consent on many occasions.

[47]The father had, until the first day of the hearing, maintained that he did not accept the findings. For example, in his statement dated 17 October 2023 he said: 2. I understand that there are concerns that the CAFCASS officer has expressed in relation to extremity of the findings made against me. I still do not accept that these are true and wish to express to the Court that I want to see my children and want to continue to create a bond with them.

[48]On 3 July 2024, Elaine Gaskell met with the father with the assistance of an interpreter to prepare an addendum report for the end of the Caring Dads Programme. As relevant, this says: In the first part of the meeting [A] explained to the interpreter that he had not acted abusively towards his wife, that he had been treated as a slave in the family household and that he had reported the abuse he suffered to the police before his wife made counter allegations. However, he said that he was willing to admit to anything in order to see his children. When it was put it to him that he would not be able to reflect meaningfully on behaviours he had not carried out, he said that he had never had the details of the fact-finding explained to him via an interpreter so he did not fully understand what he was alleged to have done. He expressed his belief that he had never had the chance to give his views to the court. At this point we went through the fact-finding key points one by one;

[49]The report then says the following, which I have mapped to the Allegations: [Allegation 1] Regarding the first finding that he had threatened his wife with a knife and kicked her thighs, [A] said that he had argued with his wife while chopping food in the kitchen, but had never waved the knife, never threatened her and had certainly never kicked her. He accepted that there had been some shouting occasionally, despite him feeling overwhelmed by the extended family, but never any assaults or coercive actions on his part. [Allegation 2] He accepted that he had told his wife that she had put weight on and did not look as attractive as before and that he had suggested she should go to the gym, but he did not accept that he had criticised her in an abusive manner. [Allegation 5] He said that ‘pinching’ his ex-wife’s cheeks was a form of affection he regularly used as part of their relationship. [Allegation 4] He said that he had argued with his wife in front of her family and on one occasion had pushed her lightly. He said it is obvious that he would not assault his wife in the presence of her family.

[50]Allegation 3 is not mentioned at all. It is also notable that the dates of the allegations, is not reflected upon. This is evident from Ms Gaskell saying: He did not openly reflect upon the impact of arguments upon their son and unborn baby...

[51]Allegations 1 to 3 as dated in the schedule of allegations predate the birth of any child. Allegation 4 is unclear on whether it was before or after M’s birth. Allegation 5 is said to have taken place when M was around 2 months old.

[52]However, this is not the whole story because the date of Allegation 4 in the mother’s statement dated 5 May 2022 is completely different. She says the attack was on or after 4 August 2016. The judgment of Judge Jabbitt does not address when this actually took place. It matters because it affects whether M might have witnessed any domestic violence. I was told in closing submissions that the parties accept that the incident was as said in the schedule of allegations, which is 2015.

[53]Furthermore, during the hearing, I remained concerned that the father did not know what he was admitting to. I therefore went back to the allegations in the mother’s statement dated 5 May 2022 ensuring that paragraphs 6, 10, 11, 13 and 15 were translated to him. They are descriptions of each proven allegation.

[54]I went on to check with him about two further allegations. These had been made during the mother’s oral evidence. They were that the father threatened her with a knife in 2017 or 2018 and that he forced M to eat food that he had already vomited.

[55]The applicant’s response to all this can be characterised as him saying that he cannot remember the exact incidents, but he accepts them and if they happened he apologises. It is a dramatic change of position from 17 October 2023. I find it probable that it reflects a change of viewpoint described by Ms Gaskell that he is willing to admit anything to see his children.

[56]Specifically in relation to the allegations made during oral evidence, in closing submissions Ms Dunne said that the father did not recall these and therefore disputed them. I find that the unspecific allegations, made for the first time after a fact-finding hearing specifically for this purpose and with documents showing the father will admit to anything, is not credible. I consequently do not find on the balance of probabilities that these incidents happened.

[57]Turning back to what M witnessed, I note that in the safeguarding letter on 1 June 2021, Eleanor Bailey reported that the mother said M was not present during any domestic incidents. When this was put to the mother her answer was evasive, variously blaming transcription error and translation error. Bearing in mind the timing of the incidents and evidence about them, on balance I find that M witnessed none of them.

