X (father) v Y (mother) [2025] EWFC 62 (B) (10 March 2025)

This judgment was handed down remotely on 20 March 2025 by circulation to the parties or their representatives by e-mail and was later released to the National Archives.

Overview and issues

1. At the heart of this case is the welfare of a five-year-old girl named A.

2. A lives with her mother, Ms Y ('M'). She has not had face-to-face contact with her father, Mr X ('F') since December 2021. She initially had indirect contact by way of video calls; these calls took place over around a two-year period, until January 2024, when M decided to terminate that contact.

3. The circumstances surrounding the termination of video call contact - and the quality of that contact before it was terminated - are in dispute. I will return to this issue later in my judgment. But it will be immediately apparent that F's application for a shared care arrangement is made against a background in which a five-year-old child has now not seen her father face-to-face for over three years, and in which she has not seen him in any form for over a year.

4. These proceedings have been protracted and highly acrimonious and have a very unhappy litigation history. I say at the outset that I am quite satisfied, having now heard evidence from each parent over the course of a four-day final hearing, that over the past three years of litigation the needs and best interests of A have often been occluded by the intensity of each parent's dislike and mistrust of the other.

5. Each parent has adopted an extreme position with regards to A's future and the orders sought.

i. M's case is that risks posed by F to herself and A arising from (i) the findings made by Recorder Daley at a fact-finding hearing that took place in November 2023; (ii) F's lack of acceptance of, and insight into, those findings; and (iii) what she alleges has been the father's litigation conduct to date, are so great that F's role in A's life should be effectively extinguished.

ii. To this end, in addition to opposing A having any form of direct contact with A, M applied - in February 2024 - for orders (i) enabling her to change A's surname from her father's surname to her own surname; (ii) significantly restricting F's exercise of parental responsibility in all aspects of A's upbringing; (iii) for a 91(14) barring order to last until A is aged 16; (iv) for a non-molestation injunction to last for ten years (with wider restrictions than the interim order that is currently in place); and (v) for the father to pay all the mother's costs (including in respect of the consolidated Family Law Act proceedings), in the sum of £182,568.

iii. The father (who represents himself) says that A - who has not seen him for over 3 years - should immediately commence living with him on an alternating week basis. He does not agree that any sort of support or preparatory work with A would be required before direct, overnight, and extended contact could resume, or that a domestic abuse perpetrator programme is required (albeit he would attend one if the court felt he should do so). He largely disputes the findings made by Recorder Daley but is prepared to accept that the breakdown of the marriage was acrimonious and that there were arguments between the parents at that time (he views the mother as being equally responsible for the arguments). F professed to have some understanding that M is anxious and feels "stressed" (his word) about the thought of A having contact with him, but he considers that M is predominantly motivated by anger at F choosing to end the marriage and commencing post-separation relationships with other women.

6. The issues I have had to determine are as follows:

i. What are the appropriate child arrangements for A?;

ii. Should I make an order under s.91(14) against F, or against F and M jointly (and, if so, in what terms)? With regards to the latter, I gave notice to the parties and to the CAFCASS officer Ms Lambert on the morning of the second day of the hearing (before M or Ms Lambert had given evidence, and before hearing submissions) that I wanted to be able to consider the issue of whether both parents should be prevented from making future applications in respect of A without leave (the formal application before the court made by M was for an order against F only). I did this so that M's legal team would have the opportunity to ask questions of the CAFCASS officer about this issue if they wished, as well as time to consider the merits and legal principles arising before I heard closing submissions.

iii. Should I grant M's application for A's surname to be changed from X to Y?

iv. Should I make prohibited steps orders limiting F's exercise of parental responsibility and, if so, to what extent?

v. Does M require the protection of a non-molestation injunction? If so, in what terms and for how long?

vi. Should there be any order for costs against either party in relation to the litigation?

Evidence and the conduct of the hearing

7. I have received a core bundle of documents running to 799 pages and a 'supplemental bundle' (included at F's request because the parties could not agree the contents of the core bundle) running to another 377 pages. In addition, I was provided with a position statement prepared by F and a skeleton argument (running to 34 pages) drafted by counsel Dr Proudman on behalf of M. During the course of the hearing I was also shown a transcript of an earlier hearing before DJ Hussain that took place on 30 May 2024 which ran to 56 pages. I heard oral evidence from both parents and from Ms Lambert of CAFCASS. I then heard closing submissions from both parties for c.3 hours.

8. As the proceedings were issued before 21 July 2022 the court had no power to appoint a Qualified Legal Representative (QLR) to ask questions of M on behalf of F. Participation directions were in force that instead required F to set out his proposed questions of M in writing in advance and those questions were asked by me.

