HM v HF [2024] EWFC 441 (B) (16 December 2024)

DISTRICT JUDGE NAPIER

1. I have anonymised the names of the parties and the children in order to protect their privacy. In line with the guidance of the President of the Family Division on the publication of Family Court judgments, it is likely this anonymised judgment will be published at the National Archives. The parties are welcome to submit any views on this by 7 January 2025.

2. The Court is concerned with the welfare of two children - HA who is a teenager and HB who is under 10 years old. HM is the Applicant Mother and HF is the Respondent Father.

3. The Applicant applied in July 2023 for a child arrangements order and a prohibited steps order. The matter came before me on 16 December 2024 for a final hearing.

CASE BACKGROUND

4. A non-molestation order by consent was made on 8 February 2023 by District Judge Brown lasting until 7 February 2024. The Respondent did not attend due to the short notice before the hearing, but he emailed the Court to say he did not oppose the making of the order. No findings were made against the Respondent.

5. Upon receipt of the C100 and C1A forms, a prohibited steps order was made by District Judge Webb on 5 July 2023. The Respondent was prohibited from removing the children from the care of the Applicant until further order.

6. A FHDRA was listed on 14 July 2023, but was adjourned because the Respondent was involved in the criminal justice system and could not be located.

7. On 17 August 2023, the FHDRA was held before District Judge Field. However, the Respondent was imprisoned and his prison location was not known to the Applicant. District Judge Field gave various directions to locate the Respondent, ordered disclosure from the Chief Constable, and continued the prohibited steps order.

8. The case came before District Judge Field again on 9 November 2023. This time the Respondent was able to attend. The Court made an interim child arrangements order that the children were to live with the Applicant, have no direct contact with the Respondent, and could have indirect contact with him only. District Judge Field ordered a section 7 report from CAFCASS and ordered that the Respondent disclose his medical and mental health records and obtain a report from his Mental Health co-ordinator.

9. At this hearing, the Court recorded that:

i) The Respondent had been found guilty of breach the non-molestation order and was now subject to a two year restraining order.

ii) "the [Respondent] producing a document confirming that he accepts that his allegations of sexual abuse against the [Applicant] have not been substantiated, that he accepts the conclusion of the local authority and the police that there will be no further action and that he is not pursuing those allegations in these proceedings". Despite this, the Court went on to record its concerns that the Respondent still believed that sexual abuse had occurred, and that there was a risk that the Respondent would raise the issues of sexual abuse with his children if direct contact were to resume.

iii) The Respondent used cannabis daily and accepted this, making hair strand testing unnecessary.

10. Following the completion of the section 7 report and a report from the Respondent's treating psychiatrist, a DRA hearing was held on 25 March 2024 before District Judge Ellery. No agreement could be reached and the Court continued the interim child arrangements order and prohibited steps order. District Judge Ellery made a further non-molestation order of her own motion until 25 September 2024 against the Respondent under section 42(2)(b) of the Family Law Act 1996. Directions were given for a three-day final hearing. The Court recorded that:

i) The Respondent did not agree with the report of psychiatrist and felt his care co-ordinator had better information.

ii) The Respondent maintained, despite the previous orders of the Court, that his children had been the victims of sexual abuse. The Court felt compelled to let him file any evidence he had of this abuse so that it could be dealt with at the final hearing.

iii) The only relevant matters to be dealt with at the final hearing were the allegations of sexual abuse and the Respondent's mental health.

11. On 22 May 2024, a pre-trial review was held before District Judge Gibson. She ordered that the Respondent must file an updating letter or report from his new psychiatrist, made directions for a QLR, and directed the Respondent sent his questions to the Court in the event a QLR could not be appointed. In its order, the Court recorded that:

i) The Respondent had not complied with the order of 25 March 2024 and had failed to file any evidence concerning his allegations of sexual abuse of the children. He acknowledged at the hearing that he could not prove his allegations.

ii) The Respondent had received a new diagnosis in respect of his mental health relating to trauma as a consequence of his own alleged childhood sexual abuse. However, his care coordinator was unable to provide any information to the Court as to any new or alternative diagnosis.

12. Regrettably, the final hearing could not proceed as listed in August due to the illness of the judge on the day. Instead, the case was referred to Her Honour Judge Willsteed who continued the interim child arrangements order, prohibited steps order, and non-molestation order to the relisted final hearing. She directed further Level 2 police checks by CAFCASS.

13. The final hearing was listed before me on 16, 17 and 18 December 2024. In advance of the hearing:

i) The Applicant became aware that the Respondent had been admitted to hospital for treatment of his mental health. On 3 December 2024, I ordered the Respondent's new psychiatrist to provide a litigation capacity certificate. A certificate was filed confirming that the Respondent had litigation capacity.

ii) As no QLR could be located, I ordered that the Respondent be given further time to file his questions to ask the Applicant (which he did).

