AB (A Child), Re [2016] EWHC 3115 (Fam)

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.Neutral Citation Number: [2016]EWHC 3115 (Fam)
IN THE FAMILY COURT SITTING AT LEICESTER
Before
His Honour Judge Clifford Bellamysitting as a Deputy Judge of the High Court
Between
Applicant fatherApplicantRespondent motherRespondent
Re AB (A Child)
(judgment handed down on 23 rd August 2016)
Laura Vickers for the applicant father
Heather Popley for the respondent mother
Sian Waldron for the child
JUDGMENT
Judge Bellamy:
Date 2016-08-23
[1]On 29th April 2013 a father applied to the court for contact with his son, AB. AB was then aged 3¾. The application has been ongoing continuously since that time. At an early stage in these proceedings the court directed that there should be a finding of fact hearing. That hearing still has not taken place. AB is now aged 7. The delay in this case has been inordinate and unacceptable.[2]There are a number of issues that require immediate determination. These include the question of whether the order for a finding of fact hearing should now be discharged, whether the mother should be required to return AB from Poland in time for him to attend school at the start of the new academic year and whether there should be any change in the interim arrangements for AB’s care.[3]I heard submissions on those issues on 17th August. At the end of the hearing I announced my decision and said that I would circulate a draft judgment the next day and formally hand the judgment down on 23rd August. In the event, during the intervening period there were developments that required me to hear further submissions on 22nd August in the light of which amendments were required to the draft judgment circulated on 18th August. This is my judgment on each of the issues referred to in the preceding paragraph.

Essential background history

[4]Before I consider any of the contentious issues it is first necessary to set out brief details of the background history.[5]The parents are both Polish. The father is aged 35. The mother is aged 26. When living in Poland they were neighbours. The mother lived with her mother (maternal grandmother) and her brother. The father lived in his own property. He became friendly with maternal grandmother. Aware of her housing difficulties he offered a home to her and her two children. They moved into his home in 2002. The mother was then aged 12.[6]The mother says that between the ages of 12 and 18 she was groomed and sexually abused by the father. He denies that allegation.[7]In 2008, when the mother was aged 18, the parents came to live in England. They returned to Poland to be married later that year. After they were married they came back to live in England. AB was born in 2009.[8]The relationship became unhappy. They separated. The date of their final separation is unclear though it appears to have been in the summer of 2011.[9]Following their separation the father had contact with AB. Contact ceased in November 2012. It was the mother’s decision that contact should cease.[10]In or around March 2013, shortly before the father issued his application, the mother lawyer in Poland. She informed her lawyer that when a child living in Poland she had been groomed by the father and that this had led to an intimate sexual relationship. Her lawyer contacted the police. I am told that the police investigation in Poland is ongoing. There is no evidence before the court of the stage that investigation has reached or of the likely timescale for making a decision about whether to charge the father with a criminal offence. The father informs the court that he has not been interviewed by the Polish police or asked to attend for interview.