9. More or less, I read the questions out exactly as drafted by F, save where they required minor revision for clarity. I declined to ask a limited number of questions that I considered were an attempt to re-open issues or factual allegations that had already been dealt with at the fact-finding hearing. After I had asked F's initial questions, I gave F a further half an hour to consider whether there were any follow-up questions he wished to raise (I had invited F to keep a notepad and pen with him when I was asking questions of M so that he could note down any answers he wished to revisit).

10. Whilst F's questions of M and of Ms Lambert were not always phrased in the way that a professional advocate would have phrased them, and were not as forensically challenging, F's case was nevertheless put clearly to M and to the CAFCASS officer and I am satisfied they both understood and had an opportunity to respond to all the points F wished to raise. Where I felt that there were issues that had not been explored, but which were relevant to the issues under consideration, I asked questions of M and of Ms Lambert myself.

11. Screens were used in the court room which provided for a physical barrier between M and F so that both parties could see me but not each other. Neither party was required to sit in the witness box when giving evidence; they remained in their seats with counsel moving to obtain a line of sight as required. In addition to having the support of her legal team (on the first day this comprised counsel, a solicitor, and a trainee solicitor; on subsequent days, counsel and a solicitor's clerk taking a note) M had the assistance of an Independent Sexual Violence Advocate (ISVA) who attended throughout.

12. In this judgment I intend to highlight only those aspects of the evidence - or particular legal principles - that help to explain my reasoning. This does not mean that I have not considered all of the voluminous material placed before me which I have also re-read in coming to the conclusions I have reached.

Brief litigation chronology and an analysis of the findings of Recorder Daley

13. The parents separated in October of 2021, and by December of 2021 F had commenced divorce proceedings. Within a month of his divorce application - by January 2022 - M initiated proceedings under the Family Law Act 1996 seeking protective orders. That application was compromised by agreement and the proceedings concluded by way of a consent order dated 10 February 2022 under which a number of protective orders were made. The original non-molestation order was made to run for a period of 12 months. The order was made on the basis of no admissions or findings of fact.

14. A second non-molestation order was made (again without any admissions or findings of fact, and prior to the fact-finding hearing taking place) by Recorder Hellens on 29 June 2023 to last 'until conclusion of this application'. F's application under the Children Act for contact with A was by that time in full swing and the two sets of proceedings were consolidated. The parties also had contested financial remedy proceedings running alongside.

15. The FHDRA in the Children Act proceedings was heard before DJ Rollason on 21 October 2022. Indirect contact by way of video calls and letters was ordered. A decision was made to order a split fact-finding hearing of allegations of domestic abuse made by each of the parents against the other.

16. The fact-finding hearing eventually took place before Recorder Daley, but not until another year had passed (the hearing was held over four days 23-26 October 2023). Judgment was reserved and handed down on 29 November 2023 (and is reported as In Re A (a child) [2023] EWFC 198).

17. Recorder Daley made a number of findings adverse to the father, but with notable exceptions that were, in my judgment, significant and relevant to the issues I have to determine. He did not find any of F's allegations against the mother proven, but he did find M to be someone who generally saw the father in a poor light and was apt to ascribe malign or nefarious meaning to the father's actions in respect of her and A. He also made some criticism of the maternal grandfather, and of the hostile dynamic between the maternal family and F (in both directions).

18. The Judge's findings of fact were summarised at the end of his judgment and then incorporated into a schedule attached to the Judge's order. However, to gain a proper understanding of his findings for the purpose of assessing risk and making welfare decisions, it is necessary to read the judgment in full, and not just the summary of the findings at §10.

19. I adopt Recorder Daley's judgment and his findings as part of the factual matrix, and I incorporate it into this judgment. I have described and analysed the findings below in some detail as it is not possible to reach a clear view about the appropriate arrangements for A without a careful understanding of the findings made (and not made).

