Further, the Court must conclude that the father is not a witness of truth. He demonstrably lied to the Court during the Family Law Act proceedings on one of the core s.33 issues relating to the Occupation Order application, being that of the housing resources of the parties. His evidence about the size of the Paternal Grandmother's property was false. The Court does not accept his assertion during these current proceedings that he had simply made a mistake on this key issue. Further, the father patently misled the Court in the course of the current Children Act proceedings by asserting that he had not been allowed by the mother to see the children for four months, despite having been invited to and actually attending 'B's Holy Communion and 'G's school music concert within that period. In respect of each of the disputed facts, the Court is bound on all the information available to prefer the evidence of the mother.
Dr Proudman on behalf of the mother submitted that the father sought throughout his evidence to deflect or deny, to attack the mother and to seek to reverse the role of victim and offender. In doing so, it was submitted, the father sought to act manipulatively to avoid taking responsibility for his own actions and to seek to shift the blame onto the mother, who is the victim of the domestic abuse perpetrated by him. The mother asserts that in respect of his relationship with the children, the father lays all the blame at the mother's door and accuses her of lying about behaviours he has engaged in. The mother submits that this is a pattern of behaviour, which was noted by Dr Lopez. In this Court's judgment, having had the unique benefit of seeing and hearing the father give evidence, and having regard to all the evidence before the Court, there is significant weight in those submissions.
In reaching these conclusions, the Court has taken into consideration also the wider canvass of evidence, including the evidence of Dr Lopez, Consultant Clinical Psychologist. Dr Lopez, in her independent report of 14 April 2021, permitted by Order of the Court as a single joint expert, had the benefit of meeting with both parents separately to undertake an assessment of them. Dr Lopez concluded that the mother did not present with any mental health disorder, although there was evidence of stress associated to her then living arrangements, where she was cohabitating with the father. Dr Lopez concluded that the mother would have capacity to achieve a less acrimonious relationship with the father, were she to not feel the need to protect herself: "as a parent, [the mother] has learnt that it is 'important to be together' which would have increased her determination to stay in a relationship that she might have perceived as controlling." Dr Lopez concluded that overall, the mother's attitude to the father, "would predict that there would be significant risk that the relationship would continue to be acrimonious and characterised by reciprocal accusations that would have a significant impact on the children emotionally. She would continue to feel powerless to affect change in her life…she would have greater difficulty keeping the children at the centre of her thinking. At such times, there would be a greater risk she would be exposed to her parents' acrimonious relationship."
Dr Lopez concluded that the father did not present with any mental health disorder, although there was evidence of historical anxiety and depression associated with interpersonal difficulties and, "perceived threat to his fragile self-esteem." Dr Lopez concluded, in respect of the father that he remained unresolved about his parents' separation that continued to organise his thinking and behaviour in his current separation. His interpersonal difficulties had, "organised his response to his perception of [the mother] controlling his interactions with the children." Further, his psychological organisation, "would continue to impact on his relationship…and he remained preoccupied with his perceived injustices, false allegations and fears of being controlled that would predict that this relationship would continue to be acrimonious." In Dr Lopez's expert opinion, the father's narrative described him, "very much aligned" to his own mother's needs and feelings. He was noted by Dr Lopez to often confuse beliefs about care with descriptions of discipline and hardship."
Dr Lopez told the Court in her report that the father's, "dominant attachment strategy was to present himself as emotionally vulnerable and use coercive anger to force attachment figures to attend to his needs." Dr Lopez described 'coercive individuals' as often persuasive and charming, "but are also prone to becoming more controlling in their behaviour," noting that this would increase the risk of conflict within relationships: "He would be more limited in his range of responses to interpersonal difficulties," Dr Lopez concluded that the father's, "determination not to abandon his responsibilities as a father would paradoxically increase his potential to maintain a more entrenched position within the current proceedings. Preoccupied individuals can both be angry and controlling in relationships...[he] remained extremely preoccupied with his feelings of perceived injustice…which would suggest a limited capacity to reflect on his feelings or the impact of his behaviour on other people and he would be less able to think empathetically about the impact of his anxiety and anger. Rather, he would justify or exonerate these feelings in terms of his rather rigid beliefs about right or wrong…Analysis of [his] adult attachments might suggest that he would use coercive anger to manage his feelings about relationships. This would increase his risk of hostility towards other people. Cognitively, he would overlook the impact of his anger on other people, and he would be less able to think empathically about the impact of his anger. Rather he would either justify or exonerate his anger in terms of his rather rigid beliefs about right or wrong."
Dr Lopez considered, in her independent expert opinion, that the father, "obtained elevations on the Narcissistic and Histrionic personality constructs: People with this particular combination of traits tend to have an inflated sense of their own importance, a need for attention, and a lack of empathy for others. They can also be unreasonable in their demands, and insensitive to the difficulties of others. They can be prone to intense emotions and can behave eccentrically to get attention. However, their self-confident appearance is usually underlined by a fragile self-esteem and a marked vulnerability to criticism…"
Dr Lopez considered further that the father obtained elevations in the Anxiety clinical syndrome scale: "People with the above-mentioned traits can experience considerable difficulties handling stressors that can threaten their self-centeredness and perceived entitlements. [The father] was extremely limited in his ability to think reflectively about his mental health, approach. He was not able to describe any particular insight into the pattern of anger or difficulties managing his behaviour when aroused by his rigid sense of right or wrong. Rather he would justify any feelings of anger in order to defend himself or a principle. On interview, he would become particularly more assertive when describing his feelings towards those that presented opinions that he perceived as a threat to his idealised view of himself including medical professionals and his wife and would dismiss their opinions as either untrue or presenting a false impression of events ("I'm going to get that letter ripped up"). He would reconcile these feelings by giving an evocative account of the harm that he felt he had experienced in their care/relationship and his attempts to protect himself or the children."
