RK v SV [2013] EWHC 4386 (Fam)

[2013] EWHC 4386 (Fam)

Case No UB11P00370

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

[

Venue Royal Courts of Justice

Date Thursday, 28 th November 2013

Before

mrS. justice THEIS

__________

B E T W E E N:

Between

RKApplicant

SVRespondent

__________

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__________

miss simpson (of counsel) appeared for Applicant.

the respondent appeared in Person. for in person

MS. P. LOGAN (solicitor) appeared for Guardian.

__________

J U D G M E N T

mrS. justice THEIS:

[1]This matter concerns a young boy A born in 2006, who is now seven years of age. The father is the applicant and his mother the respondent. A was made a party to these proceedings and is represented through Mrs Odze, the Children’s Guardian.

[2]I would like first of all to acknowledge the enormous assistance I have had from everybody who has appeared before me today. Ms Logan took on the responsibility of preparing the court bundle for each hearing, which has been invaluable to the parties and the court. The mother has represented herself throughout these proceedings and has done so with enormous care. Her written statements have been admirably focussed and dealt only with what was necessary. The father’s representative, Miss Simpson, only appeared in the case today. She readily and quickly grasped the critical matters. I thought her cross examination of the mother was particularly effective as she sought to explore the relevant issues.

[3]I am going to give this relatively short extempore judgment now because these proceedings have been going on for such a long period of time and I am anxious that all the parties know what the court’s decision is. Hopefully with that knowledge they will be able to move forward and make constructive decisions based on the order of the court that I hope will improve matters for A in relation to his relationship with each of his parents.

[4]A has been living in India since 13th December 2011. He attends school there and he and his mother see each other when she either returns to India or he comes over here. In India he is cared for by members of the maternal family, in particular the mother’s brother and his wife.

[5]The issues between the parties are as follows: The father originally issued an application seeking to rescind the order that gave the mother permission to remove A to India in December 2011, because he considered that order had been obtained on incorrect information. He was seeking the return of A to this jurisdiction; either to be placed in his care or in the care of the mother and he would have more extended contact. The mother seeks an order that the status quo is continued, although what she does agree to now is that when A comes back to this jurisdiction on at least two occasions a year - firstly for an extended period in April and May when there is the long school holiday in the Indian academic year and also for a shorter period of about two and a half weeks in October - he will see his father and be able to have contact at least once a week for a period of five hours.

[6]A’s Guardian has filed two detailed reports and she has made her recommendations at the end of her second report. Effectively she supports, by and large, what the mother proposes. She also raises the issue of a section 91(14) order which would prevent the father making any further applications for section 8 orders for a period of time. Her recommendation crystallised regarding the time period to between now and 1st December 2015.

[7]I have been involved in this case for a considerable period of time. As well as reading the court bundle I have also heard evidence today from the father, the mother and Mrs Odze. There is no real dispute about the legal framework within which I have to make the decisions in this case. Firstly, A’s welfare is the court’s paramount consideration. In determining what his welfare requires the court is required to consider the provisions of section 1(3) of the Children Act 1989 and make an evaluation of the matters in the welfare checklist. Secondly, I have been referred to the case of Re B

[2009] UKSC 5

and, in particular, part of paragraph 37 in the speech of Baroness Hale where the following is said:

“All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.”

The other matters in relation to the legal framework concern s 91(14). In particular, the guidelines given by Lady Justice Butler-Sloss in Re P (Section 91(14) Guidelines)

[1999] 2 FLR 573

which are helpfully summarised inPM v. MB & Anor

[2013] EWCA Civ 969

. The guidelines, clearly set out in paragraph 28, make it quite clear that such an order is an order of last resort, the power should be used with great care and sparingly and the court must have the welfare of the child as its paramount consideration. I very much bear in mind each of those matters set out in the eleven paragraphs of the guidelines in considering the order that I should make today. The History

[8]The parties married on 9th May 2007 in India. They separated in November 2008 in this jurisdiction and divorced on 18th February 2010. After the separation the father had some contact to A, although the parties give different accounts in relation to the nature and frequency about contact. However the father was convicted of harassment in December 2009, breaching a non-molestation order in August 2011 and breaching a restraining order in March 2012 and there was a restraining order that in fact remained in place until August 2013. As a result of the father’s behaviour on 9th December 2008, the mother entered into a written agreement with a London borough that she would not have contact with the father and that she would ensure A’s safety at all times. This was because of the Local Authority’s concern about the behaviour of the father in relation to A.