20. Recorder Daley specifically found that F did not exert coercive or controlling behaviour on M during their relationship, whether emotionally, psychologically, physically, or financially:

i. "I conclude on the balance of probabilities that there was no emotionally or psychologically controlling behaviour by F but rather a distressing and vitriolic end to the parties' marriage" [§5.9].

ii. "...the broad canvas of M's evidence was that the heated arguments and most troubling behaviour started to emerge in 2021, not long before the marriage broke up" [§5.8].

iii. "F did not exert controlling or coercive behaviour on M before the relationship started to break down. He was, however, detached from domestic life and apathetic towards most household chores. M understandably found that frustrating, disappointing, and stressful." [§10.1(1)]

iv. "M's case on financial abuse is extremely weak, and is not made out. Indeed, the way in which it and the allegations of generally controlling and coercive behaviours were raised by M in my judgment risked obfuscating the allegations which do have merit" [§6.1]

v. "A significant amount of time and evidence was devoted to the question of whether F complied with an agreement recited in the consent non-molestation order of February 2022, left M in a difficult situation after the end of the marriage by closing an account shortly before bills were to be paid, or wrongly excluded her from the running of a company. But all of these matters are in my judgment very clearly the result of the acrimonious divorce. There are and were proceedings under the Family Law Act 1996, private law proceedings about A and financial remedy proceedings. It would in my judgment require something wholly unusual about someone's conduct during such proceedings to justify a finding that they were seeking to control or coerce their former partner. There is nothing justifying such a finding in this case." [§6.5]

21. Recorder Daley also rejected M's case that she had been the victim of 'gaslighting' by F. The context to this allegation was that M had accused F of stealing her grandmother's heirloom coin collection from her sacred temple, and that he had then attempted to 'gaslight' her by making her believe he had not taken the coins. The Recorder's finding was that:

"It seems unlikely the coins were moved to a drawer as part of any attempt to "gaslight" M. Far more likely is that they were put there to be out of sight of builders or (possibly) F's later sexual partners. It is at least as likely that on this occasion, M—long after the parties had separated and during an acrimonious battle which had already resulted in litigation—having found the coins in a bedside drawer for innocent reason, succumbed to the temptation to take them and later claim F had stolen them. F never put this directly to M. The possibility was raised in his witness statement, and M had the opportunity to meet that allegation. But given the ambivalent terms in which it was put in F's statement and the absence of direct cross-examination, I prefer to conclude that M has not proven, on the balance of probabilities, that this allegation is made out."

22. Recorder Daley also rejected M's allegation that she had been the subject of stalking by F on two occasions in April 2022 by way of him driving past the former family home and deliberately stopping and/or slowing down (behaviour that she also alleged constituted a breach of the non-molestation injunction that had been made by consent in February 2022).

23. Recorder Daley did make four significant and serious findings of sexually abusive behaviour, including rape, by F of M which had occurred in 2015, 2016, and 2017 (A was born in 2019). The findings were that:

i. F digitally penetrated M in her parents' house in December 2015 despite her saying she wanted to wait until she and F were married;

ii. During what was initially consensual sex on their wedding night, F bit M's breasts and refused to stop then refused to stop when penetration caused her to cry in pain and she said "no";

iii. F attempted to have anal sex with M in April 2016 without discussing it with her first or obtaining her consent, made her try again when she said she did not want to (though it is unclear what he did to force her), and failed to stop having vaginal intercourse despite her saying "no";

iv. In February 2017, F attempted to have sex with M in an uncomfortable position: when she refused to continue, she felt she had to allow him to try another position. The reasons for her so feeling were not established.

24. From the perspective of assessing any future risk to A and M arising from these sexual abuse findings, it is right to note that Recorder Daley did not consider that the 2015-2017 findings were part of an overall pattern of controlling or coercive behaviour during the marriage. At §8.1 he expressly found [with my emphasis]:

"I have considered anxiously whether I ought to make freestanding findings of fact about these very serious allegations. As I decided during the hearing, it is open to me to do so, and it was right that I heard the evidence. There is a danger of being distracted by allegations such as this, highlighted in K v K. I have reflected at length on whether the allegations cast light on the most important allegation here, coercive and controlling behaviour. There are suggestions of emotionally manipulative behaviour—for example, F is said to have sulked when told M objected to digital penetration in December 2015—and of a lack of empathy and respect for M's wishes, in continuing sexual intercourse when M found it painful and asked him to stop. Yet, in my judgment, they relate to a particular area of the couple's relationship and are limited to a particular phase of that relationship which as such as is unlikely to help me fairly assess the dynamics of that relationship as a whole. I have cautioned myself against giving undue weight to F's behaviour in the bedroom or his veracity in relation to that."

25. M's later witness statement of 26 February 2024, filed in response to Recorder Daley's findings, describes F (at §27) as a "sexual predator", with M raising a new allegation (which did not form part of her allegations at the fact-finding hearing, is a matter about which no evidence has been filed, and about which no finding was sought) that F "...has been accused of sexual assault by another woman".

