J v K & Anor [2024] EWHC 2271 (Fam)

[2024] EWHC 2271 (Fam)Case No FD23P00559
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 August 2024
Before
The Honourable Mr Justice Cusworth
Between
JApplicantKFirst RespondentLSecond Respondent
Gemma Lindfield (instructed by MSB Solicitors) for ApplicantBillal Malik (on a direct access basis) for First RespondentLucy Logan-Green (instructed by Alfred Newton) for Second Respondent through her children’s guardianHearing Hearing dates: 29 – 31 July 2024
JUDGMENTThis judgment was handed down in court at 4pm on 2 September 2024 by circulation to the parties or their representatives by e-mail and by release to The National Archives..............................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 the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Cusworth J:

[1]These are proceedings instigated by the father under Article 21 of the Hague Convention 1980 in respect of his daughter L, born in January 2015, so now aged 9. The Respondent to these proceedings is the mother. I have had the final hearing of this application listed in front of me over 3 days between 29 and 31 July 2024. I have heard evidence from the applicant father who has attended in person, through an interpreter, and from the respondent mother also in person. I have heard from L’s guardian, Mr Furo, and considered his two reports. Counsel’s submissions concluded on the final day of the hearing at around 3pm, and I then indicated the orders that I proposed to make, on the basis that I would then produce this judgment in writing for the parties.[2]The History. Both parties are originally from Venezuela, although neither of them currently lives there. Both blame the current difficult political climate for that. They never lived together as a couple prior to L’s birth. There is a joint custody order in respect of L that was made by agreement at a court in Venezuela on 22 June 2017, when she was aged 2 ½. At the end of December 2017, the father had cause to return the matter back to court because he said that the mother was frustrating the child arrangements. The court restated the terms of the joint custody order. The mother told me that she felt that could not trust the father to keep to the arrangements which had been made for L to share her time between them.[3]The father accepts that he permitted the mother and L to travel to the Unites States of America from 18 to 28 June 2018. A notarised document permitting their departure has been produced. He says that it was supposed to be a holiday. The mother’s case is that she always intended to leave Venezuela then with L, and not to return, because there was at that point a serious threat to her safety caused by political situation. She told me that she was a lawyer who sat as a deputy judge in Venezuela. She also said that that there was an attempt on her life. Her position is that the father was aware when she left that she was not intending to return.[4]Whatever the father had then been told, the mother and L did not return to Venezuela, and L was retained amongst her maternal family in the USA. The father is aware that mother claimed political asylum, saying that she was being persecuted by the regime. He says that he was told thereafter that when the situation in Venezuela improved, that the mother would return with L. The father did however have some direct contact with her from 2018 until early 2020 when the Covid-19 pandemic began.[5]Things at that point were obviously more difficult. The father says that the mother then moved her and L’s address, and that she did not notify him of this. Since that time, during the Pandemic and subsequently, the father and L have had only indirect meetings through telephone or video calls, and via messages on WhatsApp. It is right that up to October 2021 the father was not expressing any particular concern about the arrangements, and recorded in a court document that as far as he was concerned that they were being carried out ‘without problems’ up to that month.[6]During 2021, the mother met and began a relationship with her current husband, M. She says that they began to live together from that September. Immediately, from October 2021, the position within the household in which L was living can be seen to have hardened against the father. On 11 October 2021, the father says that he attempted to call L via her iCloud address and received a response in the following terms: ‘…Do not call again, you will not see your daughter again, we will not return to Venezuela because we requested political asylum and it was approved by the United States Government… Fuck you, don’t ring this number again’.[7]Although I have invited M to attend court and to give evidence to me about his involvement in the matters about which I have to make factual determinations in these proceedings, he has decided not to come. The mother’s case is that she suggested to him that he ought not to become involved. Mr Furo has told me that M was very clear to him that he would not be attending some time ago.[8]On the day after the 11 October message, a further series of texts was sent to the father, who was again attempting to speak to L. The mother accepted in evidence, after initially seeking to persuade me that she had taken advice from a lawyer she had consulted before sending the texts, that it was indeed M who had taken charge of the phone and was sending these messages. It is a concern that she initially thought it necessary to lie about this[9]The texts sent included the following:
‘You are not paying maintenance for this girl. I am the attorney. You are blocked…Don’t ring this number again. You are Venezuelan and you are subject to the law in USA. You have no rights here. You have failed to make appropriate maintenance payments for your daughter you are an absentee father and as a lawyer you should know the act of abandonment of a minor is an offense. You need to rectify the sums of money which you should have paid over the past three years. We will be seeking a court order which will be enforced in Venezuela…nobody has given you permission or authority to ring anybody on the devices which you do not own or control… you have been warned this is considered to be harassment and it’s a criminal offense we will be making a formal complaint with an incident number to the Florida state police. You have clearly lied about your financial status… Until such time as you pay the correct amount of maintenance which is owed over the last 3 years you will be blocked on this phone also. Please advise any members of your family… if they attempt to contact any persons associated with this family they will be subject to arrest her in the United States.’