[9]The father applied to Brentford County Court in June 2010 for a contact order and, during the course of those proceedings, the court had forbidden the mother from removing A from the jurisdiction of the court (although in fact the mother said that that order was made in the Uxbridge County Court in separate proceedings taken by the father in that court). She applied to discharge that order and that application was heard with the father’s application for contact. It is said that the father did not see A from about November 2010, although there remained some telephone contact.

[10]The proceedings in relation to the removal from the jurisdiction were concluded in December 2011 with an order of His Honour Judge Turner Q.C. in effect giving the mother permission to remove A from the jurisdiction. The relevant paragraph of that order is paragraph 3:

“The respondent mother shall have leave permanently to remove the child, AS, from the jurisdiction to reside with her in India.”

Part of the evidence that formed the basis of that decision was a report from the Family Court Advisor, Claire Foster, dated 29th November 2011. In the body of that report (particularly at paragraphs 33 and 34) she raises the position in relation to the mother in fact continuing her work in this jurisdiction. She reports that in her discussion with the mother she said it was always her intention to return to the United Kingdom, she was still employed here and she talks about the arrangements in relation to her employment. Even armed with that information it appears her recommendation was as follows:

“I have considered Mr. K’s request for permission to be denied, but felt on balance it is A’s interest to remain living with his mother in a place where she is happiest and most supported as this is likely to be more beneficial for A in the long and short term.”

There was a provision in the order by His Honour

Judge Turner Q.C. for reasonable contact at paragraph 4, where it is said:

“The father shall have reasonable supervised contact to the child, A. Arrangements shall be agreed in writing between the parties.”

The recital to the order referred to this being in India and that there would be reasonable telephone contact. That order was made on 12th December.

[11]The mother took A to India on the following day, 13th December, but she returned back to this jurisdiction very shortly afterwards. It appears from the papers that she returned back to this jurisdiction at the beginning of January; so in fact had only been out of the jurisdiction for a matter of a few weeks. She remained here when A came over here in March 2012 until 24th April 2012. The mother then returned to India in June 2012 for a period of about eleven days. A came back here in October 2012 for a period of about two weeks and the mother went to India around 17th December returning back to this country on 2nd January 2013. Since then the mother has not returned to India; she says, as a result of these proceedings. A has visited this jurisdiction twice - first in the Spring for a period of about two months and then for a period of about ten days in August to early September. So the position on the ground since December 2011 has been effectively that A has been in India, the mother has been based in this jurisdiction with some contact either way between them.

[12]The father issued an application for contact on 9th November 2012, although his application (as I have indicated) also referred to varying or rescinding the order of 12th December 2011. At that stage he said he had no certain knowledge of the mother’s whereabouts or indeed A’s, but he strongly suspected (as in fact proved to be the case) that the mother was living predominantly in England. The matter came before the court on a number of occasions at the end of 2012. In an order dated 21st December 2012 Baker J directed the mother to file a statement setting out her whereabouts, A’s whereabouts, details of where she and A have resided since the order dated 12th December 2011 and her proposals for future contact. The statement that the mother filed in compliance with that order is dated 18th January 2013. Curiously, the mother gives as her address at the beginning of that statement an address in Hyderabad, India. She sought, when I asked her about this in her oral evidence, to suggest that she must have forgotten about the position or that when she received the order she may have been in India and so did not remember to set out her English address. I have to say I find that very hard to believe. I also note that, despite the statement running for about four or five pages and despite being asked specifically in the order to give details of her whereabouts and A’s whereabouts since 12th December 2011, the account that the court now has does not appear in that statement. Reading that statement one certainly does not get the picture that she returned back here very shortly after A went to India and that effectively she has been based here since.