26. When I raised my concern with the parties that M's characterisation in this later statement went significantly beyond the findings of the Judge, Dr Proudman argued that, by their very nature, all findings of sexually abusive behaviour of any nature should be described as 'predatory'.

27. Whilst I do not minimise the very serious nature of the sexual findings made against F (nor, indeed, the deleterious emotional impact of that behaviour on M), and I accept that F's lack of empathy, attitude towards sex, and sense of entitlement (as found by Recorder Daley at §8.3) can be said to have exploited the mother's vulnerabilities during the specific period 2015-2017, it is important to record (in the context of M now describing F as a 'sexual predator' and relying on an allegation that was not the subject of the fact-finding exercise and has never been pursued) that Recorder Daley did not find that that there was a pattern of abuse and control throughout the relationship in which sexual assault or rape was used to coerce, dominate or demean M. M did not pursue a case at the fact-finding that F had sexually assaulted other women, or that there was a pattern of sexual abuse in F's relationships with other female partners.

28. The Judge also rejected M's case that F had indulged in 'sexually risky' behaviour and that this might pose a sexual (or other) risk to A. I do not consider that the evidence supports the characterisation of F as a 'sexual predator' or a finding that F poses a future risk of sexual harm to M, A, or other women.

29. The background to M's allegation about 'sexually risky' behaviour was that in March 2022 M –inadvertently, on her case- had viewed CCTV footage from the marital home in which F was (at that time) living without M and A. The Judge records that this was a period of time "...after the breakup of the relationship, many months after A had lived at the property" [§24]. On the footage, M saw F engaged in sexual relations with new partners whom he had brought back to the property (which was his sole home at that time). M accused F of having sex with 'prostitutes' [§8.10] and that he had been having sex with these prostitutes on A's bed. The Judge rejected that allegation. Insofar as M's allegation that F was having sex in A's bed was concerned, the Judge found that the bed was simply one in which A had formerly, and only occasionally, slept.

30. The Judge did find that F had a short temper, lacked empathy (and failed to understand and appreciate the impact of his words on M), and had been verbally abusive and threatening to M on several occasions during the period of time in which the marriage was breaking down as follows:

i. On 15 September 2021, F told M, in an angry attempt to persuade her to join him in moving out of her parents' home, "There is no guarantee that if I come back here that I will not get so stressed out that I decide to pick up the knife, kill your parents first in their sleep and then kill you and A". The Recorder held that this was manipulative, ill-judged, immature, selfish and a product of a short temper. It put M in understandable fear and understandably shaped her (and her family's) interpretation of events thereafter.

ii. On 22 September 2021, there was an argument between the parents during which F swore, using Hindi swear words the equivalent of "bullshit" and "fucker" and did so in front of A. Both A and M were put in fear.

iii. During an argument on 9 October 2021, in anger F thew a water bottle, the Court being unable to make any finding whether it was full or empty, plastic or glass, or the size thereof, towards M. The bottle did not hit her. F also refused to let her open the bedroom door and was abusive. He and the maternal grandfather (MGF) squared up to each other with raised fists after F called M "mental" and MGF called F "a rapist". The maternal grandmother (MGM) had to intervene to calm both MGF and F.

iv. F lost his temper when arguing with M in Starbucks on 13 November 2021, followed her back to her car continuing the argument, and in his anger slammed her car door, missing her arm. A was crying and scared as a result.

v. On 4 December 2021, F and M argued in the car while F was driving. He was in a bad temper and was distracted from the driving task by that and the argument but did not intend to scare or harm M or A.

vi. On 5 December 2021, F threatened M by saying that things would have been different if the couple had been in India and he knew people who could harm her, A or her parents. He said this while losing his temper, and it was shocking for M. M did not, however, believe that it was genuinely meant by F.

31. At the hearing in which the fact-finding decision was handed down (29 November 2023) M unsuccessfully sought a suspension of the indirect video and letter contact. A key reason for her application was that F had sent a number of letters to A that contained language that was inappropriate, or which discussed adult issues, and which constituted a breach of DJ Rollason's earlier contact order which had made clear to F that he was not to discuss these matters (or his wish to see A) in his communications to her. F had also recorded some of the video calls (he said he did this because M/MGM were not bringing A for contact as intended and he wanted to be able to prove that they were directing the phone camera to face an empty wall or sofa with A never being brought into the room for her video call).

32. An example of F's inappropriate language in letters to A is a letter sent in July 2023 in which F said "I wish your mummy could understand how important it is for kids to have both parents in their lives. Mummy has discontinued our weekly call also".