In conclusion, Dr Lopez considered, in her independent expert opinion, that the father, "remained extremely preoccupied with his feelings of perceived injustice by [the mother] or presenting himself as the victim of injustice and abuse. His thinking about [the mother] would often obscure his focus on his thoughts about his children emotionally. [His] feelings of anger and indignation would be most triggered by circumstances that he perceived as unjust, rather than due to any other relationship difficulty... He would have great difficulty relinquishing power and control within his relationship with the children and would have difficulty accepting [the mother's] decision He would have greater difficulty keeping his children at the centre of his thinking or decision making about them. At such times, there would be a greater risk that the children would be exposed to the parents' acrimonious relationship. In his description of his children, [he] would readily become distracted by his negative thinking about [the mother] and this would detract from his focus on his children. In his thinking, he struggled to separate his positive feelings towards [the children] from his negative feelings towards her mother…Overall, [he] was limited in his ability to think reflectively and empathically about his children in their own right or consider their relationship as separate from his feelings about other people. His difficulty thinking reflectively about his children would predict he would have greater difficulty interacting with his children and connecting with them in a way that would promote their security of attachment. He would struggle to prioritise his children's needs over his own without appropriate support. He would be less able to interpret his children's subtle indicators of happiness or distress necessary to make decisions about their welfare but would be more likely to make these decisions based on his own feelings."
In this Court's judgement, Dr Lopez's astute conclusions in respect of the father regarding his extreme preoccupation about his feelings of perceived injustice by the mother, presenting himself as the victim of abuse, his feelings of anger and indignation and his limited ability to think reflectively about his children were starkly and vividly revealed.
The parties jointly engaged in online therapeutic sessions with Ms Parkinson, with a view to the parties repairing their marriage. Ms Parkinson produced a statement in which she records her concerns about the father's behaviour. Ms Parkinson records in her statement, "I was especially concerned by his demeanour and manner. I could see that he was suffused with anger, that he felt victimised by his wife, children, neighbours et al."
Ms Parkinson continued, "From the very beginning, the Respondent [father] would describe the violence he has been subjected to during his life. He would often backtrack his words but at other sessions continue with the violence theme. He would state that and describe how everyone he knew was violent. This included his neighbours, the Applicant [mother] and the children. The Applicant's [mother's] behaviour was typical of someone in an abusive relationship. She would sometimes interrupt the Respondent but had to force in what she wanted to say but cowered to the Respondent when he spoke. I was told separately that the Applicant was worried that she would not be believed as to the allegations she made because she was more powerful in the way she spoke alone than with or in front of the Respondent. In the sessions he was the dominant figure. If the Applicant did speak (and I would try and make sure she had the chance to speak) then the Respondent would shake his head, grimace and frequently interrupt. I felt he did this to try and express she was lying or making things up."
Miss Parkinson continued, "It is disturbing when a therapist is aware that an individual does not have empathy. This type of individual does not feel emotion but instead they put it on like an act. I witnessed this during one of the sessions. The Respondent's face contorted and looked like a gargoyle. It was a very unnatural expression and was frightening. It appears the Respondent was trying his best to 'cry'. However, it was clear he was not feeling this emotion but instead wanted me to believe he was. The Respondent noticed I was not believing him and he quickly changed back to his 'normal' face. The Respondent's 'normal' face was infused with anger." It is unfortunate that Ms Parkinson used an ill-judged choice of words in her description of the father as looking like a 'gargoyle'. Inevitably, he took offence with this. Nevertheless, Ms Parkinson's description of the father, "trying his best to cry" and, "quickly changed back to his normal face," accurately describes the father's manner when giving evidence to this Court.
Having had the unique benefit of seeing and hearing the father give evidence, it was noteworthy that the father on several occasions feigned becoming tearful before immediately then becoming stern and angry. Ms Parkinson's observations about the father shaking his head and grimacing also reflect the Court's own observations of the father during this Fact Finding Hearing, including when the father was listening to closing submissions on behalf of the mother. This Court makes expressly clear however, that it attaches limited weight to the father's demeanour when assessing the overall quality of his evidence.
Ms Parkinson continued in her statement, "The Respondent described how his neighbour had tried to kill them i.e. him and the children. He explained that the roof tiles had fallen off one of his neighbour's properties. I noted that this was not strange as the neighbours were having building work done and accidents such as this could happen…The Respondent had acrimonious relationships with neighbours on both sides of his home. The Applicant had had a relationship with one set of neighbours and their children which stopped due to the Respondent's behaviour. The Applicant did not have anyone to speak to, she was away from her familiar home country and did not have family around her...I had tried setting him tasks to do to work on himself. However, he sent me material from 'Psychology Today' on the internet and asked me for my views. The webpage includes ideas about alienating parents and he questioned whether I was aware of what was happening in his family. The Respondent was fixated with the view that the Applicant was an alienating parent. The Respondent was not able to understand what was happening and this was concerning. I believe that this is because of the way he thinks and he is incapable of understanding how someone else might feel. This was especially emphasised when he wrote a disturbing poem to his son. I was extremely worried by the contents. I question why the Respondent repeats that the Applicant and children are violent to him. The Respondent described his daughter as a 'mean witch' whilst she was watching a movie and when his son playfully grabbed his nose, he described this as an assault…I was concerned that it was not safe for the parties to be in a house together. I was worried that the Respondent could do something quite dangerous to the children and the Applicant. This could then lead to him doing something to himself. I feel the Respondent is quite unstable. I understand that people can appear to be perfectly rational when they are, in fact, anything but. I am not prepared to take the chance that something serious could happen such as a death. I understand the Respondent's sense of reality does not match the reality of most of those around him. I also understand this must be genuinely distressing for the Respondent."