Litigation history

[11]The parents speak little English. Both have required the assistance of interpreters at court hearings. I have no doubt that the combined fact of their language difficulties and the fact that throughout a significant part of the litigation they have both been acting as litigants in person has meant that, for both of them, this litigation has been a significant challenge. 2013[12]As I have noted, the father issued his application on 29th April 2013. The application was issued in what was then the Family Proceedings Court. The first hearing of the application was on 25th July 2013. The father was represented by counsel. The mother appeared as a litigant in person. Only one interpreter was available. The mother raised allegations concerning the father’s past behaviour. The court directed her to file a schedule of allegations by 8th August. An order was made enabling the father to have indirect contact with AB. The hearing was adjourned until 18th September.[13]On 17th September the mother gave birth to her second child. The hearing on 18th September was adjourned until 15th October. Both parents attended that hearing. Both were litigants in person. The mother had not complied with the order to file a schedule of allegations. The time for compliance was extended to 5th November. The hearing was adjourned until 29th November. The order for interim indirect contact was extended.[14]At the hearing on 29th November the father’s application was transferred to the Leicester County Court. A hearing was fixed to take place on 2nd January 2014 before a Circuit Judge. 2014[15]By the time of the hearing on 2nd January the mother had filed and served a schedule of allegations but the father had not responded. The father was ordered to file a response by 10th January.[16]The next hearing, before a Deputy District Judge, took place on 27th February. An order was made requiring CAFCASS to prepare a multi-issue report pursuant to the provisions of s.7 of the Children Act 1989 (‘the Act). The order does not mention the mother’s schedule of allegations or the need for a finding of fact hearing.[17]The next hearing took place before a District Judge on 11th June. The father did not attend. The hearing was again adjourned.[18]The adjourned hearing took place on 12th August. The court directed that the case be listed for a finding of fact hearing on 17th and 18th November 2014. The order also required both parents to file and serve written statements. Neither parent complied.[19]Because of the parents’ failure to comply with the order to file statements, on 17th November the finding of fact hearing was adjourned. At that hearing the mother claimed that there was an ongoing criminal investigation of the father, in Poland. She was ordered to disclose details of that investigation prior to the adjourned hearing. She did not do so. 2015[20]The matter came back before the court for further directions on 2nd February 2015. The District Judge listed the matter for a finding of fact hearing on 20th and 21st July. The order records ‘that the progress of the Police investigation in Poland is very slow and neither party expects matters to be concluded there in the foreseeable future’. The order required the parents to file and serve their written evidence by 30th March.[21]The mother did not attend the hearing on 20th July. There is a note on the court file saying that the mother had contacted the court on 21st July to say that she had been at hospital the previous day and had therefore been unable to attend court. The finding of fact hearing was rescheduled to take place on 15th and 16th October.[22]The October hearing was listed before me. This was the first time this case had been listed before me. I have dealt with all subsequent hearings. The mother did not attend court on 15th October. Another adjournment was inevitable. I came to the conclusion that this was a high conflict, intractable case and that AB should be made a party and a Children’s Guardian appointed for him pursuant to rule 16.4 of the Family Procedure Rules 2010 (‘the FPR’).[23]The next hearing took place on 29th October. The father attended. The mother did not. By the date of that hearing the father had consulted solicitors who had submitted an application for legal aid on his behalf. The Legal Aid Agency was subsequently persuaded that it was appropriate to grant exceptional case funding under s.10 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. In the interim an order was also made for the father to have direct contact with AB to be supervised by the guardian. The order contained a recital in these terms: ‘The court notes that the mother allowed the father extended, unsupervised time with the child…after the parents’ separation and after many, if not all, of the allegations in her [schedule of allegations]. The court considers that the issues between the parents do not preclude the resumption of supervised contact between the father and AB but are relevant to the question of lifting of any supervision.’ 2016[24]On 20th January 2016 the mother notified the court and the other parties that she was going to Poland. She said that according to her GP and forensic psychologist she needed ‘serious therapy what I am doing in Poland because of the language barrier’. AB remained at home with his step-father and half-siblings. The mother had taken AB’s passport with her to Poland. The case was listed before me urgently on 22nd January. I made a passport order requiring the mother to surrender AB’s passport to the Tipstaff. The mother was not present and was not represented at that hearing.[25]The mother returned to England on 30th January. She left AB’s passport in Poland in the care of her father. It is unclear why. Upon arriving in England she was met by the police who seized her passport and her Polish identification documents.[26]The adjourned finding of fact hearing was listed to take place before me on 5th February 2016. By then the mother had consulted solicitors and an application for legal aid had been made on her behalf. The application had not been determined. Once again the finding of fact hearing had to be adjourned. The new date fixed was 3rd May with a time estimate of three days.[27]At the hearing on 5th February the mother sought permission to take AB on holiday to Poland. She gave oral evidence in support of her application. The application was not opposed. Permission was granted.[28]As a result of an intervention by the court on the mother’s behalf she, too, was granted exceptional case funding. She has been legally aided since 10th March.[29]On 14th April the father’s application came back before me for further directions. Having only recently been granted legal aid I was told that the mother needed time to prepare her case, not least because some of her proposed witnesses were living in Poland. I note in passing that I was later informed that the only witnesses for the mother are herself and her father. The finding of fact hearing was again adjourned. Part of the time set aside for that hearing was retained to deal with issues relating to the father’s contact with AB. The mother was ordered to attend that hearing.[30]On 3rd May I heard limited evidence from the mother. She quickly became too distressed to continue. I also heard evidence from the guardian. I made a child arrangements order setting out the arrangements for the father’s contact with AB in the interim. I also listed the matter for a finding of fact hearing on 12th, 16th and 17th August. That was the sixth time the finding of fact hearing had been listed.[31]On the mother’s behalf I was asked to make an order for special measures to be put in place for the hearing in August to enable her to give her evidence without the fear of feeling intimidated by the presence of the father. I directed that she be permitted to give her evidence by live video link.[32]Notwithstanding that order there remained concern about whether the mother would be able to withstand the stress of giving oral evidence. I gave permission to the parties jointly to arrange for the mother to undergo a psychiatric assessment. The psychiatrist was instructed to undertake a full psychiatric assessment of the mother, an assessment of the risk of her self-harming and an assessment of her ability to withstand the process of giving oral evidence.[33]At the time of that hearing it was known that the mother was pregnant. Her fourth child is due on 11th November.[34]In an undated and unsigned witness statement apparently filed in early May 2016, the mother had indicated an intention to issue an application for permission to remove AB permanently to Poland. She needed an extension to her legal aid certificate before she could issue that application. That extension was not granted until 9th August. The reasons for that delay are unclear. For reasons which will later become apparent, it is important to highlight a passage from this statement in which the mother says:
‘9. I have always planned to move back to Poland when AB is 7 years old so that he can start year 1 of school in Poland. The school year starts in September and I am very worried about AB being delayed in attending school. AB currently attends a Polish school on Saturdays.’
[35]The next hearing was on 14th July. The only issue before the court was an application by the mother for permission to take AB on holiday to Poland between 17th July and 6th August. An order was made by consent. The order contained an undertaking by the mother to return AB to England by no later than midnight on 6th August.