33. F admitted his behaviour was both inappropriate and a breach of DJ Rollason's order, albeit it appears he was somewhat slow to do so (from the wording of the recital to Recorder Daley's 29 November order). Recorder Daley gave F a clear warning that if he breached the terms of the contact order again, it was 'likely' contact would cease.

34. Following the fact-finding decision, Recorder Daley ordered a CAFCASS s.7 report. As well as inviting the s.7 author to consider the consequences of his findings, any harm or risk to the safety of M and A during and after any contact, and the capacity of F to appreciate and understand the findings that had been made against him, the Judge also asked the CAFCASS officer to consider "...whether - in light of the findings of the court of some allegations of abuse and rejection by the court of other allegations - each party is motivated by a desire to promote the best interests of A". In my judgment, it is clear that the Judge had firmly in mind a concern that A's welfare risked becoming lost in the litany of allegations and applications each parent was making against the other.

My assessment of the parents at the hearing before me

35. My assessment of the parents when they gave evidence to me largely accords with the impression formed by Recorder Daley when the parents gave evidence before him in October 2023.

The Father

36. F asked me to bear in mind that English is his second language and that he does not always understand the meaning of words (or how others perceive those words), particularly where the word is unusual or there is nuance. I have taken this into account, but I consider that F has a very good grasp of English, and that where he has used inappropriate language - for example in the card he sent to A in July 2023 that I have already referred to - his language skills are no justification for behaviour that was plainly inappropriate and which he knew or ought to have known was inappropriate.

37. I share Recorder Daley's assessment that F lacked empathy and insight into the emotional effect his behaviour had, or might have in future, on both M and A. He does not accept, and has minimised the seriousness of, both the findings of rape/sexual abuse and the findings of verbal abuse and of exposing A to frightening arguments between himself and M.

38. I highlight the following examples from his oral and written evidence in support of this conclusion:

i. Referring, in his documentation to the court, to the sexual abuse findings as being "allegations" (i.e. rather than findings) of "sexual harassment" (rather than serious sexually abusive behaviour including rape).

ii. Using the phrase 'marital rape' repeatedly in his submissions to me and in his questions of Ms Lambert (i.e. drawing a distinction between rape in the context of a marriage and rape in any other context). As Dr Proudman rightly submitted, "rape is rape"). I was also troubled by his insistence on using this phrase once more in court even after I had specifically asked him not to do so (I had asked F to stop embellishing the findings of Recorder Daley and going into unnecessary background details about allegations against him that have already been found proven). Having said this, I did not get the impression F was deliberately using particular words in an effort to upset M; much the same as with Recorder Daley's assessment, I found F to be a person who is largely apathetic/indifferent to the effect of the language he uses on others, and who is unable to appreciate the emotional consequences for M, in particular.

iii. Not understanding - when this issue was explored in some detail with Ms Lambert during her evidence– why the nature of his behaviour set out in findings 8,9,10,12,13 and 14 (incidents of verbally abusive behaviour during the period of the parties' separation) is behaviour of a kind that is capable of causing emotional harm to A if repeated. Whilst Recorder Daley considered F's behaviour to be the product of a 'short temper', and whilst I acknowledge that it was found that the verbal abuse and threats took place in the difficult period in which M and F were in the process of separating, and generally in the context of arguments rather than F deliberately setting out to frighten, threaten, or abuse M (so, to that extent, they were 'situational'), F's lack of intention to cause harm to A does not mean that the behaviour was not still harmful or abusive. As PD12J emphasises [§4]:

"domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

iv. I found F had extremely limited insight into the impact of his outbursts on M and A. He had a tendency to focus on the fact both parents had argued (which, in some instances, was true) without being able to appreciate the potential or actual impact of his words and behaviour on M and A. He was also the main aggressor in some of those arguments, for example (as Ms Lambert pointed out in her evidence) following M back to her car after the argument in Starbucks on 13 November 2021 in order to continue the argument despite A being present and (as Recorder Daley found) her being frightened and crying.

v. When challenged about comments he had made to the effect that he 'hoped to meet A again in the future' in certain of the cards he wrote and sent to A in 2024 (i.e. after the hearing before Recorder Daley where he had been warned not to use that sort of language) F tried to excuse his breach of the court order by saying that M had stopped the video contact in January 2024 and had filed an excessively long statement in February 2024 (it spanned, inclusive of exhibits, 174 pages when the earlier order had limited statements to five pages). He said he had been frustrated by M's behaviour as well as being desperate to see A. I do accept that F has been genuinely motivated by a desire to spend time with his daughter and to reestablish a relationship with her, but I was struck by the fact that F was so consumed by his annoyance at M's legal team and litigation strategy that he had been unable to reflect - either at that time or now - on the fact that if he breached the terms of the order for indirect contact he was likely to end up with no contact (as he had been warned by the Judge on 29 November in terms). This would be a loss to A, especially in circumstances in which (as Dr Proudman accepted in submissions on behalf of M) there were many elements of what F wrote in the cards/letters to A that were in fact entirely appropriate. F was also, in my judgment, committed to indirect contact in sending the letters/cards and small gifts regularly, including colouring books and a pink backpack for A's birthday. It is a sad loss to A that F was stubbornly unable to comply with the terms of the order, bringing the parents into even more dispute over the arrangements.