Ms Parkinson concluded, "I felt early on that the sessions may have to be ended with the Respondent…I wanted to continue having the sessions because it gave him motivation/security and meant the children and Applicant were in a safer situation. It was the Respondent's behaviour and in particular the poem to his son and him trying to force emotions/facial expression that led to the termination of the therapy sessions. I wrote to him by email…This expressed my concerns and why I decided not to proceed with the sessions. I did not receive a reply."
Ms Parkinson's observations do not carry the weight of expert evidence. She is not a Court appointed expert. She was not called to give evidence. Her formal, signed statement to the Court is of some evidential value given that she had a role in providing joint counselling support to the parents.
The mother produces in evidence a letter dated 30 May 2023 from Ms Davey, who describes herself as a BACP registered counsellor who has worked with the mother since January 2023. Ms Davey describes assisting the mother with support and trauma therapy for emotional abuse. Ms Davey records, "Everything [the mother] is describing on how she is feeling and how she presents herself is a what a victim of abuse would be presenting." Ms Davey is not an independent expert. She was not appointed by the Court. This Court finds little evidential value in this letter when seeking to determine the factual disputes between the parties. The letter is of assistance to the Court, however, to the extent that it informs the Court of Ms Davey's view that the mother has difficultly in remembering certain memories and dates. Ms Davey tells the Court, "This…is very common when a person has been subjected to domestic abuse. Parts of the brain called the amygdala and the hippocampus are damaged due to the abuse and trauma leaving a person struggling to remember things easily…Anxiety and being blamed for everything from the husband (manipulation tactics) (blame shifting) is a mental torture that victims endure daily, it will break their spirit, make them question their sanity and doubt their own thoughts." The Court takes into consideration the mother's vulnerabilities when assessing the quality of her evidence.
The father seeks to rely on evidence by way of a letter from Dr Kraft dated 19 August 2021. He describes himself as a registered UKCP Psychotherapist. He is not an independent expert. He was not appointed by the Court. No permission has been given for the father to rely on any expert evidence other than that of Dr Lopez. The letter from Dr Kraft contains no statement of truth nor does it comply with any of the requirements of Family Procedure Rule 25. Far from being independent, the father told the Court during cross-examination that Dr Kraft is known to him as a friend. The father was particularly evasive in his answers during cross-examination as to his relationship with Dr Kraft. Dr Kraft's letter records that the father engaged in psychotherapy sessions. Dr Kraft proffered an opinion that the father, "has experienced long periods of prolonged trauma due to his partner's behaviour." Dr Kraft recorded, "I believe that the adverse impact on [the father's] emotional and mental wellbeing has mostly been caused by external sources – specifically his partner's behaviour towards him and how she has alienated his children from him…I have been compiling more and more evidence week by week to support this view." In this Court's judgement, the letter from Dr Kraft has no evidential value in these proceedings. Dr Kraft's opinion is plainly based on the father's self-reporting, without Dr Kraft having considered any of the documentation in these proceedings and without him meeting the mother. It is particularly troubling that in his role as a psychotherapist, Dr Kraft would consider it appropriate to "compile" evidence to support the father's view that the mother has, "alienated his children from him." The evidence does not assist the Court in determining the factual disputes between the parties.
Finally, I turn to consider the reports from Cafcass, prepared pursuant to section 7, Children Act 1989 in November 2021 and in November 2022. In the first report, the Family Court Adviser, who is now the Guardian in the proceedings, recorded that 'G', "described feeling scared in her home when going downstairs (where her father is)…she repeatedly used the word 'scared' when speaking about her father. She explained that last summer she was watching 'The worst witch' and her father said she was the bad witch. I asked if this was in a 'jokey way'; she said he was 'sort of angry' and 'sort of shouting'…she said there had been 'lots of times' her father has shouted at her…she described that her father would start arguments with her mother, and she could not sleep because of the loud noise. She said her mum had tried to stop her father from arguing with her; she knew this because she heard it from her bedroom." The Family Court Adviser continued, "Having considered ['G's] views, it is my assessment that she has aligned herself to her mother; this is common in situations where children are placed in the middle of parental conflict…She described feeling as though her father does not like her as he shouts at her and is ' mean '…she described feeling as though her father is not 'like a dad'… he had previously put cards around the house (to communicate with her)…She said she feels sad and starts crying on Sundays when her mother leaves the home as she feels lonely but added that it makes her feel worse when he comes to her room…She described her father to be 'a bomb waiting to explode' as she worries that he will get angry at her. She said he was angry in the past and continues to be angry." 'G' wrote a letter to the Judge stating, "I would like the Judge to know what dad did before. He hasn't been very kind to me in the past. He shouted at me and said that I was mean lots of times. It made me feel scared and I didn't like it. I didn't know what was going to come next so I had to get used to it."
