P v D & Ors [2014] EWHC 2355 (Fam)

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No BS11P00376

[2014] EWHC 2355 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/07/2014

Before

THE HONOURABLE MR JUSTICE BAKER

Between

PApplicant

D (1)Respondents

X (2)Respondent

Y (3)Respondent

Z (4)Respondent

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF THE FAMILY LAW ACT 1986

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF Z (A CHILD)

Alison Ball QC and Louise O’Neill (instructed by The Family Law Company by Hartnell Chanot) for Applicant mother

The First Respondent father appeared in person for in person

Teertha Gupta QC and Hassan Khan (instructed by Crosse and Crosse Solicitors LLP) for Second Respondent X

Samantha King and Andrew Powell (instructed by Freemans) for Third Respondent Y

Penny Logan (of CAFCASS Legal) for Fourth Respondent Z by her children’s guardian

Hearing Hearing dates: 31 st March, 1 st, 3 rd, 4 th and 8 th April and 4 th July 2014

Judgment

The Honourable Mr. Justice Baker :

INTRODUCTION

[1]These proceedings concern a family of Turkish/Cypriot origin that has been broken apart as a result of allegations of extreme violence perpetrated by the father. Following the allegations in 2010, the mother and the three children of the family, all girls hereafter referred to as X, Y and Z, then aged respectively 17, 14 and 8 and now aged 20, 17 and 11, went into hiding and moved to a succession of locations across the country in an effort to avoid being found by the father. On more than one occasion, the family moved again at very short notice when it emerged, or was feared, that their location had been discovered. Family proceedings were started in which the mother sought injunctions and orders limiting contact between the children and the father, and also the extent to which the father can exercise parental responsibility.

[2]At the same time, the police were involved with the family, and in due course the father was arrested and charged with two counts of rape of the mother (one vaginal, the other anal) and a further count of assault by penetration. After a trial at the Crown Court, during which the mother, X and Y all gave evidence, the father was convicted of all three counts and received a sentence totalling 17 years imprisonment. He has stated that he is appealing against both conviction and sentence, although it seems that no notice of appeal has yet been filed.

[3]Despite these convictions, the father has persisted in resisting the applications in the family proceedings, both for injunctions and for orders concerning contact and parental responsibility (which, given the ages of the children, now only concern the youngest child, Z). As a result, a hearing of those applications took place in the Family Division before me in March and April 2014.

[4]Preparation for that hearing has caused logistical and practical difficulties of a degree unique in the experience of this court, in particular because of, first, the very great concerns about the security of the family and, secondly, the fact that the father was in prison, acting in person, and communicating through an interpreter. Considerable efforts were made to ensure that the process was fair to the father as a litigant in person. The voluminous documentation generated by the various investigations and proceedings was reduced to those necessary and relevant to the issues outstanding at this hearing, redacted to avoid any reference to the family’s location, translated into Turkish, and served on the father in prison. These processes presented substantial challenges to the professionals acting for the other parties – the mother, X and Y (each of whom had been joined and were separately represented), and the Cafcass guardian and solicitor acting on behalf of Z.

[5]In addition, the issues at stake required that the father had an opportunity to cross-examine the mother and the two older daughters. As he was acting in person, the court was faced with the difficulties identified in a number of previous cases where an unrepresented litigant needs to challenge the evidence of persons who allege that they are victims of violence at his hands. In this case, it was necessary for the father acting in person to cross-examine the mother, X and Y, all of whom gave evidence from behind a screen. It should be added that the mother and the eldest daughter had given evidence at the criminal trial only a few months earlier.

[6]Despite these considerable difficulties, I am satisfied that all parties received a fair trial. Much of the credit for this is due to the hard work and professionalism of all of the lawyers, and in particular the mother’s team who shouldered the burden of case management and preparation – Alison Ball QC and Louise O’Neill and their instructing solicitor Grace Bradley. In addition, at a time when there is much concern about the effectiveness of the interpretation services in the court service, I wish to express my gratitude to the interpreter, Ms Yesim Torun, for her assistance to the father and the court throughout the hearing. The fact that the father’s cross-examination of the mother, X and Y was achieved in a way that was (I believe) forensically fair to all sides and (I hope) as sensitive as possible to the circumstances of the witnesses was substantially due to the calm professionalism shown by Ms Torun.

[7]Following the hearing in April, the applicant mother, and the two older children X and Y, were directed by the court to prepare further written submissions as to the legal basis for the orders they were seeking. A further hearing was convened (with Ms Torun again in attendance) to allow the father an opportunity to respond to those submissions (which had been translated and delivered to him in prison). Judgment was then reserved until today.

BACKGROUND

[8]The father was born in Northern Cyprus in 1971. The mother was born in London in 1973. The parties met in about 1990. They were married in a mosque in London 1992 and in a civil ceremony in 1993. The mother’s family were opposed to the relationship, and the mother has had little or no contact with them ever since. Instead, she formed a close relationship with the father’s parents.

[9]Throughout the marriage, they lived in London, with occasional visits to Cyprus. The three girls were born in 1993, 1996 and 2002. For the first 16 years, the relationship between the parents was happy. In her police interview, which contained a long preliminary narrative section, the mother paints a picture of what might be described as a normal uneventful family life for much of the marriage. She asserts that the father was involved with the children when they were younger, but less so as they grew up, choosing rather to go out with his friends. The family were close to the paternal grandparents who lived nearby. She was working as a teaching assistant at the older girls’ school.

[10]According to the mother, from 2007, the father began to spend more time in Cyprus for business reasons, leaving her and the children in London. She says that, from that point, the girls had a greater degree of freedom because she was less controlling than the father. It is alleged by the mother that the father’s parents became aware that this was happening, and told the father about it.

[11]The mother alleges that, in May 2008, the father returned from Cyprus and, following an argument, assaulted and anally raped her. The cause of the argument was the father’s belief that the mother was carrying on an intimate relationship with a gym instructor. The father accepts that there was an argument and that he slapped the mother but denies the allegation of assault and rape. The details of this incident are disputed and I shall consider it further below.

[12]Following the incident, the mother and daughters left the home for about a week, but then returned. It is the mother’s case that, after they returned, their lives were subject to stringent control by the father. In addition, she alleges that he continued to abuse, assault and on occasions rape her, sometimes twice a day. The mother’s case is that she was too frightened to tell anyone about the assaults. Some of the assaults were overheard by the children.

[13]It is further alleged that, in October 2008, the father assaulted X because she had been in contact with a boy. This is denied by the father. In June 2009, Y took an overdose of paracetemol at school. Social services were informed and spoke to Y and her mother. No mention was made at that stage of any allegation of domestic violence. In February 2010, the father was referred to the adult mental health team by his GP after allegedly becoming increasingly disturbed about being evicted from allotments and thinking he was being targeted by people from the council. In April 2010, Y took a further overdose at school. Following that incident, she was referred to the Child and Adolescent Mental Health Service (“CAMHS”). Y alleges that, following this second incident, the father threatened to cut her hair if she misbehaved again. A few weeks later, in May, it is alleged that the father carried out that threat, forcibly cutting her hair, and cutting her fingers in the process.

[14]In July 2010, Y complained about the father’s behaviour to CAMHS, who in turn referred the matter to social services who started a s.47 investigation and informed the police. A police note of a meeting between officers, social workers and the mother on 24th July 2010 records the mother as denying that there was any current domestic violence, the last having taken place about two years ago. At that stage, the mother did not raise any allegation that she had been raped or sexually assaulted. The mother is recorded as having said that the daughters were not assaulted and that she was able to protect the family. She is recorded as having complained about Y’s rebellious behaviour. Y’s school also raised concerns about anger management issues and occasional truancy. Both X and Y also said to the police on this occasion that there was no current violence going on in the house, although they described the father as being strict and controlling and also spoke of the incident in which he had cut Y’s hair. During her evidence at the Crown Court in 2013, the mother’s explanation for denying the violence at this point was that the father would receive minutes of the meetings, and she was therefore trying to play things down.

[15]On 27th August, health and social workers conducted a home visit, finding the mother and daughters at home. According to a note about the visit on police records, when the father returned, the demeanour of the other family members “changed drastically … Social Services spoke to the father and he blamed Y and took no responsibility himself. Health worker felt very intimidated by the father’s behaviour.”