14. The final hearing was held on 16 December 2024 and only took the morning. Counsel for the Applicant and the Respondent attended the hearing in person and the Applicant attended remotely from the Court's vulnerable witness suite. The Applicant had her own interpreter with her to assist with understanding the proceedings, and the Court provided a separate interpreter whilst she gave her evidence.

15. The Court heard evidence from the CAFCASS Assistant Service Manager on the section 7 report and both parties were able to question him on it. The Applicant and the Respondent both gave oral evidence and made submissions.

16. The Respondent was prohibited from cross-examining the Applicant directly under section 31S of Matrimonial and Family Proceedings Act 1984. As no QLR could be appointed, I decided that the only fair way the Respondent could put his case to the Applicant was for me to ask her his questions under the guidance of the President in Re Z (Prohibition of Cross-Examination: No QLR) [2024] EWFC 22. I record here that all the questions put forward by the Respondent were appropriate and I asked additional questions based on his case as it had emerged at the hearing. At the end of the questions, I asked the Respondent if there was anything else he wanted me to put to the Applicant and he confirmed there was not and that he was happy his case had been put to her. Whilst the process is inherently unsatisfactory for a judge, I am satisfied the hearing remained fair.

LAW

17. It is convenient, before turning to the details of the case and the evidence, to remind myself what law applies to the case.

18. The welfare and best interests of HA and HB are the paramount consideration for the Court. They trump all other considerations.

19. The Court will presume, unless the contrary is shown, that involvement of each parent in the life of the children will further their welfare. Delay in resolving proceedings is not in a child's best interest.

20. In deciding what the best interests of the children are, the Court must consider the welfare checklist set out in section 1(3) of the Act:

i) the ascertainable wishes and feelings of the children (considered in the light of their age and understanding);

ii) their physical, emotional and educational needs;

iii) the likely effect on them of any change in his circumstances;

iv) their age, sex, background and any characteristics which the Court considers relevant;

v) any harm which they have suffered or are at risk of suffering;

vi) how capable each of their parents is of meeting his needs; and

vii) the range of powers available to the Court under the Children Act 1989.

21. I bear in mind my decision affects both the Article 8 right to a private and family life of the children, and the rights of the parties themselves.

EVIDENCE

CAFCASS

22. CAFCASS prepared a section 7 report as ordered by the Court and the following are general observations drawn from it:

i) The parties met in Country A and had a long relationship from October 2009 to November 2022. The Respondent would spend time there and come back in order to reset his visa. This continued until he was sentenced to 18 months in prison due to drug offences in Country A. HA and HB were born in Country A and came to the United Kingdom in April 2020 with their mother under a spousal visa when they were 9 years old and 18 months old respectively.

ii) The children have not seen the Respondent since June 2023. He had only written to them once as per the Court's interim orders, but had continued to communicate with HA via TikTok and sending them messages on bank transfers.

iii) The Applicant has no convictions or other matters recorded on her PNC. The Respondent is known to the police and the family has been known to Children's Services. Aside from his recent breach of the non-molestation order, he has not been in trouble with the law since 2013-2014 for public order offences.

iv) Neither child has any additional needs.

v) HA is particularly aware of the difficulties with their parents' relationship. They told CAFCASS that they had been exposed on a daily basis to shouting and arguments in 2022.

23. The report explains the Respondent's history of drug use (which, to his credit, he does not seek to avoid or minimise):

i) The Respondent used cannabis on a daily basis for around 20 years in order to self-medicate and function on a day-to-day basis. Historically he has been addicted to phenibut and would take that, or alcohol, or a mixture of the two. When he was a teenager he would take MDMA and legal highs.

ii) Two years ago, the Respondent began acquiring non-prescribed ADHD medication from the dark web (prior to his formal ADHD diagnosis and prescribed medication). This medication started around the same time that he began to experience flashbacks. His medical team suspect he may still be accessing stimulants (not prescribed) in his desire to experience further flashbacks and gain further insight into his trauma history. Following his discharge from hospital in October 2023, he admitted using amphetamines in addition to cannabis and, when interviewed by CAFCASS for the report in November 2023, shared that he had used amphetamines daily for the past two weeks. In addition, the Respondent shared that, when taking stimulants, he needs to smoke more cannabis to get the desired effect.

iii) The Respondent did not take his bi-polar medication as prescribed.

iv) The Respondent's drug use may have contributed to a deterioration in his mental health and has impacted upon his relationship with the Applicant and his children. The children have been directly exposed to drugs and the effects of these on their father's presentation and behaviour. In addition, his drug use was subsidised by money for the family.