The mother’s non-compliance with her undertaking

[36]The mother, her husband and their children went to Poland as planned. Unfortunately, whilst in Poland the mother was admitted to hospital. She was unable to return AB to England on 6th August as previously directed. On her behalf an urgent application was made to the court. At a hearing on 5th August I extended the time for AB to be returned to England until midnight on 9th August. I also listed the finding of fact issue for pre-hearing review on 9th August.[37]On 9th August I was told that the mother was still not well enough to return to England. I extended the deadline for her to return AB to England to 10.00am on 12th August, the first day of the intended finding of fact hearing. I also directed that by 11th August the mother should file evidence concerning her recent hospital admission, her diagnosis and prognosis and medical evidence concerning her fitness to travel.[38]Late on the afternoon of 11th August I was informed that the mother was not able to return to England. The application remained in my list on 12th August though only for directions.[39]At the hearing on 12th August I retained the listing on 17th August to enable me to address the issues set out at the beginning of this judgment. I extended the deadline for the return of AB to England until midnight on 17th August. I indicated that it was unlikely that I would agree to any further extensions. I was asked by counsel for the guardian to make AB a ward of court. I agreed.[40]On 16th August the mother issued an application seeking an ‘extension of time re existing permission to temporarily remove AB from the jurisdiction and permission to permanently remove AB from the jurisdiction to relocate to Poland’.[41]The mother has produced a number of documents relating to her recent admission to hospital in Poland. Though written in Polish they have all been translated. A hospital discharge summary records that the mother was hospitalised from 4th August until 9th August. The reasons for this are stated to be ‘Head longitudinal lie of foetus. Two vessel umbilical cord. Risk of premature labour. Vaginal infection.’[42]At the hearing on 17th August there was no written medical evidence before the court concerning the mother’s fitness to travel. Counsel was able to take the mother’s instructions by telephone. I was informed that the mother had a medical certificate in Polish, that the certificate had been translated by the mother’s interpreter and that the certificate said that the mother had been advised not to travel. At the hearing on 22nd August counsel for the mother produced a written translation of the certificate. It reads:
‘Pregnancy IV 72 (sic) weeks. Longitudinal breech position of fetus. Two vessel umbilical cord. Pregnancy at risk of premature labour. Protective lifestyle recommended. Travel contraindicated.’
[43]At 20.59pm on Saturday 20th August the mother’s solicitor sent me an e-mail, copied to all parties, in which she said that, ‘Under the terms of the court order made on that occasion the subject child AB is to be returned to England by 4pm on Tuesday 23rd August 2016. We were notified late yesterday that AB had fallen ill on Thursday & was taken to a doctor yesterday. We understand that AB presented with a rash & temperature. He has been diagnosed with shingles. Attached is a translated medical note confirming the diagnosis & that AB is prohibited from travel for a period of two weeks. In the circumstances we seek urgent permission to extend the time by which AB must be returned to England in the light of this development a period of two weeks is suggested. The court will recall that AB is a Ward of court. We are aware that HHJ Bellamy is currently on leave due to return 22nd August 2016. We are hopeful that HHJ Bellamy will be able to respond to this email & provide the requisite extension of time sought over the weekend failing which for this matter to be listed for urgent consideration on Monday morning.’[44]Attached to the e-mail was what purports to be a translation of a medical certificate written by a doctor in Poland. The certificate reads: ‘Diagnosis: Shingles – infectious disease; prohibited from travelling for two weeks’.[45]I did not open the e-mail until Sunday 21st August. I immediately replied to all parties informing them that they should appear before me at 2.00pm on Monday 22nd August.

The mother’s allegations against the father

[46]The mother’s initial schedule of allegations was prepared at a time when she was a litigant in person. Since then it has been through several amendments. The final version, drafted by the mother’s legal team, is limited to four allegations: 1. The father then aged 22 groomed the mother then aged 12 and sexually abused her to include kissing, touching, fetish behaviour and rape throughout the remainder of her minority. 2. The maternal grandmother knew that the father was sexually abusing the mother as a minor and failed to protect her. 3. The father was abusive towards the mother by hitting her, manipulating and controlling her, shouting at her. AB was on occasions present during these incidents. 4. The father was intolerant of AB. He hit AB from about the age of 1 onwards to include smacking his bottom and hitting him on more than one occasion to include hitting his face.[47]The father denies the mother’s allegations.

The psychiatric assessment of the mother

[48]The first indication of the mother’s mental health difficulties is set out in a letter from her local NHS Trust’s Open Mind Service. The letter, dated 8th April 2014, was written by a Cognitive Behavioural Therapist. The therapist notes that the mother suffered from nightmares and insomnia. She appeared to have most symptoms of panic disorder and a generalised anxiety disorder. The panic attacks are accompanied by hyperventilation and chest pains. The therapist says that ‘The constellation of symptoms she presents with may be indicative of a complex post-traumatic stress presentation’.[49]The mother has also produced a letter from her GP dated 3rd May 2016. He confirms that the mother has a history of low mood and anxiety, ‘relating to previous abuse by her ex-husband and ongoing court proceedings regarding his access to their children. She presented on 24.7.16 with worsening low mood, poor sleep, poor concentration and negative ideation. The court proceedings this week are a trigger. She was assessed in the Urgent Care Centre she did not require admission. There were no documented record of suicidal thoughts although she does remain vulnerable due to her low mood and high levels of anxiety…’[50]Permission was granted to the parties jointly to instruct Dr Christopher Mayer, a Consultant Psychiatrist, to undertake an assessment of the mother. In his report he says that at interview the mother did not present as clinically depressed or anxious. There is no suggestion of an underlying psychosis. However, she did present as being ‘quite tense and emotionally fragile’. If the mother’s allegations about the father’s behaviour are proved then the appropriate diagnosis is complex PTSD. Dr Mayer went on to say that that diagnosis, ‘is, of course, predicated on the mother having been subject to emotional and sexual harm by the father during her teens. He denies this…The prognosis would be very different if it is found that the mother was not in an abusive relationship with the father, as this would indicate underlying personality problems, which would be much more difficult to modify.’[51]Dr Mayer was asked to consider the mother’s ability to cope with the process of giving evidence and being cross examined. In his opinion the mother’s ability to cope is finely balanced. He says that, ‘If the diagnosis of PTSD is correct, and she is not simply exaggerating problems as she does not want her ex-partner to play a part in her son’s life, anxiety levels and distress will inevitably rise through exposure to triggers, including seeing the father and having to re-visit painful memories. This could be at a level that would prevent her from giving evidence and answering questions… If it is concluded that it is necessary to proceed, the mother’s emotional distress and ability to cope with giving evidence could be mitigated by not having direct contact with the father, either through a screen or giving video evidence, combined with someone she trusts by her side. I cannot, however, state that this would be sufficient, and especially if she has resolved in her own mind that there is no advantage to her or her son in being able to cope. I doubt that postponing matters while she completes a course of therapy would advance matters to any significant degree.’

