In the matter of: v Re: P (CHILDREN) [2008] EW Misc 6 (EWCC)

IN THE WARRINGTON COUNTY COURT
[2008] EW Misc 6 (EWCC)Venue Law Courts, Legh Street, Warrington, Cheshire
Between
In the matter of:Re: P (CHILDREN)
Before
Her Honour JudgeMISS EDMUNDS Counsel for the Applicant MotherMISS LANGLEY Counsel for the Respondent FatherDate 25 April 2008
[1]THE JUDGE: This case concerns two children, A (born 10 th February 2001) who is now seven, and O (born 5 th January 2005) who is now three. The issue between the parties arises over residence. The parties have been married. Divorce proceedings were issued following the breakdown of the marriage as long ago as August of last year. Unfortunately, only recently has the father accepted service of the divorce papers and, indeed, the mother's application for transfer of the tenancy of the former matrimonial home.[2]Following the breakdown of the marriage, the mother left Mr B P P. She went to live very nearby with her own mother in somewhat cramped conditions, where her mother lives with her husband in a three bedroomed bungalow. The matrimonial home is a four bedroomed house where the two children and the parents had lived. Until shortly before the breakdown of the marriage, the mother's child by an earlier relationship, namely R, also lived there. R is now just 19. The time we are talking about, he was about nine or ten when the mother married Mr P.[3]Following the breakdown of the marriage, the father sought to obtain sole custody of these two young children. I have heard from him that he works in a number of different capacities. He has always been a hard worker, and he always seems to have worked working unsociable hours, with breaks, and also now, more recently, with the ... In any event, nobody disputes that he works hard and provided for the family during the marriage. However, during that time it is right to say, and I do not think it can be challenged seriously, that the mother was, in fact, the principal carer of the two small children, A and O. The father has suggested before me today that she had some sort of cleaning jobs, but, on any view, they did not amount to much. I do not think it is seriously pursued that mother was anything other than the primary carer of the children. Invariably of course, it was likely that the residence of the children would fall to her.[4]There were, unfortunately, unpleasant events last summer shortly after the mother separated. That led to the mother, when the father retained the children following contact for a matter of some three days, taking the matter up with the court. She was granted an interim residence order by District Judge Little, and interim arrangements were made for contact. The father, having been married to the mother at the time of the birth of these children, has, automatically, a parental responsibility order. I do not suppose that appeared on the face of the order that was made, because it is not a case where he would need such a declaration. However, in any event, the interim residence order was made upon the respondent father undertaking to the court that he would return the children promptly after each contact session because of the difficulties that had occurred on the previous occasion.[5]The district judge set out, quite specifically, the terms of the contact. We have got it quite exactly, Wednesdays four until seven, Saturdays two until seven in week one. Week two, Wednesdays four until seven, and Fridays 4 pm to Saturday 4 pm, and thereafter on a fortnightly cycle. He included the usual provision that there shall be further or other contact as the parties may agree. That is normally always included in the fond hope that things can be amicably resolved. One thing I can say, that having heard evidence all day from both the father and the mother, is that everything is anything but amicable. Despite the passage of some nine months, the feelings of the parties are as fraught, I think, as probably they ever were. The antagonism between them is quite strong and quite palpable. The father, at this stage, I am told, is seeking simply a shared residence order.[6]There has been a very helpful guardian's report prepared by Mr R and dated 22 nd February. In that, he concludes that the children enjoy reasonably good physical health. It is possible that A, the eldest child, has experienced the family breakup as a very distressing experience and it has been reflected, I think, in angry and uncooperative behaviour at school. The whole series of incidents have been most unfortunate. A has seen angry adults, the police being called, and she, herself, was actually taken to court by the father. It is thought that she will need some form of counselling. O is much younger and does not appear to have shown any reaction to the events. However, the level of discord between the parents, it seems to me, is as high as ever it has been, despite the efforts that the court welfare officer has taken to try and persuade them to look at the situation otherwise, although he suggests that the parental discord of the first few months after the breakup was very, very dangerous and he says this:
"If the parental discord of the first few months after the breakup was to re-emerge, I believe that it would be in the interests of the children for the involvement of both parents in their lives to be reviewed. For example, the drastic option of one parent being granted residence and contact being denied to the other would have to be considered. [He goes on to say] ...although the proximity of the two homes would probably result in the children still experiencing some degree of tension."