[16]A child protection case conference took place on 3rd September 2010. Members of the adult mental health team attended the meeting and reported that an initial assessment of the father had identified concerns that he may be psychotic. The Chair’s summary and risk assessment, as recorded in the police files, stated “…it has become increasingly apparent that [the mother] is struggling to have a positive or modifying impact on her husband’s behaviour. [The father] has been repeatedly violent towards his wife over many years as well as emotionally abusive and controlling and this domestic violence has occasionally been directed toward his older daughters including a recent reported humiliating and degrading episode where he allegedly assaulted Y and cut off some of her hair. Although [the father] does not have a severe and enduring mental illness, he does have occasional psychotic and paranoid episodes which adds to the climate of abusiveness and fear within the home although this cannot be given as an excuse for his intentional violence and abuse of power and control over all family members. Y is the most outspoken and confrontational of the three daughters and is at times inappropriately testing the parental boundaries. However, her signs of emotional distress are the most explicit through her past overdoses and self-harming behaviour but the level of hidden vulnerability of her siblings must not be underestimated. If [the father] does not demonstrate a capacity to change and end his abusiveness, [the mother] will need to be empowered to take the necessary action to safeguard herself and daughters’ immediate and long-term safety and welfare”.

[17]There were therefore clear concerns as to the mother’s capacity to protect the family and to address the underlying reasons for Y’s behaviour. At the conclusion of the conference, Y and Z were made subject to child protection plans under the categories of physical and emotional abuse, and X was categorised as a child in need. Plans were made to try to arrange an interview of the father in a way that would not cause disturbance in the family home. At a review conference on 20th October, it was reported that the father had refused to engage with social services. It was agreed that, if the father continued to fail to co-operate, legal proceedings would be considered. At a strategy meeting on 4th November, the mental health team reported that they were trying to bring forward a further assessment of the father. According to a further note on the police records, that assessment concluded that the father did not have a diagnosable mental illness. In oral evidence, however, the father confirmed that for a time he had been taking anti-psychotic medication.

[18]Matters came to a head in December 2010 when another incident occurred at the home. It is alleged that the father assaulted Y again, whereupon X phoned the police and the mother and children were assisted by the police to leave the home. The details of this incident are also disputed and I shall consider it further below.

[19]Initially, the mother and children moved to a refuge in Bristol. It was while she was there that the mother first told a professional that she had been raped and sexually assaulted by the father. In March 2011, however, the father located the family, and as a result they were moved to another refuge in Plymouth. At that stage, the mother started family proceedings and was granted ex parte non-molestation and prohibited steps orders. At a further hearing on notice, the orders were extended and a residence order made in favour of the mother.

[20]In June 2011, Y told her mother that her Facebook account, which she had closed and deactivated, had been accessed by an unknown person. On the following day, solicitors then acting for the father wrote to those acting for the mother complaining about the content of Y’s Facebook page, in particular certain photographs of Y. At the same time, someone purporting to be the father telephoned the school being attended by Z in Plymouth. In July 2011, the children were made wards of court and, when the matter came before me in September, I made further interim injunctions preventing the father from attempting to locate or contact the family. In December, the mother alleged that the father had attempted to contact X via her Facebook account. At that hearing, the father repeated his complaints about the contents of Y’s Facebook page. At a further hearing, directions were given anticipating a lengthy hearing of the allegations of violence. In the course of that hearing, I gave permission for disclosure of information to the police so that they could consider whether to pursue an investigation into the mother’s allegations of rape and assault which had by that stage been raised in the family proceedings.

[21]In May 2012, the father filed an application for contact with the youngest child, Z. In his statement in support of his application, he referred again to concerns about what he regarded as the inappropriate contents of Y’s Facebook page, exhibiting copies of photographs showing her, in his words, “with a great deal of makeup, provocative clothing, and smoking”. By this stage, however, the police were pursuing their investigation, and in July of that year they arrested the father on suspicion of rape. As a result, the planned fact-finding hearing in these proceedings was adjourned pending completion of the police investigation. That investigation included interviews of all three children, and also an analysis of the contents of an IPhone belonging to the mother but retained by the father following the family’s flight in 2010. In February 2013, the father was charged with the three counts mentioned above and remanded in custody. His trial took place in September 2013, and as stated above resulted in his conviction and sentence to 17 years’ imprisonment.

[22]Following his conviction, the father, who was by this stage acting in person, was served with a letter (in English and Turkish) setting out the final orders sought by the parties in these proceedings. At the next hearing, the father attended in person (from prison) and indicated that he wished to oppose the making of these orders, and directions were therefore given for a contested hearing. The mother, X and Y were directed to specify the further findings they sought in addition to the convictions. Due to the logistical difficulties referred to above, it was necessary to convene several further case management hearings prior to the final hearing in order to ensure, in particular, that the father was supplied with all documents and other material. It is unnecessary for the purposes of this judgment to describe any of those hearings in any detail, or indeed to go further into the many other procedural problems that bedevilled this case in the interlocutory phase, save for one matter. Particular difficulties arose over the evidence about the IPhone mentioned above. It is a major part of the father’s case that the police report about the contents of the phone is incomplete and that the undisclosed material on the phone would demonstrate that he is innocent of the allegations made against him. I shall consider this aspect of the case below.

THE FINDINGS AND ORDERS SOUGHT BY THE MOTHER, X AND Y

[23]The mother, X and Y rely on the father’s convictions and in addition have prepared a schedule setting out the following findings which they ask the court to make.(1) Before the separation, the father monitored the mother’s communications and movements including by taking her mobile phone, examining the call record and contacts, messages and voicemails, and forcing her to reveal her internet password so that he could read her emails.

(2) On occasions, the father used violence against the mother by punching, slapping, strangulation and verbal abuse within the earshot of all three children who heard the violence, saw the mother crying and saw the mother’s injuries;

(3) On an occasion in 2009 the father punched X in the face causing a black eye.

(4) The father threatened to kill X in the above incident.

(5) The father threatened to ship X to Cyprus.

(6) In July 2010, the father violently assaulted Y by punching her, grabbing her long hair in his fist and forcibly cutting her hair short to the nape of the neck, cutting her fingers in the process.

(7) On 26th December 2010, the father lost his temper with Y and threatened to smash her head and to kill her within the presence of the police and X.

(8) From the time the family fled on 26th December 2010, the father obsessively located, tracked, communicated with and monitored the mother and children and/or attempted to do the same, in Bristol, Plymouth and in other parts of England by means of social media, websites and through third parties.

[24]The father denies the first seven of these allegations. So far as the eighth is concerned, he says that in acting in this way he did not break any orders nor did he break the law.

[25]The burden of proving the allegations lies on the party making them, in this case the mother, X and Y. The standard of proof is the balance of probabilities.

[26]The orders sought by the mother, X and Y at the outset of the hearing were, in summary, as follows:(1) separate injunctions protecting the mother, X, Y and Z, which include inter alia provisions restraining the father by himself or by instructing or encouraging any other person from (a) communicating with them, (b) attempting to locate them, (c) communicating with or seeking any information about them from any resource provider, educational provider, medical establishment or place of work, (d) coming with a 10 mile radius of any property at which he believes them to live, (e) removing X, Y or Z from any place of education or from the jurisdiction of this court, (f) taking any steps to obtain passports of travel documents in respect of X, Y or Z, or (g) accessing any email, Facebook or electronic account operated by or in the name of any of them,

(2) an order that Z should reside with the mother,

(3) an order that there should be no contact between the father and Z,

(4) an order that the mother is under no obligation to inform or consult the father in respect of the exercise of parental responsibility over Z (save in the event that she dies, moves abroad, or is suffering from a terminal medical condition) and an order that no organisation, public authority or individual shall be bound by any purported exercise of parental responsibility by the father, coupled with

(5) the discharge of the wardship.

[27]It became clear to me after the conclusion of the hearing that the legal basis for making some of these orders was unclear from some of the position statements originally put before me. Following the hearing I therefore directed that the mother, X and Y prepare supplemental written submissions on this aspect. These were then translated and served (together with a separate submission on behalf of the guardian appointed to represent Z) and a further hearing listed on 4th July to give the father an opportunity for the father to respond.