24. The report sets out the concerns of the Respondent concerning the alleged abuse of his children and how this has affected them:

i) In November 2022, the Applicant reported that the Respondent had told her that he had been abused by his father as a child. This was the first time in their long relationship that he had ever mentioned this. The Applicant said that around this time the Respondent began suspecting every professional involved with the children was a paedophile. He would not allow HB to register at nursery because he believed paedophiles worked there.

ii) On 18 June 2023, the last time the Respondent saw his children in person, HA said that the Respondent interrogated them about how the Applicant had allegedly sexually abused them. HA sent their mother a series of messages begging for her to come and get them. HA said that the Respondent's belief that abuse had taken place began when he saw bruises on HB's legs, but HA themself pointed out that HB fell over all the time. HA said to CAFCASS that they felt scared when the Respondent was making up things and not listening when HA is saying these things had never happened.

iii) In March 2024, the Respondent communicated with HA via TikTok and encouraged them to talk to someone about the abuse they had allegedly suffered. The Respondent questioned what HA had told CAFCASS.

iv) HA told CAFCASS that when they mentioned that they had a problem with their memory on one occasion, the Respondent insisted that they not go to school and see their GP as he believed this was symptomatic of ADHD or PTSD. The Respondent told CAFCASS he believed this was HA trying to tell him they had been abused. No diagnosis has ever been made of either of those conditions for HA.

v) HA informed CAFCASS that the Respondent had told them that his own father (with whom the family were living) and another male had done sexual things to him. HA thought it weird that he would tell them things like this. In respect of the sexual abuse allegations being made by the Respondent, HA said that despite them asking him to stop talking about it he continued to do so.

vi) The Respondent told CAFCASS he does not feel his behaviour would have caused his children to feel frightened and he believes that if the children are feeling frightened it will be because they are living with the person that is abusing them. The Respondent was of the opinion that his children would be safer in his care than with the Applicant and, if not his care, then he has such serious concerns that he feels they should be in local authority care.

25. Concerning the allegations of abuse, referrals were made to the local authority in November 2022 and February 2023. Assessments were completed with no action being necessary. In June 2023, when the Respondent kept HA and would not let them leave his property, further checks were undertaken and no action was needed. Further referrals were made in July 2023 and November 2023 originating from the Respondent, again with no action being identified as needed.

26. The professional judgment of CAFCASS in the report was that the Respondent's mental health was the primary reason for the Applicant making the application to court and is identified as a significant and complex factor within these proceedings, alongside his misuse of substances. The Respondent has severe mental health symptoms, with co-morbid conditions including substance misuse, impacting to a degree on his daily functioning. At the time of the report, he could access treatment but was not engaging with his treatment plan and his psychiatrist at that time identified that he is at increased risk of relapse whilst he is still resistant to accepting his illness and management options.

27. In CAFCASS's opinion, the Respondent lacked the insight into the links between his own mental state and his children's wellbeing. Having considered if and how the identified risks could be mitigated/reduced within different options including indirect and/or supervised arrangements, CAFCASS conclude that ultimately exposing the children to the Respondent directly in any form whilst he remains fixated on them being abused, continuing to misuse substances, not engaging with treatment plan, lacking insight into how his mental illness is linked to his children's wellbeing, and his behaviour and presentation fluctuating rapidly and intensely, will place them at continued risk of significant harm and would not be in their best interests.

28. In coming to their recommendation, CAFCASS noted that both children wanted to see the Respondent and that there would be benefits to their identity and maintaining a relationship with him as their father and a significant person in their lives. However, this would have to be carefully balanced with their safety and the need for them to protected from frightening and unpredictable behaviour. Whilst the Respondent remains unwell, there was a very high likelihood that this will happen.

29. CAFCASS specifically considered HA's age and that they may decide to seek out contact with the Respondent. For that reason, CAFCASS recommended that HA and the Applicant engage with support services to help develop their knowledge and understanding about the Respondent's mental health challenges.

30. For these reasons, CAFCASS recommended that the children live with the Applicant and only have indirect contact with the Respondent on a monthly basis with ancillary recommendations. In order for arrangements to progress beyond indirect contact, the Respondent would need to demonstrate a willingness and positive engagement with mental health services including his treatment plan, access support to address his misuse of substances and try to identify alternative coping strategies and reduce risk of relapse. He would need to demonstrate that this was sustained progress before applying to the Court to re-assess the arrangements.