[13]On 21st January 2013 the matter first came before me and I requested CAFCASS Legal to act as advocate to the court because there seemed to be an issue in relation to the court’s jurisdiction; whether A was habitually resident in a jurisdiction other than England and Wales. In fact, when it came back before me on 6th March, the matter was capable of agreement on the basis that the court declared that A was habitually resident in India, but the parents expressly and unequivocally accepted the jurisdiction of the courts of England and Wales. As I have said, it was established that A lived in India but had come to England for some holidays and that he was due to come to England in April 2013. As a result of the jurisdiction issue being resolved, I directed that A was made a party to the proceedings and a High Court team member was appointed as his Guardian. Mrs Odze was allocated to the case and she has filed two extremely helpful reports to assist the court in its decision.

[14]In the preparation of her first report, as well as seeing both the parents, Mrs Odze was able to facilitate and observe a contact session between A and his father on 9th May. This meeting is described in her first report at paragraphs 52 to 57. I only need to read one paragraph from that section which gives an extremely glowing account of the contact that took place. A’s response to his father, despite the fact that he has not seen him for a considerable period of time, was immediate and positive and he engaged with the father throughout the period of contact. As Mrs Odze observes in paragraph 55, she said:

“Throughout the contact session, which lasted just over an hour, I noted a warm and affectionate relationship between A and the father. A was often seen to hold the father’s hand and/or put his head on the father’s shoulder. He was smiling often, especially when they talked about scores [that was in relation to various computer games they were playing on the phone]. Also A sat on the father’s lap for the whole time. They hugged when I mentioned that they had ten more minutes.”

That is just a flavour of the detail given in the report in relation to the contact, which demonstrates the clear benefits to A of his relationship with his father continuing.

[15]Following that the mother supported three more contacts between A and his father whereby they spent time together, but with the mother in the vicinity. The mother also agreed to the father coming to the airport to see A off on his flight back to India on 2nd June 2013. Although those visits did take place, they were not as relaxed and successful as the contact that was observed by Mrs Odze on 9th May 2013. I suspect this was because A was picking up the anxiety of his mother, which I consider provided an obstacle to A being able to enjoy the contact in the way that he had done before.

[16]The matter came back before me for two hours on 17th June 2013 for review/final determination. On that date the father applied for residence of A. The court was unable to deal with the application, due to other cases on the day and the matter was listed on 3rd October 2013 with an addendum report from Mrs Odze to be able to deal with the issues raised by the father’s application for residence.

[17]A came to England on 23rd August 2013 and returned to India on 2nd September 2013. There was some further contact between A and his father and the father telephoned him on 26th August 2013 when they spoke very briefly. There was a contact lasting approximately fifteen minutes on 31st August 2013 and the father also went to the airport to see him off. The meeting was much briefer than on the previous occasion and certainly the description given by the mother of the contact that lasted fifteen minutes on 31st August 2013, she effectively brought it to a halt because the father had asked A whether he would like to go to his home and A said that he did not. Again, I suspect that that was because A had picked up the mother’s anxieties.

[18]The father did not comply with the directions of the court and did not serve the statement ordered by the court to be filed and served by 28th August 2013. That was to include some medical evidence and tests relating to his alcohol consumption. Despite the valiant efforts of CAFCASS Legal and Mrs Odze to remind him of his obligations to do that, he still failed to do it.

[19]The Guardian filed her second report on 10th September 2013. There were further difficulties in getting the father to be able to see that report before he came to court on 3rd October 2013. He did not respond to emails or to letters sent to his new address asking him to confirm whether he was still living there. The Guardian in that second report recommends that A should continue living in India and that the telephone/Skype contact sessions between A and his father that were taking place twice a week should continue. Further, she recommended that the mother should bring A to England at least twice a year for contact and that during those periods there should be contact at least once a week for a minimum period of five hours. She also raised the issue of a section 91(14) order until A reaches the age of eleven.