[7]Somewhat surprisingly, the father has not agreed to the children and mother occupying the former matrimonial home. I am told by him that he spent a great deal of money on it. He regards it as his life's work, but it is, at the end of the day, apparently rented accommodation.[8]What the guardian said was that he thought that the father can relate very well to his children in a contact setting. If he could maintain the quality of care that the CAFCASS officer observed, then he thought the father had a great deal to offer the children, provided he could help them have a good relationship with their mother. He was very cautious about that. He expressed concern that he was unsure whether, in fact, the father could maintain the standards he had exhibited in the observed contact. He said that because of the several allegations made both by the mother and R M that is mother's eldest son.[9]He went on to say this in his recommendation:
"In view of the doubts about B P's behaviour towards A and O, L P and R M, I do not believe the court should make an order for him to have either full or shared residence without being satisfied that these allegations are groundless. In the event of the doubts remaining, or being found or accepted to be valid, I recommend residence is granted to L P, an order for contact is made for B P that includes overnight, and holiday contact, and the matter is listed for review with CAFCASS being requested to prepare an addendum for the hearing."
He also proposed a family assistance order for the next six months.[10]I think the starting point, as a result, that comes out of that report is that I have to decide, first and foremost, what I make of the allegations made by R. I do that in isolation first. I will then move on to the allegations made by the mother, but I am looking at the schedule of allegations made that relate to R, the first of which was that the father blamed R for the breakdown of the marriage. He claims that he did not but, I have to say, I found his evidence on that wholly confusing. It seemed to me, that at various stages in the very lengthy statements the father had made, it was quite clear from those that he viewed R actions, or inactions, as the major cause of the breakdown of his marriage. He seemed to be ascribing a little to the maternal grandmother, but I was not quite clear how far, it was not elaborated, but certainly that allegation I found to be absolutely true.[11]The second allegation was that father would control R. In coming to a conclusion about most of these, I will have to consider R's evidence, and I should say straight away that I found R to be a very honest, straightforward witness. He did not budge from his account, despite cross-examination. He is young to experience cross-examination but he remained firm. The picture he portrayed was of the father being very controlling, and, for much of the time, antagonistic towards him. I make that finding of fact. I accept R's evidence and where it differs from that of the father, I am afraid I reject the father's and I accept R's.[12]I say that I form that view, firstly, because that is the view that I formed of the boy as he gave his evidence, but secondly, I am also reinforced in that view by the fact that the CAFCASS officer similarly felt that there was a sincerity and reliability in the young man's evidence. I accept that the father did not have much time for R. I think it is right that I accept the mother's and R's evidence, that the marriage was fairly distant in that the father had his job, his karate and his computer, and other things to concern himself. He probably did not have a great deal of time for the children, who were very small, and were very dependent upon their mother at their ages.[13]I am satisfied that the father had threatened R. I am satisfied about R's version of the incident that happened at three in the morning. I do not accept that there was any justification for what father did. Whether, in fact, the television was on or not, it seems to me, makes little difference. I am satisfied that R was intimidated by the father and that the father did threaten R that if he made any complaint to his mother, he had better watch out. As far as the putting holes in the condoms, it is a minor issue. On the balance of probability, there is only the mother and father who can get to the bedroom at this given time. It is unlikely the mother would do it, so, on balance, it has probably been done by the father. That is not a matter of any great moment. I am much more concerned about what I find about the father's overbearing and domineering attitude towards the stepson.[14]I have to say that I think that the ending of this marriage has had a highly damaging effect on the children. I think, for that reason, it is essential that there be no question of any sharing of residence. Indeed, it would be a recipe for complete uproar, given the parties very polarised positions. I think it is imperative, also, having heard what the father had to say about his misunderstanding of what rights he had by virtue of parental responsibility, that his contact is spelt out very, very carefully. For the avoidance of doubt we will eliminate the reference to any other contact that might be agreed between the parties because it is only going to lead to further misunderstanding.