The progress of contact

[52]At the time the father issued his application in April 2013 he had had no contact with AB since November 2012. Until then his contact had included overnight contact. Earlier in 2012 the mother had gone on holiday for a week leaving AB in his father’s care.[53]Upon issue, the father’s application was referred to Cafcass. Cafcass spoke to both parents. The mother raised allegations similar to those which are the subject of the proposed finding of fact hearing. Cafcass wrote to the court indicating that in light of those allegations the father should not have contact with AB until there had been a finding of fact hearing.[54]The court subsequently ordered Cafcass to prepare a report pursuant to s.7 of the Act. The Cafcass officer allocated to undertake that piece of work wrote to the court on 6th May 2014 saying that in her opinion a finding of fact hearing was essential before it would be possible for her to make recommendations to the court concerning face to face contact between the father and AB. She repeated that view in her report though this time she expressed concerns about delay. She recommended, ‘That a finding of fact hearing takes place to endeavour to resolve the allegations for which I have no evidence. As a consequence I am not able to make a recommendation for AB to spend face to face time with his father; but I am concerned that if the allegations are not factual then AB is being prevented from spending time with his father and has been prevented from doing so for an extensive period of time.’[55]There was no further involvement by Cafcass until 2015 when I made AB a party to the proceedings and appointed a guardian for him. The guardian spent the first few months of her involvement in setting up and supervising six sessions of face to face contact. That contact went extremely well. Two paragraphs from the guardian’s report make the point:
‘27. It is unusual, in my experience for contact to be so consistently positive and with such natural interaction, particularly after such a prolonged absence. To suspend this arrangement would, I believe, cause AB considerable confusion, distress and a deep sense of emotional loss. He may also experience this [as] an abandonment or rejection… 31. …the quality of contact has proven to be unusually high and I am in no doubt that AB has benefitted from its reinstatement. It has provided AB with a sense of his father’s approval, interest and warmth while allowing him to feel that he is special to both of his parents. These benefits are particularly significant to a child who is part of a family with a step-father and half siblings.’
[56]The guardian was able to progress contact even further by successfully introducing paternal grandmother into the contact arrangements. In a second short report the guardian notes that AB ‘has responded warmly to his grandmother and embraced her when he greeted her for the second contact session.’ The guardian makes the point that the grandmother ‘will be a valuable presence during the contact that is due to take place in the community’.[57]The guardian is now on maternity leave. A new guardian has been allocated. The new guardian observed contact on 15th July. She has prepared a short written report following that contact. Her conclusions are as positive as those of her predecessor. Her concerns are not about father or paternal grandmother but about mother and step-father. She expresses concern about the absence of communication between step-father and father during handovers, noting that the step-father would not even make eye contact. She also expresses concern that AB ‘is very aware of his mother’s negative feelings towards his father’.[58]Notwithstanding the good progress made in re-establishing contact between father and son, for the father Miss Vickers makes the point that it remains the case that the mother is hostile towards contact. Notwithstanding the positive assessment of the grandmother, the mother continues to insist that there should at all times be a professional supervisor present during each contact session. The contact on 15th July should have lasted for three hours. The guardian had to leave after two hours. Contact could have continued under the grandmother’s supervision. The mother insisted that contact should then end. Miss Vickers submits that it is clear that the mother’s hostility towards contact is implacable and is unlikely to abate no matter what findings are made by the court.

Re-listing the finding of fact hearing: submissions

[59]On behalf of the mother, Miss Popley submits that the allegations made by the mother are serious and that they must be determined before the court considers the father’s application for unsupervised contact with AB. She submits that the adjournment of the most recent attempt to conduct a finding of fact hearing was caused by ‘extenuating circumstances’ beyond the mother’s control and that it would be disproportionate, at this late stage, to discharge the order for a finding of fact hearing. To do so would be a breach of the mother’s Article 6 right to a fair trial. Until the court has considered the mother’s allegations and determined whether she has discharged the burden of proof, the court will be unable to make a fully considered determination of the appropriate welfare outcome for AB.[60]For the father, Miss Vickers submits that to proceed with a finding of fact hearing at this late stage would be a breach of the father’s Article 6 right to a fair trial ‘within a reasonable time’. The father has been in what she describes as ‘litigation limbo’ for the last 40 months. For most of that time he has had no contact with his son. The general principle set out in s.1(2) of the Children Act 1989 that delay in determining a case such as this is likely to prejudice the child’s welfare, sounds very loudly in this case.[61]Miss Vickers also makes the point that whatever the outcome of a finding of fact hearing it is likely that the mother will remain implacably opposed to any progression towards unsupervised contact.[62]On behalf of the guardian, Miss Waldron submits that as the guardian proposes that the development of the father’s contact with AB should progress even before the finding of fact hearing is concluded there is therefore no prejudice to the father – or, in light of the provisions of s.1(2) of the Act, to AB – of further delay in completing the finding of fact hearing.