[20]The mother is in agreement with the Guardian’s proposals. The father’s position really only became clear at the hearing on 3rd October 2013 when he indicated that he wished to pursue his application for residence and he came to court with a document from his GP, dated 27th September 2013 which he said supported his position that he was not reliant on alcohol. On that day the father was not legally represented. He informed the court that he had paid £400 towards securing legal representation for that day, but had been unable to keep up the additional financial payments that were required. So the legal representation that he had intended to be there that day was not available. He said that he was going to continue making financial arrangements to be able to secure legal representation, he was in work and he would be able to do it. Therefore, he persuaded me (with some reluctance) to have a short adjournment until today to enable him to be able to secure legal representation. He was required to file a statement setting out details of his addresses and the dates when he had last lived at them since 1st January 2013 with details of his employment history from the same date with names of his employers and dates when he has worked for them and the payment received with documentary evidence. In compliance with that, he sent an email to Ms Logan on 15th October 2013, which reads as follows:

“Hi Miss Penny Logan, I was living at 31 Connaught Road, West Ealing since January 2013 to the end of July and August 13 to date I am living at 17 Browning Avenue.”

He attached his bank statements to that email which gave some details in relation to his financial circumstances, but did not give any information in relation to his employment position. He confirmed in his oral evidence that he still lived at Browning Avenue and that he had been working through a company at Heathrow Airport at Terminal 2 doing work on air conditioning equipment. This employment had a shift pattern where he worked eleven days on, was not working for three or four days and then worked another eleven days. As a result, his income was variable from week to week. On the week when he was working more days his income was about £500 and on the weeks when he was not working it was about £300.

[21]The order of 3rd October 2013 also required him to notify CAFCASS Legal and the mother by 22nd November 2013 what arrangements were in place for his representation. CAFCASS Legal had received no information in relation to that and sought to try and establish the position, but to no avail. However, he has attended court today with the benefit of Miss Simpson who has been representing his interests today and, as I have indicated, has done so to an extremely high standard.

[22]The other requirement of the order of 3rd October 2013 was that there should be a Punjabi speaking interpreter provided by the court service to be here to assist the father. Although in fact none of the statements filed by him have needed to be interpreted to him, they have all been filed in English and signed off by him in English. It was not a requirement when he had attended any of the previous hearings, but, the court was particularly anxious in the event that he was unable to secure legal representation that, if there were any words that he would not be able to understand. It was done really as a precaution to ensure that today’s hearing was effective. In fact, despite that direction being in the court order, an interpreter was not booked and did not attend at the beginning of this hearing. Following the matter being raised with Miss Simpson, she was entirely satisfied that the father was able to communicate effectively with her. Therefore, on his specific instructions, the hearing did proceed. The father gave evidence first. He was clearly very able to read English. He gave the oath without pause and in fact better than some people who have English as their first language. So he was clearly very able to understand, not only what was in the court bundle when he was asked questions about it, but was also very able to express himself clearly in relation to the answers that he gave. There were one or two occasions when he had questions that he did not understand, but, once they were put in a different way, it was clear that he was able to comprehend them. An interpreter did turn up after the father had in fact completed his evidence, but everybody agreed - including the father - that there was absolutely no need for the interpreter to remain in court. The Evidence

[23]The father gave oral evidence first. There are five statements in the bundle prepared by him. He sets out in his statement dated 1st July 2013, his proposals for the care of A. At that stage he was then saying he was employed as a roofer and was then in accommodation at 31 Connaught Road. He proposed that those with whom he was sharing accommodation were going to assist him with the care of A when he was at work and to be able to assist and support him in providing A’s care. In relation to contact, he set out details of the contact visits he had and his concerns in relation to the mother taking A to India in December 2011. He contended that she had not been full and frank in relation to her plans and that his contact with A was being frustrated by the mother and the wider maternal family.