No conversation with L was thereafter allowed.[10]The father made an application under the Hague Convention seeking contact on 12 January 2022, and a letter from the US Central Authority reached the mother in February 2022. Although the mother denies that what happened next was in direct response to receipt of that letter, she does accept that in April 2022, without informing the father or seeking his agreement, she then relocated with M and L to the UK. M is a UK national. She says that the move had been planned since the previous Autumn, around the time when her relationship with her now husband began, on the basis that she was now engaged to marry M In November/December 2022 the father travelled to Florida to try to get in touch with L, and spoke to the police who assisted him when attending the maternal grandmother’s property. No information was disclosed by maternal grandmother and L was not located.[11]In a statement in these proceedings, the mother says this about her move to the UK:
‘I was subject to intense scrutiny by the UK embassy in New York and the Home Office both before departure in the United States, and on arrival in the United Kingdom and both august bodies were and content with my custody arrangements/parenting as they had access to the documentation evidencing the consent of the father, and the attempt on my life…’
. It has not been possible now to determine exactly what the documentation which the mother produced comprised, but clearly there could have been nothing evidencing the father’s consent to L relocating to the UK, as the mother accepts that she had not told him about it. As explained, she now says that in October 2022, she had applied for a visa that would allow her to remain here.[12]The US Government Central Authority eventually located L in England and Wales in August 2023. Whilst the mother has said that the US have dismissed the father’s application, she accepted in evidence that she has never seen any written evidence to that effect. The father believes that they simply did not progress it because L had been located in the UK. I am not satisfied that the father’s application in the US was dismissed on its merits, there being no evidence at all before me that this was the case. What is clear is that prior to this, he was afforded some opportunities to have video contact with L, but that these happened at various times from different locations around Europe, and the father’s perception was that L was not permitted by the adults with her to divulge to her father where she then was, or to tell him that she was no longer living in the US. I accept this.[13]The mother does say that on at least one occasion in 2023 the father saw L in her school uniform, from which it would have been clear to him that she was now at school in England. I do not consider this to be an appropriate way of informing a parent where their child is living, even if this did happen as the mother suggests. She also says that she sent him texts telling the father where L was, but if that were the case it is extraordinary that she has not thought to produce a single one of these as evidence into the case, given that the father’s knowledge of L’s whereabouts, notwithstanding his decision to pursue Hague Convention proceedings, has been a central part of the case that she and Mhave maintained to L about her father.[14]I do not accept that the mother made any positive attempt to inform the father of where L was living before he was told by the US authorities in July 2023 that they believed that she was now in the UK. Even if there may on occasion have been clues when video contact took place, there would have been other occasions, when the video connection would have been to different countries where L and her mother were visiting with M which would no doubt have served to put him off the scent. Given the tone and content of the messages sent as early as 2021, it is very clear that no efforts were being made by the mother or her husband at this time to assist the father in fostering his relationship with L.[15]The incident when the police finally located the family in December 2023 is one which M and the mother have sought to blame aggressively onto the father. This is completely unfair. It is very clear that the father had never been told in which country L was living, nor where in that country she was. Indeed, her address in this country has been withheld from the father right up to the final day of this final hearing. In those circumstances, for the father to take steps with the assistance of international legal channels to locate L was completely reasonable, and the steps taken by the tipstaff and the police were pursuant to the location order made in this court on 21 November 2023 by David Lock KC. He was satisfied that such an order was both necessary and proportionate, and I agree with him. The father had acted both honestly and appropriately at all times.[16]After L was located on 8 December 2023, M and the mother both apparently wrote by email to the father’s solicitors on the following day. M described the father’s application as dishonest. The father was personally said to be a ‘dangerous member of the Maduro political cadre’ who had made it possible now for the mother to be found by that regime by ‘an abuse of the UK process of law and a dissembling affidavit’. He was said to be ‘an imposter who is directly or indirectly connected to a huge number of deaths and human rights abuses’. The mother’s email is in the same tone and English, and I find that it too was substantially drafted by M. The father was described as a high ranked politically connected person working for a drug regime. It was said that the American Hague application had been ‘soundly rejected’, and that the father had ‘demanded money with menaces from the home of L’s grandmother in the US, and was detained by the police’. He was described as a deadbeat, violent, and a drug user, and details were given of the assassination attempt of which the mother says that she was the victim. This application was described as a shame on the practice of law.