THE LAW AND EVIDENCE – GENERAL OBSERVATIONS

[28]The legal principles to be followed at the fact-finding stage can be summarised briefly. The burden of proof lies on the parties seeking findings, in this case the Applicant, X and Y. The standard of proof is the balance of probabilities. Findings must be based on evidence, including inferences that can properly be drawn, not on speculation: Re A (A Child) (No.2)

[2011] EWCA Civ 12

per Munby LJ, as he then was. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence: Re T

[2004] EWCA Civ 558

[2004] 2 FLR 838

at 33, per Butler-Sloss P. If the court finds that a witness has told a lie about something, it must be borne in mind that someone may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas

[1981] QB 720

)

[29]Before turning to the evidence on the allegations in respect of which findings are now sought, I deal with some general observations about the evidence.

[30]The father’s convictions for three offences against the mother are, of course, evidence in these proceedings. Where a person has been convicted of criminal offences arising from facts which are subsequently in issue in a children’s case, the doctrine of res judicata applies so that the conviction is accepted as evidence of the underlying facts. In practice, save in exceptional circumstances, a court in family proceedings will proceed on the basis that a criminal conviction is correct.

[31]In this case, the convictions occurred after a contested trial at which the mother, X and the father gave evidence. Although the father has said that he intends to appeal, no notice of appeal has apparently yet been filed. In the circumstances, a reopening of the allegations which resulted in the convictions would be wholly inappropriate and unnecessary. Accordingly, I proceed on the basis that, first, he was properly convicted and, secondly, that in his persistent denial of the allegations he has lied about those matters to professionals and to this court. The convictions, and the father’s persistent untrue denials about the facts underlying the convictions, are evidence which this court must take into account when considering the other allegations made by the mother, X and Y and when deciding what orders to make in the light of the findings made in respect of those allegations.

[32]This case has generated many volumes of documents, but as a result of the efforts of the legal teams, the written evidence was reduced to two core bundles, containing statements from the parties, records of the police interviews of the parents, transcripts of material parts of the evidence given at the Crown Court, and extracts from the police records. Further papers were produced by the father’s parents at court at the start of the hearing, together with DVDs of the family. In addition, a full copy of the police report analysing the IPhone was produced.

[33]In view of the father’s position – that, notwithstanding the convictions, he wished to contest the further allegations made and the orders sought by and on behalf of the children as well as the mother – it was necessary for not only the mother but also X and Y to give oral evidence so that their testimony could be challenged and tested. In this case, the father had previously been represented by lawyers, but had dispensed with their services some months ago. The allegations made against him lay at the heart of the case. The father’s convictions for three offences against the mother were, of course, evidence in these proceedings. The allegations of abuse of X and Y had not, however, been the subject of any criminal trial, and therefore had to be proved by evidence within these proceedings. It was therefore unavoidable that the mother and the elder daughters gave evidence and were cross-examined by their father, albeit behind a screen and through an interpreter. The court is acutely aware that, if allegations of abuse are true, victims who are obliged to give evidence about those matters face a further ordeal, particularly if the alleged abuser is cross-examining in person. The ordeal is compounded if, like the mother and X, the alleged victims have given evidence on the same or similar matters in earlier criminal proceedings. From the court’s perspective, however, this oral evidence assisted me in arriving at a clear assessment as to the credibility and reliability of the witnesses on which I have been able to reach a conclusion on the issues in this case.

[34]I found the mother to be a straightforward, accurate and reliable witness. She answered the questions clearly and without hesitation. Although demonstrating a strong antipathy towards the father, I did not find that this undermined the credibility of her allegations. For the most part, her evidence was given in measured terms. She was cross-examined in some detail about the circumstances in which she came to draft and send an email to her gym instructor. Her explanation was that she had been asked by a friend to draft an amorous message for someone with whom the friend wished to establish a relationship and wanted the opinion of the gym instructor on whether the terms of the draft were appropriate. At the Crown Court she was cross-examined on this point by counsel acting for the father more closely than she was by the father acting in person in the hearing before me. It is clear from the transcript of the evidence at the Crown Court that there had been earlier text messages passing between her and the gym instructor. The evidence does not enable me to reach any conclusion as to the exact relationship between the mother and the gym instructor. It may be that the mother has not told the whole truth about this.

[35]I have of course considered whether it follows that the rest of her evidence is untrue, in particular about the allegations of rape and assault. But I remind myself of the principle in R v Lucas, supra – that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything. In this case, I think it possible that the mother may not have told the whole truth about the circumstances in which the message was sent to the gym instructor out of her wish to conceal the true nature of her relationship with him. In my judgment, it does not follow that the rest of her evidence is untrue and in particular that her accounts of the assaults and rapes perpetrated on her, and the assaults and abuse perpetrated on her daughters, are untrue. Overall, I found her evidence about those matters to be clear, cogent and credible.

[36]X and Y both gave evidence and were cross-examined by the father. The father’s case is that their allegations are fabricated because he tried to impose a level of discipline on them. I therefore listened carefully to see if there was anything about their evidence that suggested that the allegations might have been made up. I found nothing to support such a suggestion. Both X and Y came across as honest and credible witnesses. Both of them displayed a degree of bitterness and antipathy towards the father and in some respects a residual fear. At times, they were defiant when answering his questions. It seemed to me that this was their way of dealing with the situation of being cross-examined by the man they said had abused and threatened them. Each of them was at times tearful during their evidence when describing what they said had happened to them. Each of them has plainly been damaged by their experiences. But I did not find that any of these features of their evidence caused me to question the veracity of what they were saying.

[37]The father gave evidence in clear and uncompromising terms. He is plainly a proud, even arrogant man, who is accustomed to having his own way. It was evident to me that he would find it utterly unacceptable to be crossed by his wife and children. His denials that he had abused them were wholly implausible. I take into account his cultural background, the fact that he was acting in person, and giving evidence through an interpreter. Making all allowances for these matters, however, I did not find him to be a reliable witness on the core allegations against him.

[38]One issue to which the father attached particular importance was the analysis of the IPhone. A report on the phone had been obtained by the police for the criminal case and it was disclosed into these proceedings, in the form of a compact disc, the contents of which were then printed (in a document that exceeded eight hundred pages). The author of the report, Detective Constable Nainia, was called to give evidence. He stated that the CD contained everything that he had been asked to analyse by the officer in the case. This consisted of contacts, last dialled numbers, received calls, missed calls, SMS messages, multimedia messages, calendar, email messages, image files and instant messaging. The officer did not ask him to analyse voicemails or videos.

[39]No text messages were found on the phone. DC Nainia explained that his analysis did not extend to deleted texts. It is possible to retrieve deleted texts but this would have required a referral to a different department with more advanced equipment. Although he was not asked to examine videos stored on the phone, it became clear during his oral evidence that amongst the photos stored on the phone were still “frames” taken from videos. DC Nainia explained that his analysis showed that, after the video had been taken, someone at a later date had gone through the video and selected specific shots to save as photos. He was able to identify when this had been done – apparently during the period after the mother and daughters had left the home when the IPhone was in the father’s possession.

[40]The father mounted a determined challenge about this analysis. Indeed, this formed the major plank of his case before me. He argued that the police evidence was false and that the videos on the phone had in fact been downloaded as part of the analysis but not included in the report. At a late stage in the hearing, after DC Nainia had given evidence, he produced some still photos in his possession which he said were not included in the report produced to this court but which had been adduced in the criminal proceedings. He therefore applied for a further report to be carried out with a view to adducing the videos and also the deleted texts. The reason why the father said he wanted this information was because he contended that it would show that the life of the family was happy and that the allegations against him had been fabricated.

[41]In support of his application, the father (with the assistance of his parents, who attended court ostensibly for this purpose) adduced some additional video recordings which showed the family playing happily in the garden with various pets. I accept that the IPhone contained further footage of similar scenes. I also accept that there may be other undisclosed evidence, including deleted text messages, which, taken in isolation may superficially suggest that there was nothing wrong within the family. But the court does not look at individual pieces of evidence in isolation. Each piece of evidence has to be considered alongside, and in the context of, all the other evidence. There is always more evidence that could be adduced. In family proceedings, the court is never presented with a total picture of the history of the family. Faced with an application to adduce further evidence, particularly one which would necessitate considerable further delay and expense, the court has to take a proportionate approach.

[42]In considering the father’s application for a further analysis of the IPhone, I look to see if there is any evidence that suggests that the allegations made by the mother and daughters have been concocted. I have considered the photographs and videos. Taken by themselves, they purport to show a happy and normal family life. But photos of this nature are produced in nearly every case I hear. Even the most abusive parent has photographs showing the children to be happy and smiling. Experience shows that such pictures do not begin to tell the whole story. In oral evidence, the mother said that when they were outside they were putting on a front.