39. I also find that F has been less than frank with the court about the current status of his relationship with a new partner. F told me that his partner has a child from a previous relationship and that his relationship with her is casual; M is concerned F may have a new biological child that he has not disclosed.

40. I can see from the transcript of the hearing before DJ Hussain that when M initially raised the issue before the District Judge in May 2024 the Judge told F that he did not have to disclose his new relationship at that time and that it would be a matter for CAFCASS to explore and advise on (an addendum report was directed to deal with a number of discrete issues).

41. However, I find that when F was then asked by the CAFCASS officer to supply his partner's address (I accept Ms Lambert's evidence that F did receive the email because the EGRESS system lets her know when a recipient has opened an email) he deliberately did not act on it. He did so because he was worried he would get his partner into some kind of trouble (Ms Lambert had told F she might need to make a Local Authority referral because of the findings of Recorder Daley). I accept Ms Lambert's evidence that the existence of 'unknowns' (i.e. the inability to conduct full background checks on the partner and her family) heighten professional concern. This is another example of F either not appreciating what is required of him in order for professionals, the court, and M to be reassured that spending time arrangements with A will be safe, or not accepting that the information must be disclosed and so stubbornly refusing to comply with what was expected.

The Mother

42. As far as M is concerned, I entirely share Recorder Daley's assessment of her evidence that "...the facts came with the added interpretation (whether deliberate or a result of genuine but mistaken belief) that F's actions were designed to achieve dominance over her or had other malign intent" [§5.14] and that she has a "...desire always to think and paint the worst picture possible of F" [§4.7].

43. In my judgment M's intense mistrust and dislike of F has only intensified over the inordinately long time these proceedings have continued, such that she now genuinely believes it would be better for A if A's relationship with - and link to - her father were completely severed.

44. I highlight the following in particular:

i. I find the extensive log/diary of F's video calls (in which M has made detailed notes of every call that took place over two years between January 2022 and February 2024) to be a self-serving document, compiled for the purpose of litigation. What it does provide me with is an insight into the extreme negativity M has (and has always had) about indirect contact. The log is uniformly unenthusiastic about the quality of the contact, and highly critical of F in ways that sometimes descend into nitpicking (e.g. "[F] was not engaged and was eating his food during the call"). M has gone to the trouble of recording the precise duration of each call (e.g. "17 minutes"). It reads as a surveillance log of F, when what had been intended was for A to be able to enjoy - in a child focussed way - spending some time with her father. Bearing in mind that A was only two years' old in 2022, M's expectation of how much engagement and interaction could be expected during these video calls was unrealistic and unduly critical of F. I also observe that M has been extremely vocal about F's recording of a number of video calls in 2023 (I am invited by M to find that this behaviour was part of a pattern of using the litigation to perpetrate further abuse against M), but yet seems to have herself approached the video calls from the perspective of evidence-gathering rather than focussing on A's needs.

ii. Even taking into account F's own inappropriate language in some of the cards sent to A, M's criticism of the indirect letter contact has often been excessive and unjustified. For example, Dr Proudman initially cross-examined F about a piece of paper she (M) had written that contained the words "08 December '22. No card". It appeared M was suggesting F had failed to send anything to A that month. F said in response that he had sent a letter to A in December 2022. After further discussion, it transpired that the December 2022 letter was at [p.799] of the bundle, and that F had also sent a colouring book to A. The content of the letter was entirely appropriate. After Dr Proudman took instructions about this, M then clarified that her complaint was in fact that F had failed to send a card in December and had only sent a letter with the colouring book. It was asserted that a card would have been more age-appropriate than a letter, and that F should have sent a Christmas card as it was almost Christmas. I found this to be a nonsensical complaint. The order of DJ Rollason referred to both letters and cards, the content of the letter was appropriate and child-focussed, and the gift was also child-focussed and appropriate.

iii. In a similar vein, M's interpretation of some of the language used by F in his 2024 cards to A is one that actively looked for a malign intent even where there was none. For example, on 14 November 2024 F wrote "Do you know that 14th of November is celebrated as Children's Day in India! Your Grandpa used to bring sweets and take me for dinner at [a] nice restaurant when I was a kid.". Next to this M has written (as part of another record she has kept in which she has photographed the cards and written next to each one her negative interpretation of what F has said)"Introducing the idea of "sweets" and going to a "nice restaurant" are subtle way[s] to influence A's feelings and maintain favour...".