[17]The mother later wrote an email to the father’s solicitors on 12 December, in which she stated amongst other things that her husband was her litigation/McKenzie assistant, that she had PTSD from an attempted assassination and her husband was her emotional support, and that she authorised him to speak on her behalf. She also said that she required privacy in court as the applicant had threatened her and was part of the regime that she had fled from, that he should never have been given a visa to come to this country, and that he had misled the court. Finally, she said that she had attempted to broker a settlement, and that in principle the applicant could have contact if it was supervised and away from their residence.[18]The matter was then restored before Hannah Markham KC on 19 December 2023, and the court confirmed that the tipstaff should continue to hold the passports and other travel documents which had been taken when L was located. That hearing had a difficult and subsequently controversial aftermath for the reasons which I explained in my earlier judgment in these proceedings dated 27 June 2024, and I will not here go back into those issues. However, the order made that day also records the following things: 6. The Respondent attended the hearing today with L and M. The court informed the Respondent that it was inappropriate to have brought L to court. 7. The Respondent sought her husband M to be her McKenzie Friend, and this was refused by the court. 8. The court was informed of difficulties that the Applicant’s legal team has encountered with the conduct of M towards them and that to ensure the administration of justice and fairness of these proceedings they would only communicate with the Respondent, or any lawyer/solicitor instructed by her to conduct her case about her case. The court made no findings about M’s conduct. 9. The Court informing the Respondent that all communications between her and the Applicant’s legal team shall come from her, or any lawyer/solicitor instructed by her to conduct her case and if this is not the case then there may be more serious concerns from the court at the next hearing and that will reflect directly on the Respondent and her role as a parent.[19]Firstly, it was clearly completely inappropriate for the mother and M to attend at court with L, and so expose her to these court proceedings in a no doubt traumatic and troubling way. The mother accepted in her evidence that she had told L that the hearing was something which involved her father, and this narrative, following also their negative reaction to the police visit, was I am quite satisfied designed to leave L feeing that her father was orchestrating a series of threatening events towards her, her mother and M The truth is that this was simply not the case, and her harmful exposure to the court was as I find deliberately contrived by M and the mother to reinforce the barriers between her and her father that they had been seeking to erect.[20]Secondly, it is notable that on this first occasion when there was an on notice hearing in these proceedings, M attended court and sought to act as a significant player in the case, but in a way that caused significant concern to the professionals involved. He did not offer himself as a witness, but rather as an advocate, as the earlier correspondence sent in the mother’s name had trailed, and as he did also when he appeared remotely before me at a later hearing in June 2024. The tone of the correspondence which he had sent, and which I find that he had drafted for the mother to send, was not only completely inappropriate but shot through with serious allegations of criminality against the father in support of which no proper corroboration has ever been received.[21]In her evidence before me, the mother really went no further than to say that she did not trust the father because he had missed opportunities for contact when L was very young, and because he had not provided maintenance at a rate which she thought suitable. This lack of support was really the greatest complaint which she made, and no attempt was made to substantiate the rest of the allegations made by M either on his own behalf or through the mother.[22]In January 2024, matters took another unfortunate turn. The father explains that he had received apparently friendly emails from Mon 17 January 2024 offering a trip for the father to visit L on 28 February, and to have a meal in an Italian restaurant. It was said that M would pay for the lunch. The father says, understandably, that he was suspicious of this approach.[23]The mother then apparently wrote twice by email to the father’s solicitors on 19 January, first describing an agreement whereby the father would have ‘unlimited contact opportunities’, and that as a result the matter was now to be closed and ‘everything is to return to its previous status’ – possibly a reference to the return of still held passports. Second, she wrote describing that her husband ‘has been mediating this matter over the past two days and has extensive calls and exchanges of photographs and correspondence’. The arrangements were described. The father’s solicitors were also told that speaking Spanish for L is a serious problem, but the general message was that an agreement had been reached.