Re-listing the finding of fact hearing: discussion

[63]Over the course of the last 20 years, in research evidence and in judgments handed down by the senior courts, consideration has been given to the approach to be taken when determining the post-separation arrangements for the care and welfare of children where allegations of domestic violence are made by one parent against the other. That learning is now reflected in the FPR Practice Direction 12J.[64]Paragraph 2 of the Practice Direction explains the purpose of the Practice Direction as follows:
‘The purpose of this Practice Direction is to set out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.’
[65]The Practice Direction sets out some general principles. These include:
‘4. The Family Court presumes that the involvement of a parent in a child's life will further the child's welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm. 6. The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment ('FHDRA'), consider whether domestic violence is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must – • identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved; • consider the nature of any allegation, admission or evidence of domestic violence or abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms; • give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; • ensure that where violence or abuse is admitted or proven, that any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose them to the risk of further harm. In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated violence or abuse is safe and in the best interests of the child; and • ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.’
[66]Paragraphs 25 – 27 are headed Interim orders before determination of relevant facts. They set out the following guidance: ‘25. Where the court gives directions for a fact-finding hearing, the court should consider whether an interim child arrangements order is in the interests of the child; and in particular whether the safety of the child and (bearing in mind the impact which domestic violence against a parent can have on the emotional well-being of the child) the parent who has made the allegation and is at any time caring for the child can be secured before, during and after any contact. 26. In deciding any interim child arrangements question pending a full hearing the court should –(a) take into account the matters set out in section 1(3) of the Children Act 1989 or section 1(4) of the Adoption and Children Act 2002 ('the welfare check-list'), as appropriate; and(b) give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic violence, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence of making or declining to make an order. 27. Where the court is considering whether to make an order for interim contact, it should in addition consider – (a) the arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimised and that the safety of the child and the parties is secured; and in particular: (i) whether the contact should be supervised or supported, and if so, where and by whom;(ii) the availability of appropriate facilities for that purpose (b) if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and(c) whether contact will be beneficial for the child.[67]At paragraph 17 the Practice Direction sets out guidance to assist the court in deciding whether it is appropriate to order a finding of fact hearing:
‘In determining whether it is necessary to conduct a fact-finding hearing, the court should consider – (a) the views of the parties and of Cafcass or CAFCASS Cymru; (b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed; (c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed; (d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed; (e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing; (f) the nature of the evidence required to resolve disputed allegations; (g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and (h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.’
[68]In addition to taking into account the good practice set out in the Practice Direction, when considering whether to order that there shall be a finding of fact hearing the court must also have in mind the provisions set out in the overriding objective in FPR Part 1. Rule 1.1 provides that:(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.(2) Dealing with a case justly includes, so far as is practicable— (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.[69]FPR rule 1.4(1) sets out the court’s duty to actively manage cases. Rule 1.4(2) sets out an illustrative list of what is required to actively manage a case. The final item in the list, rule 1.4(2)(m) states that the court must actively manage cases by ‘giving directions to ensure that the case proceeds quickly and efficiently.’[70]That requirement echoes the provisions of s.1(2) of the Act, to which I have already referred, which provides that, ‘In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.’

Re-listing the finding of fact hearing: conclusion

[71]There have so far been six attempts to hold a finding of fact hearing over the course of the three years and four months since these proceedings were issued. On each occasion the hearing date fixed by the court has not been effective.[72]The mother seeks to persuade the court that she cannot now return to England until after the birth of her baby, due in early November. It is accepted on her behalf that because of the inevitable uncertainty about the precise date upon which the baby will be born and about the condition of mother and baby immediately following the birth, it would be unwise to relist the proposed finding of fact hearing before January 2017, some 3¾ years after the father first issued his application.[73]It is questionable whether it is still possible to have a fair trial of the issues. The issues raised by the mother relate to the father’s conduct towards her between 2002 and 2008. There was no police investigation. There are no contemporaneous statements or notes. There was no medical examination of the mother. Her witnesses are herself and her father. Her father did not observe the alleged grooming or sexual abuse. On this issue the maternal grandfather’s evidence primarily rests upon ‘disclosures’ made to him by the mother. Logically, one might have thought that maternal grandmother, who was living with the father and her two children throughout all of the relevant time, would have more relevant evidence to give. I note that if this finding of fact hearing proceeded is allowed to continue, the maternal grandmother has agreed to give evidence on behalf of the father. The maternal grandmother’s evidence is challenged by the mother. Her position has led to an estrangement between mother and daughter.[74]Given the absence of any independent evidence to support the mother’s case it is clear that if the finding of fact hearing takes place, much will depend upon the court’s assessment of the credibility of, in particular, the parents and maternal grandmother. It is inevitable that after the passage of such a long period of time – it is now some fourteen years since the alleged abuse is said to have begun – memories will be affected. That may have an impact on the court’s assessment of credibility.[75]The mother also alleges that the father was intolerant of AB and used to smack his bottom and hit him across the face. The father denies that allegation. The mother relies on evidence from her father – paternal grandfather – by way of corroboration. In a two-page unsigned statement apparently made in support of the mother’s complaint to the Polish police the grandfather’s only reference to the father’s behaviour towards AB is to say, ‘I witnessed the abuse of my grandson, who was 3 years old at that time. He would shout at him or smack him on the bottom. When I was there he would restrain himself. I told him not to do it. He would smack him when my grandson didn’t want to go to bed or tidy up. Generally, he would shout at him.’[76]It is important to try to evaluate of the risk that a further attempt at holding a finding of fact hearing may suffer the same fate as the six attempts that have already been made. I have noted the practical difficulties that stand in the way of listing this case again before January 2017. After six abortive attempts to hold a finding of fact hearing it is difficult to have confidence that a seventh attempt would be any more successful.[77]The father’s ambition is to have unsupervised contact with AB, to include overnight stays. His prospects of achieving that outcome become more difficult over time. There was a gap of three years between the mother terminating contact and the court reinstating direct contact on an interim basis. Even if the father succeeds in persuading the court that he should have unsupervised and overnight contact with AB, this will now begin very much later than would have been the case had these proceedings been concluded without any delay. The time he has lost with AB can never be replaced.[78]In my judgment, before the court is persuaded to list the case yet again for a finding of fact hearing the three key issues for the court to consider are whether to do so is necessary, proportionate and fair.[79]I do not consider it to be necessary to make another attempt to hold a finding of fact hearing. The passage of time, the lack of any complaints about the father’s behaviour towards the mother and AB since the parents separated, the significant progress that has already been made in re-establishing the relationship between AB and his father combine to persuade me that it is not now necessary to conduct a finding of fact hearing. I am reinforced in that view by a position statement filed on behalf of the guardian in respect of this hearing in which it is made clear that even if the fact finding hearing had gone ahead last week and findings made as sought by the mother, ‘the guardian would still have recommended that contact should increase…subject to further risk assessment dependent upon the findings, potentially with review in a few months’ time in order to determine whether it is in the child’s best interests for contact to progress to overnight unsupervised contact.’[80]Not only is it not necessary to relist the finding of fact hearing, in my judgment it would also be disproportionate to do so. The delay in this case has been extreme. To keep on relisting the finding of fact hearing in the uncertain hope that it may at last be effective whilst at the same time adding further delay to the final resolution of the father’s application would not be a proportionate exercise of the court’s duty to engage in active case management.[81]If relisting the finding of fact hearing is neither necessary nor proportionate then, in my judgment it follows that to relist it would also be unfair.[82]For all of these reasons I am satisfied that the previous orders directing that there should be a finding of fact hearing should now be discharged. Steps should now be taken to reach a final determination of the father’s application without any more delay.