[43]As for the deleted text messages, the father’s case for a further interrogation of the IPhone might be sustainable were he able to adduce any substantial evidence to suggest that the case against him had been concocted, or any evidence to suggest that the deleted messages may contain anything of relevance to this case. No such evidence has been produced.

[44]In all the circumstances, I see no grounds for adjourning the case for a further period to allow the father to arrange a further analysis of the phone.

[45]The written statements included several taken by the police from friends and neighbours. None of these witnesses were called to give oral evidence in these proceedings, although they were called in the criminal trial and transcripts of their evidence have been produced for this hearing. These witnesses all speak warmly of both parents. Several of them say that they would trust the father with their own children. None of them saw anything to suggest that the father was abusive, or that the mother and children were scared of him. One witness says that she saw the mother regularly and never noticed any bruising.

[46]In addition, the paternal grandparents signed statements and gave oral evidence. They gave unconditional support for their son, insisting that he is a good father. They said that they had been very close to the children and also to their mother. The grandfather said in oral evidence that the father was innocent, that the mother and daughters were lying, that the father was not dangerous at all, and that he never beat the children. In her oral evidence, the grandmother said that the father was innocent, that he had “a heart like gold”, that he got angry because of what the mother had done, and that she had turned X and Y “into a lying machine”. I find that the paternal grandparents’ evidence was coloured by their unconditional and unswerving support for their son.

ALLEGATIONS – EVIDENCE OF MOTHER AND DAUGHTERS

[47]I now turn to consider the allegations made against the father in more detail, under four headings(1) abuse of the mother;

(2) abuse of X;

(3) abuse of Y and

(4) the father’s efforts to find the family. I shall then consider the father’s response to the allegations. (1). Abuse of the mother

[48]The mother, X and Y all filed statements in support of the further findings sought. All of their statements paint a consistent picture of violence and abuse perpetrated by the father upon the mother between 2008 and 2010.

[49]The mother’s account is that for the first nineteen years of the relationship she and the father were happy. This is not a case in which it is alleged that there has been a history of violence throughout the relationship. Rather, the mother alleges that there was a dramatic change in the father’s behaviour in 2008. The trigger for this as alleged by the mother is the father’s perception that the behaviour of his wife and older daughters was bringing shame on him

[50]The mother accepts that, from 2007 when the father was away in Cyprus more often, the older girls had a greater amount of freedom. In her police interview she acknowledged that, in her words, “they did get a bit wild with the make-up or the hair.” The mother told the police that she believes that the father felt very upset that somehow his wife and children had brought shame on his name and that in his absence she could not hold things together. The mother says that the grandmother kept checking up on her and complained to the father about her failure to control the girls’ behaviour. X says that her father would say that his mother would be in charge while he was away, and that as a result she was constantly worrying about whether her grandmother was watching them. On one occasion, she noticed her grandmother hiding behind a car as she came out of school.

[51]The mother’s case, substantially corroborated by X and Y, is that the physical violence started one day in 2008, following the father’s return from Cyprus, when he found the message on the mother’s phone. There was some confusion about the date but the mother now says, and I accept, that it occurred on or about 23rd May. According to the mother, this prompted a drastic change in his behaviour towards her. He slapped her across the face, took her downstairs and tried to humiliate her in front of the children, accusing her of having an affair and trying to persuade the daughters to look at what was written on the phone. He then took the mother back upstairs, and anally raped her while the girls were downstairs. He then sent her downstairs and ransacked the bedroom, throwing the mother’s clothes and personal items across the room. He then left the house, leaving a slipper lodged in the door and telling the rest of the family not to enter the room. Despite that warning, X entered the room and saw what he had done to the mother’s clothes and possessions. When the father returned and found that the slipper had been dislodged, he shouted at the mother again and slapped her. That evening, when the mother was sleeping in Z’s bedroom, he poured a glass of cold water over her face to wake her up, took her downstairs, and repeatedly assaulted her whilst demanding to know about the affair he believed she was carrying on. The mother describes the girls all screaming from upstairs. Z came running down and begged the father to stop. The mother says that, as a result of these attacks, she was covered in bruises.

[52]On the following day, the mother took the girls to stay with a friend. In her oral evidence, the mother said that during her time away she spoke to her mother-in-law over the telephone and told her how she had been raped by the father. Her mother-in-law asked her not to tell her things like that. It is X’s evidence that she learned about the rape when she overheard this conversation between her mother and grandmother. After a week, the mother returned with the girls after the father promised he would not hurt her again. After her return, however, the mother describes the father exerting complete control over her life for several months. She says he was obsessed and paranoid about her having affairs, and repeatedly interrogated her about this. During this period, he repeatedly assaulted her physically. X describes the violence in this period as being almost a daily occurrence. The father also forced the mother to have sexual intercourse, on occasions inserting sex toys into her vagina without her consent. When he assaulted her, he often targeted areas of her body which would be covered by clothing. The mother says that, after the assaults, there were times when it was so painful that every time she breathed, or if she was sitting in certain positions, her ribs would hurt. On one occasion, he held his hand across her mouth and nose and the other hand around her throat so that she could not breathe and she thought he was going to kill her. The children overheard these assaults, and also heard him verbally abuse her, calling her a whore and an unfit mother. In oral evidence, the mother described how Z would be very upset at this. Sometimes he would lock her out of the room while he was abusing the mother, and Z would knock on the door, begging to be allowed in. On other occasions, when the mother managed to go upstairs, Z would cry in her arms begging her not to go downstairs again.

[53]The mother says that for a time she was not allowed to go out of the house by herself. She was not allowed to go to work. The father would do the shopping and, save on one occasion, she was not allowed to collect the girls from school. The mother said that she was too afraid to go out with bruises on her face. The mother described herself during this period as a prisoner in her own home. She says that her weight dropped because she was not eating or drinking, and that the father joked that, if she ever put on weight and wanted to lose it again, she knew where to come.

[54]In July/August 2008, the father went to Cyprus, and the mother says she was then allowed to go out to take the children to school, but the father rang home to check that she had returned promptly. The mother says that, after September 2008, the father allowed her to return to her teaching assistant job, but she alleges that he continued to exert control over her life – where she could go, what she could wear. He checked her bags after she had been out. She was rarely allowed to go shopping by herself, and only on the basis that she had to be home by a fixed time. The mother says that he obsessively monitored her use of her mobile phone. In 2009, he allowed her to start a training course, but continued to keep a close watch on her actions and movements.

[55]The mother also describes how the father had threatened that, if she ever took the children again, he would hunt her down and torture her, by cutting off her eyelids, fingers and toes. X says that there was “a constant tense atmosphere at home. We could not move without my father wanting to know where we or our mother were and what we were doing.” She describes how her mother changed from being beautiful, sociable and fun to being dowdy, withdrawn and isolated. She says that the family was always very aware of the father’s movements and on high alert as to whether he would be attacking the mother.

[56]The mother acknowledged in oral evidence that there were occasional times during this period when there was a bit of normality in their lives, but it was short-lived. She thought that Z had been happy from time to time. Her mother and sisters were protecting her. Z did have time to enjoy being with the father. This was not the case with the older daughters, although they would try to humour him to stop him becoming aggressive and start an argument. The mother said that they were “walking on eggshells”.

[57]She was cross-examined by the father on aspects of her account. Her evidence in cross-examination was substantially consistent with her statements and what she had said in answer to her own counsel. (2). Abuse of X

[58]In her statement, X says that she and Y had different ways of dealing with their father’s violence towards their mother. X says that, whereas Y always wanted to intervene to try to change things, she was terrified that intervening would make things worse for her mother and would inflame the situation.

[59]According to the mother and X, while the father was in Cyprus in 2009, his brother who lived near to the family discovered that X had been seeing a boy. The uncle insisted that the mother tell the father about this. On his return, the father threatened X that, if she did not behave and had a boyfriend again, he would break her legs and take her to Cyprus to get married.

[60]A few days later, be caught her contacting the boy via the internet. X described what happened next in these words:

“He shouted at me ‘you have had your last chance’ and he was threatening to kill me. My dad grabbed me and punched me in the face with a closed fist about three times to my left eye. He punched me once on the mouth and then several fast jabs to my ribs. He then pulled me towards him by my hair and smacked me. He said ‘so are you going to do it again’. I suffered a black eye and a cut to my lip. He then confiscated all my personal items”

[61]X says that, following this incident she was grounded for a period, which she calculates as being about two years. She says that she was not allowed to go out with her friends. When she was about 16, the father told her that he trusted her again. X says that at that point he started being less controlling towards her but focused his abuse on Y.