In the November 2021 report, the Family Court Adviser reported that 'B', "was very keen to tell me that he 'likes his dad the most'. ['B'], just like his sister, feels in the middle of his parents' conflict and a need to align himself to one of them. ['B'] spoke about the arguments between his parents...he said they shout pretty loud so he would go upstairs but he could still hear...he followed this by telling me again that he would like to live with his dad as he is funny and cheers him up…his mum shouts at him 'most of the time' but 'not that much'...he is the person that his mother often shouts at…he said his dad sometimes shouts at ['G']. ['B'] picked the emotion 'angry' and described feeling this was when his mum makes him complete homework 'the whole day' …he said his dad never does and that he likes his dad's car." 'B' wrote a letter to the Judge stating, "I have a wish to know which day I can live with my dad as I really want to live with him, just me and him."
The Family Court Adviser informed the Court in her November 2021 report, "Within the context of the parental separation and divorce, there are likely to have been incidents of situational couple violence…it is my assessment that there is no clear pattern of domestically abusive behaviour within the parental relationship. There is no evidence of a high level of emotional abuse or harassment; generalised aggressive or stalking behaviours, no sexual violence, no pattern of coercively controlling behaviour, no escalating abuse or violence and no lethal behaviours, which would indicate a current high risk from ongoing domestic abuse. If the risk of domestic abuse was high it would not be safe to promote contact, however this is not the case. It is, however, my assessment that the main risk factor currently presented to the children from the parental relationship is one of parental conflict…Having considered Cafcass' parental alienation tool, ['G's] views suggest some elements of parental alienation, however, when considering Dr Lopez assessment, it is highly likely father has not been emotionally available to ['G'] or provided her with the emotional warmth needed which has influenced her to believe her father does not like her, thus there are other behaviours exhibited by father which also contribute to the dynamic. It is evident that factors, such as fathers' limitations to meet ['G's] emotional needs, have contributed to the currently strained relationship, as opposed to parental alienation being the standalone reason. Furthermore, there is no evidence to suggest current parental alienation in respect of ['B']…It is highly likely that when ['G'] has displayed certain rejecting behaviours towards her father (due to aligning herself to her mother), it has triggered father to become confrontational (for example referring to her as the bad witch), raise his voice and to display coercive anger or frustration which she has interpreted as 'mean' behaviour that has caused her to feel 'scared'."
That report was based on the factual findings of the Recorder in August 2021, made within the narrow focus of the Family Law Act proceedings and without the benefit of the plethora of evidence now available. The report concluded, "It is clear that the children have suffered emotional harm, which has been heightened by the circumstances regarding the parental separation and living conditions."
In her second report dated November 2022, the Family Court Adviser had the benefit of the Local Authority Child and Family Assessment of May 2022, "following a Police referral in which [the mother] alleged coercive control perpetrated by [the father] and the children being exposed to parental conflict and an alleged physical assault from [the father]. In summary, ['G'] described feeling scared of her father, him calling her mean names. ['G'] was consistent that she did not want to see or speak to her father again despite being offered support from [Children's Services] to re-establish a relationship. ['B'] described [the father] to shout at him and 'boss' him around. He wanted to see his father but wanted to be able to see his own friends and not just dads when they spend time together. He wanted dad to promise to not shout or be angry. The report details the school observing changes in ['B's] behaviour, namely aggression. He presented as torn emotionally between parents; he had said he was not allowed to speak with his mum when it was his dads time (even though mother was in the house). Both parties alleged domestic abuse against the other and harm to the children…The children expressed feeling not listened to and not believed when they describe [the father] to have been 'mean', 'angry' and 'shouting' at them…There were also concerns regarding [the father's] ability to be emotionally responsive towards the children and to accept his behaviours have impacted them."
The Family Court Adviser's report continued, "It is understood that since the DRA hearing on 02/12/22 the parental conflict between the parties (who remained living with one another) significantly escalated…Since [the father] vacated the family home, [G'] has refused to see her father. On two occasions ['B'] agreed to see his father (after school) for a very short period and once in the Summer for the day (however it was noted that he expressed a wish to only see father for thirty minutes but then spent the whole day and subsequently expressed he did not feel listened to by adults). [Children's Services] have continued to support the family; [The allocated social worker] verbalised that she has observed [the mother] attempting to encourage the children to spend time with their father in addition to [Children's Services] also encouraging this, however the children continue to decline. [The Allocated Social Worker] commented that ['B'] is 'massively conflicted' between his parents and is upset on a regular basis."
The Family Court Adviser recorded that, "['G'] was very clear and consistent in her wishes that she did not want to see her father or spend time with him…She was visibly angry, upset, and frustrated at her father when speaking with me about him. She described her father pushing her bedroom door onto her (when she refused to go downstairs), allowing his friends to observe her upset (when she refused to spend time with father), refused to let her spend time with her friends for Fireworks night and a disco (when she was supposed to spend time with him). She told me she would stay in her bedroom (when it was father's time to see her) as she did not want him to 'shout' at her or 'hurt' her. She descried an occasion when he was recording her on a 'body cam' when she refused to go with him; she said he snatched her iPad and phone off her (when she was messaging mum for help) and grabbed her arm, standing over her bunkbed (when trying to get them). She said she felt 'unsafe' at the time. She described her father as 'angry' and raising his voice…['G'] said she thought she would 'die' if the police did not come as her father would not let her go. ['G'] told me her father had called her 'selfish' (when she told him she did not want to spend time with him and watch ['B'] swimming) and 'selfish & spoilt'…She told me on another occasion he poured water on her when she would not get out of bed. She shared that she has not felt believed by professionals when she tells them what her father has done and how it has made her feel. She described 'huge scary worries and beyond that' about seeing her father.