Returning AB to England – the evidence

[83]At the hearing on 17th August the mother’s position was set out in an unsigned witness statement. There are a number of points raised by the mother in that statement which need to be highlighted.[84]Firstly, she says that her understanding ‘is that I cannot travel until my baby is born’. She sought a variation of the order of 14th July extending the date for AB’s return to England from 6th August until a date after the birth of her baby. Assuming that the baby is born on the due date and that the baby is at least four weeks old by the time she returns to England, AB will have been living in Poland for some 20 weeks[85]Secondly, she makes the point that if AB were returned to England without her he would be distressed at being separated from her and from his half siblings. She also says that were he to return to England without her then this ‘would have a massive effect on my mental health’.[86]Thirdly, she said that her husband ‘will be returning to England on 23rd August 2016 for work’. It was with that information in mind that on 17th August I ordered that AB be returned to England on 23rd August. On 22nd August I was told that step-father had left Poland at the weekend, travelling by road, and that he had arrived at his home in England that very day (22nd August).[87]Fourthly, she says that her husband would be unable to care for AB because of his work commitments. She fails to mention the fact that from 21st to 30th January her husband cared for all three children whilst she was in Poland or to identify the support (if any) he received whilst caring for them during that period.[88]Fifthly, she says that she and the children are living with her parents-in-law. The recent medical certificate for the mother gives a completely different address for her when compared with the medical certificate relating to AB. This discrepancy is unexplained.[89]Sixthly, she says that if AB remains with her in Poland she will ‘make AB available for skype contact with [his father]’. That point is repeated by Miss Popley in her skeleton argument. Miss Popley says that ‘contact between AB and his father can occur by way of indirect contact and Skype contact on a regular basis’. For emphasis, she repeats the same point in the final sentence of her skeleton argument. At court on 22nd August it was suggested that the guardian, who had herself just returned from holiday, should try to make contact with AB by Skype whilst at court. This proved to be impossible. The mother informed her counsel by telephone that she does not have access to Skype.[90]Seventhly, the mother’s statement is completely silent on the arrangements for AB’s care whilst in Poland. Although we know that she and her children are living with her parents-in-law, whom she says ‘are in their 70s’, she gives no information about the accommodation, about the sleeping arrangements, about their financial position, about the arrangements for AB’s schooling. So far as concerns that last issue, I noted earlier (see §34 above) the mother’s previously declared intention to move to live in Poland with her children by the time AB is aged 7 and to enrol him in her first choice school.

The law

[91]On 12th August I made AB a ward of court.

(e) of FPR Practice Direction 12D which provides that:

‘The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common…(e) orders for the return of children to and from another state.’
[92]The court cannot force the mother to return to England. Neither can the court control the timing of the mother’s return to England. However, the court can order AB’s immediate return to England. Determining whether to order AB’s immediate return is a welfare issue. The approach that must be followed is that set out in s.1 of the Children Act 1989.[93]Section 1(1) provides that when a court determines any question with respect to the upbringing of a child, the child’s welfare must be the court’s paramount consideration. In determining such a question the court is required to have regard to each of the factors set out in s.1(3) – ‘the welfare checklist’ as it is commonly referred to. The court must have regard to the general principle that any delay is likely to prejudice the welfare of the child (s.1(2)). The court should not make any orders in respect of the child unless satisfied that making an order is better for the child than making no order (s.1(5)).[94]As a result of amendments made to s.1 by the Children and Families Act 2014, with respect to any application for a child arrangements order made by a parent the court is required to presume, unless the contrary is shown, that the involvement of that parent in the life of the child concerned will further the child’s welfare. In this context, ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time (s.1(2A) and s.1(2B)).[95]If the court fixes the date by which AB must be returned to England and the mother fails to comply with that order then that would amount to a ‘wrongful retention’ of AB in Poland within the meaning of that expression as set out in Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (concluded at The Hague, 25 October 1980). Article 8 entitles the father to apply to the Central Authority – in this case the International Child Abduction and Contact Unit (‘ICACU’) for assistance in securing AB’s return to England. Article 12 requires the judicial or administrative authority of the Contracting State where the child is (in this case, Poland) ‘to order the return of the child forthwith’. Article 13 sets out the limited grounds upon which the Contracting State may decline to order the return of the child. Article 11 requires the judicial or administrative authorities of a Contracting State to ‘act expeditiously in proceedings for the return of the child’. In this context, ‘expeditiously’ means within six weeks of the date of the application.

Ordering the return of AB to England: discussion

[96]I begin my discussion of this issue by undertaking a welfare checklist analysis.[97]Section 1(3)(a) requires the court to consider AB’s ascertainable wishes and feelings (considered in the light of his age and understanding).[98]Although there has been no recent formal assessment of AB’s wishes and feelings, in the light of the reports of the two guardians I am in no doubt that if asked AB would say that he loves both of his parents and that he wants to continue to have a relationship with them both.[99]Section 1(3)(b) requires the court to consider AB’s physical, emotional and educational needs.[100]AB’s physical needs are the same as those of any other child of his age. He has emotional needs arising from the long period of separation from his father and perhaps arising also from the steps that have been taken to reinstate that relationship. He also has a need to be educated. He is due back at school on 1st September. The mother says that he struggles attending an English-speaking school and that until July 2016 he had been attending a Polish school on Saturdays. In her report the guardian is rather more positive noting that ‘AB is reported by his school to be enthusiastic and keen to participate in a range of activities. He enjoys good relationships with staff and peers. He is described as a very active and energetic child. AB is working below age related expectations in reading, writing and maths…’ I am in no doubt that for AB to be taken out of school for any significant period of time would be contrary to his educational needs.[101]Section 1(3)(c) requires the court to consider the likely effect on AB of any change in his circumstances.[102]There has already been a change in AB’s circumstances in that he is currently living in Poland and has had no contact with his father for just over a month. As he is staying in Poland with family members including his mother and two younger half-siblings it is reasonable to assume that at this early stage he is not significantly affected by the change in circumstances. However, if this separation from his father were to continue it is reasonable to suppose that he would find that distressing.[103]I noted earlier the mother’s belief that AB would be distressed if he were to be separated from her and from his half-siblings.[104]Section 1(3)(d) requires the court to consider AB’s age, sex, background and any characteristics of his which the court considers relevant.[105]AB is a six year old Polish boy, of Polish parents, who was born in and until recently has since birth lived in England. His first language is Polish.[106]Section 1(3)(e) requires the court to consider any harm which AB has suffered or is at risk of suffering.[107]In her schedule of findings the mother includes an allegation that the father has in the past physically chastised AB. There is corroborative evidence from her father though, as I noted earlier, his evidence on this issue appears to be somewhat limited. There is no evidence that the mother has ever reported abuse to statutory agencies or to her Health Visitor or GP. There is evidence that the prior to November 2012 the mother had allowed the father to have unsupervised contact with AB, including overnight contact. The mother does not allege that AB was physically abused during those periods.[108]Leaving the issue of physical abuse to one side, the evidence does raise a concern that AB may have suffered and that he is at risk of suffering emotional harm. The emotional harm from which AB may already have suffered arises from the sudden cessation of his contact with his father and the long period of time during which there was no contact with his father. The risk of future emotional harm arises from the risk of enforced curtailment of his recently renewed and developing relationship with his father.[109]Section 1(3)(f) requires the court to consider how capable each of AB’s parents is of meeting his needs.[110]There is no reason to doubt the mother’s ability to meet AB’s physical needs. Her apparent implacable hostility to the recommencement and development of a meaningful relationship between AB and his father raises doubts about her ability to meet all of AB’s emotional needs. As for the father, the evidence from the two guardians suggests that he may have the ability to meet both AB’s physical and emotional needs. However, as that evidence has only been gleaned from observing a handful of contact sessions, I accept that that evaluation of the father’s capacity to meet AB’s needs must be treated with a degree of caution. It is, at best, only a provisional assessment.[111]The quality of the medical evidence before the court concerning the recent health problems of both the mother and AB is very brief and, in my judgment, inadequate. There has been no opportunity to test that evidence in court. So far as concerns the evidence that AB is suffering from shingles and as a result ‘prohibited from travelling for two weeks’ it is necessary to view that evidence in its chronological context. On Wednesday 17th August I ordered that AB should be returned to England by 4.00pm on 23rd August. The mother was made aware of my order that same day. On Thursday, 18th August, AB is said to have presented with a rash and a temperature. On Friday, 19th August, AB was taken to see a doctor who made the diagnosis of shingles. On Saturday 20th or Sunday 21st August (it is not clear which) step-father set off from Poland on his return journey to England.[112]The mother planned to go to Poland for approximately three weeks. She has now been in Poland for almost five weeks. In light of what she construes as medical advice not to travel, she has proposed that she and AB remain in Poland until after her baby has been born. That is another three months at least.[113]The mother says that to remove AB from her care ‘would have a massive effect on my mental health’. She also expresses concern about who would care for AB if he returned without her. Her husband has returned to England because he needs to get back to work. He does not have the capacity to look after AB on his own because of his work commitments. There are no other family members in England who could care for him.[114]The mother makes limited proposals for contact between the father and AB until she returns to England following the birth of her baby. On Wednesday 17th August she proposed that there be contact by Skype. By 22nd August it was clear that she has no access to Skype. She also proposes that her husband bring AB back to England on one occasion. She suggests that the father could have contact with AB in Poland if he wishes. Although she says that she is ‘content’ for that to happen, the concerns raised by the guardians make it difficult to evaluate the mother’s sincerity without hearing her evidence on oath.