[24]However, just over an hour before the first of those two emails were sent, M had also sent a series of texts to the father, asserting that the mother had been contacted by ‘serious people in Venezuela’, who apparently knew that the father was now in the US. It was said that they had the father’s lawyers’ details and were looking through the court lists, presumably to find his hearing. It was also said that wanted to look in on the video contact session next due. The father was threatened with the UK police being contacted for assistance and with being picked up at any airport he used by US immigration, and it was said that Mand the mother had been cautioned that it as a criminal offence to invite the father to the UK. The father was told to be ‘a lot more cautious to be safe’. The very clear message was that it would be too dangerous for the father to take up the offer which M himself had made only 2 days earlier. The hope no doubt was that the father would not come, and that this would be held against him.[25]The mother accepted in her evidence that she and M wrote the 2 later more positive emails together. It is quite impossible to form any view of this series of communications as other than as an attempt by M to create an entirely false appearance that, he having offered a generous rapprochement to the father, the father then for his own reasons decided not to come. Certainly, the fact of the offer made by M has been relied on by the mother as evidence that he is well motivated and trying to help. I am satisfied that far from that, it was a further attempt by him to discredit the father and make the path to a successful resumption of his relationship with L more difficult. Certainly, the generosity then apparently on show has since been entirely withdrawn, and the previous hostile attitude very soon resumed.[26]On 30 January, just 11 days after those communications, the mother, once more assisted by M wrote to the father’s solicitors asserting that she had been ‘contacted by Venezuela law enforcement’ to see if she could assist them in locating his whereabouts. She told them that she had passed on the solicitors’ details, and that they ‘may now be included on the Venezuelan criminal database’ along with their client. She suggested that the solicitors may be guilty of a criminal offence for assisting the father, and that Venezuelan law enforcement agencies wanted to be included on the contact call to enable them to locate the father. On another occasion the father received a message which simply read that Venezuela knew the father’s US address (included) and were coming for him. I have no doubt that this too came from M. There is no actual evidence of any correspondence to or from any Venezuelan authorities.[27]The letter of 30 January 2024 finished:
‘He included three strangers on the call to L I think we should reciprocate’
. So, in response to L speaking to her half-brother on a call years previously, M was again attempting to frighten the father off from taking up contact arrangements.[28]All of these extremely regrettable twists have also been accompanied by those arrangements for video contact put in place by the court becoming increasingly more difficult because of the attitude to her father that L has come to display. In one of the 19 January emails it had been said that speaking Spanish had become a serious problem for L. Certainly, she has refused to converse with the father in that language, even though he has little English, and they both have Spanish as a first language. The reason for that is not hard to find. M has sent a message to the father in which he told him that ‘we are not in South America do you not write in this backward language (Spanish)’. That is no doubt the pervadingly expressed view in the household, and one which L has no doubt picked up.[29]The attitudes displayed by M have continued to manifest themselves in communications within these proceedings. On 19 March 2024, the mother sent an email, as I find at least largely drafted by him, in which she said, talking of a failed contact session:
‘If necessary I will invite the solicitors for L to depose L who will happily confirm that she had a robust and upsetting call with applicant…’
. It is right as explained that these sessions have become incredibly difficult, entirely because of the attitude which L is now displaying, refusing to speak other than in English, and lecturing the father about his supposed lies and offences through these proceedings. It is clear that she has been given a lot of untrue, misleading and very damaging information about her father, which is hampering the father’s best efforts to foster their relationship.[30]On 29 May 2024, a WhatsApp was sent from the mother’s phone, as she admitted written by M which included:
‘…you are forcing the child to dislike you more and more do you really think that lying to her about ordering the removal of a passport is the best way to show any kind of regard for that child? You have forced her to be interviewed by stranger you forced her to be deeply distrusting you’ve given her nightmares she’s well aware that I have to go to court on many occasions to deal with your lies and the next hearing your game will be over…you have taken it upon yourself to insult my husband who is completely neutral but now he is taking a totally different view of you…’
[31]In one of her two short statements filed on the eve of this hearing, the mother stated:
‘The court needs to take into account that L is nearly ten years old, she is highly intelligent, she is incredibly upset about the Christmas police raid, the horrendous treatment that she has suffered ever since the nightmares and the weekly anxieties that come with these calls.’