[62]X was cross-examined by the father about her allegations. She stuck to her account. She accepted that in July 2010 she had said that there was no ongoing domestic violence. She said that she had said this probably due to fear – she decided to keep quiet. (3). Abuse of Y

[63]Y’s statement for this hearing started as follows:

“From being a young child with high grades in primary school, and someone who was classified as smart, caring, helpful and just a pleasure to be around, I have been left feeling vulnerable, hurt, angry and bitter and am now classified by many as being difficult. This is after suffering in the hands of the man who was supposed to protect me as my father”

She describes her father as manipulative, a liar, disturbed, a danger to children, angry, violent, and the sort of father who took discipline to the limits.

[64]Y describes her father as being violent to her mother, both verbally and physically. Y says that she felt that she had to stay up in order to protect her mother. “I felt that I was forced to have more of a fighting personality, someone who stood up to this abuser and who had no option but to intervene when I heard my mother crying in pain.”

[65]The mother describes how Y became depressed as a result of the father’s behaviour, and how she took, or was suspected of taking, an overdose of paracetemol on two occasions, one in June 2009 and the second in April 2010. The mother and X both regarded this as extremely serious. X says that it was astonishing that the father did not seem to care but rather treated it as a joke. The mother says that, on the first occasion, the father refused to take Y to hospital, and threatened that if she tried to call for help he would break her fingers. On the second occasion, when she took, or was suspected of taking, an overdose at school, an ambulance was called and Y spent the night in hospital. The evidence of the mother and Y is that, after she was discharged, the father threatened repeatedly that he would cut her hair if she misbehaved again. At that point, Y had long hair which the mother describes as her pride and joy.

[66]According to Y, (supported by the mother and X), the father subsequently carried out this threat after he discovered that she had been telephoned by a boy. Y’s account of this attack in her statement is as follows:

“I went into my room with my towel wrapped around me and I heard [my father] running with pounding feet on the stairs. He grabbed my hair in his fist and I saw he was holding scissors. I grabbed at my hip long hair with my right hand as my left hand was still holding onto my towel. All I heard was ‘let me see if you’re going to disobey me again’ while cutting out a huge chunk of hair from the back of my head whilst also cutting my fingers leaving the tops of my fingers cut and bleeding. I burst into tears, he then pushed me to the corner of my room and he repeatedly beat me. I was being punched in the head, stomach and shoulders whilst throughout all of this time he was threatening me that if I did anything again he would shave my eyebrows off as well. My mother and two sisters witnessed this abuse. My youngest sister who at the age of 7 at the time saw me getting beaten up was crying and left shaking. He then finally left the room and punched the staircase breaking the banister as he went down.”

[67]This account is corroborated by the mother. She describes Y as being very distressed by this incident, and refusing to leave the house, and says that thereafter the father would threaten Y that he would shave off the rest of her hair if she misbehaved again. Y had been referred to CAMHS following the first overdose incident and when she spoke about the haircutting assault at a CAMHS session social services were informed and started a s.47 investigation. Subsequently in September 2010 the children were made subject to child protection plans.

[68]The account given by the mother, X and Y is that matters finally came to a head on 26th December 2010 when the father discovered that Y was in possession of a mobile phone. The mother describes how he dragged her downstairs and assaulted her, whereupon X telephoned the police. When two officers attended, the mother and the girls told them what had happened. The father left the house but, according to the mother and Y, as he did so he said to them in Turkish that if Y was there when he returned home he would smash her head in. When they told the officers what he had said, the police indicated that they would take the children into police protection. The mother told them that she would leave, and as a result she and the three daughters left together. (4). Father’s efforts to find the family

[69]The mother and Y give a detailed account of relentless efforts made by the father to find them, making repeated calls to social services, contacting the children’s friends, attempting to make contact through relatives and via Facebook, hacking email accounts and using other email accounts belonging to other people, including the mother. Great efforts were made to prevent their location being disclosed. After they had been living in Bristol for several months, however, the father suddenly approached the mother and Z in the street. The mother describes herself as paralysed with fear as she had not expected that he would be able to track them down. As a result, the family moved again to Plymouth. The mother describes how this was extremely unsettling for the family. In Plymouth they lived in what the mother calls a safe house, with locks and chains, but she describes how the sound of footsteps on the stairs caused anxiety.

[70]Subsequently, there were the attempts to make contact via Facebook described above. When the father located the children’s school in Plymouth, the family was moved again to another part of the country. Thereafter the father made further attempts to locate the family via Facebook. It is the mother’s case that, in breach of the interim injunctions prohibiting him from communicating with the family in any way, the father has continued to make attempts to contact them via the internet, including attempts by using a false identity and that he has persistently and obsessively monitored Facebook accounts operated by X and Y, copying names and contact details of their friends and contacts, website links, other linked accounts, and has tried to monitor their phones. It is also said that he has used other people to try to contact the family, including his sister-in-law.

THE FATHER’S RESPONSE

[71]The father said, both to the guardian and to the court, that his focus is now on Z. He told the guardian that he would like to see her twice a year for as long as he is in prison, and more regularly when he is released. He also saw no reason for her contact with his wider family to be restricted.

[72]The father has accepted, in his defence statement in the criminal proceedings, that he was conservative and protective of his family, and that the strict moral codes that he adopted may have seemed to his family to be controlling. He asserts that he was concerned about his daughters becoming involved with the wrong kind of friends. He denies, however, that this control ever extended into using physical force, and he denies all the allegations made against him.

[73]The father accepts that he became angry with the mother when he found what he believed to be a message to her lover on her phone. He says he was also distressed because she had involved X in the deceit. It is his case that X had become distressed because the gym instructor had touched her (not, as I understand it, sexually but in the course of gym instruction) and had not wanted to continue with the gym lessons with this instructor, but the mother had persisted because she was having a relationship with him. He told the police that, when he found the message, he slapped her once and told her that the marriage was finished. In his written response to the mother’s statement, the father says that this was the only time he has ever slapped anyone. In his defence statement in the criminal proceedings, the father said that, following the discovery of the message on the mother’s phone, he did become more controlling of her daily movements as he did for the daughters “in order to avoid the straying and split up of the family”. He denied all allegations of sexual abuse of the mother, and all allegations of using physical force on the children. It was his case that the mother had purchased sex toys for her own use. He maintained that the mother had fabricated the allegations to stop him seeing the children, and that the children have made up their allegations to be free of his control. In his statement, the father insists that everything the mother has said are lies, which have caused him to receive a 17 years sentence. He says that the jury found him guilty because they were put under pressure and have apologised to him. He told the guardian that things had become carried away as a result of the intervention of professionals which had given the mother ideas, and that he believes that if the mother could see him without anyone else being present she would run to him because they loved each other.

[74]Much of the father’s case was devoted to pointing out what he sees as material inconsistencies and implausibilities in her various accounts. He says that there are no independent reports of bruises being seen on the mother. He says that her account of being confined to the house for a period in 2008 is implausible and contradicted by the evidence of neighbours who gave evidence in the criminal proceedings. The father asserted that the mother had been inconsistent in her police interview, in particular about the extent of any violence perpetrated on her before she went to stay with the friend in May 2008 (internal page 39 of the interview transcript). I do not accept that there is any material inconsistency between her answers to the officer at this point in the interview and her earlier free narrative account.

[75]The father has consistently denied cutting off Y’s hair. In oral evidence in these proceedings, he said he thought she had cut it herself. He said that the mother had told him that she had been trying to style it and had cut it shorter and shorter, so that in the end she had to be taken to the hairdresser to have it cut properly. He said that the banister had been broken on another occasion. He described Y as a lying machine (the same phrase used by the grandmother). He also denies punching X and giving her a black eye. Plainly the father objects strongly to the way his elder daughters have behaved. This is demonstrated by his repeated critical references, at various points of the hearing, to the contents of Y’s Facebook page. In written comments about the guardian’s report, he blames Y and the social worker for the break-up of the family. In oral evidence, he accepted that he had been reluctant to allow the social workers to see Y in 2010 after she was placed under the child protection plan. He said that he had told them to see Y at school because he did not want Z disturbed,

[76]The father says that he has no doubt that Z misses her paternal family. He says that she was never frightened when she was with him but, on the contrary, grew up as a child who was happy all the time. Everyone knew how much she loved her father and how much he loved her. In oral evidence, he said that when he met the mother and Z in Bristol, Z was pleased to see him and hugged him. It is his case that the efforts to cut his contact with Z would cause her psychological harm and that there is no risk of harm to Z arising from such contact.