Ordering the return of AB to England: conclusion

[115]The father consented to the mother removing AB to Poland from 17th July to 6th August. It was not within his contemplation that that might extend until after the birth of the mother’s baby in November. Had he contemplated that possibility I am in no doubt that he would have refused his consent.[116]Even if one could have reasonable confidence that the mother would return AB to England after the birth of her baby, the lack of face to face contact in the meantime would risk undermining the progress that has been made in rebuilding the relationship between the father and AB.[117]I have significant reservations about the extent to which the mother can be relied upon to return AB to England after the birth of her baby. By then she will be settled in Poland. She will have been there for four months. Poland is where she wants to be. That is why she has now issued an application for leave to remove AB permanently from the jurisdiction. The evidence strongly suggests that the mother is hostile towards the father having contact with AB. There is in my judgment a real possibility that when the time comes to return to England with AB and her new baby the mother will consider it a reasonable gamble to remain in Poland in breach of any order to return him to England, taking a chance that the she can successfully defend a Hague application. It is arguable that her behaviour so far suggests that she may already have decided to take that gamble.[118]Although I have not heard evidence from the mother, there are features of the case that cause me to be concerned about her integrity. I highlight in particular her assertion, incorrect assertion as now appears, that her husband was returning to England on 23rd August, her offer to facilitate contact by Skype when she knew that she does not have access to Skype and what I regard as the suspicious chronology of events relating to AB’s apparent illness.[119]I am in no doubt that the longer AB remains in Poland the more difficult it will be for the father to maintain the good progress he has made in re-establishing his relationship with his son in recent months. There is a risk – and in my judgment it is a real risk and not a fanciful risk – that the green shoots of growth in the father’s relationship with AB may wither and perhaps die. If that were to happen it is likely that that would be seen by the father as the final injustice at the end of a process which, because of inordinate delay, has itself been unjust.[120]Those are risks I am unwilling to take. In my judgment they are risks which AB’s welfare insists that I should not take.[121]At the conclusion of the hearing on 17th August I made an order within the wardship proceedings requiring the mother to ensure that AB was returned to England by 4.00pm on Tuesday 23rd August. The making of that order was supported not only by the father but also by the guardian.[122]In arriving at that decision I was acutely aware that some may misinterpret that decision as an order requiring the mother to return to England with AB. How can it possibly be right, some may ask, for the court to order the return to England of a mother who is 28 weeks pregnant, who is experiencing problems with her pregnancy and who claims to be acting on medical advice that she should avoid long-distance travel?[123]To that rhetorical question there is a very simple answer. The order I made required the mother to ensure that AB was returned to England by 23rd August. It was not an order that she herself should return to England. It was an order made in the belief that her husband was returning to England on 23rd August. As I noted earlier, although the mother says that because of his work commitments her husband would not have the capacity to care for AB, from 21st to 30th January 2016 the mother travelled to Poland leaving her three children – AB and his two younger half-siblings – in the care of her husband. There has been no explanation of why that arrangement could not happen again.[124]On 17th August I made the point that if the mother’s husband is genuinely unable to care for AB in her absence then that leaves two possibilities. The first is that AB should go and live with his paternal grandmother. That possibility is problematic given that I have heard no evidence from the guardian on the appropriateness of such an arrangement. As the father lives quite some distance away from the mother’s home in England, such placement would of necessity mean that AB would have to move to a new school.[125]The second, more realistic alternative as a short term option until the mother returns to England later in the year is that AB is accommodated in local authority foster care. That would enable him to remain at his present school, to have regular contact with both his step-father and his birth father. He could have regular contact with his mother by telephone. It was with that in mind that I invited the relevant local authority to be represented by one of its solicitors at the adjourned hearing on 23rd August. In the event, for the reasons set out earlier in this judgment, this case in fact came back before me on Monday 22nd August. The local authority was represented by a solicitor. A social worker was also present.[126]On 17th August Miss Popley, for the mother, sought to persuade me to allow AB to remain in Poland with his mother until after the birth of her baby. I declined, ordering instead that AB be returned to England by 4.00pm on 23rd August. At the hearing on 22nd August Miss Popley sought to persuade me to amend the return order by extending the date for AB’s return to England to 2nd September, that being 14 days after he was diagnosed as suffering from shingles. I am in no doubt that in asking her counsel to make that proposal on her behalf, the mother was being disingenuous. Nothing I have read or heard during the various hearings that have taken place this month gives me the slightest confidence that the mother is prepared to arrange for AB to return to England prior to the birth of her baby. I am scarcely more confident in her willingness to bring AB back to England after the birth of her baby.[127]At the conclusion of the hearing on 22nd August I refused the mother’s application to extend AB’s return date by a further two weeks. I indicated that I would circulate an amended draft judgment by 10.00am on 23rd August and formally hand judgment down at 2.00pm when any consequential applications and directions can be considered.

Cited in 1 later judgment