S v S (No2)(Art 21 Welfare) [2026] EWHC 434 (Fam)

[2026] EWHC 434 (Fam)

Case No FD25P00178

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 03/03/2026

Before

MR JUSTICE MACDONALD

Between

TSApplicant

ASFirst Respondent

for The Applicant did not appear and was not represented.

Mr Michael Gration KC and Ms Alexandra Halliday (instructed by MSB Solicitors) for First Respondent

Ms Eva Holland (of Cafcass Legal) for Second, Third and Fourth Respondents

Hearing Hearing dates: 24 February 2026

Approved Judgment

This judgment was handed down remotely at 10.30am on 3 March 2026 by circulation to the parties or their representatives by e-mail.

.............................

MR JUSTICE MACDONALD

[1]This application concerns the welfare of MS (aged 15 years), LS (aged 13 years) and HS (aged 8 years) in the context of an application by the father made under

Art 21 of the Convention

of 25 October 1980 on the Civil Aspects of International Child Abduction (hereafter “the 1980 Hague Convention”). The application under Art 21 follows the withdrawal by the father on 25 February 2025 of his application for summary return of the children to the jurisdiction of Turkey under Art 12 of the 1980 Hague Convention. The withdrawal by the father of his application for return orders followed the granting of the mother’s protection claim in this jurisdiction.

[2]The court heard a finding of fact hearing in December 2025 to determine the mother’s allegations against the father of domestic abuse, sexual abuse and coercive and controlling behaviour (see S v S (Art 21 Findings of Fact)

[2025] EWHC 3169 (Fam)

). I will come to the outcome of that hearing below.

[3]The mother is represented by Mr Michael Gration of King’s Counsel and Ms Alexandra Halliday of counsel. The children are represented through their Children’s Guardian, Ms Daisy Veitch, by Ms Eva Holland. As he did at the finding of fact hearing, the father failed to attend this hearing. He did submit a short statement at the outset of the hearing. In that statement he reiterated his now long expressed view that the English proceedings breach his Art 6 rights and that the findings made by the court are erroneous. Notwithstanding that view, he has not appealed the findings made by this court.

[4]Notwithstanding that it is his application with which this court is seised, it is apparent from his most recent statement that the father continues to dispute the jurisdiction of the English court to do anything other than enforce access and custody decisions made by the Turkish Courts. It is also clear that the father persists in his litigation in respect of the children in Turkey. His most recent statement continues to evidence his pre-occupation with demonstrating in those proceedings that the mother is mentally ill and requires treatment in a mental hospital.

[5]As I have previously found, the English court has jurisdiction in relation to the children under Art 5 of the 1996 Hague Convention based on the children’s habitual residence in this jurisdiction. Art 21 of the 1980 Hague Convention does not confer jurisdiction on the domestic court to recognise and enforce foreign orders for access (see G (A Minor)(Hague Convention: Access)

[1993] 1 FLR 669

). For the avoidance of doubt, I remain satisfied that this court has exclusive jurisdiction in respect of the children pursuant to Art 5 based on the children’s habitual residence in the jurisdiction of England and Wales. For the avoidance of doubt, and to repeat, there is no credible evidence before this court that the mother suffers from any mental health difficulties or that she lacks capacity to litigate.

[6]Whilst this matter was listed today for a pre-hearing review, I am satisfied that it is appropriate to finalise the proceedings today having regard to the continued failure of the father to attend hearings in this case and, more importantly, having regard to the clear views of the Children’s Guardian that any further continuation of the litigation would be harmful for the children.

BACKGROUND

[7]The background is set out in my previous judgment. The mother is 38 years of age, having been born on 2 August 1986. She is a Turkish national, as are each of the subject children. The father is 52 years old, having been born on 7th February 1973. He is a Turkish national. The parties met in Turkey and were married in Istanbul. The mother contends they were married by virtue of an arranged marriage in 2008. The father denies the parties had an arranged marriage in the classic sense, and says they met through family and friends. The father was 13 years older than the mother when they married, the mother then being 23 years of age.

[8]The mother alleged that during the marriage she suffered serious domestic abuse from the father, which included physical, sexual, psychological and financial abuse and coercive and controlling behaviour. The mother alleged that she was subjected to physical assaults, which included an incident of strangulation, sexual assault and coercive and controlling behaviour. The mother asserted that the father decided what she wore and who she spoke to. The mother further alleged that during the course of the marriage the father would smash up the parties’ property and that, on a regular basis, the father told her that he would make her disappear, going so far as to say, in the presence of the children, that he would stage a road traffic accident to end her life. The father emphatically denied that he had been domestically abusive towards the mother. The father also denied coercive and controlling behaviour, the physical abuse of the mother and denied he sexually abused her.