31. At the hearing, the Assistant Service Manager confirmed that CAFCASS's recommendation remained the same. He confirmed that the report writer understood the concerns of the Respondent but ultimately did not agree with them. Noting the more recent medical information provided, he said that this provided greater weight to the recommendations in the report. He noted that the Respondent had continued to breach his non-molestation order and the ongoing police investigation into allegations of rape also gave rise for concern about safety. It was noted as well that the Respondent had made threats to CAFCASS personnel and the report writer.

32. Asked why direct supervised contact would be unsuitable, the Manager said that CAFCASS's risk assessment at the moment would make it difficult to recommend any progression to this point. The Respondent had made threats to life, threats of suicide, and engaged in harmful communications. If he does have a relapse, or those concerns are still present, it would make a supervised environment very difficult. A contact centre would not mitigate this risk and, indeed, it may be difficult to find a contact centre which would accept such a family. Far more assurance would be needed, and the Respondent needs to stabilise before contact can progress. Indirect contact will maintain a level of contact until the Respondent gets better and the paternal grandmother would be suitable individual for indirect contact to go through.

33. Asked by the Respondent why his concerns were not properly investigated (the main concern of which was that the children had not had an ABE interview with the police and the Applicant had been present on one occasion when the children were spoken to), the Manager confirmed that both children were seen in their respective schools by CAFCASS with no parent present. Referrals had been made to the local authority, and the police, who had concluded there was no action to take. It was concerning that the Respondent believed his children wanted to see him in order to escape the alleged abuse, rather than the more simple truth that they just wanted to see their father.

Evidence of the Applicant

34. The Applicant supports the recommendations of CAFCASS and provided a number of witness statements. I will not rehearse every element of them as they substantially support the concerns that CAFCASS have identified in their report.

35. The Applicant confirmed that she had encouraged the Respondent to see the children after the first non-molestation order was put in place.

36. Concerning the incident in November 2022, the Applicant has exhibited a video which shows the Respondent stopping HA from leaving their room and saying they will not be going to school, but to the doctors. The family can be heard behind the camera trying to intervene. It is an unpleasant and confrontational video to watch - HA is quite clearly upset and distressed by the Respondent's behaviour and his failure to listen to what they are saying.

37. The Applicant has also exhibited a number of TikTok videos which the Respondent sent HA in breach of the second non-molestation order. They are very disturbing, even to an adult, and have extreme religious overtones. They are wholly unsuitable to be sent to a child.

38. The Respondent has also sent messages whereby he tells HA he intends to commit suicide in order to out the truth about their alleged abuse. He refers to suicide by cop and being sent to the Lord. In another set, he tells HA that his mother (the Respondent's mother) caused him skin cancer as a child on purpose. HA replies understandably concerned for his health. He replies that he believes he has had it for years and may be dying. In other TikTok videos sent to HA, he refers to the Applicant and the Respondent's parents as "paedo c[**]ts" and tells them to "go fuck" themselves. In one, he tells HA he only has four days left to live.

39. More recently on 3 October 2024, the Respondent posted a photo of HA which they took exception to. They messaged him and asked him to remove it. He refused and, after HA had said "are you dumb it is a picture of me" the Respondent replied with abusive messages which included "and I'm not dumb but you must be, speaking to me like that watch your fucking mouth [...]" and "whether that means I have to turn as a dragon and torture you, then torture you is what I will do, till you learn a lesson in respect. It will not be like before, You will be very loved but you try to disrespect me, I am going to torture you so you learn a lesson."

40. In her oral evidence, the Applicant confirmed that she believed the Respondent's mental health would put the children at risk if they were to meet him in person again. She was concerned there was little information about the Respondent's current mental health and whether or not he was compliant with his medication. She confirmed that the children do want to see their father and that HA had expressed only yesterday that they would like to speak to him and see him.

41. Ultimately, the Applicant was not adverse to supervised contact in the contact centre in the future when the Respondent's mental health meant that this would be possible. She did not believe that his mental health was being used unfairly against them because it was the root cause of the distressing developments in his relationship with the children. If he took his medication, and stopped using cannabis, then she felt the main barrier in the way of him having direct contact would be removed.

Evidence of the Respondent

42. The Respondent's witness statement says that in October 2022 he began having flashbacks to sexual abuse by his parents and friends of parents. He goes on to say that in November 2022, as he said goodnight to HA, they showed him their phone which contained a list of symptoms including memory loss. HA told the Respondent that at school they just do what other kids tell them to do. As a result of this, he told HA that they needed to go to the doctor in the morning. The Respondent says the Applicant did not agree with this. He believes now that this incident was HA trying to inform him about sexual abuse.