[24]In his oral evidence, the father announced for the first time to the surprise of everybody (although Miss Simpson may have known beforehand) that in fact he had plans to get married. He had met somebody over the internet called Ms W in the early part of this year. He said they first met face to face in April, since then she had come down and spent long weekends staying with him on a fortnightly basis. He said they agreed to get married in about August or September of this year. The plan is they are going to get married in February of next year and he is going to move to her accommodation in Mansfield. He gave some information in relation to her circumstances. She has five children ranging from, he thinks, age fourteen to twenty-one (the youngest being aged fourteen who is a girl and the older four children are all boys). None of her children live with her, even the children who are sixteen years and under. So that is at least two of them, although he was somewhat vague about their ages. The impression I had was that the younger four children were living with an aunt in Sunderland. When asked why that was so, he said he had not asked Ms W about that. He regarded that as personal information and one was left with the impression that he did not see it as much of his business. As I have said, he has not actually visited Mansfield yet. He plans to go up this December. He plans to stay there between 22nd December 2013 and 1st or 2nd January 2014; the plan is then to get married and move up there in February.

[25]So his proposals, heard for the first time in his oral evidence, in relation to A is that he should come back to this jurisdiction immediately, he should move to live with him in Mansfield with Ms W and that he is optimistic in being able to secure employment with Domino Pizzas. He says that he will work some of the weekends - he would hope to have one day over the weekend free - and that Ms W will be able to provide care afterschool as he thinks he is unlikely to be finishing work until about seven o’clock.

[26]Turning to the position of the mother if A was living with him. He said in his statement (B128, paragraph 16):

“I am willing to facilitate contact including staying contact with the respondent mother whenever she is in the United Kingdom.”

He retreated from that position in his oral evidence. He did not consider that there should be any staying contact during term time and, in relation to holiday contact, he would want to limit any staying contact with the mother in London to only two or three days and certainly not for any period up to a week or more. When asked for his reasons for that position he said that it was because he did not trust her, although he seemed to be unable to give any other details about that.

[27]There is a lot of detail in the papers in relation to his immigration status. As I understand it, his current immigration position is that he has been given permission to remain in this country until the conclusion of these proceedings, there will then be a review of his immigration status. He showed the court, during the course of his evidence, a permit that he had received in early September of this year which appeared to have the following information (in addition to his name and photograph). In terms of the type of permit, it says he was entitled leave to remain. In terms of the validity, it said the place of issue was on 5th September 2013 and under the section “Valid until” it said 30th June 2013, which seems curious, as it is valid until a period prior to the date of its issue. He said that that is an issue that is going to have to be looked at again within the context of the immigration tribunal. The section on the card entitled “Remarks”, it says:

“No work, no engaging in business”

. I have to say the answers he gave in relation to that in the context of him working at the moment were very difficult to understand. It does look very clearly as if a restriction on his leave to remain in this jurisdiction is that he does not work and does not engage in business and yet, on his own evidence, he has been working (certainly for the last three months and in fact prior to that according to his written evidence) and intends to work on his move to Mansfield. The significance of that will, no doubt, need to be looked at the in context of any immigration hearing. The Mother’s Position

[28]The mother has filed four statements and, as I have indicated, wishes A to remain in India, but agrees to bring him back to this jurisdiction in the way that I have described. In her oral evidence she accepted that, although the order made by His Honour Judge Turner Q.C. in December 2011 gave permission for her to leave the jurisdiction with A and for A to live with her, she returned back to this jurisdiction in a short period of time afterwards in early 2012. I have already set out the relevant dates. She also accepts that there was no contact between the father and A when A returned back to this jurisdiction on at least two occasions in 2012. She seemed unable to give any coherent account as to why that did not take place. She suggested it was because there was some restriction that was valid until August 2013, but she then said that she did not have a telephone number or any contact details. Again, I was left with the very clear impression that she had made absolutely no attempt to inform the father, or seek to try and inform him, that A was in fact back in the jurisdiction. The father’s ignorance in relation to that is demonstrated by the early statements he made in these proceedings in November and December 2012 when he clearly had no idea whether the mother or A were back in this jurisdiction, or had come back into this jurisdiction.

[29]The mother agreed the arrangements that have been in place since December 2011 for A’s care was to enable her to maintain her earning capacity, to be able to save for the future and it was her view that it was less stressful for A because he was away from the dispute between the parents and he was obtaining a better education in India. In relation to the impact on A’s relationship with the father, the mother did not - in one of her answers - regard the father as having a role. That evidence sets out very clearly that her view is the father is entitled to know of A’s existence and have some limited involvement, but she does not see the father as having any kind of significant role with A.