[9]In 2023 the family made the decision to relocate to England. The mother asserted that the father’s domestic abuse and sexual abuse of her and his coercive and controlling behaviour became worse when the family arrived in England. The mother alleged that the children were frequently exposed to incidents of domestic abuse by the father, and would often cry and try to intercede to protect her. The mother further alleged that the children had witnessed her being physically assaulted, had vocalised fear of their father, had expressed fears about being separated from their mother and that their primary fear was that their father would kill their mother. The father denied physically abusing the mother in front of the children but conceded that he “may” have had verbal arguments with the mother in front of the children.

[10]The father was arrested in England on 7 May 2024 in respect of alleged offences of threats to kill, assault (ABH), rape, strangulation and coercive control. On 6 January 2026, the Police advised Cafcass Legal that the bail conditions for the father were cancelled on 7 November 2025 as the Magistrates refused an extension. The father remains under investigation. The family was referred to the local authority, which arranged for the mother to have an Independent Domestic Violence Advocate (hereafter “IDVA”). The mother informed the IDVA that, on multiple occasions, the father had had sex with her both after she withdrew her consent having initially consented and where she had not consented at all.

[11]As noted in my previous judgment, the children themselves made a number of statements which corroborated the mother’s account of the father’s conduct: i) On 21 May 2024, MS stated that the father arrived on 6 May to take the children back to Turkey. MS stated that his father started to threaten them and he said he was going to deport them back to Turkey. When asked if he said anything, MS stated he “was so scared that he just remained silent. He said his father knows they want to stay with mum. He kept asking the same questions.” During the conversation with the social worker, it is recorded that MS “said he has seen his father be violent towards his mother.” He appeared quiet and withdrawn. ii) On 21 May 2024 LS stated that his father had asked him to talk to his mother to try and persuade her to go back to Turkey but that his mother did not want to go. He stated his parents started arguing and his mother started trembling and called the police. LS stated that the children were scared. LS stated that the arguments had been physical before and that he had previously seen his mother on the floor. He stated that his mother had never been rude or mean. iii) On 21 May 2024 HS said that he did not like his father as “yesterday he pushed us out of the house”. He was not able to relate good things about his father and did not like his father being rude and saying rude words. He said his father shouts at him, which makes him feel sad and shouts at his mother, which also makes him feel sad.

[12]At the conclusion of its chid protection investigation pursuant to s.47 of the Children Act 1989 the local authority drew the following conclusion:

“The children and [the mother] have clearly been victims of domestic abuse having witnessed it in the home both in the UK and in their country of origin. The children's father appears to display behaviour that would be harmful to the children and from the conversation with the children he appeared to be trying to use them to control their mother which would obviously have an emotional impact on the children. The family have now been reunited and the father has been arrested and placed under bail conditions that add additional layers of protection to the family. The family have been placed in a safe place of safety by the IDVA service and social care is supporting the family until they are able to seek support from the Home Office. This provides a good level of safety to the family and reduces the risk of significant harm therefore I am making the recommendation that while the concerns are substantiated there is no need to progress to the initial child protection conference. However, they do not have recourse to public funds and so need to be further assessed under section 17 and the no recourse to public funds protocol.”

[13]The mother made an application for humanitarian protection in May 2024. The children were named in the protection claim as dependents. The father applied for a summary return of the children to Turkey under the 1980 Hague Convention on 18 October 2024.

[14]As I noted in my first judgment, a persistent issue in this case has been the father’s attempts to locate the whereabouts of the mother and the children. In such circumstances, the mother and the children were moved by the Home Office to alternative accommodation in the area of a second local authority. The records from the second local authority record that the mother was alleging that she had received threats to kill from the father and from his family in Turkey, as well as from his friends in the United Kingdom. The mother alleged that the father was frequently breaching his bail conditions by contacting her. The court bundle contains a detailed and extensively capitalised and underlined document prepared by the father on 11 November 2024, in which he asserts that the mother’s allegations of domestic abuse are ”fraudulent” and that she is mentally ill (as previously noted, the document includes an extensive exposition by the father on ‘The Strange Case of Dr Jekyll and Mr Hyde’ by Robert Louis Stevenson, which the father appears to rely on to demonstrate that the mother suffers from mental illness). On 27 November 2024, the police were contacted by the father, who tried to ascertain the precise whereabouts of the mother and the children, claimed that the mother was a significant risk to the children and stated that, having seen the mother in court the day before, “she was in psychosis”.

[15]During the course of the s.47 investigation undertaken by the second local authority, LS told the social worker that “his dad was trying to hurt them and he didn’t want to be near his dad.” The social worker further recorded that:

“MS spoken to he stated that things have been very bad. He said that his dad is very abusive to his mum and to them. He stated that he doesn’t want to go back to Turkey and he doesn’t want to go back to his dad.”

On 3 January 2025, a Child Protection Conference held by the second local authority concluded unanimously that the children would be made subject to a Child Protection plan, under the category of Physical Harm.