43. The next day the Respondent said that HB disclosed physical abuse by the Applicant showing dark bruises on their legs. He reported these matters to the NHS and a few days later he said Children' Services attended to take the children off him and refused to investigate his concerns.

44. Concerning the incident in June 2023, which was the last time that the Respondent saw his children, he said that HB had made comments about their grandmother tickling their buttocks and about "the wind tickling [their] parts". This would happen in the Applicant's bed. He says then that HA was being quiet and making statements along the lines of the Respondent would not believe them. The witness statement of the Respondent is unclear about whether the allegations of physical abuse at this point were made by the Respondent or by HA. However, the Respondent goes on to say that HA said that the Respondent would not believe them and, in response, he put forward the question of sexual abuse taking place in the Applicant's home. As we know from the rest of the evidence, HA then messages their mother to say that they wanted to go home and did not want to stay with Respondent.

45. The court file contains a statement which the Respondent produced to the hearing before District Judge Ellery on 3 April 2024. This statement was not in the bundle, but I assume it was provided to the Applicant because the first page shows the court order sheet from that hearing and the witness statement presumably was shared with all parties to the hearing.

46. The statement exhibits a video which the Respondent has taken of HB, asking them about their similar bruises on both knees. The Respondent asks them where the one on their left leg came from and they say it happened when they fell over. He asks them where the one on the right leg came from and HB appears to say it happened when the Applicant smacked them. The Respondent asks more questions which are leading in nature (i.e. they suggested the answer) and HB agrees with them saying that the Applicant was mad and makes a smacking motion on their knees.

47. The Respondent has provided a number of family photos of him and HA and HB, which show them having a happy time together.

48. In his oral evidence, the Respondent discussed his mental health treatment and admitted he had been sectioned twice before. He said that he identified as the Archangel Michael earlier in the year, had identified as Lucifer before going into hospital, but did not do so now. He explained his new treatment regime which sees him have an injection once a week for one of his drugs which avoids the need for daily pills. However, he still has to take other daily medication. He said he had not smoked cannabis since he left hospital the week before the final hearing. The NHS will screen him for ADHD once he is stable on his medication.

49. In court, the Respondent repeated his strongly held views that his children have been sexually abused by the Applicant. He said he will keep going on about it until he can see his children again and they can confirm the truth, or otherwise, to him. He agreed that HA was distressed and panicked in the video where the Respondent is preventing them from leaving their bedroom.

50. The Respondent told me that the Applicant was a sexually abusive paedophile and that he will expose her because everyone needs to know. He said that his mother and the Applicant would be cell mates. He said of the Applicant that "They should cut her head off in the street". He went on to say that he accepted he could not prove the sexual allegations and, at this point, I intervened to stop cross-examination of him further on this area.

51. Concerning contact with HA, he said his preferred method was via bank transfer. He has closed his TikTok account but said he could open it again. It was put to him that the suggestions of suicide he made to HA would have been scary and terrifying to them - he accepted it was a mistake and regretted it, but did not accept his behaviour overall had been threatening.

52. The Respondent told the Court that he would not comply with the non-molestation order and would not comply with the restraining order. I asked him if he would comply with my order and he said yes.

53. Concerning the ongoing police investigation into an allegation of rape made against him, he said no charging decision had been made as far as he was aware and that he was on police bail not to go to specific address and not to contact the complainant in that matter.

Evidence of Third Parties

54. The Court has the benefit of a letter dated 14 March 2024 from the Respondent's treating psychiatrist at the time:

i) It diagnoses him with bipolar affective disorder. It records that he was diagnosed with ADHD via a private provider in 2022 but this was not reviewed by the NHS Specialised ADHD Service. The possibility of personality disorder and autistic spectrum disorder were to be discussed with the forensic team meeting a few days after the letter was written. Complex PTSD was also being considered.

ii) The Respondent had a history of contact the mental health services going back to 2014. However, this only escalated to secondary care services in November 2022 when he was arrested for threats to kill his own mother. His medical records suggest that he suffered behavioural issues since the age of 11, and overdoses in 2005 and 2009 recorded. The Respondent was admitted to mental health wards under the Mental Health Act from 24 November 2022 to 27 January 2023 and from 16 August to 4 October 2023.

iii) The Respondent is recorded as not having insight into his condition at the time and did not believe that he could be suffering with mental illness (other than possible ADHD), nor needed any treatment or input (for anything other than ADHD). At the time of assessment in November 2022 under the Mental Health Act, he appeared to be suffering from a psychotic episode with an affective component (mania). It was recorded that, whilst on the ward during his first admission, he presented with grandiose and paranoid delusional beliefs, threatening behaviour towards family, thought to be consistent with manic episode on admission. He appeared very fixated on his ADHD diagnosis and believed that this was the reason leading up to his admission.