45. There were also aspects of M's evidence that were contradictory and which provided a further understanding about her feelings towards F.

46. For example, F sent a letter to A's school in September 2024 in which he wrote "...I am the father of [A]... She has started school earlier this month in Reception in your school. I am divorced from [A's] mother [Ms Y]. Currently, A is living full time with her mother while I am trying to get a shared custody arrangement through courts. I am keen to understand the progress of A in your school. May I please ask you to add me on the email list for providing updates regarding her progress and to let me know regarding any upcoming PTA meetings, etc. I am happy to drop by for a face-to-face meeting and fill any forms required for this.".

47. M told the school it might constitute a breach of the non-molestation injunction for the school to send the information sought. Accordingly, the school wrote a letter to M's solicitor forwarding the email that F had sent on 15 September. The letter from the school to M's solicitor states that it has been sent "...at the request of [Ms Y] to her solicitor". The mere sending of the written information to F would not, in my judgment, have breached the non-molestation injunction, and so it was unhelpful that M's solicitor did not then write back to the school to make that clear.

48. As a result, the school declined to send the information F had requested. F did not attempt to contact the school again to ask for the information (because he was aware that M had objected to him doing so). M has not sent any progress updates to F. Yet M is now critical of F (in both her evidence and her position at this hearing) for allegedly not being involved with or interested in A's educational progress. Moreover, F's explanation that he contacted the school in September because A had just started reception and he was excited for her and wanted to know about her progress (and not because he wanted to use the school as an opportunity to harm M or A, or for some other nefarious purpose) is entirely plausible and logical and I accept it.

49. M claimed that F had never bothered to get in touch with her after she had told him, in January 2022 in a text message, that A had been admitted to hospital with a viral infection. M initially told me in her oral evidence that she could see that F had read her message but that he didn't respond until after Midnight and that he didn't ever follow up with her later to ask how A was doing. Conversely, F put to M (through me) that M had failed to respond to his calls and texts and had also not allowed him to visit A. M admitted that she had sent a message with words to the effect that only one parent was allowed to be with a child in the hospital (i.e. according to the hospital's rules), but maintained F had not asked if could visit. I do not understand, if F had not asked to visit, what else would have precipitated M to send such a message (one which M initially denied sending at all) saying that only one visitor was allowed. I prefer F's account of this incident.

50. M (through a letter to the original CAFCASS officer Ms Maclean in May 2024) asked Ms Maclean to correct the spelling of the word Nani in the context of a comment A had made "My Nani says my father is lazy". M's criticism of the record at that stage was limited to the incorrect spelling of the word Nani. In her oral evidence before me, M said she thought that A was not referring to her father being lazy, but of MGF being lazy, and that this has been misunderstood. She told me that A thinks of her grandfather as her father as he is the father figure in her life. I find this new explanation implausible, and I remind myself that Recorder Daley had observed [§4.7] "...M denied in cross-examination that she or her parents had ever called F "lazy" ("not at all, my parents gave him maximum love and care") or (to his face and in front of others) a "phone addict" ("no, I have spoken to him about phone addiction, but not in front of others"). However, Mr X, M's own witness who gave evidence in a very compelling way, made it clear he was aware of the family calling F both "lazy" and "a phone addict"." Bearing in mind that there is already a finding that the maternal family use the word 'lazy' to describe F in a negative way, it is unsurprising that A would repeat that phrase about her father to the CAFCASS officer.

51. M also had a tendency to try to avoid difficult questions (for example if an apparent contradiction was raised with her) with variations on the phrase "I have already addressed this extensively in my statements". Important details (such as regarding F's request to visit A in hospital) had to be teased out gradually as M was not someone who readily makes concessions.

52. It is nonetheless my view that M is genuinely distressed at the thought of F having anything to do with her or A. Whilst there was no permission sought (or given) for expert medical evidence in this case (M nonetheless exhibited to her statements letters from her GP and a report from a psychiatrist that she had unilaterally obtained without any permission) I accept the general submission of Dr Proudman that given the findings (especially those of sexual abuse and rape) I am entitled to conclude without the need for independent expert input that F's behaviour has had a profound impact on M and continues to affect her.