[16]On 23 January 2025 the mother, and the children as her dependents, were granted asylum and were given leave to remain as refugees for a five-year period. As I noted in my first judgment, prior to the grant of asylum, the father prepared an extensive document entitled “Immigration Fraud” in an effort to oppose the granting of asylum for the mother and the children, alleging over the course of fifty-seven pages that the domestic abuse allegations that formed part of the protection claim were false and that the mother’s “significant mental health challenges” included a “documented history of Bi-Polar Disorder, Schizophrenia, Paranoid Personality Disorder, Anxiety, Psychopathy, Instinct / Emotion / Conduct Disorders”.

[17]Following the granting of the mother’s asylum application, the father withdrew his application for a summary return at a hearing on 25 February 2025. As I have noted, on 4 April 2025 the applicant father made an application for a Child Arrangements Order for the children to spend time with him. In light of the matters set out above, this court considered it necessary to hold a finding of fact hearing to inform the decision of the court with respect to the children’s welfare. Following the finding of fact hearing, the court made the following findings on the balance of probabilities: i) In 2019 in Turkey, the father punched the mother several times to the back of the head causing the mother to become dizzy. ii) In November 2022, the father threatened the mother with arrest, eviction from the family home and divorce. When the mother attempted to record his conduct the father punched her with his fist to her eye, stated that he would “ruin you” and “destroy you” and smashed the mother’s phone and threw it into the garden. As a result of the father’s assault, the mother suffered a 3 x 5 cm hyperaemic area was observed in the right suborbital maxillary region, and a 2 x 3 cm hyperaemic area in the left suborbital maxillary region. The children witnessed this incident and were upset and crying and MS was trembling with fear. The police were called. The Turkish family court issued a protection order and the father became the subject of criminal proceedings in Turkey. iii) The father assaulted the mother on other occasions in Turkey, including in the presence of the children, causing bruising to her upper arm, abrasions and cuts to her neck and to her forehead and eyelid. The children would attempt to intervene to protect their mother, causing the children emotional harm. The father also, on occasion, smashed items in the former family home in Turkey. iv) On a number of occasions in Turkey and in England the father had sexual intercourse with the mother despite her either having withdrawn her consent to sex or having refused her consent to sex. On these occasions, the father caused injuries to the mother. v) On 6 or 7 November 2023, in England, the father physically attacked the mother after she failed to greet him properly, strangled her and, when she shouted for help, placed his hand over her mouth and threatened that if the mother called the police the family would be deported. vi) On 5 May 2024, having travelled to the United Kingdom, the father tried to persuade the children to go to Turkey. When the children refused, the father became upset and angry, causing the children to plead with their mother not to leave them alone with him. The father told the mother that “you will learn what it means to go against the head of the family” and also threatened an Islamic divorce. The mother called the police. The father again sought to force the children to “choose your side”. vii) On occasions the father would threaten the mother, threatening to make her disappear, by threatening to commence a deportation process in respect of her, by threatening proceedings in Turkey. The father regularly verbally abused the mother, including verbally abusing her in front of the children. The verbal abuse included the father telling the mother after the family arrived in England that he would “fuck her back into her mum’s pussy” and telling her by way of WhatsApp messages to “apply henna on your mother’s pussy”. viii) Throughout the marriage, the father was coercive and controlling towards the mother. The father isolated the mother, sought to dictate to the mother what she wore and to whom she spoke, threatened to “ruin” and “destroy” the mother if he she did not act according to his rules and contacted organisations and agencies in order to try and locate the mother. ix) The father has relied upon falsified documentation in respect of the mother in the form of the purported psychological report, to advance his position in these proceedings. x) The children have been emotionally harmed, and placed at risk of physical harm, through exposure to domestic abuse within their parents’ relationship perpetrated by their father. xi) The father has attempted to identify the children’s location which has caused disruption to the children’s living arrangements since May 2024. xii) The Father made threats that the children would be deported which threats would have caused them to be scared, upset and anxious. xiii) The Father pressurised LS and MS to choose between their Mother and Father which would have caused them emotional harm. xiv) HS feared that he and his siblings would be taken away from their Mother by their Father which caused him to be worried.

[18]At the conclusion of the fact-finding hearing the court made interim orders and directed that case management steps be taken as follows: i) An interim “lives with” order in favour of the mother. ii) An interim order for no contact, whether direct or indirect, between the children and the father. iii) A police disclosure order directing the police to set out whether the father remains under bail conditions, and if so, the scope of those conditions. iv) Absent the information regarding the father’s bail, a Prohibited Steps Order preventing the father removing the children from the mother’s care or control, attending any place he believed the children to be living, and attending any school he believed the children to be attending. v) Both parents to file statements setting out their response to the court’s judgment. vi) The Guardian to file a final analysis, addressing: a) whether the children should see the father; b) the wishes and feelings of the children so far as they can be ascertained; c) if direct contact is not appropriate, whether there should be indirect contact and, if so, in what form; d) recommendations in respect of arrangements for the children including stepped arrangements with a view to a final order if possible.