The statement concluded that contact is:
‘not in L’s best interest and it is certainly not in her wishes’
[32]I accept that the contact sessions have been unsuccessful, and that L is clearly in a very unhappy state as a result. At one, however, she simply held up to the screen a piece of paper on which was typed, in English and Spanish, the following:
‘I do not want to speak to you ever again…You are a liar I told you where I lived and you lied…you sent the police to my house…I have nightmares because of you…you ruined my holidays… you are a bad person…you are recording me and you put my picture on the internet’
. The mother accepted in her evidence that M was responsible for producing this piece of paper for L to use in this way.[33]Discussion. It not surprising to see that those assertions and complaints mirror those included in the mother’s last statement as described above. It is very clear that L now believes that her father has done a series of things to cause her upset which are not his responsibility, but that she clearly believes otherwise. This is so because she has been led to believe that it is the case by the adults with whom she lives, the mother and M I have been shown a short video of one attempted contact in March when L, very articulately and assertively in perfect English, accused the father of being a liar, told him that she couldn’t trust him and then summarily ended the call. It did very much appear as if she had been primed to do it, and she may well have been performing to an adult waiting within earshot.[34]The consequence of her current position is that before any meaningful attempt can be made to improve her relationship with her father, a significant amount of work will be needed to address the very negative views which she currently holds about him, I find completely unfairly. It is very clear to me that as between the mother and M there has been an active, aggressive and extremely hostile campaign throughout these proceedings to avoid, delay and ideally to prevent any meaningful arrangements being put in place by which L and her father can spend good quality time together. They have caused her to believe that the father has been harassing and destabilising them. This is totally untrue. They have chosen to involve her inappropriately in the proceedings and fed her an entirely false narrative with the sole purpose of persuading her to be as hostile to the father as M clearly feels.[35]All of that is very clear from the evidence that I have heard and read. What I cannot however be certain about at this stage is the extent to which the mother has been acting willingly as M’s accomplice in this wilful campaign of aggressive but unfocussed litigation, seeking to distract the courts and involved professionals from making progress in L’s interest, while pedalling blatant untruths about the father (now portrayed as a fugitive from Venezuelan justice rather than a malign agent of a criminal state, as he was described at the outset of the proceedings).[36]It therefore greatly to be regretted that M himself has decided to ignore the invitation which I gave him at the hearing on 26 June 2024 to attend at this hearing as a witness and explain to me his actions and attitude. He may have hoped by that to avoid any adverse findings being made about his conduct, and so escape responsibility for his entirely reprehensible behaviour which has unquestionably caused serious harm to be done to L, who is obviously an intelligent and articulate child, but who has been gulled into accepting from him an entirely false narrative about events since December 2023 when the mother, Mand L were finally located, and no doubt for some time before that.[37]Some insight, in his absence, can I find be gleaned from the document which was produced in response to the 19 December 2023 order by Ms Markham KC which directed the mother to provide for the father:
‘an email to the Applicant setting out information about L to include her performance at school, what activities she likes doing, any extra-curricular activities she enjoys, her favourite foods.’
The response to that request was a grandiose and fulsome document which described, alongside her academic achievements, the grand tour of Europe on which L had been taken, and her response to the different cities that she had visited.[38]It began thus:
‘My husband is paying approximately £10,000 a year to send L to one of the very best private preparatory schools in our area, and when she started the school she was in the very bottom quartile for maths, English stem, science, et cetera et cetera. My husband is a former school governor and so he was able to anticipate her requirements and to help her in progressing within the first year. He made a deal with her that she was entitled to foreign holidays every half term and term end, providing she put in a little bit of extra work with him to bring herself up to her best academic standards. We have now taken her to 13 countries! That is the measure of her progress.’
[39]There is then reference to M’s personal friendship with the chairman of the Science Museum, and a VIP tour to the Islamic Museum in Jerusalem provided by its general director. The document continues:
‘...when we first came to England my husband wanted to show her real English civilisation as an aspirational incentive, and so he took her to Claridge’s, which is now her favourite hotel in the world.’