[30]There are two reports from the Guardian. I have already set out some details from them. They are extremely helpful and detail the meetings with each of the parents and also with A and, as I have indicated, the contact that was observed on 9th May 2013. In oral evidence Mrs Odze, having listened to the evidence that had been given by the parents, did not change her basic recommendations. In relation to the father’s proposals for residence, she said they were entirely non-child focused. She said the father had displayed absolutely no insight in relation to the effect on A of the proposals that he was making and all the changes that would happen in A’s life. She was very clear that from A’s point of view, if he was ordered to return back to this jurisdiction and to live with the father, he would be extremely distressed; he would resent it and wonder why anyone had made the decision without any consultation with him. So she was quite clear in relation to her recommendation that she did not support the proposals made by the father.

[31]In terms of the suggestion by the father that, in any event, A should return back to this jurisdiction and live with the mother, again, she was very clear that the reality was that A was settled in India. She said that this did not accord with his wishes and that, if he was returned back to this jurisdiction, he would resent it. It would increase the pressure and the instability in relation to the mother’s position and A was likely to suffer as a result of that change, so it was not a course that she would recommend as being in A’s best interests. However, she was very firm in her advice about the position of the father’s role in A’s life. She was very clear that the importance of the father in A’s life needs to be consolidated regardless of the history that there have been of the difficulties between the parents. She does have very real concerns as to the mother’s ability to be able to be positive about the role that the father should play in A’s life in the future. As she said “This child craves having the father in his life and this is what the child wants”.

[32]In my assessment of the parties’ evidence, I am entirely satisfied the father does lack insight as to the impact of the proposals that he makes to be able to care for A with his new partner in Mansfield. He took an extremely simplistic approach in relation to his proposals; essentially that A had had changes before when he went to India in December 2011, so therefore he can cope with changes now in the way that he has outlined in December 2013. He displayed no understanding of the qualitative and material differences between those two situations. A has not lived with the father before, he does not know the father’s partner, he does not know Mansfield and neither does the father know Mansfield. He does not know or have any idea as to what the impact of that arrangement is going to be on Ms W’s other children and he showed no real understanding in relation to the impact all those changes would have on A, including being further away from his mother if he lived in Mansfield. It was an entirely different situation when A went to India. He was going to stay with family who were known to him, he had been to visit them before and the mother was there to be able to settle him in. So, I am entirely satisfied that his plans in relation to residence are not only inchoate, they are unrealistic and not in A’s best interests.

[33]I have had some concerns in relation to the mother’s position. Whilst I have no doubt that the mother considered that she was acting in A’s best interests when she took the decisions she did in December 2011 in relation to securing an order for A’s move to India, I am very concerned about the circumstances of that. It is quite clear to me on the evidence I have heard that, unless anything untoward happens, this mother had every intention of coming back to this jurisdiction. To be fair to her that is what she said to the Family Court Adviser who prepared the report for the hearing in December 2011, but her evidence was quite clear that she had been working on a self-employed basis through a service company since 2010 and there was no suggestion of that being changed at the end of 2011/beginning of 2012. That view is reinforced by her statement filed in these proceedings on 18th December 2012. The direction made by Baker J on 21st December 2012 could not have been clearer. The statement was to address where she and A had been since December 2011. I am afraid the statement filed, in my judgement, gives a misleading impression. Not only does it give an address in India, but in no part of that statement does it set out what we now know to be the reality that she returned a very short period afterwards and remains based in this jurisdiction.