'G' wrote a second, long letter to the Judge in which she states, "I do not want to see dad. I don't want to live with him. I don't want to talk to him. Don't want any sort of connection with him. I want nothing to do with him. Without him my life will be really nice and calm…after dad left the house I felt relieved because I wouldn't have to see him and I kind of felt like it would be over but it wasn't because we are still here (he still comes to the school and we still have kind of a connection). He is still involved with me and I still get asked if I want to see him…when dad comes to the school it makes me feel sick and I just want to go to my mums car."
'B' is recorded as having told the Family Court Adviser, in November 2022, that his sister, "would scream as his dad would shut the doors 'on her and everyone else'. He said his father would 'argue with everyone' [his mum, sister, and him]…when his dad lived with them he felt 'pressured' because his father would not let him say no and made him feel like he had to go with him somewhere that he did not want to go. He said he did not like to go with his father as 'bad things happened'; he described seeing his dad shout at his sister at swimming and his dad would shout and argue with his mum. He said when he was alone with his dad, his dad would say 'bad things' about his mum and that she is 'a bad person' and take him to places with his dad's friends who are 'strangers' to him. He told me he would tell his dad that his mum was not saying 'bad things' to him [about his dad] but his dad would argue and shout. He told me his dad would shut the door on his mum when she tried to help him ['B'] and his dad argued with her. He said he felt 'sad' when he could not speak to his mum when it was 'his dad's days'. He said he felt 'scared' when he could hear his sister screaming and 'stuck', and 'lonely' in his own room as he would stay in there to get away from it. He told me that his dad moved his mum's bed out of his bedroom so he could not sleep near his mum. ['B'] told me he did not want to spend time with his dad because he will say bad things about his mum and would take him places he did not want to go...and that if he saw his dad then his dad will think that 'he can do bad things more'...his dad will continue and things will get worse."
The Family Court Adviser reported that she asked 'B' what made him change his mind when he previously agreed to see his dad: "He said he was unsure. He told me that when he has fun it makes him 'forget about the bad times' and when he forgets 'about the bad stuff' he thinks it is 'alright' to meet his dad again but 'it doesn't turn out good'. He said after seeing his dad he felt that 'everything was going to start again' [in my view he was referring to the conflict he has observed between his father, sister and mother]. He said he felt worried 'the bad stuff will start again'. He said he has 'huge, scary worries' about spending time with his dad. He told me he feels 'nervous' when his dad attends school to see him; he is nervous dad might say or do 'something bad'…he said…his dad took him to the pier and made him 'really cold' and would not let him see his mum to say hi. ['B'] then told me that his dad 'pushed him'. He used figures to show me an occasion when he went to speak with his mum (during his dad's time) and his dad came over and was angry that he was talking to his mum, and his dad pushed him (which made him fall to the floor). He said he hurt his forehead and his dad took him upstairs. He told me he then heard his dad argue with his mum. He heard his dad say, 'why are you trying to go to him ['B'], it's my day'. He then acted out another occasion when his dad wanted him to go somewhere and 'forced' him to go. He said his mum tried to come into the room to 'help' him and his dad said, 'why are you coming in here' and shut the door on mum's foot. He said they argued and then added 'I mean my mum would be trying to explain, not arguing too.' He said it was his dad arguing. He said he felt 'scared' when he heard arguments."
In his updated letter to the Judge, 'B' wrote, "I want to stay living in my house with my mum and ['G'] because when I said I wanted to live with my dad, things changed and everything became worse and worse. He pretends, he goes a little bit kinder and then he then makes me think I want to move in with him but then he would just be making everything worse. When my dad was there I could hear ['G'] screaming and he moved my mum's bed so I couldn't see her…I would only want to stay with my mum and ['G'] so my dad wouldn't be shouting. I don't want to see dad because he will say bad things or try to take me somewhere when I don't want to even go."
The Family Court Adviser concluded, "Since the Section 7 report was filed (November 2021) the situation within the family home significantly deteriorated and despite there being no evidence (at that time) that parental conflict continued (with the parents describing the situation to have 'settled'), this very quickly changed…both children have aligned themselves with their mother, verbalising strong views that they do not want to see their father. It is understandable why they have aligned themselves to their mother; she has consistently been their primary carer and they have repeatedly seen her upset and distressed due to the parental conflict. They have also observed their father to become angry, particularly when he perceived mother attempting to undermine him and speak with the children (during his time). The children have described feeling like they were not allowed to speak with their mother and that they would get in trouble for this. They both described the home as 'calm' since father left, where they present as a lot more settled (observed by professionals). It is therefore understandable that they associate [the father] as the reason for the conflict and the distressing experiences they have been through (due to the parties' conflict). It is clear, particularly when considering ['B's] wishes, that he is scared to see his father again as he believes the 'bad things' will happen again. The children have learnt that if they do not see their father, then their life is happier, calmer, and safer."