[19]The mother now seeks a final lives with order under s.8 of the Children Act 1889. She does not support contact between the children and their father in circumstances where she contends that the father remains a significant risk to the children. The mother considers that the father has shown no remorse or insight into the impact his actions have had on her and the children and that, until he can accept responsibility, there is no prospect of progress. In the circumstances, the mother seeks an order that the children have no contact with their father and specific issue and prohibited steps orders circumscribing the exercise by the father of his parental responsibility. She supports the application of the Children’s Guardian for an order under s.91(14) of the Children Act 1989.

[20]In addition to the statement received at the outset of the hearing, since the last order, of the court the father has filed (and re-filed) multiple documents. In sum, those documents demonstrate that: i) The father does not accept the findings of this court; ii) The father, as again reiterated in his latest statement, no longer accepts the jurisdiction of this court; iii) The father considers this court has acted unlawfully.

[21]The court has the benefit of two analyses from the Children’s Guardian. The first was filed within the 1980 Hague Convention proceedings. The second within these proceedings. Both are careful, comprehensive and closely reasoned.

[22]As I have recorded, the father has not attended the hearing to challenge those reports. The Children’s Guardian attempted to meet with the father ahead of preparing her report but was not able to do so. In his latest statement that the father asserts that “I was suffering asthma combined with virus in my lungs which did not allow me to talk to Mrs. Daisy Veitch, I want to negotiate details of her approach in her report. I want the court to order so.” On 12 February 2026, the Children’s Guardian received four documents from the father, two in Turkish commenting on the fact finding and contact and two in English addressing

Art 8 ECHR

and limits of the jurisdiction of the court. The father emailed further documents to the guardian in English overnight on 12 February 2026. Cafcass Legal has filed the documents and served them upon the mother’s solicitors.

[23]On 20 February 2026, the Children’s Guardian issued a C2 application seeking the imposition of a s91(14) order at the conclusion of these proceedings and recommends the following: i) A final lives with order in favour of the mother. ii) An order for no contact, direct or indirect, between the children and their father. iii) A s91(14) order for a minimum of three years, but the court to consider making the order for the duration of the children’s minority. iv) No obligation on the mother to provide welfare updates to the father/restriction of the father’s parental responsibility.

RELEVANT LAW

[24]The law is helpfully set out in the Position Statement of Mr Gration and Ms Halliday on behalf of the mother.

Welfare

[25]I remind myself of the provisions of s.1 of the Children Act 1989 which govern the court’s determination of whether to make orders under s.8 of the Children Act 1989 as follows. Section 1 of the 1989 Act states: “1 Welfare of the child.(1) When a court determines any question with respect to— (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.

(2) 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. (2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare. (2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child's time.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to— (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.

(4) The circumstances are that— (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or (b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.

(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

(6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned— (a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and (b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.

(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).” (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.

[26]In this case the mother seeks, and the Children’s Guardian recommends, that there be no contact between the children and the father. I repeat what I said in D v E (Termination of Parental Responsibility)

[2021] EWFC 37

“[24] Applications for a child arrangements order under s.8 of the Children Act 1989 require the court to apply the principles set out in s.1 of the 1989 Act. In this case, the order sought is that there be no contact between G and her father. Within this context, I in particular note and bear in mind that s.1(2A) of the Children Act 1989 provides as follows: "(2A) A court, in circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare." [25] With respect to assessing whether the contrary is shown for the purposes of s.1(2A) of the Children Act 1989, I further bear in mind that the courts have, historically, held that it is almost always in the interest of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living. This principle, and the following further applicable principles can be drawn from the decisions of the Court of Appeal in Re C (Direct Contact: Suspension) [2011] 2 FLR 912 at [47], Re W (Direct Contact) [2103] 1 FLR 494 and Re J-M (A Child) [2014] EWCA Civ 434 at [25]: i) The welfare of the child is paramount and the child's best interests must take precedence over any other consideration. ii) There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact. iii) However, the positive obligation on the State, and therefore on the court, is not absolute. Whilst authorities must do their utmost to facilitate the co-operation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms of all concerned must be taken into account and, more particularly, so must the best interests of the child. iv) Excessive weight should not be accorded to short term problems and the court should take a medium and long term view. v) Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child's welfare. vi) The key question, and the question requiring stricter scrutiny, is whether the court has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. [26] These principles must be read in light of FPR 2010 PD12J, entitled Child Arrangements and Contact Orders: Domestic Abuse and Harm, which provides as follows at paragraph [7]: "In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The Court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm." [27] The foregoing principles set out in PD12J are expressed by reference to domestic abuse. However, it is plain that this approach will apply, in proceedings relating to a child arrangements order, to all allegations or admissions of harm to the child or parent relevant to the question of contact or evidence indicating such harm or risk of harm. I note that paragraphs 35 to 37 of PD12J enjoin the court, inter alia, to take the following factors into account when considering child arrangements in cases where the court is satisfied that such harm has occurred: i) The court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child. ii) The court should apply the individual matters in the welfare checklist set out in s.1(3) of the Children Act 1989 with reference to the harm that has occurred and any expert risk assessment obtained. iii) In particular, the court should consider any harm which the child, and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. iv) The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact. v) The court should consider, inter alia, whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of abuse against the other parent and the capacity of the parents to appreciate the effect of past abuse and the potential for future abuse.” "(2A) A court, in circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare." i) The welfare of the child is paramount and the child's best interests must take precedence over any other consideration. ii) There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact. iii) However, the positive obligation on the State, and therefore on the court, is not absolute. Whilst authorities must do their utmost to facilitate the co-operation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms of all concerned must be taken into account and, more particularly, so must the best interests of the child. iv) Excessive weight should not be accorded to short term problems and the court should take a medium and long term view. v) Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child's welfare. vi) The key question, and the question requiring stricter scrutiny, is whether the court has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. "In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The Court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm." i) The court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child. ii) The court should apply the individual matters in the welfare checklist set out in s.1(3) of the Children Act 1989 with reference to the harm that has occurred and any expert risk assessment obtained. iii) In particular, the court should consider any harm which the child, and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. iv) The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact. v) The court should consider, inter alia, whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of abuse against the other parent and the capacity of the parents to appreciate the effect of past abuse and the potential for future abuse.”