[15]I make it clear that the father's involvement with the children will be confined to his contact, and the periods of contact. Of course, he is entitled to know about their education, any religious issues and so on, but he is not entitled to go and follow them, or watch the children. He is to leave them to lead their lives in the care of their mother under a residence order. That is my view as to what should happen. It is unfortunate that the parties are living so close. I do hope that the integrity, which the father says he has, (and I have read his CV and he claims to have many other admirable qualities), does prevail so that he will see the necessity for allowing the wife and his children to return to live in the matrimonial home. I have heard that there is accommodation at his mother's house. It may not be what he wants, but it certainly is adequate. There is a bedroom there for him, should the need arise.[16]I do think that the father needs to understand that contact is for the benefit of the children. It is not a right that a parent has. It is something that the child has a right to. The child has a right to enjoy two parents. Two parents brought him into the world, the child is entitled to have the benefit of love, affection and anything else those parents have got to offer. However, bearing in mind the hostility which continues to prevail, and the rather, as I see, domineering approach which the father seems to adopt, I do think it is important that, for the time being, he understands that his involvement with the children rests with the periods when he has them for contact. It is not for him to go spying on where they are, where they have sleepovers or anything else to do with their day-to-day arrangements.[17]Furthermore, if they have hospital visits (I think A has got something wrong with her eyes) the mother should be advising the father of A's health. However, I do not think there is any necessity for the father to attend, unless the mother wishes him to do so, but, it seems to me, having regard to what happened at the last hospital visit, it is a recipe for disaster and it definitely would be very upsetting to A. What happened last time at the hospital was that the father actually promised that A could come home with him if she submitted to eye-drops. Wholly inappropriate offers and only designed to cause trouble and confusion for A, most importantly.[18]I have to say, and I did say this at the outset of the hearing, that quite apart from the finding of fact over whether what R had to say was true or not, I had made it very clear that I had no intention of making a shared residence order where the parties were at such odds as they are in this case, such as to need a contested finding of fact hearing. That, of itself, told me that this was a very hostile set-up between the parents still, and a lot of the anger had remained about the ending of this relationship. Relationships ending are very difficult and I accept that and some of the nicest possible people behave in some of the worst possible ways in that scenario. I do not expect everybody to be perfect, but I do find that the father is very controlling. I find that he is pretty controlling with the wife.[19]I note that on some occasion, and I cannot be precise but it is in the papers, on one of these occasions the father insisted on taking the children when, in fact, she would like to have kept them but she adhered strictly to the letter of the order. That contrasts with the father's belief that the order in no way limits his overall ability to dominate the situation. He does not dominate the situation.[20]The order I have made now is simply that he has contact. I am going to put in place a family assistance order. I am going to review it again in six months time. I shall want to know just how this is going. I will want to know what has happened to A and whether her problems have settled because they clearly all arise out of the breakdown of this marriage. I do want the father to understand that he cannot pursue the mother and the children in the way that he has hitherto. If he were to continue to do so, one would have to think in terms of making injunctions. I hope that makes it clear.[21]This is a finding of fact and, as a result of it, I find that the mother shall have sole residence of the two children. Father shall have contact in the same terms that Judge Little ordered at paragraph... MISS LANGLEY: Your Honour, as I understand it, the contact from the order of Judge Little was actually extended to seven o'clock on the last occasion. THE JUDGE: It was. I am not sure though that that is right when you are talking about a child of three. I think that child needs to be in bed. The seven year old, I agree, could well be up until seven, but I think there are problems when the two children come together. I do not think it would be proper to split them up. The other child is three. It seems to me that no later than five is appropriate. I am sorry; I am trying to find the order which was the— MISS EDMUNDS: B20 I think, your Honour. THE JUDGE: B20, thank you. Well, that dealt with— MISS EDMUNDS: That was Christmas. THE JUDGE: —Christmas, which has now been and gone. I do not propose to make any arrangements about Christmas at this stage because we shall be back. MISS EDMUNDS: B15, forgive me, your Honour. THE JUDGE: B15, yes it is. Well, all