The Family Court Adviser continued, "Of significance, [Dr Lopez] described [the father's] attachment strategy to use 'coercive anger' to force attachment figures to attend to his needs and that he had the capacity to be more confrontational and controlling in relationships with women, in addition to having difficulty thinking reflectively about the children. Dr Lopez described that he would have greater difficulty interacting and connecting with the children in a way that would promote their security or attachment, where he will struggle to prioritise his children's needs above his own without appropriate support…It is my opinion, (particularly when considering the children's verbalised experiences and their views), [the father's] responses towards them and mother (whether intentional or not) have demonstrated his limitations in being able to keep the children in mind. He has been unable to place the children's emotional needs above his own needs and feelings (particularly his very strong and fixed feelings in respect of mother alienating him from the children). This has caused him to respond in ways that have been emotionally harmful to the children, such as making the children feel they could not speak with their mother."
The Family Court Adviser observed that despite the recommendation in the earlier Section 7 report in November 2021 for the father to engage with a 17-week 'Caring Dads' programme to enhance his parenting capacity, in particular his ability to meet the children's emotional needs, "this remains outstanding. He verbalised that the course describes fathers having to accept their abusive behaviours and therefore he was not willing to engage as he does not accept his is a perpetrator of domestic abuse. In my opinion, (regardless of the reasons that led to his behaviour responses), his role and behaviours witnessed and experienced by the children have been emotionally damaging and have caused them significant distress. In my view, [the father] needs to recognise and acknowledge these abusive behaviours with support from Caring Dads intervention. Given that his view is strongly fixed on parental alienation being the only reason for the children's views, he has not demonstrated that he can be reflective or consider his role in this. This view is mirrored by [Local Authority Children's Services]…The children's descriptions suggest [the father] has displayed elements of control towards mother (by way of trying to micromanage his time with them and ensuring mother does not communicate with them)."
The Family Court Adviser wrote, "The mother's role in this remains unclear…in respect of parental alienation…there continues to be elements of this due to the children being so strongly aligned to their mother. It is unclear whether [the mother] has instructed the children on what to say about the father or whether her own views of him have influenced them to shared the same views as her."
The Family Court Adviser recommended that the children be joined as parties to the proceedings. As a consequence of that recommendation, the District Judge ordered that the children be made parties, through the Family Court Adviser, who became their Guardian."
This Court takes care not to conflate welfare issues with factual issues in this Fact Finding Hearing. The Family Court Adviser was placed in a difficult position being required to provide two welfare reports against the background of limited evidence and a judgment by the Recorder made in the vacuum of Family Law Act proceedings. This Court has since had the benefit of a plethora of evidence not available to the Recorder. This Court has had the unique opportunity in these current proceedings of exploring the relevant evidence and thoroughly testing it. The Family Court Adviser expressed uncertainty, "as to the mother's role in respect of parental alienation" and "whether the mother has instructed the children" to say negative things about their father. This Court can now confidently dispel all those uncertainties. Having the benefit of all the evidence, this Court can clearly and definitively make the finding that there is no reliable evidence of the mother instructing the children to speak negatively about their father.
This is a mother who deposes to serious domestic abuse and sexual abuse. Her evidence generally is not without some inconsistency as to detail. In this Court's judgement, however, her evidence is nonetheless compelling and convincing as to the central core. This Court is left with the powerful conviction that on the essentials, the mother is telling the truth.
This Court undertaking an impartial, objective consideration of all the relevant evidence, must conclude that there is no evidence of the mother undermining the children's relationship with their father. On the contrary, there is clear evidence of the mother trying to promote the children spending time with their father. Further, there is clear evidence of the mother attempting to engage positively with the Paternal Grandmother, inviting her into her home and involving her with updates regarding the children. She received no response from the Paternal Grandmother to those communications. There is no reliable evidence of the mother engaging in alienating behaviours.
On the contrary, looking now at the whole picture, the evidence before the Court leads to the clear conclusion that the father has sought consistently, systematically and falsely to manipulate the mother, the children, professionals and the Court into believing that he is the victim of domestic abuse perpetrated by the mother. His pernicious actions alone have resulted in both children rejecting him. Both children are now refusing a relationship with him for reasons that are justifiable. The children have both aligned themselves fully with their mother, with whom they are living, by way of a normal and justifiable response to the father's negative attitudes, communications and beliefs that have sought to denigrate, demean, vilify, malign, ridicule and dismiss the mother, persistently seeking to convey false beliefs about her. It appears to this Court that the children have quite understandably adapted their own behaviours and feelings towards their mother and against their father. The Court is satisfied that the children have made clear their own feelings and needs based largely upon the effects they were bound to feel from their father's actions. This Court finds that the mother has been no more than properly supportive. This is not a case where the mother has been emotionally abusive. On the contrary, the father has sought, wholly incorrectly to reframe the mother as a liar who emotionally abuses the children.
On all the evidence, the Court finds that the father has not proved any of the allegations he makes against the mother. The Court finds that in respect of each of the allegations the mother makes against the father, with the exception of the 'sextortion' allegation relating to the email of 7 August 2020, the individual facts have been properly established. The mother has discharged the burden of proving the facts alleged to the requisite civil standard of proof.