Section 91(14)

[27]In Section 91(14) of the Children Act 1989 states as follows regarding the ability of the court to impose restrictions on further applications:

“(14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court”

[28]Section 91A, which includes further provision for s91(14) orders, was inserted into the Children Act 1989 pursuant to the Domestic Abuse Act 2021 sections 67(3), 90(6), SI 2022/553, Regs 1(2), 2(1)(b). Section 91A(2) highlights that:

“(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put— (a) the child concerned, or (b) another individual (“the relevant individual”), at risk of harm.” at risk of harm.”

[29]Orders under s.91(14) of the 1989 Act do not act a bar on making further applications. Rather, they constitute a ‘protective filter’ (see PD12Q, paragraph 2.7). An order under s.91(14) inserts a mechanism that requires, in this case the father, to seek permission from the court before making a further application. PD12Q lists circumstances in which an order under s.91(14) may be appropriate. Paragraph 2.2 of PD12Q states:

“The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.”

[30]The leading authority with respect to the application of s.91(14) of the 1989 Act is Re P

[1999] 2 FLR 573

, as affirmed in Re T (A Child) (Suspension of Contact)

[2015] EWCA Civ 719

and Re N (children)

[2019] EWCA Civ 903

. Re P provides guidance on the use of s.91(14) at [41]:

“Guidelines (1) Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration. (2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances. (3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child. (4) The power is therefore to be used with great care and sparingly, the exception and not the rule. (5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications. (6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications. (7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain. (8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point. (9) A restriction may be imposed with or without limitation of time. (10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.”

[31]The guidance in Re P was promulgated before the insertion of s.91A into the 1989 Act. In Re A (A Child) (supervised contact) (s 91(14) Children Act 1989 orders)

[2021] EWCA Civ 1749

, King LJ held that s91A considerably widened the scope for the use of s. 91(14), including the making of an order in anticipation of future harm. Most recently in F v M

[2023] EWFC 5

Hayden J stated that s91(14) has:

“...always been intended to provide a protective filter from inappropriate applications. The filter exists to protect the child and, not infrequently, the parent with whom the child lives. It is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice. Where a Court identifies an issue that requires to be resolved, the case will proceed but where it does not, the child and the primary carer are protected from the stress and uncertainty of a misconceived or vexatious application.”

Hayden J went on to observe that section 91A of the 1989 Act:

“...properly recognis[es] the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons”

Restriction of Parental Responsibility

[32]In Re A (Parental Responsibility)

[2023] EWCA Civ 689

the President confirmed as follows with respect to the nature and extent of the court’s powers to circumscribe the exercise by a parent of their parental responsibility:

“Irrespective of whether or not there is a statutory power to bring parental responsibility to an end, in every case the court may control and limit a parent's ability to exercise parental responsibility through the making of prohibited steps orders, and may enhance the ability of the other parent to exercise parental responsibility with respect to specific issues… Whilst a prohibited steps order and/or a specific issue order may normally be made to regulate one or more aspects of the exercise of parental responsibility, it is accepted that, where the facts of the case justify it, the court may make a combination of orders which have the effect of prohibiting a parent from taking any step in the exercise of his or her parental responsibility and clothing the other parent with the exclusive right to exercise parental responsibility without reference to any other person who holds parental responsibility.”

DISCUSSION

[33]I am satisfied that it is in each of the children’s best interests for a final lives with order to be made in favour of the mother, for an order to be made providing that there be no contact between the children and their father, for specific issue orders and prohibited steps orders to be made circumscribing the exercise by the father of his parental responsibility and for an order under s.91(14) of the Children Act 1989 to be made for a period of five years. My reasons for so deciding are as follows.