right, the Wednesday and the Saturday on week one had better stand. MISS LANGLEY: Your Honour, the only thing that concerns me about this, and I have, unfortunately, come into this case very late, is that I understand that when Mr R has been at court recently, there have been discussions as to what he thought would be appropriate under that order. I was not privy to them and I do not know where they went. It might assist what his view would be because he does recommend— THE JUDGE: Well, he is not here and I am simply going to make an order. MISS LANGLEY: No, I appreciate that but— THE JUDGE: If he sees fit to vary it he can bring the matter back to court to me, I trust, if Mr R thinks... I am not going to build in any extra bits. MISS LANGLEY: Certainly, I only raised the point because I know it was discussed on previous occasions with him. THE JUDGE: I am sure, but the answer was that that was discussed before I had made any findings of fact. MISS LANGLEY: Certainly. THE JUDGE: I have now made some quite trenchant findings of fact which govern what now happens. MISS LANGLEY: Certainly. THE JUDGE: Without those findings of fact there was room for flexibility but having heard the parties today, it is quite clear the antipathy is so high. However, it may be that we can build up to more, I firmly hope so, but it would depend upon father's approach. If he continues to be so controlling, there is no chance of it moving on. MISS LANGLEY: Certainly, whilst I am on my feet, and it is for the sake of completeness— THE JUDGE: Mmm. MISS LANGLEY: —you said at the start of the judgment that you were going to deal with Ryan's schedule and then the other schedule. I take it, from what you have said, in relation to the other one— THE JUDGE: Well, I can go to the other schedule now. It is just that I am aware of the hour, but yes, I will deal with the other schedule.[22]Father would intimidate and bully the mother. I am satisfied that that is so, on the balance of probabilities. He attempts to control the children. I accept that he tried to monopolise the children once he realised a divorce was looming. I heard clearly what the father had to say about his attachment to the former matrimonial home. I cannot help but contemplate or consider that there may be some sort of nexus between his claim for shared residence and the occupation of the house, bearing in mind his other actions and, in fact, delaying the divorce as he has done, all of which seem to be with a view to postponing the possibility of the children and the mother returning.[23]I accept that he shouted at the back of the grandmother's house. I accept that it was done in a frenetic way and that it was not appropriate. I accept the incident that is described by the mother about when A went under the table. I accept the mother's version of that.[24]I accept there was a most hideous incident when the children were returned after the visit to K. It was a quite reprehensible scene. It was quite bizarre that anybody should seek to video it, save, and except for the purpose of proceedings. Any other explanation is quite fatuous, I find. I find it objectionable that the father was prepared to let the children be upset, particularly A, during an incident which lasted the whole of 25 minutes. The mother remained in the house. I well understand why she did so. The father had been trying to persuade her to agree to all sorts of modifications of the divorce petition and other features the previous week. I accept that she, no doubt, felt that she was not able to stand her corner against the father. I accept that he is domineering to the mother. I accept that the incident at the hospital happened as it did, and I think it is wholly wrong that the child was promised a stay with the father. It is quite out of line.[25]Father refuses to vacate the former matrimonial home and avoided service of the papers until recently. That is certainly a finding of fact that I make. I accept the mother's account of what went on at the friend's, T's house. The whole thing struck me as being seriously bizarre that the father would go round there carrying a contact order. I heard what he said about some window cleaner saying there were rumours on the estate, but that is still not the way. These are sensitive matters about children and he showed complete lack of understanding about what his children needed. What they needed was peace and quiet, not an escalation of the antipathy.[26]On balance, I am satisfied that when the mother takes the children to school, although she tries to tread a path that avoids the father, he still does seek to watch them. I find that intrusive and I do not think it should carry on. I think it is not appropriate.[27]If any children wish, although O is too young, but if A, who is now seven, wants to have sleepovers at other children's homes, that is a matter entirely for the residential parent. It is not a question of needing the father's consent. Those sorts of decisions, day-to-day decisions, are matters for the mother to make, and the mother alone.[28]If the father thinks the children are going to be in danger, his remedy is to come to the court and ask for a prohibited steps order, or a specific issue order, but it would have to be something pretty serious to justify or warrant it. (End of judgment) (Discussions on contact times follow)