[58]I must consider why the father he wants to see his children so much.

Judge Jabbitt already answered that question saying:

“F is principally concerned with regularising his immigration status, in making this application.”

[59]However there are two related countervailing points.

[60]First, I find that mum was well aware that the father gained an immigration advantage as a result of his relationship with her. I particularly note that she went to work soon after M’s birth so that she would be a worker thereby trigger the possibility of the father being able to remain in the UK as an unmarried partner, which he ultimately did, under the Immigration (European Economic Area) Regulations 2006 and then 2016.

[61]Second,

Judge Jabbitt also found that:

“M in August 2020 asked the Home Office to cancel his visa.”

This was after the father had left her. She knew that what she had given she could take away. It is not the behaviour of a person who wants to promote contact. However, Judge Jabbitt also found that the mother did arrange for the father to meet the children in 2022 and tried to meet the father herself in 2020.

[62]I note that the mother denied under cross-examination that she had agreed in 2022 to contact supervised by her in the community. This was bizarre because, not only had Judge Jabbitt found that she did so agree, there is a court order from 22 February 2022 recording her agreement to this where she was represented by Mr Majid who appears today. She came very close to putting him in professional difficulty. Her testimony on this was, I find, not true.

Professional Involvement Since Fact Finding

[63]Following the fact-finding hearing a section 7 report was commissioned. Yvonne Stanley prepared it. It is dated 30 March 2023.

[64]A number of points are relevant from this, with further input from Ms Lambert and explanation from the witnesses.

[65]First, at the time of the assessment, the mother explained that she was in telephone contact with a boyfriend in America who wanted to marry her and have children. M referred to this man in the interview with Ms Stanley as his “good father”. That relationship has ended. The mother did not volunteer any explanation of how the loss of that relationship has affected M.

[66]Second, it was not considered adequate protection for the children that the proven allegations of domestic abuse occurred three years before the father leaving the family home. Leaving aside the allegations from 2017 and 2018, which Cafcass have not heard, Ms Lambert’s view was that the father should attend an accredited domestic abuse perpetrators programme and then subsequent risk assessment before direct contact with the children would be safe. Ms Lambert did not agree with the recommendation of the father attending the Caring Dads programme because it is not accredited.

[67]This places the father in something of a quandary because he has partially done what Cafcass recommended in 2023. Ms Stanley had said:37. I respectfully recommend that [A] reflects on this report and if he accepts the findings of the court, [A] attends the Caring Dads programme facilitated by the St Michael’s Fellowship: Caring Dads | St Michael’s Fellowship (stmichaelsfellowship.org.uk) or another similar domestic abuse programme and provides evidence of his attendance and any reports to the Court.

38. Should [A] complete domestic abuse perpetrator work, Cafcass should be directed to complete an addendum report to include a further risk analysis and assess whether a ICFA would be appropriate at that stage.

[68]It seems unfair now to resile from the suitability of the programme that was originally recommended. I return to this later in my judgment.

[69]However, Ms Lambert’s more serious concern was the recent and, in her view, insincere conversion to accepting the allegations.

[70]Third, Ms Stanley reported M saying: His mother said that his father is not good, because when he was 1 or 2 years old his father was going to punch him, he stated that when he was 3 years old, his father did not like him. I got the impression that a lot of what M was saying was scripted from his mother’s views.

[71]The mother denied denigrating the father in front of the children. I did not find her evidence on this convincing. She has had a longstanding opposition to contact and she has taken steps to prevent the father being able to remain in the country. Her oral evidence also showed an ongoing resentment at him for abandoning her while pregnant in 2019. On the balance of probabilities I find she does talk negatively about him in front of the children and M’s evidence to Ms Stanley reflects what he has heard from her rather than his actual experience.

[72]The father did attend the Caring Dad’s programme. It involved 17 two-hour sessions from 22 November 2023 to 20 March 2024. The reports from this show him having general insight into parenting and maintaining good relationships. The issue was with him not accepting that he was a perpetrator of domestic violence. At the time of these sessions, the father had no leave to remain. He could not financially support his children.