[34]The best interests of MS, LS and HS are the court’s paramount consideration. I am satisfied having regard to the comprehensive report of the Children’s Guardian that all three children have expressed clearly and unequivocally that they do not wish to have any form of communication with their father, either now or in the future, whether or not their father expresses any remorse. It is clear from her report that the Children’s Guardian took considerable care to explore all possible options for contact with the children, as well as exploring those options in the event their father demonstrated remorse. Ms Veitch’s professional view is that the children’s views are both justified and organic, stemming from their own experiences, rather than from any undue influence by their mother.

[35]MS’s position remains that does not wish to see or speak to his father. MS is described by the Children’s Guardian as being “strong and determined” to keep things as they are, and keen for the court process to be over. He did not wish to reflect on his past experiences with the Children’s Guardian, but explained to her that his position was because of the abusive way his father has behaved towards his mother and siblings. The Children’s Guardian explored alternatives to face to face contact with MS, such as emails, pre-recorded videos or letters. MS did not think he would read them or reply and said that he did not want his father to try and get in touch. MS was sceptical that his father could change. He was keen that the proceedings come to an end.

[36]The Children’s Guardian considers LS to be “strongly opposed” to seeing his father, and notes that he describes feeling wronged and hurt. Of the three children, LS expressed most vehemently his desire to have no contact with his father. The Children’s Guardian considers that LS feels very hurt by his father’s actions and the disruption this has caused in their lives. LS did not consider his father can or will change. He expressed concern about the prospect of his father sending gifts or cards, indicating that was too little too late, and was of the view that his father would use this communication as a “way in” to pressure them for more. LS was also preoccupied with the ending of the proceedings.

[37]HS reported to the Children’s Guardian an incident of his father arguing with his mother and HS trying to stop this. He described that this made him feel sad and scary. HS could not recall a positive memory of his father. HS told the Children’s Guardian that he does not want to see his father. The Children’s Guardian considers that HS’s wishes and feelings came across authentically as his own and were relayed in a way that appeared spontaneous and in language appropriate for his age and development. She considers that HS’s resistance to seeing his father is justified by his memories. The Children’s Guardian acknowledges that HS is also likely to have been affected by his previous unplanned moves, and that it may have been hard for MS and LS to conceal their feelings about their father from HS.

[38]In light of the findings made by this court in its previous judgment, I am satisfied that all three children have suffered emotional harm and been placed at risk of physical harm from their father. As the court has found, the father had assaulted the mother, including in the presence of the children; he had sexual intercourse with the mother without consent; he threatened the mother, and was regularly verbally abusive towards her, including in front of the children; he was coercive and controlling towards the mother; and he relied on falsified information in respect of her in an effort to demonstrate that she was mentally ill. I am satisfied that the children have been emotionally harmed, and placed at risk of physical harm, through exposure to domestic abuse within their parents’ relationship perpetrated by their father. The children have also suffered emotional harm as a result of the attempts by the father to ascertain the children’s location. This has caused repeated disruption to the children’s living arrangements over the course of nearly two years. The children’s sense of stability and security was disrupted by the father’s threats that they would be deported, leaving them scared, upset and anxious. As set out in the exchanges recorded in my first judgment, the father pressurized LS and MS to choose between their mother and father which would have caused them emotional harm and that HS feared that he and his siblings would be taken away from their mother by their father which caused him to be worried.

[39]Whilst the father has again failed to attend the hearing, I am satisfied having regard to the material that he has provided to the court subsequent to the finding of fact hearing, that the father plainly lacks the capacity to meet the children’s physical, emotional and educational needs. It is clear from his communications with the court that the father rejects the findings of this court in their entirety and shows no insight into his behaviour and its impact on each of the children. The father continues to make threats against the mother and to seek to undermine her by pursuing a psychological assessment of her on the grounds of his baseless claim she is mentally ill and by seeking to reopen her asylum claim. I accept the evidence of the Children’s Guardian that that the father’s statements are devoid of any insight into how his abusive behaviour has impacted the children’s welfare, that he has not taken responsibility for his actions and that he continues to blame the mother and he continues to repeat his unfounded allegations with regard to her mental health. As part of the local authority’s work with the family, the social worker has considered the emotional impact upon the children of having contact with the father. The social worker does not consider any form of contact to be safe or appropriate.

[40]By contrast, there are no concerns regarding the mother’s ability to meet the needs of each of the children. The Children’s Guardian considers that the mother offers the children attuned, loving care in a safe and protective environment. The children are reported by the Children’s Guardian to be happy, settled and comfortable in their mother’s presence. The children themselves have each indicated that they feel physically and psychologically safe in their mother’s care. LS is positive about the family’s new home and HS spoke positively about his home, school and friends. The observations of the Children’s Guardian are corroborated by the social worker’s observations that the children consistently present as happy, settled and comfortable in their mother’s presence, that the home conditions are good, that there are no health issues for the children, no concerns as to their school attendance and no behavioural issues. The mother is noted to accept support and to work collaboratively with the professional network to meet the children’s needs.