There therefore appears to be underway a conscious and pervasive attempt to turn L, who is a 9 year old Venezuelan child, into an English schoolgirl who views her native tongue and her family’s culture in a negative light. This is not just totally inappropriate but also incredibly damaging to L. It cannot be allowed to continue without being addressed.[40]I have carefully considered the two reports written by L’s guardian, Mr Furo, and his oral evidence which was thoughtful and clear. In his first report dated 30 May 2024 he recorded the mother as having said as follows:
‘…she is married to M and they have been together for 5 years. She told me they are a happy family and he is L’s dad. She discussed that she has a right to a McKenzie friend and feels that she requires this to be her husband as she struggles to find the right words and gets really nervous in court hearings. She told me that her husband is neutral and does not have an opinion about L spending time with her father’
. As is very clear from what is recorded above, it is very clear that the suggestion that Mis ‘neutral’ is very wide of the mark. It is a matter of serious concern that the mother was then prepared to assert that he is, as she must know that to be untrue.[41]In the same report the guardian recorded M as volunteering the following to him:
‘M offered up his thoughts and views on a number of matters without my asking. M questioned about how I would ascertain information pertaining to the father’s criminality in Venezuela. He then told me that even if checks are requested, the Venezuelan authorities would not provide me with any information. He then told me that M can provide me with an article about the father published in Venezuela as evidence of his criminal behaviour… M told me that he is a neutral party but made it clear that he pays for L’s education in the UK and that he had brought her up. He told me that he had a court case in the USA thrown out and suggested that the father is not able to leave the USA due to his political asylum case. He made it clear that he is an expert in international law and so questioned how the father can visit L in the UK…M discussed the proposed contact supervisor and he did not feel the one proposed was sufficiently qualified or experienced enough to deal with contact. He expressed that L is very intelligent and hostile towards her father…M told me that he would not agree for L to spend time with her father alone. He told me that the father has taken pictures of L in her underwear doing yoga poses, which have been posted on social media. Whilst he made it clear he was not alleging the father to be a paedophile; he believes these actions are wrong.’
[42]It was regrettable, but unsurprising, that when the guardian spoke to L, she repeated the same themes as reasons for feeling negative about her father:
‘When I asked about her dad, L questioned which one. After clarifying she said, “I don’t really have a connection with him and mum says I have to speak with him as right thing to do and I don’t want to. I don't really like him or enjoy the calls. Mostly because he lied about having passport back and he took it. I was going to go back to America and I couldn’t and that makes me sad… We had been planning to go there for ages and that made me quite upset.” L was very negative and blamed her father for taking her passport and so I tried to reassure L and explained that it was the Judge who made the decision for the passports to be removed. However, L maintained her negative view about her father and said, “I have asked him about passport and he has said he will give it back and has lied about it. He's lied about it too many times. He makes me feel he thinks I don’t know anything. He's never taken much care of me. One of reasons I don’t like him, he made me do this weird yoga and meditation.”’
[43]A matter of real sadness is that L even felt emboldened to complain about not enjoying a trip to Disneyland with her father and her half-brother, for the somewhat adult reason that she didn’t feel that she had been provided with enough water during the day. She complained that her father ‘didn’t do anything for’ her, when she and her mother first left Venezuela, and ‘never got [her] anything’ for her birthday. She complained that he ‘used to say bad things about my mum’, and asked her whether she wanted to go back to Venezuela with him when she was five. She added:
‘I can't go as some kind of civil war and its dangerous. All successful people had to leave’
. These again sound very much like part of a narrative picked up from the adults around her.[44]Finally, it is of note that she has also told Mr Furo that she is Jewish, and complained that her father had ‘tried to get [her] to be another’. Both of L’s parents and she herself have always previously lived and been brought up as Roman Catholics.[45]In coming to his conclusions Mr Furo appropriately applied the CAFCASS ‘Typical Behaviours’ tool, and concluded from his analysis that L has experienced alienating or influential behaviours from the mother and M He notes that her views of her father are entirely negative whilst those of Mand the mother are entirely positive. He points out that many of the negative memories which she raises to not justify the level of dislike/distrust which she holds towards the father; and that she spoke openly and without prompting of her negative views, even where those related to things that happened when she was very young and therefore unlikely to directly remember. He has no doubt that L is acutely aware of the negative views of both M and the mother about the father, and that has a direct impact on her views. He concludes that L would be unlikely to express a desire to have a relationship with her father for fear of upsetting the mother and her husband, and that neither of them are able to prioritise her need for a meaningful relationship with him. He points out that as she grows up this may in time have a negative impact on her relationship with her mother, once she is better able to form her own views.