Ongoing Contact

[73]The father has continued to send gifts and letters to the children fortnightly. The mother says the children are not interested in them because of their views of the father and the unsuitability of the gifts, mainly due to being age-inappropriate clothes or toys. She has taken no steps to try to guide the father towards more appropriate gifts. Rather, on 19 March this year she had her solicitors say: [S] has brought to our attention that despite your ongoing efforts, the children have expressed a clear disinterest in receiving these items, as they hold no practical use or significance to them. While our client acknowledges that these gifts may have been sent with good intentions, they have not been well-received, and their continued delivery has become an unnecessary inconvenience. In light of this, we formally request that you cease sending any further gifts to the children unless expressly requested or agreed upon in advance.

[74]It is not the behaviour of a person who wants to promote a relationship between her children and their father. On balance, I give little weight to her evidence as a person able to neutrally relay the wishes and feelings of the children.

Welfare

[75]There are open to me three options:(a) Mother’s proposal of no contact.

(b) Maintaining the status quo of indirect contact, with possible modification to ensure more appropriate things are sent.

(c) A phased re-introduction of contact supervised at a contact centre (and funded by the father) and then moving into the community in due course. This has a modified version where there is a review hearing after a set number of sessions of supervised contact to decide if it should continue.

[76]I must also look at whether or not to make a declaration of parentage and grant parental responsibility for L.

[77]I evaluate each looking at the factors in the welfare checklist. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)

[78]M has a negative view of the father. I have explained above why I find this to be reflective of the mother’s view.

[79]If there were no contact that would accord with this current feelings of M as far as I know them. However when the section 7 report was compiled he had two dads. He currently has only one. I do not know whether long term he would prefer a relationship with his father or no relationship with any father. But there is a statutory presumption that involvement with a parent will further welfare. That does not mean direct contact, but it tends to point away from no contact at all. The evidence is not sufficient for me to find that no contact at all would accord with either child’s long term wishes and feelings.

[80]Maintaining the status quo has similar issues. It is doing little to promote a relationship while the mother is negative about this contact. However, this could be improved. She could tell the father what would be more suitable for the children. Ms Lambert suggested that if gifts were unsuitable, letters would be something that could be kept for the children until they are ready to read them. This has the value of flexibility.

[81]What both of these options entail, however, is the father not having a basis on which to stay in the UK. The reality of no direct contact now is no direct contact again until they are old enough to visit him in Bangladesh. I have no information about their views on never seeing him again during their childhoods.

[82]A phased reintroduction of contact would involve M seeing his father. This is something that Ms Stanley said he was “worried about”. However I also observe that a reason for M’s perception of his father was, at least in part, abandonment. It might be that re-establishment of contact could alleviate that feeling.

[83]L’s wishes and feelings about contact are unknown. Ms Lambert did say that in general terms it would make sense for the father to be named on his birth certificate so his identity matches with that of his brother.

His physical, emotional and educational needs

[84]No specific physical, emotional or educational issues have been identified. The obvious point that the children are boys growing up without a father, had not been relied on by either party. When I raised it, it was agreed to be relevant on behalf of the mother.

[85]An end to contact or indirect contact only would effectively eliminate the possibility of physical, emotional or educational support coming from the father because of the immigration implications.

[86]A phased reintroduction of direct contact allows the possibility of there being a second parent to provide this support. It is notable that between 2016 and 2019 the father did care for M. Until the hearing no issues were raised about this care. For reasons given above I reject those issues and give them little weight.

The likely effect on him of any change in his circumstances

[87]Changing to no contact at all would be a change in circumstances. As the mother is not a reliable voice of the children on their wishes and feelings, I have little reliable information on what effect such a change would have on the children.

[88]Changing to direct contact has unpredictable effects. On one hand, it might lead to re-establishment of a parental relationship to the benefit of both children. On the other hand, the worries of the children may prevail leaving both children harmed by the contact. As a result, only a staged and managed reintroduction of contact is suitable so that it is to their benefit.

[89]The existing indirect contact arrangement could be improved with engagement from the mother. That can only be positive. As Ms Lambert said, if the children do not want to look at letters, they can be kept for when the children do want to.