iv) Prior to his second admission, the Respondent was arrested by the police for making threats to kill. His presentation was described as psychotic with grandiose and paranoid delusional beliefs, increasingly bizarre, chaotic and threatening behaviour. He made threats to kill his mother. He was described having a pressured speech, flight of ideas, irritability and elevated mood. He was not engaging with the Intensive Support Team, he was filming them, and publicising correspondence on social media.

v) The Respondent confirmed on this admission that he was not taking medication for longer than 4 weeks at that time following discharge from the ward. He did not feel he needed it. He was open that he was using cannabis consistently (spending £50 - £60 on it per week) and amphetamine daily in the last two weeks (0.25mg twice a day, spending £60 on 28g of amphetamine). The Respondent was very clear that he would not consider any medication for his mental health as he 'feels happy'. His doctor discussed the risks involved as he is unmedicated and using substances such as amphetamine and cannabis but he was adamant it is his choice, he feels happy in his mood and he would not change it

vi) The letter concludes as follows:

"We feel that [the Respondent] suffers with long standing mood disorder, namely Bipolar Affective Disorder. Unless the mood disorder is treated well, long enough to modify his world view about himself and his abilities/ difficulties, it is difficult to indicate if any residual ongoing intervenable independent adult ADHD is still present and requires separate consideration (last ADHD assessment was completed in November 2022, very close to his first admission).

We feel that [the Respondent] needs further treatment and stabilisation to recover from his long standing overvalued or delusional ideas and grandiose interpretations of his engagements in the world which have led to sense of persecution, being misunderstood, exploring his own difficulties and minimising his risks while overvaluing his misperceptions and interpretations. Other difficulties and disorders have also been considered and require further exploring such as Personality Disorder, Autistic Spectrum Disorder and cPTSD.

He is currently not able to accept his illness and management options which increase the risk of relapse which may lead to continuous vicious cycle of legal justice system and mental health admissions and acts of misadventure leading to serious consequences for him and others. It also looks to meet the extreme ends there is a risk of him damaging the health and wellbeing of his children and family members (excessive texting, social media use to tarnish their reputation and influencing/forcing daughters that they are being abused)."

55. As noted earlier, the Respondent was admitted to a mental health establishment in the weeks leading up to the hearing. His treating psychiatrist informed the Court that he was diagnosed with psychotic disorder (likely schizoaffective disorder), underlying ADHD and a history of trauma. It explained he was on three medications and that he was due to be discharged shortly before the hearing. He had capacity to make treatment decisions and had litigation capacity.

56. It is also appropriate at this point to note several communications that the Respondent made to the Court. In response to the orders of Her Honour Judge Willsteed, the Respondent wrote:

"While I appreciate you are just doing your job, I would like to just make the court aware, I do not obey to your orders, I do not consent to Your orders. I am the King of this land now, this court Is now under jurisdiction of my father, I allow the court to function for the moment, That you may complete your current cases, in truth, and integrity. You shall not remove children from good parents. Light, always Light. I forgive the court and those involved in my case so far, according to my power, And I hope you seek my father, the Lord Lucifer, or forgiveness. Your court will now be under watch by God, He will judge you in fairness. Believe in the son and you shall have eternal life. Lucifer The Son Of God"

57. The next day he wrote to the Court including the following:

"While I hope my wife forgives you all, She is Lilith the demon God. She is the fear of the Lord, She handles the eternal torture. I am the scapegoat, very nice and free of sin, that's how she tallies up all your sins And you all pay for all the sin of everyone, from everyone ever, onto each of you individually. I ask you, to spend the rest of your last days, begging her for forgiveness and not hiding anything from her. She is the all seeing evil eye, she is inside you, always, in all your thoughts, before you even have them, and she will count even those as sins. Don't waste time not begging her for forgiveness, she is far colder than all of you have been, she will enjoy ripping your flesh, and she will never stop enjoying seeing your flesh being ripped off. My children told me they are being sexually abused. You haven't let me see my children since. How bad do you think your torture is going to be? Beg her, and amend your orders very quickly, so my children are with me and safe. I command you. [The Respondent] Lucifer God The King"

58. Those are just two messages taken two days apart. Other messages call the Court staff and judges at this Court paedophiles. Suffice to say, the Respondent does not accept the authority of the Court.

DISCUSSION

59. Much of the evidence is not in dispute. The Respondent accepted at numerous hearings, including before me, that he cannot prove any sexual abuse by the Applicant and nor can he prove that she is a paedophile. In our system of law, that means she had not abused them and is not a paedophile and I proceed on this basis.