[34]I am also concerned about the fact that the mother has really taken no steps, other than in the context of these proceedings under the spotlight of the court, to encourage and nurture A’s relationship with his father. Whilst I fully accept that she must find it very difficult bearing in mind the history of difficulties between the parties, the fact is - having seen the report in relation to the very positive contact that took place in May 2013 - it was incumbent upon the mother then to try and secure improvements in terms of the contact between the father and A, as it was clear that A would benefit from such contact. I am not satisfied that she has really been able to see or understand that, or the emotional effects on A of her not being able to exercise that part of her parental responsibility to be able to do that. The Welfare Checklist

[35]I have no doubt that in the discussions there have been with A, in particular, by Mrs Odze that he wants to continue to be able to see his father, but I am also quite satisfied that he does not wish to live with him. I am also satisfied that he wants to be able to remain where he is for the foreseeable future - that is the stability he has had. But, as I have said, it has to be in the context that he should be able to consolidate and move on regarding his relationship with his father. In terms of any change in circumstances, it is quite clear that A has been based in India since December 2011. He is doing well there and enjoying it. In terms of his educational and physical needs, there are no concerns in relation to that. If he returned to this jurisdiction it would be an enormous upheaval for him. As I have indicated, if he returned back to this jurisdiction and was cared for by the father in the way that he proposes there are enormous uncertainties, not only in relation to the practical arrangements but also the uncertainties regarding the father’s new relationship which has not really started.

[36]In terms of returning to live with the mother, the mother has indicated the difficulties in relation to her working hours and the length of time she works; but, as Miss Simpson fairly points out, that is no different than many other families up and down the country who make arrangements. The mother accepts that she could financially afford (bearing in mind the details as to her financial circumstances she gave the court) to be able to provide for childcare. But it is quite clear that A coming back to live here with her in the short term would cause her enormous anxiety and I accept the evidence of Miss Odze that that would not be in A’s interests at this stage.

[37]In relation to A’s age and his background, there are no difficulties in regarding his health. The current arrangements when the mother has not encouraged contact does impact on the ability of A to be able to build up a proper relationship with his father, which I am entirely satisfied is something that he wants to be able to do.

[38]In terms of harm that he has suffered and is at risk of suffering, there is clear evidence of historical harm in relation to A. The findings of the court in Brentford in August 2011, the other litigation history between the parties and the difficulties between them in their relationship. Up until the start of these proceedings A was also suffering by not having seen his father. As I have said, his mother did not encourage contact in large part due to her concerns about the father caused by his previous behaviour to her and A. I agree with the assessment of Mrs Odze that this mother remains affected by the difficulties in her relationship with the father, the difficult history and that she accepts, and I agree, that they are likely to be transmitted to A. This is most graphically demonstrated by the different accounts given of the contact between A and his father when the mother was not there in May 2013 (e.g. as described in Mrs Odze’s report) and the subsequent contact when the mother was there. It was quite clear that A was picking up her unwillingness for him to go with his father and her anxieties. A is at risk of harm in the future if there are continued obstacles put in the way of him being able to re-establish his relationship with his father. As Mrs Odze said in her evidence, “This child craves having the father in his life”. However, I also agree that the continued litigation is affecting this mother. It is causing her enormous anxiety which directly arises from the repeated hearings that have been involved in this litigation and, subject to A’s welfare, there is a strong argument that these proceedings should be bought to an end.

[39]In relation to the capability of each of these parents, the mother has demonstrated that she has A’s physical and educational needs well in mind. The school in India is clearly benefiting A and he is getting a good education. He is physically well cared for by the wider family. However, she has not necessarily been able to demonstrate that she is able to meet the emotional needs of A because she has not been able to put her own feelings to one side and promote the contact that is clearly in A’s best interests with his father. In my judgement, she has sought to be economical with the information that she has given the court, not only in December 2011 regarding what her true intentions were, but also January 2013 in the statement that she filed in these proceedings. She is an intelligent woman. She has maintained her earning capacity, been able to file documents within these proceedings and very eloquently been able to set out to the court what her position has been, but, I think, in some instances, she has become blinded by the fact that she was not able to stand back and meet A’s emotional needs.

[40]The father, as I have said, has shown no insight in relation to A’s needs. That is amply demonstrated by the inadequacy of his proposals for A’s care. He simply had not thought them through. He had not even bothered to tell anybody before he went into the witness box, either the Guardian or the mother. This includes the fact that he has been engaged, on his account, for at least two or three months. He has failed to give any information about that to anybody so there could be an assessment. I agree that demonstrates his inability to be able to have effective insight into A’s needs.