In respect of allegation 6(b), that on 7 August 2020, the mother received an email threatening to publish a sexual video of her online if she did not send £500, the Court finds that the mother did receive such email. The mother's concern, however, that the email was sent by the father is based on suspicion or speculation. In the context of the father's behaviours generally, in the context of the father accepting that he held sexualised images of the mother and in the context of his knowledge of I.T. it was not unreasonable for the mother to have held those suspicions. However, the type of sextortion email received by the mother was, as the police noted, a common phishing scam at the time. There is no evidence to link that email to the father. Notwithstanding his apparent admission in oral evidence that he sent the email, which he later told the Court was sarcasm and not an admission, the Court must conclude that the mother has not discharged the burden of proving that the father sent that email nor instructed or encouraged any other person to do so. The Court finds that allegation not proved.
On all the evidence, the Court must conclude that both children are refusing, resisting or reluctant to engage in a relationship with their father, that the refusal, resistance or reluctance is not consequent on the actions of the resident parent (the mother) towards the children or towards the non-resident parent (the father). The Court must conclude that the non-resident parent (the father) has engaged in behaviours that have directly or indirectly impacted the children, leading to the children's refusal, resistance or reluctance to engage in a relationship with him.
Having made those findings, the parties and the Court have a proper factual matrix upon which to proceed to consider welfare determinations.
The matter is listed for formal handing down of judgment on 3 April 2024 when the Court will consider any application for costs and give consideration to further directions leading to final welfare determinations for the children.
His Honour Judge Middleton-Roy
March 2024
Costs
This costs judgment is made on 3 April 2024 at a hearing following the formal handing down of the Court's fact finding judgment.
The mother applies for an Order that the father pays her costs of the proceedings after the appeal against the District Judge's decision on 30 August 2023 to date. The application is opposed by the father. The Children's Guardian properly takes a neutral position.
The mother pursues her costs application, in summary, on the grounds that the father's conduct was unreasonable in pursuing a lengthy, contested Fact Finding Hearing, that his conduct was unreasonable and reprehensible in lying about his abusive conduct, including rape, accusing the mother of lying, accusing the mother of parental alienation and accusing the mother of having mental health problems, resulting in the mother being required to submit to cross-examination, by using the professionals and the Court to further his agenda in belittling the mother, by accusing the children of lying and exaggerating and by accusing the children of harming him.
Family Procedure Rule 28.1 provides that the Court may at any time make such Order as to costs as it thinks just. The Court retains a wide general discretion as to costs.
In deciding what Order, if any, to make as to costs, the Court must have regard to all the circumstances, including the conduct of all the parties and whether a party has succeeded in part of their case, even if they have not been wholly successful. In respect of the conduct of the parties, this may include conduct before, as well as during, the proceedings. Further, when considering the conduct of a party, the Court may take into consideration whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and the manner in which a party has pursued or defended a case or a particular allegation or issue.
Although proceedings of this nature under the Children Act 1989 are adversarial in form, they have many inquisitorial features. An application cannot be withdrawn without the Court's consent (Family Procedure Rule 29.4). In such proceedings there are no adult winners and losers. The only winner should be the child. Furthermore, it can generally be taken for granted that each of the persons appearing before the Court has a role to play in helping the Court to achieve the best outcome for the child. It would be difficult for a Court to decide how to secure that the child has a meaningful relationship with each parent without hearing from both parents. Further, it would be difficult for a Court to decide the best way of protecting a child from a risk of harm without hearing from their parents. No one should be deterred by the risk of having to pay the other party's costs from playing their part in helping the Court achieve the right solution.
This costs application comes at the conclusion of a lengthy Fact Finding Hearing over six days. This is a case where the father has complied with all directions and Orders of the Court. His litigation conduct in that regard cannot be criticised.
The mother has succeeded in proving each of the allegations she made against the father, save for one subparagraph, relating to the allegation of sextortion. Even in respect of that subparagraph, the Court determined that the mother's suspicion was reasonably held. Each of the findings made by the Court on the mother's allegations are central to issue of the welfare of the children.
Conversely, the father has not succeeded in proving any of his allegations against the mother.
The father asserts that his financial circumstances are so dire that he should not be required to pay any of the mother's costs. In this Court's judgment, the financial circumstances of the father, the paying party, is not a factor the Court should properly take into account when considering the principle of costs. It is a factor that may be more relevant to the question of enforcement of any costs Order.
In this case, the Court is compelled to conclude that the conduct of the father has been reprehensible and unreasonable, the father making false claims and false denials to Court over a prolonged period. The Court must conclude that it was not reasonable for the father to raise or pursue his allegations against the mother nor to contest the mother's allegations. The father sought unreasonably to pursue a case that laid blame on the mother entirely. This is case which is of fundamental importance to the mother and to the children.
Having regard to all the circumstances and looking, as this Court must, at the overall justice of the situation, exercising a discretion in accordance with overriding objective under Family Procedure Rule 1.1, the Court is compelled to conclude that the father should meet the mother's costs of the proceedings from 30 August 2023 to date, for the reasons given and for the reasons articulated by Dr Proudman on behalf of the mother.
Turning to the quantum of costs, the Court must properly proceed to summarily assess costs on the standard basis. Although no statement of costs in form N260 has been filed, the mother has provided a full breakdown of the legal costs she incurred, which comprise essentially Counsel's fees and a small sum in respect of the fees of a paralegal. No solicitor's costs have been claimed, the mother acting as a litigant in person, instructing Counsel on a direct access basis. In this regard, the costs schedule is simple and easily digestible and the information presented is not difficult to discern.