[46]In his addendum report filed at my request during the course of the final hearing, Mr Furo was able to add information from L’s school. Whilst their report on her presentation and progress was entirely positive, they did record M’s intensity and focus on L’s education, and a row with the parents of another child who had suggested that he was not her biological father. He also records being told by M very soon after the previous hearing before me, when I had invited him to file a witness statement, that he had no intention of doing so. At that stage, the mother was still resistant to the father being given either L’s address, or that of her school, so as not to be allowed any input into her education. He repeated his concerns about the influence on L of the mother and M in preventing her from ever having a positive and meaningful relationship with her father.[47]Finally he concluded that should the court make findings against the mother along the lines of his conclusions, he felt that these proceedings would not properly be able to conclude and that a psychological assessment of L might be required to further explore the impact on her of what has happened, and to establish what further work would then be required to support a change in L’s narrative about the father. I agree with him.[48]It has also been the case that the father has been present throughout the 3 days of the hearing, having obtained visa clearance during the week before to leave to US for the purposes of his attending, and then to return. This has enabled me to consider his evidence in person, and to conclude very clearly that his interest in L is genuine and sincere, and that the wider allegations thrown at him by the mother and M have no genuine foundation. All of the steps which he has taken to locate and then to restore his relationship with L have been appropriate and proportionate, and any precautionary steps such as the retention of L’s passport during these proceedings have been determined as appropriate by the court, and as in her own interests to avoid any risk that M and the mother would seek to remove her to a different jurisdiction to forestall the mending of her broken relationship with her father.[49]During this hearing, the mother has been represented by Mr Malik of counsel, who has presented her case fairly and sensibly. M has chosen to make no physical appearance, although as set out above his attitudes and involvement in this case have been made very clear by the papers. In his absence, the mother has felt able to make a number of concessions – she has disclosed the address of L’s school, and indeed, after overnight consultation, her own home address. She did not, during the hearing actually put through Mr Malik the wilder assertions made about the father’s past criminality, in relation to which no independent evidence has ever been produced. Indeed, it was left to Ms Logan-Green, counsel for L through her guardian, to formally put those allegations so that the father could deny them to me under oath.[50]The mother indicated that she would cooperate with future attempts to initiate fuller contact arrangements than the unsuccessful video calls which have currently been in place following earlier court orders. She also accepted that she would participate if directed to do so in any psychological assessment. She does deserve credit for all of that, but I must remind myself that she has shown progress before when at court represented by Mr Malik, and in the absence of M only to regress subsequently.[51]In his May report, the guardian recorded the following:
‘When discussing Child Arrangements Resolutions (CAR), the mother told me that she is content for Ms Prendi to supervise contact but is opposed to CAR’s involvement. She said that she had previously agreed due to her barrister advising her that she should. However, she questions why she should have to agree just because the father has applied to court or why she should have to help pay for it. She also believes that CAR is being pushed by the father and his legal team. After an explanation about the service and Guardian supporting the use of the service, the mother said that she needed more time to consider this.’
[52]So whilst the concessions which she has made are positive, it is too early to take them for granted. It is also the case that in the statements which she filed on the eve of the hearing, she was pedalling the same hostility to the father and to the workability of future arrangements as she had throughout the case. It may be that her position within her home is one in which she feels vulnerable, and under a significant obligation to M It is certainly the case that she has allowed him, in her name and by her own acknowledgment with her approval, to make wild, destructive and as I find very largely untrue allegations against the father throughout these proceedings.[53]At the very least, and so assuming that the hostility towards the father has not come initially from her, she has been complicit in the behaviours perpetrated by her husband, and she has allowed this to happen either blind to the damage which this will have been causing to L, and her perception of her father, or knowingly, but unable to prioritise her daughter’s need for a secure relationship with her father over her own need to remain in the relationship with M[54]As the mother is clearly an intelligent and perceptive woman, on the balance of probabilities the second of those two is the more likely scenario, although of course I have not heard from M himself.[55]It remains possible, however, that she has been a more willing participant in this process of attempted alienation which has been undertaken, on the simple basis that it has suited her to allow this to happen. Determining her level of active involvement will be very important going forward if the false narrative which I am satisfied that L has been given is to be successfully addressed and undone. For that reason it is important that any psychological work which is now to be undergone should involve both L and her mother, to seek to understand the scale and ambit of the work that will become necessary to enable this evidently bright and articulate child to grow up with a proper appreciation of her father, as well as the rich cultural roots which she should inherit from both of her parents.