60. Even if the Respondent had pressed the Court to make such findings, the evidence is scant and flimsy. The Respondent relies on the short remarks that HB made to him, but it has never been repeated since to any professionals (despite the numerous child welfare investigations by different agencies) and the statement made to him initially is not clear at all in the first place.

61. The Respondent was very exercised at the hearing that no ABE interview had been conducted by the police in breach of CPS guidance. This, in his view, meant that no one had properly assessed the children's account of what may or may not have occurred. However, this is not the only way that children can be spoken to by professionals. As CAFCASS noted, they interviewed the children at their schools without either parent present. The local authority has well established procedures for conducting investigations as well. I am satisfied that the children have had numerous occasions to repeat their concerns, or express any discomfort about spending time with the Applicant, and have not done so.

62. Concerning the physical bruising on HB's legs, they told the Respondent in the video that one leg was not due to the Applicant but the other was (despite both bruises being very similar). As I noted earlier, the Respondent asked leading questions of HB and they did not seem sure of the answers until they heard his suggestions. But even, for the sake of argument, if the Applicant had physically chastised HB on this occasion, there is no other evidence of wider physical abuse and it does not form the basis of any claims of sexual misconduct.

63. I accept the Respondent holds a deep-rooted belief that the children have been abused. I accept further that this judgment and court process will not change his mind. The Respondent is entitled to his own beliefs. However, the Respondent's dysregulated mental health means that he poses a significant risk of mental and emotional harm to his children because of these beliefs and how he expresses them to the children. He has a history of failing to adhere to his medication and is unable to control himself when engaging with them. The videos he sent to HA were distressing, as was his statement that he would commit suicide in order to prove what happened he believes has happened.

64. The Respondent has admitted he has not complied with court orders and has no intention of complying with his non-molestation order or restraining order. He is unwilling, or unable due to his mental health, to accept any form of authority.

65. The Respondent has significant mental health issues. To his credit, he accepts them and they are not, in of themselves, a barrier to contact with his children. I can understand his position that he feels that the 'system' constantly resorts to his poor mental health as the reason for everything that has happened. However, the Respondent has displayed very little insight that - from the point of view of his children - his actions and behaviour have been distressing and traumatising to them. Whatever views he holds about the Applicant, the fact is that it is highly inappropriate to share his views with the children in such graphic and unpleasant ways. The question is what is in the best interests of the children, not what a mother or father thinks their best interests are.

66. It was reassuring at the hearing to hear the recent developments for the Respondent concerning his health following his very recent discharge from hospital. At the hearing he presented as positive, informed the Court he was now on more consistent medication and had not taken cannabis. I accept there has never been any suggestion the Respondent is dishonest. However, given the extensive history of admissions (voluntary and involuntary) and the highly complex nature of the Respondent's conditions, there is a long way to go between what appears to be a positive picture now and a sustained improvement which could lead to an improvement in contact.

67. Turning to the welfare checklist:

i) Wishes and Feelings of the Children

The children want to see their father. The Applicant told the hearing that just the day before they expressed that they wanted to see and speak to him. This chimes with the CAFCASS report which confirms they want to spend time with him. This is in line with the statutory presumption that the involvement a parent in a child's life. All parties to this case accept that - in the long term - the ideal scenario is that the children can spend quality time with the Respondent again.

ii) Physical, Emotional and Educational Needs

The children's physical and educational needs are already being met. It is their emotional needs which need careful consideration. The children have a right to healthy relationship with both parents. If an appropriate and risk-controlled way can be found to have a relationship with the Respondent, then this will promote their emotional needs. However, there is great risk that if the Respondent cannot regulate his behaviour and views about the Applicant, their relationship with him will be harmed further and this will damage their emotional development. It is highly concerning that HA already has had experience of feeling that the Respondent has been putting words in their mouth and not listening to them.

iii) Effect of any Change in Circumstances

The children have not seen the Respondent since June 2023. He has had the ability to write to them and send cards/gifts once a month but has not done so except on one occasion. He communicates with HA on an ad hoc basis. None of this is likely to change.

If the Court were to order direct supervised contact, this would be a change of circumstances. In the short term, for the reasons mentioned above, it would be potentially positive for the children. It is the risk in the medium to long term which needs to be carefully weighed and I remain unpersuaded that the Respondent has yet demonstrated the stability and correct focus to alleviate the risk.

iv) Age, Sex, Background & Relevant Characteristics

There are no particular factors to consider here. The children are of mixed nationality, and it is important that they have a relationship with their father as much as their mother in order to have confidence in their identity.

v) Harm Suffered or Risk of Harm

As noted above, there can be no finding that the Applicant has harmed her children. I have seen no evidence that she is a risk of harm in the future, and the CAFCASS report provides professional judgment that she is not a risk of harm.