[77]The father does not deny that he has made efforts to find the family. In his statement in response to the mother’s statement, he says that “a father’s effort to find out where his children are is one of the most natural rights”. The wrong thing was the mother leaving the house without telling him. When he saw the guardian shortly before the hearing, the father said several times that he will not let go of Z. Nothing will stop him finding her. He told the guardian that, if he wished harm upon the family, he could have done something by now because he knows where the family is living, but he does not want them to live like “gypsies” moving around. He reiterated in oral evidence that he would never forgive the mother, X and Y for lying and that he will continue to try to see Z “until the day I die”.

CONCLUSIONS ON FINDINGS

[78]I see no reason not to rely on the convictions as evidence in these proceedings. The sexual violence which the jury found had been perpetrated on the mother was of an extreme and brutal nature, designed to punish and humiliate her.

[79]In addition to the convictions, the mother, X and Y ask this court to make further findings as to the father’s violence towards all of them, and his obsessive attempts to find them since they fled the home in December 2010. For the last three years, the mother has given a clear and consistent account of the violence inflicted on her and her older daughters. Those accounts were detailed and clear.

[80]There are several factors which the father either relied on, or could have relied on, which on one view might call into question the reliability of the mother’s evidence. First, there is the fact that no evidence was put before this court from anyone outside the family saying that they saw the bruises which the mother says she sustained as a result of the assaults inflicted by the father. Secondly, there are the statements signed by several friends and neighbours who say that they never saw any evidence that the mother had been assaulted, nor that she was being confined to the house. Thirdly, there is the fact that the mother in July 2010 denied that there was any ongoing violence. Finally, there is the possibility that the mother has not told the whole truth about the circumstances in which she came to write the note which the father found on her mobile phone.

[81]I have carefully considered all of those points, but in the end I have reached a clear conclusion that none of these carries any significant weight. The fact that no independent witness has been called to support the evidence given by the mother and the daughters is not ultimately significant if I find, as I do, that their evidence is clear, consistent and plausible. The mother’s explanation for her denial to the police and social services in July 2010 is that she was frightened of the father’s response were he to find out that she had made allegations. The picture painted by this mother, and confirmed by her daughters, is of living under a regime of terror imposed by the father. In those circumstances, it is entirely understandable that the mother felt intimidated about talking of the ongoing violence. As for the mother’s evidence about the message on her phone, I have already explained that I do not consider the fact that she may have been less than frank about that episode undermines her overall credibility.

[82]The accounts given by the mother in her statements in these proceedings, police interview and oral evidence are clear, detailed, consistent and plausible. I found her to be a truthful witness and I accept her evidence. The accounts given by X and Y – of the abuse perpetrated on their mother and of the abuse inflicted on each of them – are vivid, graphic and detailed. X and Y have each plainly been disturbed and damaged by their experiences. They manifestly harbour feelings of great bitterness towards their father, and I have taken that into account in assessing their evidence. Having heard them give oral evidence, however, I found them to be truthful and reliable, and I accept their testimony without reservation.

[83]Accordingly, I make the findings sought by the mother and by X and Y. I find that from 2008 the mother was abused repeatedly in the way she describes, verbally and physically. I find that she was for a period of several weeks kept as a virtual prisoner in the house. I find that X was abused by the father in 2009 in the way she and the mother describe. I further find that Y was abused by the father in July 2010 in the way that she and the mother describe, and again on 26th December 2010. Finally, I find that the father has relentlessly sought to track down and communicate with the family from the day they left in December 2010. The father did not really challenge this latter allegation. Indeed, he sees it as his right to try to find his daughter, and indicated clearly that he intends to carry on acting in this way.

[84]The mother and the children have been in hiding from the father and his family for several years. They have moved home several times to avoid detection. The mother has made a complaint to the police, and she and X gave evidence at the criminal trial. Subsequently they and Y all gave evidence again before me and were cross-examined by the father acting in person. In her oral evidence, the mother said that, when she read in the guardian’s report the father’s assertion that he knew where they were now living, she felt traumatised. “No matter what I do, or how many injunctions we have, he’ll track me and my children down. We are not safe.” Later she added, however, that she wanted to know that each of her daughters was safe and protected by the court and the justice system. Having considered all the evidence, and in particular having heard the mother, X and Y give oral evidence, I find that they have taken these drastic steps because they are genuinely frightened of the father. I do not believe that they would have pursued this course if they were not so frightened. The father’s contention that the allegations have been invented to prevent him seeing Z is utterly implausible.

[85]I find that the mother, X and Y have proved on a balance of probabilities all of the allegations set out in the schedule of findings.

WHAT ORDERS SHOULD THE COURT MAKE

[86]I turn to consider what orders should be made in the light of those findings I have summarised above. During the course of this hearing, the amendments to the Children Act 1989 introduced by the Children and Families Act 2014 came into force. Section 8 of the 1989 Act was amended by abolishing ‘residence’ and ‘contact’ orders and introducing ‘child arrangements’ orders. (1). Child arrangements

[87]It is not disputed that Z should live with her mother, and I make an order to that effect. I will also, at the conclusion of these proceedings, discharge the wardship order made at an earlier stage.

[88]Next, I consider the question of future contact between the father and Z. In considering this question, I bear in mind

Article 8 of ECHR

. The father and Z each has a right to respect for their family life. I apply s. 1 of the Children Act 1989. Z’s welfare is my paramount consideration. I remind myself of the factors in the checklist in s.1(3). In this case, the factors of particular importance are: Z’s wishes and feelings; her physical and emotional needs; her background; any harm which she is at risk of suffering; and the capacity of the father and the mother of meeting her needs.

[89]Save in exceptional circumstances, all children should grow up with a relationship with both parents. Children have an emotional need for such a relationship which must be met wherever possible. In this case, it seems that, until 2007-8, there was nothing unusual about this family, nor about the relationship between this father and his daughters. In particular, I accept that the father and Z had a close and affectionate relationship, that he loved her and she him. It is plain that he still loves Z, and that this has been a factor in his continued quest to find the family. Had it not been for the extreme violence perpetrated by the father on the mother, and to a lesser extent on X and Y, his relationship with Z would in all probability have continued.

[90]It is plain from the guardian’s reports that Z has expressed mixed feelings about seeing her father. In her final report dated 23rd March 2014, the guardian describes Z as an engaging, humorous young girl who, despite these proceedings, has retained some sense of innocence and is able to enjoy aspects of her childhood. She spoke positively about friends, school and her sisters and mother. In her final interview with the guardian before the hearing, Z said that she would like to see her father on one occasion because she wanted to ask him “why” and have him say sorry. She wanted to see him once to make the point that she is angry with him and then leave. After talking it through with the guardian, however, and in particular the likely feelings it would engender in her, she accepted the guardian’s concerns. I think it likely that Z is torn about having contact – part of her would like to see her father but another part of her would not.

[91]The magnetic factors in this case, however, are the past assaults perpetrated by the father on the mother, X and Y, the impact of that violence upon Z, and the risk of future harm arising out of the father’s capacity for extreme violence.

[92]Practice Direction 12J of the Family Procedure Rules 2010 as amended, headed ‘Child Arrangements and Contact

[93]In this case, although Z has not suffered direct physical harm as a result of the father’s violence, I am satisfied that she has suffered very considerable emotional harm, from having witnessed directly or indirectly acts of violence perpetrated by her father upon the mother and her sisters, and from having to live the life of a fugitive.

[94]In her report dated 4th November 2013, the guardian acknowledged the seriousness of removing the father from Z’s life but, in the light of the convictions and the probation assessment, and the risk factors present in this case, she concludes that introducing contact now or in the foreseeable future presents serious physical, emotional and psychological risks to the mother and to Z. The guardian expresses the view that the details of the abuse alleged by the mother, X and Y “carry the hallmarks of danger, a sense of entitlement and lack of insight or empathy. These are not patterns of behaviour that dissipate without intensive intervention.” During her meeting with the father shortly before the hearing, the guardian observed no development of insight or modification of his thought processes. She believed that the risks associated with contact outweighed any benefits at this stage. She did not think that the father would be able to manage Z’s anger and confusion. The guardian believes that Z along with the rest of her family needs to be able to construct a more predicable lifestyle unencumbered by court proceedings and fears, adding:

“I cannot see how contact, whether direct or indirect, can take place in this context without having a negative impact on the trajectory of [Z’s] development through her adolescence and teenage years.”