[56]As for M I am very clear on the basis of the evidence before me that, on the balance of probabilities, he has undertaken a campaign of manipulation and re-education with L, designed to alienate her from her father and to bind her into the nuclear family that he has created with the mother, within which he has lavished time and attention on her, and instilled into her alongside significant educational progress and cultural exposure a false narrative about her father, his desire to have a relationship with her and the responsibility for the impact of these proceedings. In my earlier judgment I set out some of his conduct within these proceedings – much of which must have been designed to distract and delay this court from its principal object of securing L’s best interests.[57]L should be under no illusion that M himself, alongside to an as yet unclear degree the mother, are responsible by their actions for the need for these proceedings, the time and energy which they have taken and the significant amount of her work which will now be required if L is to be brought to a fair understanding and appreciation of the different adults in her life. It remains a matter of significant concern that there is no evidence that M has at any point modified his views, and his refusal to engage as a witness in these proceedings does not bode well for any future cooperation from him.[58]Unavoidably, at least for the time being, L will remain living in the same household as M He may therefore choose to seek to undermine any work that is done if he feels that his own position in that household or in L’s life is being undermined. M should be aware that the court in future could consider making prohibited steps orders against him, or if necessary, contemplate joining him as a party to these proceedings.[59]If he does not accept any of these findings, M remains able to file a witness statement in these proceedings, and come to court to give some evidence to me. What he cannot do is to continue to behave in such a way as to cause real harm to L, as I find that he has been doing, and expect to continue to do so with impunity. That is not in L’s best interests, and must cease at once. And further, the mother must also understand that she has a responsibility for L to prevent this false narrative being perpetuated, and her failure to do so allows harm to be inflicted upon her daughter for which she is accountable, whether or not she remains an active participant in these actions as she has allowed herself to be in the past.[60]In the absence of evidence from M but having heard the mother, I entirely accept the recommendations of the guardian Mr Furo, and have already indicated to the parties that this is the case. As the father can remain in this jurisdiction for a further 3 weeks, further attempts should now be made for him to try to engage with L whilst the necessary psychological work is put in train. Counsel have now drawn up an order which accurately reflects the directions that I gave at the conclusion of the hearing on 31 July 2024, with the operative part of the child arrangements order being recorded as follows: 5. The family shall start further reparative work with Child Arrangements Resolutions “CAR” in the week commencing 5 August 2024. 6. There shall be an initial meeting with mother and L to address and correct the narrative that L has for her father. For the avoidance of doubt, Mis not invited to attend this meeting. 7. Thereafter, CAR will complete direct work with L and her father through direct contact on the dates offered. The mother must make L available and encourage her to attend and engage all appointments offered by CAR. The appointments with CAR shall take precedence over any other alternative arrangements or commitments in the mother or L’s diaries. 8. For the avoidance of doubt, the mother alone shall take L to and collect her from all CAR appointments and she shall not allow any other person to do so. 9. CAR shall provide a written update as to how the work has progressed by 4pm on 2 September 2024. 10. The costs associated with all appointments and work undertaken by CAR shall be met by the mother entirely and she shall settle CAR’s costs in advance and within 24 hours of receipt of the invoice sent by CAR.. The child’s solicitor shall be copied in to correspondence attaching invoices. 11. In the event that the mother does not comply with paragraph 10 above, and if the father pays CAR in order to progress the work, the mother shall forthwith reimburse the father for all payments made, with interest accruing from the date of payment by father. Instruction of psychologist 12. The solicitor for the child is permitted to instruct a psychologist, the identity of whom shall be agreed by noon on 2 August 2024, failing which the solicitor for the child shall circulate the expert proposed by each party, together with their CV, each party by 2pm on 2 August for the court to consider on the papers.[61]The parties were unable to agree the identity of the psychologist to be instructed by 2pm on 2 August (yesterday). I consequently direct that of the two proposed, Dr Rich should be instructed. Whilst both the guardian and the father would have been content with either, but chose the alternative Dr Pilkington because she had indicated a willingness to report 3 weeks sooner, the mother indicated that she preferred Dr Rich. As her cooperation and engagement in this matter will be crucial for its success, I will therefore endorse her preferred expert, in the expectation that she will now engage fully and openly in the work that must be done, as well as the arrangements which are being put in place over the next few weeks through CAR.[62]The mother must now do all that she can to repair the relationship between L and her father. Failure to do so would only cause further and possibly irreparable damage to her daughter’s wellbeing.