[41]What I need to do is to stand back, having considered all the matters in the welfare checklist and also having A’s welfare as my paramount consideration, and make an evaluation in relation to what is in A’s best interests. I have reached the following very clear conclusions:(1) A should not return back to this jurisdiction, either to be placed in the father’s care or placed in the mother’s care. I accept much of the criticisms that have been made of the mother about her not being fully frank about the underlying reasons for her proposals, that she has not encouraged contact with the father; but I accept her decision at the time that was the best way that she could meet A’s physical and educational needs. In relation to his emotional needs, I have already set out my concerns but I have to deal with the situation that A is in now. His situation now is that he is settled in India, he wants to be able to remain there. If he was required to come back to this jurisdiction, he would resent it and that would have a detrimental impact on not only his relationship with his father but also with his mother. I am entirely satisfied in relation to the father’s proposals to care for A they are ill-thought out, lack any insight and are clearly not in A’s best interests to be able to accede to them.

(2) I am entirely satisfied that contact between A and his father must and should be promoted. The evidential foundation for that is very secure. The descriptions of the contact between A and his father in May, despite the fact that there had been a significant period of time when they had not seen each other, clearly demonstrates A’s need to be able to renew his relationship with his father. Mrs Odze observed that there was spontaneous affection and an ability by the father to be able to meet A’s needs in a way that was clearly to his benefit. I accept that what is required is for the mother (and this needs to be provided for in the order) to bring A back to this jurisdiction for at least two fixed periods of time between 1st April and 1st June and in October to cover the October holidays. There also needs to be a clear structure for the wider paternal family in India (to make sure that they have the opportunity to be able to see A in India) and in relation to email contact. I am entirely clear that there needs to be a holistic approach going forward regarding contact so that when A is in this jurisdiction he will be able to see his father on at least a weekly basis for a period of five hours, and such other times as may be agreed between the parties. When he is not in this jurisdiction for the current arrangements for contact to continue. But that structure of contact, together with the email and the wider paternal family contact needs to be supported in a way that avoids further court proceedings. The best way to be able to do that is by way of a SPIP (Separated Parental Information Programme) that both parents can attend. This will assist them and support them to make decisions that are in A’s best interests. Further, there should also be an order under section 11H of the Children Act 1989 to monitor contact for a period of a year to be able to support the position in relation to the contact order made by the court today. Mrs Odze has agreed to be the named Cafcass Officer. Section 91(14)

[42]I very much have in mind the guidelines in the case of Re P and, in particular, that such an order should be used with care and sparingly, that it is the exception and not the rule and is generally seen as a weapon of last resort in cases of unreasonable and repeated applications. It may also be suitable in circumstances where the welfare of the child requires it although there is no past history of making unreasonable applications. It is a case where the court can - when looking at in particular paragraphs 6, 7 and 10 of the guidelines in Re P - make such an order where it considers that the child’s welfare requires it. I accept the recommendations made by Mrs Odze in relation to this. The application that was made by the father at the end of 2012 was justified in the circumstances of this case, but I am entirely satisfied that the effect of continuing applications will be detrimental to A’s welfare. In particular, this is because of the impact it has on the mother and her ability to be able to care for A, even though that is done remotely for the majority of the time. What is important, the court now having set out the structure for orders, is that that structure is supported (as I have set out) by way of the SPIP and section 11H order to monitor contact.

[43]In terms of the term of the order, having looked at the position in relation to A’s education, it should be for a period of two years which would take us to 1st December 2015. That will tie in with providing a period of stability to enable A’s contact with his father to be consolidated and it will enable the father’s position to be able to become settled in relation to his personal circumstances, his forthcoming relationship and marriage with Ms W and also his move. It will give a period of calm to focus on building up contact and the relationship between A and his father. Further, it will tie in with a time period about six or eight months before there needs to be any change of school, either in this jurisdiction or in India. If agreement cannot be reached, the court may have to look at the matter again.

[44]So, for all those reasons, I will make the orders that I have outlined. ________________