The level of violence reflected in the conviction and sentence, along with the lack of apparent internal or external change on the part of the father suggested to the guardian that the utmost protection is required.

[95]The father contends that the guardian’s report has been prepared with the sole intent of breaking up the family. I completely reject that suggestion. I agree with the guardian’s analysis that Z is likely to suffer further significant emotional harm were she to be required to have contact with him since such an order would perpetuate the strife and anxiety resulting from his ongoing involvement with the family. The effect of the domestic violence perpetrated on the mother and all the daughters has been profound. The father has no insight into this, and has not demonstrated the slightest evidence of any understanding of the impact of his behaviour on the rest of the family. He continues to deny all the allegations, and does not accept that he has any need to change. He says that his only wish is to maintain a relationship with Z. I accept that he does want to maintain that relationship but I do not believe that is his only wish. I think it highly probable that he would use contact, both direct and indirect contact, as a means of continuing his campaign of intimidation and oppression of the mother and his older daughters.

[96]I acknowledge that it is a serious step to cut Z off from any contact with her father. Her relationship with her father, and his side of the family, is an important part of her background and heritage. Part of her would doubtless wish to continue that relationship, and in years to come when she is older she will make decisions for herself about whether to resume the relationship. At this stage, however, I have no doubt that her welfare requires the court to take the exceptional course in this case. I accept the guardian’s careful analysis. I therefore order that there shall be no contact between Z and her father. (2). Injunctions

[97]The mother, X and Y seek separately a wide range of orders to protect themselves and Z. In addition, the mother seeks orders and declarations preventing the father from exercising parental responsibility for Z.

[98]In order to clarify the case being advanced by the mother, X and Y, I directed their lawyers to file a joint supplemental submission setting out the legal basis for the orders they were seeking. That submission was duly prepared and translated into Turkish and served on the father in prison. At the further hearing, I sought further clarification from Miss Ball QC on behalf of the mother, and then afforded the father the right to respond (although in the event he elected not to address the legal issues but rather to reiterate and expand on his case on certain factual matters.)

[99]It is convenient to consider, first, the injunctions being sought by the mother, X and Y in respect of themselves and Z, and then the issues about the exercise of parental responsibility, including the mother’s application for what amounts to a prohibited steps order.

[100]The injunctions sought against the father (whether by himself or by instructing or encouraging others) forbid him from taking any of the following steps in respect of any of them or Z:(a) using or threatening violence against them;

(b) harassing or pestering them;

(d) making contact with them by letter, telephone, Skype, text message, email, any means of electronic communication, or through any social networking sites, including Facebook;

(e) locating, attempting to locate or seeking to identify their location or any other details or information in respect of them;

(f) communicating, contacting or seeking any information about them from any third parties, in particular any resource provider, educational provider and medical establishment or therapeutic provider;

(g) coming within a 10 miles radius of, entering or attempting to enter, any educational establishment, medical establishment or place of work at which he believes, knows or suspects any of them may attend or work;

(h) making contact with any educational establishment or place of work at which he believes, knows or suspects any of them may attend or work;

(i) coming within a 10 mile radius of any property at which he believes, knows or suspects any of them to be present or living;

(j) accessing or attempting to access any email, Facebook or other electronic account operated by any of them, whether under his own name or otherwise;

(k) holding himself out as being any of them in any electronic mail, social networking or other communications;

(l) (in respect of X, Y and Z), removing them from the place where each is living;

(m) (in respect of X, Y and Z), removing any of them from their educational provider or any other resource which she is attending;

(n) (in respect of X, Y and Z), removing any of them, or causing any of them to be removed, from the jurisdiction;

(o) (in respect of Y and Z), taking any steps to obtain passports or travel documents in respect of Y and Z;

(p) (in respect of Z), removing Z from the care of her mother.

[101]In oral submissions, there was some debate whether all of the above orders should be expressed as injunctions, or whether some of them, for example those in sub-paragraphs (l), (m), (n), (o) and (p), should be expressed as prohibited steps orders in so far as they apply to Z. As all except sub-paragraph (p) are being sought for at least two members of the family, it would be simpler for all orders (except for (p)) to be in the form of an injunction, provided that can be properly brought within the terms of such an order.

[102]Section 42 of the Family Law Act 1996 provides, in so far as relevant to this application:

“(1) In this Part, a ‘non-molestation order’ means an order containing either or both of the following provisions: (a) provision prohibiting a person (‘the respondent’) from molesting another person who is associated with the respondent; (b) provision preventing the respondent from molesting a relevant child. …. (5) In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being of (a) the applicant …. (b) any relevant child. (a) provision prohibiting a person (‘the respondent’) from molesting another person who is associated with the respondent; (b) provision preventing the respondent from molesting a relevant child. (a) the applicant …. (b) any relevant child. (6) A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or both. (7) A non-molestation order may be made for a specified period or until further order.”

[103]It is well established that the court has wide discretion as to the terms of any order made to prevent harassment or molestation. It is important that the court defines with sufficient particularity the conduct to be covered by the terms of the injunction.

[104]Those applying for these orders ask that they be made for an indefinite period, with liberty to all sides to apply to vary, extend or discharge. In many cases, injunctions are granted for fixed periods only. There is no doubt, however, that the court has the power in appropriate circumstances to make orders to continue indefinitely: see for example the discussion in Re B-J (Power of Arrest)

[2000] 2 FLR 443

per Hale LJ, as she then was.

[105]In this case, the father has proved, by his actions following the family’s flight on 26th December 2010, that he is determined and resourceful at tracking them down. He made it quite clear during these proceedings that he regards it as his right to continue to search for and find Z. In addition, I do not believe his statements that he now has no wish to pursue the mother, X or Y. I regret to say that the whole family remains at risk from him, either directly or indirectly through others, notwithstanding the fact that he is currently in prison. If and when he is allowed his liberty, there is a strong likelihood that he will resume his search for the family. During his incarceration, there is also a significant risk that he will encourage or instruct others to take up the search on his behalf, as he has done in the past. Every effort must therefore be made to provide comprehensive protection to the mother and her daughters,

[106]For the reasons set out above, I conclude that Z’s welfare demands that she be given the highest level of protection that can be provided by the court. Equally, I conclude that the mother, X and Y need the same degree of protection. The range of orders sought as listed in paragraph 100 is wider than normally applied for or granted. The order sought under paragraph 100(k) above – “holding himself out as being any of them in any electronic mail, social networking or other communications” – is, so far as I am aware, not one that has previously been made but in my judgment it does fall within the meaning of “molestation”. In this case I conclude that order, and all the others sought on behalf of the mother, X and Y, are wholly justified. I therefore make the injunctive orders in the terms sought as set out in paragraph 100 (a) to (o) above, to last until further order. (3). Parental responsibility

[107]S.3(1) of the Children Act 1989 defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. Under s.2(1), “where a child’s mother and father were married to each other at the time of his birth, they shall each have parental responsibility for the child.” In contrast to unmarried fathers, who, having acquired parental responsibility in one of the ways specified in s.4, can be divested of it by court order (see Re D

[2014] EWCA Civ 315

, on appeal from CW v SG

[2013] EWHC 854 (Fam)

), a father who was married to the child’s mother cannot lose parental responsibility, unless the child is subsequently adopted.

[108]In most cases, it is in a child’s interests that both parents should have and exercise parental responsibility. The extent to which a parent exercises that responsibility varies from family to family depending on all the circumstances, but the courts have repeatedly emphasised the importance of both parents exercising an element of responsibility wherever possible. As Ryder LJ observed in Re M (A Child) sub nom PM v MB and M (A Child)

[2013] EWCA Civ 969

at paragraph 14, parental responsibility “is an important status which is an incident of the family and private lives of the adults and child concerned”. The same judge also commented in Re D, supra, at paragraph 33, “[i]t is vitally important to encourage the exercise of parental responsibility by fathers. Children have a right to that benefit.”