His age, sex, background and any characteristics of his which the court considers relevant

[90]The children are now 9 years old and 5 years old. They are boys without a father taking a meaningful part in their lives. They are Muslim. Both their parents are of Bangladeshi origin but from different parts of the country. Their mother has a more interesting route to her current circumstances, having spent most of her childhood in Spain. They benefit from this diverse heritage living in a multicultural city. Yet neither parent has really paid much attention to what each of them can offer to the children as result of their backgrounds.

[91]What is clear is that no contact means loss of the connection to the father’s background and loss of a male role-model. Ongoing indirect contact somewhat ameliorates this. Direct contact has the greatest potential to ameliorate this.

Any harm which he has suffered or is at risk of suffering

[92]I am not satisfied that either child witnessed any actual abuse. I am also not satisfied that there was domestic abuse at any stage after M was two months old. To put it another way, he lived in a household without domestic abuse but with both parents for over three years.

[93]There is also little evidence that the mother’s parenting was in fact impaired by the abuse she earlier suffered. As Judge Jabbitt said, she was never seriously injured, though that in no way means she was not a victim of abuse.

[94]Turning back to the specific incidents, Ms Lambert noted that the use of a knife is particularly serious. That is entirely true. But it also long predates the birth of any child.

[95]Denigrating comments also long predated the birth.

[96]The gambling, which was theft and abuse of trust, but not typical domestic abuse, predated the birth.

[97]After these incidents, I was told at the hearing that they decided to get married anyway on 31 May 2015 because they were in love. I note, nevertheless, that by this time the mother was also pregnant. I also note, as Judge Jabbitt did, the observation that some individuals will continue a relationship despite abuse and exploitation.

[98]The next incident was in 2015 on an uncertain date involving an attack in front of the mother’s parents. The “attack” has no specific description whatsoever. It is not in the judgment or in the mother’s statement. I have difficulty working out what harm it might cause M because I do not know what it involved.

[99]In January 2016 is the more specific incident of pinching cheeks viciously, slapping on the face, pushing into the wall and humiliation by saying the mother has a physical impairment to perform activities. This, I find, is an incident of domestic violence after M’s birth. It of course harmful to the mother and child.

[100]But viewed in context it appears on balance to be the last incident. There then followed a period of over three years of cohabitation without incident. For most of this period the father was the primary carer of M.

[101]Looked at this way, I am unable to find that domestic violence has actually put either child at risk or would do so in future. There is a risk from parental conflict, which requires the parents not to be caring for the children together. But that is a correct characterisation of the situation and it is the characterisation given by the father. In saying this I particularly note that the mother’s evidence about why she did not want the father to have contact with the children did not relate to any risk of violence to her or to them. She said that it was because he abandoned her while she was pregnant.

[102]What does that mean for the three options I am considering?

[103]Ms Lambert’s strongly held view was that contact without a Domestic Abuse Perpetrators Programme and risk assessment first was unsafe. In context, I do not agree. Contact was safe for three years and could safely resume, subject to reintroduction at a rate that is reasonable for the children. I agree with Ms Dunne submission that Ms Lambert has, through no fault of her own given the imperfections in this case, relied on a generic approach to risk when dealing with a proven perpetrator of domestic violence without understanding the full facts of this case. It is correct to say that the mother has not suggested she would be at risk of harm – that was evident in 2022 when she arranged contact. It was Cafcass which suggested the risk.

[104]No contact and indirect contact of course eliminate any direct risk of harm. However they also prevent the upside benefit of the relationship.

[105]However, there is another form of harm that had not been addressed. This is the motive of the father for wanting contact. As his motive is immigration, might he regain direct contact for immigration purposes and then disengage?

[106]When I raised this in closing submissions on behalf of the father I was told that the father had been pursuing child arrangements for benefit of children. Only one goal in proceedings was to resume direct contact. It was submitted that he would be committed to it. He is willing to do anything to rebuild the relationship. On behalf of the mother it was submitted that he only seeks an order for contact and then will not engage.

[107]That must be a risk – he did walk out on the family before after he had an EEA Residence Card. But this was not put to him during cross examination either. The EEA Residence Card was also issued on 23 November 2018, 9 to 11 months before the end of the relationship. There is not a direct correlation between the grant of immigration status and the end of the relationship. Furthermore, the mother also then prevented contact in various ways already discussed.