[41]I endorse the view of the Children’s Guardian that it is a credit to the mother’s parenting that the children present as such pleasant, polite and settled children, despite their significantly adverse experiences and multiple upheavals they have suffered consequent upon their father’s reprehensible conduct.

[42]Notwithstanding the impressive efforts of the mother, I am also satisfied that each of the children remain vulnerable. I accept the evidence of the Children’s Guardian that the children have suffered profoundly from the cumulative impact of exposure to their father’s abusive behaviour. As such, I am satisfied that each of the children has an urgent need for an extended period of stability and security, during which they are protected from the adverse consequences of the father’s conduct and are able to recover emotionally from their significantly adverse experiences. The children and mother all describe longing to be able to “move on” and focus on the future.

[43]As such, I am entirely satisfied that it is in each of the children’s best interests for a final lives with order to be made in favour of the mother. The mother is the only one of the children’s parents with the ability to meet their current needs. A return of the children to the care of their father would expose them to significant emotional, and possibly physical, harm and cannot be contemplated. The children are happy and settled in their mother’s care and she is demonstrably meeting each of the children’s needs to a very high standard notwithstanding the challenging circumstances she has been forced by the father to endure.

[44]I acknowledge that an order providing for no contact between the children and their father is a draconian one. However, having regard to the findings made by the court, I am satisfied in this case that an order for contact, including indirect contact, would expose the children to an unmanageable risk of emotional harm.

[45]Given the court’s findings of fact and the father’s rejection of those findings in their entirety and his complete lack of insight into his behaviour and its impact on each of the children, the court cannot be satisfied that the physical and emotional safety of the children and the mother can be secured before, during and after contact. Having regard to the material submitted to the court by the father since the finding of fact hearing, I am satisfied that he is not motivated by a desire to promote the best interests of the children but, rather, would use any contact ordered by the court to continue to abuse the mother in circumstances where I am satisfied that he has no appreciation of the effect of his past abuse of the children and their mother. The children and mother also perceive that they will be at physical risk from the father, as he is “full of fury”. There is an established pattern of the father using information about the children to trace them and disrupt their stability. I accept the evidence of the Children’s Guardian that the father has not accepted that he has caused harm to the mother and children and that he is not yet even at the beginning of a process of change.

[46]I have considered whether it is possible to mitigate these matters to an extent sufficient to permit some direct contact to take place. However, I accept the evidence of the Children’s Gurdian that there are far more factors indicating that spending time with arrangements would not be safe than there are factors indicating safe arrangements could be put in place. I am satisfied that there is a considerable risk of the father using the spending time with arrangements to further denigrate the mother and placing psychological pressure upon the children, causing them emotional harm. I further agree with the assessment of the Children’s Guardian that although supervision might mitigate against the risk of physical harm, it would not stop the risk of further emotional harm to the children. Likewise, given the gravity of the father’s conduct and his lack of insight into his behaviour, I am satisfied that an undertaking from the father or the imposition of a prohibited steps order regulating his conduct would not be sufficient to protect the children, as the father’s position in the proceedings, and his views about jurisdiction, indicate he would not adhere to the court’s orders or expectations. Finally, I am also satisfied that any direct spending time with arrangements presents a risk that the father could become aware of the family’s confidential location and threaten their safety.

[47]I have also given consideration to whether it is possible to put in place safe indirect contact between the children and their father. However, and once again, where the father has not taken responsibility for his actions and has not shown insight into the impact the domestic abuse he has perpetrated, I consider it likely that the content of any communications from the father would not be appropriate. In reaching this conclusion, I have regard to the fact that MS and LS have previously been subjected to abuse during telephone calls, as detailed in my previous judgment. The need to vet communications would place a burden on the mother and, in the context of the abuse she has suffered, would risk retraumatising her. I accept the evidence of the Children’s Guardian that given the children’s strong views against any form of contact, even receiving items from their father could cause them distress, for which they are then likely to need the support of their mother, which in turn risks undermining mother’s emotional wellbeing and her care of the children. The mother’s stability and security as the children’s primary carer must be protected so as to ensure the children’s ongoing development and that, as such, the arrangements for the children need to be ones which are safe and which are practically manageable for the mother.

[48]Finally, and overarching my decision that no direct or indirect contact can safely be facilitated in this case, it would not be in the children’s best interests to be ordered to have contact with their father against their very strongly expressed wishes and feelings. I accept the evidence of the Children’s Guardian that such an order risks undermining the children’s trust in their mother, in professionals and in the family justice system that is responsible for deciding their welfare. It would not be in any of the children’s best interests to impose on them contact to which they so fiercely object.

[49]In the foregoing circumstances, I cannot be satisfied that the physical and emotional safety of the children and their mother can be secured before, during and after direct or indirect contact. I conclude that it is in each of the children’s best interests for there to be no contact between them and their father in circumstances where such contact will be detrimental to the children’s welfare. Further, and acknowledging that it is only if there are exceptional circumstances that child arrangements orders dealing with contact have effect after the age of 16, I am satisfied that there are such exceptional circumstances in this case to justify the continuation of the order for no contact beyond the age of 16 years in respect of each child.