[109]Under s.2(8), however, “the fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made in respect to the child under this Act”. The court has power to restrict the exercise of parental responsibility by making a prohibited steps order, defined in s.8(1) as “an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court”. In determining whether to make a prohibited steps order, the court applies s.1 – in particular, the child’s welfare is the paramount consideration and the court must have regard to the matter set out in the welfare checklist in s.1(3). In some cases, it is necessary for the court to make a prohibited steps order restricting a parent from taking steps that he or she would normally be entitled to take in the exercise of parental responsibility. That power extends, in very exceptional cases, to making an order prohibiting a parent from taking any steps in the exercise of parental responsibility.

[110]In their letter dated 15th November 2013 setting out the orders sought against the father, the mother’s solicitors included orders or declarations that the mother be under no obligation to inform or consult the father in respect of the exercise of parental responsibility over Z (save in the event that she dies, moves abroad, or is suffering from a terminal medical condition) and that no organisation, public authority or individual shall be bound by any purported exercise of parental responsibility by the father. Having reflected on their application, however, I concluded that before considering making such orders or declarations, it was first necessary for the court to consider making a prohibited steps order directed against the father, prohibiting him from taking any steps in the exercise of parental responsibility. This was a further reason for my direction that the lawyers representing the mother, X and Y prepare a supplemental submission setting out the legal basis for the orders they were seeking. At the adjourned oral hearing, Miss Ball accepted this analysis and duly indicated that she sought such an order.

[111]In support of this application, Miss Ball cited my earlier judgment in CW v SG, supra. That judgment, upheld by the Court of Appeal, concerned an application by a mother for an order terminating the parental responsibility of a father acquired pursuant to s.4(1)(a) of the Children Act 1989 as amended, by virtue of being registered as the child’s father. At paragraph 58, I said:

“I take into account the fact that, as part of his background, D is the biological child of the father, and that as an aspect of his emotional needs he, like every child, should grow up with some understanding of his origins and, whenever possible, a relationship with each biological parent. But in certain circumstances those needs must give way to more important considerations, in particular, the need for emotional security. I conclude that D’s emotional security would be imperilled were the father to continue to have any further involvement in his life. Equally, whilst acknowledging that as an aspect on their respective Article 8 rights, both D and his father have a family life together, that aspect is in this case outweighed by D’s overriding need, as part of his Article 8 rights, to security within his family.”

[112]In deciding whether to make a prohibited steps order prohibiting the father from exercising any parental responsibility for Z, I apply s.1 of the 1989 Act. Z’s welfare is my paramount responsibility. I have considered the checklist in s.1(3). In my view, Z’s wishes and feelings, her background and characteristics, her emotional and physical needs (in particular her need for security), the capacity of the parents to meet those needs, and the harm she has suffered and the risk of future harm are all relevant factors in this case. On the one hand, as already stated, it would in normal circumstances be important for Z’s emotional needs, and for her personal autonomy, that her father be involved in her life and have the opportunity to exercise his parental responsibility. In this way, a child grows up with a better understanding of her background and heritage. Regrettably, however, this is not a normal case. Those factors are outweighed here by Z’s physical and emotional needs for security and the need to avoid any future harm. I accept the submission that the father would utilise any opportunity afforded by his parental responsibility for Z to locate the family and disrupt their lives. I find that the father would be largely driven by a wish to interfere in the lives of the mother and the older children, and therefore lacks the capacity to meet Z’s needs. In addition, if he was allowed the scope to interfere in their lives – for example by forcing them to move home again – he would undermine the capacity of the mother to meet Z’s needs. The child’s emotional need for a father to be involved in her life and exercise parental responsibility must in certain rare circumstances give way to more important considerations, in particular, the need for emotional and physical security. I conclude that Z’s emotional and physical security would be in jeopardy if her father were to have any further involvement in her life at this stage.

[113]Equally, while the rights of a father and child to respect for family life in

Article 8 of ECHR

encompasses the father’s exercise of parental responsibility for the child, they also include the child’s right to emotional and physical security.

[114]For the reasons already considered with regard to contact, I conclude that Z’s welfare demands that the father should not exercise parental responsibility for her. Z has suffered very considerable emotional harm as a result of his conduct. She is likely to suffer further significant emotional harm were the father in a position to exercise parental responsibility and thereby perpetuate the strife and anxiety resulting from his ongoing involvement with the family. The father has no insight, and has not demonstrated the slightest evidence of any understanding of the impact of his behaviour on the rest of the family. I think it highly probable that he would use any opportunity afforded by retaining parental responsibility for Z as a means of continuing his campaign of intimidation and oppression of the mother and his older daughters.

[115]Having regard to s. 1 of the 1989 Act, I therefore conclude that Z’s welfare requires that parental responsibility for her be exercised exclusively by the mother. I therefore make a prohibited steps order under s.8 prohibiting the father from taking any steps in the exercise of his parental responsibility in respect of Z until she attains the age of 18 or further order. I shall also make a prohibited steps order in the terms of the order sought by the mother as set out in paragraph 100 (p) above, prohibiting the father from removing Z from the care of her mother until she attains the age of 18 or further order. Under s.9(6) of the Act, “no court shall make a s.8 order which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional”. I am satisfied that the circumstances of this case are sufficiently exceptional to justify extending these orders until Z’s 18th birthday.

[116]Further, I shall make a declaration that the mother is under no obligation to inform or consult the father in respect of the exercise of parental responsibility over Z (save in the event that she dies, moves abroad, or is suffering from a terminal medical condition).

[117]In addition, the mother sought a further declaration that no organisation, public authority or individual shall be bound by any purported exercise of parental responsibility by the father. Such a declaration, couched in permissive terms, might not be effective at preventing agencies from deciding that their obligations required them to involve the father in aspects of Z’s life. I therefore proposed, and Miss Ball accepted, that there should be an order under the inherent jurisdiction that(1) any person or organisation served with this order, or who has notice of this order, is prohibited from disclosing to the father any information about Z and

(2) no person or organisation served with this order, or who has notice of this order, shall comply with any exercise of parental responsibility by the father.

[118]I shall also make an order to be served on the UK passport authorities preventing the issue of a British passport in respect of Z without the express permission of the mother. I shall include in the order a request that the Turkish Greek and Cypriot passport authorities do not issue a passport in respect of Z without the mother’s express permission.

[119]I shall give permission to the parties to serve a copy of the order on schools, GPs, hospitals, police forces, passport authorities, the Turkish, Greek and Cypriot embassies, and any other agency.

[120]I shall also make an order that any organisation served with the order must not disclose to the father or his representative any information concerning the mother or any of the 3 children. I am satisfied that the court’s powers under the inherent jurisdiction and s.37 of the Senior Courts Act 1981 extend to the making of such an order.

[121]The order should include liberty to apply as appropriate, all such applications to be reserved to me if available.

Order

Domestic Violence and Harm”, regulated the conduct of hearings in which allegations of domestic violence are made. The Practice Direction has been amended during the currency of this hearing following the implementation of the 2014 Act. The relevant provisions identifying the factors to be taken into account when determining whether to make child arrangements orders in cases when domestic violence or abuse has occurred are now found at paragraph 35 to 37: “35. When deciding the issue of child arrangements the court should ensure that any order for contact will be safe and in the best interests of the child. 36. In the light of any findings of fact the court should apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence or abuse have been made, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. The court should only make an order for contact if it can be satisfied 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 that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent. 37. In every case where a finding of domestic violence or abuse is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider –(a) the effect of the domestic violence or abuse on the child and on the arrangements for where the child is living;

(b) the effect of the domestic violence or abuse on the child and its effect on the child’s relationship with the parents; (c ) whether the applicant parent is motivated by a desire to promote the best interests of the child or is using the process to continue a process of violence, abuse, intimidation or harassment or controlling or coercive behaviour 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 violence or abuse and the potential for future violence or abuse.” (a) the effect of the domestic violence or abuse on the child and on the arrangements for where the child is living; (b) the effect of the domestic violence or abuse on the child and its effect on the child’s relationship with the parents; (c ) whether the applicant parent is motivated by a desire to promote the best interests of the child or is using the process to continue a process of violence, abuse, intimidation or harassment or controlling or coercive behaviour 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 violence or abuse and the potential for future violence or abuse.”

Cited in 10 later judgments

and 1 more case

F (Children; Contact, Name, Parental Responsibility) 2014