[108]On balance, even if immigration is a motive for the relationship with the children for the father, it is not a reason why the children should be denied that relationship. The father knows well now that he needs the relationship to continue in order to maintain his status but also, and importantly, his status means he can continue that relationship with them. If the relationship is beneficial to the children, the immigration advantage makes it mutually beneficial. The range of powers available to the court under this Act in the proceedings in question.

[109]The court has the most straightforward powers when looking at no contact or indirect contact, both of which I can order without complexity.

[110]The option of direct contact is more difficult.

[111]The father’s proposal has four stages.

[112]First is the reintroduction of the children to him. He thinks that M would remember him and would recognise him. When he met L they became friends after he showed photos. He says there was no issue with the relationship within 10 minutes.

[113]The mother refused to respond to this submission. She refuses to countenance contact at all, point blank. By doing so she refuses to inform the court about the feasibility of the father’s proposal. This is poor conduct, but particularly poor conduct given that the father applied for a child arrangements order in 2021. Her approach is very very far from being child focussed.

[114]On the other hand, the father’s proposal appears to me to be naive. M expressed to Cafcass his own concerns about the father. However ill-founded these are, I accept they are genuinely felt. It would be reintroduction without the support of the mother. As a victim of domestic violence, it would be inappropriate to compel her to supervise the reintroduction. I am concerned that an unmanaged re-introduction after three years for children of this age, even in a supervised setting, carries a risk of emotional harm and, equally importantly, sets the contact arrangements up to fail. However this is a risk only and is only a factor in the balance.

[115]The second stage is ongoing supervised contact. I can order this.

[116]Progressing to unsupervised contact depends on the success of the supervised contact. I was presented with two options for this:(a) To not make a final order but rather to arrange a review after 4 sessions; or

(b) Direct the progression come what may.

[117]Neither option is ideal. The first fails to achieve finality and works in more delay in the proceedings. That is delay on top of significant delay that has already been experienced. The second fails to take the opportunity to ascertain the wishes and feelings of the children after they have had a chance to be with their father. It is not properly allowing consideration of an aspect of their welfare, and my paramount concern.

[118]The only sensible and feasible way forward within the court’s powers would therefore be to have ongoing supervised contact at a contact centre until either the parents agree another arrangement or an application is made to the court to vary it. The latter course would, of course, happen if, for example, the father feels the contact is going well but the mother disagrees.

Conclusion

[119]Having looked at all the factors, and without repeating them, I find this to be a finely balanced choice between the options of continued indirect contact and commencing direct contact as I have just set out. I reject as appropriate an order for no contact as it has no positive points when analysed against the welfare checklist. It is essentially a preference of the mother because of her desire to erase the father from the lives of their children.

[120]The question is which viable option to choose.

[121]This is a decision which will affect the children and their parents for the rest of their lives. The mother’s repeated concern, as also found by Judge Jabbitt, is that the true motive for the father seeking contact is an immigration advantage. She has thrown accusations of wanting to abduct or kill her or the children. These have been without foundation.

[122]The father’s request will require him to prove his commitment over a significant period. It will allow the children to restore a relationship which, for the reasons I have given, would be to their benefit.

[123]On the other hand, the status quo is not actually harmful to them. No concerns have been raised by any professional or any other adult who spends time with them. Restoring contact may be turbulent and difficult. It will affect the mother, as a victim of domestic violence, and thereby potentially affect her parenting. However the status quo will also affect the father, leaving him without a basis on which to remain in the UK and therefore effectively severing the possibility of resumption of a meaningful role in the lives of the children. That does not benefit them long term.

[124]On balance therefore I conclude that an order for direct contact should be made. This should be for monthly supervised contact at a contact centre funded by the father for 18 months for up to two hours. This is a final order. I hope that the result will be agreement by the parents as to contact after this period, or even before its end. If either parent cannot agree to this, either will of course be able to apply to the court to change it.

[125]I grant the application for a declaration of parentage and parental responsibility, placing both children on equal terms with each other.

[126]The children continue to live with mother.

[127]Father should continue to send letters and photos at intervals between the contact. Recorder Brannan