[50]I likewise acknowledge that an order under s.91(14) of the Children Act 1989 is a grave order. However, I accept the submission of Mr Gration and Ms Halliday that the father has used these proceedings as a means of intimidating, threatening and abusing the mother. The mother accurately describes being put through “hell and back” only for the father to “not engage in a pivotal part of proceedings” in failing to attend the finding of fact hearing. In addition, the father has made multiple applications to this court seeking orders it has no jurisdiction to make, including the reconsideration of the mother’s asylum claim. The father continues to seek to litigate in Turkey in the way I have described. The children themselves are desperate for the current proceedings to end and, as I have identified, have an urgent need for an extended period of stability and security, during which they are protected from the adverse consequences of the father’s conduct and are able to recover emotionally from their significantly adverse experiences. Within the foregoing circumstances, I accept the evidence of the Children’s Guardian that further litigation would be wholly antithetic to the children’s welfare and that permitting the father to reapply to the court for child arrangements orders, without showing a material change in his circumstances, would cause the children unacceptable disruption, upset and uncertainty.

[51]I am satisfied that this is a case where the welfare of the children and the mother requires a restriction on future applications to ensure the children’s need for an extended period of stability and security, during which they are protected from the adverse consequences of the father’s conduct and are able to recover emotionally from their significantly adverse experiences is given effect. The Children’s Guardian recommends an order is granted for a minimum of 3 years, meaning that no application can be made without permission of the court until MS and LS are over the age of 16 and HS has commenced secondary school, although she suggests the court may wish to consider it appropriate for the order to be in place for the duration of the children’s minorities having regard to the nature and extent of the harm consequent on the father’s behaviour and the lack of evidence that father is able to change. I am satisfied that it is necessary and proportionate for the s.91(14) order to be granted for a period of 5 years in relation to any application made by the father in respect of the welfare of the children. This in my judgement is what is required to allow the children the requisite extended period of stability and security, during which they are insulated from the adverse consequences of the father’s persistent conduct where there is little evidence of his ability to change.

[52]Finally, I am satisfied that it is in the children’s best interests for orders to be made circumscribing the exercise by the father of his parental responsibility. Once again, the evidence available to the court makes clear that the father is not motivated by a desire to promote the best interests of the children but, rather, persistently seeks to demonstrate that the mother is not fit to care for the children by reason of mental illness. Further, the evidence establishes that there is a clear pattern of the father using information about the children to trace them and disrupt their stability.

[53]I am satisfied that the father would seek to use any information regarding health and education provided to him pursuant to the exercise of his parental responsibility in an effort to locate the children and undermine their placement with their mother. These risks are exacerbated by the father’s inability to understand the impact of his conduct on the children and on the mother. I am also satisfied on the evidence that there would an adverse impact on the children’s emotional welfare from knowing the father is privy to private information about them where they are clear that they want as much distance as possible from him. Finally, in light of the serious findings this court has made regarding the nature and extent of the domestic abuse perpetrated by the father, I am satisfied that requiring the mother to communicate with her abuser, who shows no insight or remorse into his behaviour, would adversely impact on the mother’s ability to care for the children.

[54]Having regard to these matters, I accept the evidence of the Children’s Guardian that it is not possible to make safe recommendations in relation to the sharing of information with the father and involving him in decisions regarding the children in exercise of his parental responsibility. In the circumstances, I am satisfied that it is in the children’s best interests to make the following specific issue and prohibited steps orders: i) The father is prohibited from exercising his parental responsibility to seek or obtain, whether by himself or through the agency of another, information as to, or capable of indicating, the whereabouts of the children or the mother or anybody to whom the mother has entrusted the children’s care without the consent of the court. ii) The father is prohibited from exercising his parental responsibility for the children to seek or obtain, whether by himself or through the agency of another, information on the children’s education without the consent of the court. iii) The father is prohibited from exercising his parental responsibility for the children to seek or obtain, whether by himself or through the agency of another, information on the children’s routine or other medical treatment without the consent of the court. iv) The father is prohibited from exercising his parental responsibility for the children to seek or obtain, whether by himself or through the agency of another, information concerning the children from professionals or organisations engaged with the children without the consent of the court. v) The father is prohibited from exercising his parental responsibility for the children to remove or attempt to remove them from the care of the mother or from the care of any third party to whom the mother has entrusted the children’s care, including the school or educational establishment attended by the children, without the consent of the court. vi) Until the children reach the age of majority, or further order of the court, the mother is not required to consult the father before she exercises her parental responsibility for the children.

CONCLUSION

[55]In the circumstances, I make a final lives with order in favour of the mother, an order that there be no contact between the father and the children and prohibited steps and specific issue orders to incorporate the restrictions I have articulated above with respect to the exercise by the father of his parental responsibility in respect of the children.

[56]I will invite counsel to draw an order accordingly.