Where the Court assesses the amount of costs on the standard basis it will not allow costs which have been unreasonably incurred or are unreasonable in amount and will only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred. The Court will resolve in favour of the paying party any doubt which it may have as to whether the costs were reasonably incurred or were reasonable and proportionate in amount. Having considered the reasonableness of the costs claimed, the Court must consider the proportionality of the total figure considered to be reasonable. Costs will be proportionate if they bear a reasonable relationship to the complexity of the litigation and any additional work generated by the conduct of the paying party.
Having regard to those principles, this Court determines that Counsel's fees incurred by the mother have been necessarily incurred, are reasonable in amount and are proportionate to the matters in issue. The Court assesses Counsel's fees in the sum of £41,467 plus VAT of £8,293.40. That sum already includes a deduction made by Counsel. Additionally, the small sum in respect of paralegal fees was necessarily incurred, reasonable in amount and proportionate. Those costs are summarily assessed in the sum of £685 inclusive of VAT. The total costs payable by the father to the mother are assessed summarily in the sum of £50,445.40.
As a general rule, a paying party should be ordered to pay the amount of any summarily assessed costs within 14 days. The father asserts that payment of these costs would impact his ability to meet his liabilities to the mother arising from the Orders made in financial remedy proceedings. He asserts that it would take him one year to raise funds to meet this costs Order. This Court rejects those submission as not amounting to satisfactory reasons to delay payment of this costs Order. The mother, reasonably, seeks payment in 21 days. In this Court's judgment, payment of the total sum of £50,445.40 in 21 days is just in all the circumstances. If payment is not made in respect of this judgment sum within the time specified, interest will accrue. The mother would be entitled to seek to enforce any outstanding judgment debt.
His Honour Judge Middleton-Roy
April 2024
Schedule of Findings
(1) From 2020 onwards, the father used coercive controlling behaviour towards the children and towards the mother:
(a) The father used force and threatening behaviour towards the mother when the children were present and was using force and abusive behaviour towards the children causing them upset and fear;
(b) The father was obstructive with the children's contact with their mother and with the relationship between the mother and the children and he also used force to achieve his obstructions creating fear;
(c) The father would speak in a derogatory manner to professionals about the mother to damage her reputation and influence them negatively about her;
(d) The father made an application for a mental health assessment of the mother, despite there being no concerns or evidence of issues with her, her mental health, or her parenting;
(e) The father encouraged people who never met the mother to damage her reputation, to create a negative narrative about her and further provide it to the Court, CAFCASS and authorities as evidence;
(f) The father consistently sent the mother intimidating messages criticizing her and her parenting and continuously accused her of alienation from 2020 to the present in order to distress, confuse and frighten her;
(g) The father persistently video recorded the mother and the children which created an atmosphere of control and intimidation;
(h) The father regularly spoke in a derogatory manner to the mother in front of the children. This caused them upset and fear;
(i) The father would warp the mother's perception of reality and accuse her of things of his own making to gain control;
(j) The father would undermine the children in front of each other, warp their perception of reality and would scapegoat them;
(2) In February 2022 the father neglected 'B's medical needs;
(3) Over various unspecified dates, the father exerted financial control causing the mother financial distress and consequences;
(4) From 2020 onwards, the father made major decisions about children's lives without the mother's consent, including giving notice to schools without securing and providing alternatives and withdrawing money from the children's accounts. He then gaslit the mother stating that she had withdrawn the money from the children's accounts;
(5) From 2020 onwards, the father did not follow recommendations, provided misleading information to the Court and used proceedings to emotionally torment the children and the mother;
(6) (a) In July 2020 and in August 2020 the father raped the mother while the family was on holiday in the mother's country of origin…(c) the father was voyeuristic and took many sexual photographs and videos of the mother without her consent.
Note 1 Re B [2008] UKHL 35 , per Lord Hoffman [Back]
Note 2 Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12 per Munby LJ [Back]
Note 3 Re T [2004] EWCA Civ 558 , [2004] 2 FLR 838 . Per Dame Butler-Sloss, President [Back]
Note 4 Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 (Fam), [2004] 2 FLR 200) [Back]
Note 5 A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam) [Back]
Note 6 Re D (A Child) [2017] EWCA Civ 196 [Back]
Note 7 Re A (Application for Care and Placement Orders: Local Authority Failings); sub nom Darlington Borough Council v M, F, GM and GF [2016] 1 FLR 1 per Munby LJ [Back]
Note 8 Re T [2004] 2 FLR 838 at 33, per Dame Elizabeth Butler-Sloss P [Back]
Note 9 Re M (Children) [2013] EWCA Civ 388 [Back]
Note 10 A County Council v K, D & L [2005] EWHC 144 Fam , per Charles J at paragraph 39 [Back]
Note 11 A County Council v K, D & L [2005] EWHC 144 , [2005] 1 FLR 851 per Charles J and Re JS (A child) [2012] EWHC 1370 (Fam) per Baker J, Lancashire County Council v R, W and N [2013] EWHC 3064 (Fam) per Mostyn J). [Back]
Note 12 Re W (Non-Accidental Injury) [2003] FCR 346). [Back]
Note 13 Re M (Children) [2013] EWCA Civ 1147 per of Macur LJ [Back]
Note 14 Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 . [Back]
Note 15 GK v PR [2021] EWFC 106 , Peel J. and Re T (2017] EWCA Civ 1889 [Back]
Note 16 JH v MF (Rev 2) [2020] EWHC 86 per Russell J [Back]
Note 17 Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam) para 103, per McFarlane P [Back]
Note 18 R v Lucas [1981] QB 720 [Back]