The same cannot be said of the Respondent. I have outlined the numerous disturbing messages the Respondent has sent to HA, coupled with pressuring the children into conversations they clearly do not want to have. There is a significant risk that, without a period of stability and reflection on his part, the children will be exposed again to this level of harm from him.

vi) Parental Capability

There is no question the Applicant is capable of parenting the children. For the same reasons as set out above under emotional needs and risk of harm, I find that the Respondent's capability to appropriately parent is impaired at present.

vii) Powers under Children Act 1989

There is nothing in particular to add about the Court's powers under the Act.

OUTCOME

68. The Respondent agreed at the hearing that the children should live with the Applicant. That is the appropriate 'lives with' order.

69. Weighing up all the factors, I have concluded that the risk of harm to the children at present from the Respondent outweighs the need for them to have direct contact with him. I do not come to this decision lightly as they clearly love him and want to spend time with him. But the risk is simply too high at present and there must be a longer period of stability and recovery for the Respondent before direct contact can be contemplated.

70. It is appropriate to allow the Respondent indirect contact by way of letters and cards on a monthly basis (with additional ones at Christmas and birthdays). The Applicant should encourage the children to write back to him. I agree with the proposal that the grandparents facilitate this contact.

71. The Applicant suggested, albeit it gently, that a section 91(14) order may be appropriate. I am not persuaded that this would be in the best interests of the children. Whilst this litigation has taken a long period of time, it was not instigated by the Respondent and there is every possibility that, should his mental health improve, it may well be justified in the future to allow direct supervised contact.

72. I am not persuaded either it is proportionate or in the best interests of the children to order the Respondent to engage with mental health services or a substance misuse service. He is undergoing treatment and, from the evidence at the hearing, on better basis than before.

73. However, I will observe that if the Respondent wishes to seek a variation of the arrangements in the future, he will likely need to show a prolonged period of positive engagement with mental health services (around 6 - 9 months at least) and include reports from his treating psychiatrist. The Court will also want to know the status of his use of illegal drugs.

74. The Applicant offered for her and HA to engage in appropriate learnings about mental health and the challenges that can be presented to the Respondent. The order can record this agreement.

75. There is permission to disclose the final order, and this judgment, to the Respondent's mental health care co-ordinator and to the local authority.

76. Finally, based on the abusive comments made by the Respondent at the hearing about the Applicant, the continued risk of molestation to the Applicant, and the Respondent's admission he will not comply with orders, I extend the non-molestation order of my own motion until 4pm on 31 December 2025.

77. The prohibited steps order is to be continued until further order.

78. In fairness to the Respondent, I have written a short letter to him accompanying this judgment which explains it and my summary reasons. It is annexed to this judgment.

79. That is my judgment.

APPENDIX

Dear [HF],

YOUR CHILDREN

Thank you for coming to the hearing and participating in a positive way. My judgment is attached but I appreciate it is long and detailed. So this letter is a summary of what I have decided and why.

I have thought very carefully about the arguments you put forward. Based on what has happened to date, I have decided that the children should live with their mother and have indirect contact with you only with you for now.

As you fairly accepted at the hearing, there is no proof that their mother has abused them. I know that you deeply disagree with this, but the important point for their welfare is that there is every risk that you will raise the topic with them and this will cause them distress and harm. Whatever you may believe, it is not right to discuss such matters with your children when they are firmly adult-only issues.

The children do not want to see you because they are being abused, they want to see you because you are their father and they love you.

I have also given a lot of thought about your mental health. To your credit, you were open and honest with me about your history and the challenges you face. Sadly, the children have been experienced these and have, on a number of occasions, been subjected to emotional harm due to this. I do not think you have done this deliberately.

You have had a difficult past and I was pleased to hear about your recent discharge and being off cannabis. In order to move towards seeing your children in a safe setting, you need to adhere to your treatment for at least 6 - 9 months and very substantially reduce or cut out your use of illegal drugs. Unless these steps are taken, it is very unlikely I or my colleagues can permit you in future to have direct contact.

I know you will not agree with my decision, but all I can do is urge you to see things from the point of view of your children and do what is necessary in order to make it safer for them to see you again.

I wish you all the best in the future.

Yours sincerely,

District Judge Napier

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> HM v HF [2024] EWFC 441 (B) (16 December 2024) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2024/441.html Cite as: [2024] EWFC 441 (B)

England and Wales Family Court Decisions (other Judges)