53. I also accept the evidence of the CAFCASS officer Ms Lambert that in her interview with M, M was very distressed (Ms Lambert's evidence was essentially that this had been a very difficult meeting as a consequence of M being so tearful, and that she had not really been able to discuss the indirect contact issues in any detail because of M's level of distress).

54. I noted that when M gave evidence to me about the indirect video contact she was not able (even when I asked her a direct question about this) to conceive of any situation in which was possible that A would ever benefit from, or enjoy, the contact with her father. When I asked M what she had done or said to promote the contact in a positive way to A, the examples she gave were of "consoling" A and of "preparing" her for contact by showing her where the phone was and which room contact would be in, as well as putting some toys in that room. She gave the impression of always having approached video calls as just being something to 'get through' and be endured. I think it is highly likely (as Ms Maclean opined in the original s.7 report) that A has been exposed to M's extreme anxiety and negative view of contact and of F and that this likely accounts for the descriptions M gave me of A 'crouching' on the floor and not wanting to have the video calls.

55. Moreover, F's continued lack of insight and unwillingness to accept the bulk of the findings of Recorder Daley have, in my judgment, compounded M's feelings and heightened her anxiety.

56. I also find that the intensity and duration of this litigation and the sheer number of applications made by both parents has only served to entrench those feelings.

57. I have concluded that, without significant professional input and support to manage contact arrangements, which would need to be preceded by a wholesale change in attitude from F, I do not think as things stand M is in a position to be able to cope with facilitating direct contact, or video calls, or that she would be able to promote contact as something positive and safe for A to enjoy.

58. F's failure to have insight into his abusive behaviour (a first step being accepting the findings made against him), and his unwillingness to acknowledge that A has not seen him for a number of years and is likely to be anxious about seeing him, are also factors that mean a high level of support is required for contact to be safe and beneficial for A.

Additional factual allegations dealt with in the course of this hearing

59. There were a number of new/additional allegations raised by M in the course of the hearing. I have reminded myself that the parties have already given evidence at a four-day fact-finding hearing, and that I am not obliged to make findings about every single issue raised. I set out my conclusions only on those issues that have a particular bearing on my welfare decision.

Indirect video contact

60. I do not accept that either party has given a wholly accurate account of the circumstances surrounding the breakdown in video contact.

61. Drawing together the strands of the parents' written and oral evidence, my assessment of them, and Recorder Daley's findings, I find it is likely A did not enter the room for contact on a number of occasions (i.e. F could not see her on the camera when the call was answered because she was in another room and out of sight), as F alleges. I find this because M's own evidence is that F would get exasperated and that he said (on one such occasion) "...bring A in front of camera, everybody is sitting and looking at the spectacle and not bringing A in front of camera. I have not called to look at the sofa..." [bundle p.210 §12].

62. It follows that I also reject F's suggestion that he has never said rude or exasperated things on the video calls. It defies belief that F would have sat quietly and said nothing at all; F is someone with a short temper who shouts and says intemperate and sometimes frightening things when angry and frustrated. There are a number of findings of instances in which he has failed to moderate his language. He is also desperate to see A and very upset at what he considers are the maternal family's attempts to frustrate contact.

63. I find that, overall, the video contact from the end of 2023 and into 2024 was not of good quality. M has held a negative view about contact from the outset and is unable to commend contact to A in a positive fashion. A has likely picked up on M's cues and anxiety and so began refusing to attend the contact and exhibiting distress. F compounded the situation by expressing his frustration and being indifferent to whether A could hear him shouting and saying critical things of M and the maternal family. With the benefit of hindsight, the indirect contact should not have required the maternal family to facilitate it in the first place, and the parties would likely have benefited from independent, professional, supervision.

64. I do not accept that F would deliberately call M and then hang up the call before she could answer it (her allegation was that he did so to create a false phone record that suggested he had called on days when he had not). M, without permission, attached an exhibit to her statement in response to the fact-finding judgment (a statement Recorder Daley had expressly limited to 5 pages but which actually runs to 174 pages including exhibits) a witness statement from an ex Apple employee and friend of M that purports to provide technical expertise about 'cancelled calls'.

65. There was no permission for expert evidence from a phone analyst, F's phone was never examined, and the statement (which M did not have permission to file) contains inadmissible opinion evidence from someone who is not independent. M's legal team should not have filed the document without leave and it is no answer (this was the justification given I raised my concern in court about another statement that had been filed without permission, that of the MGM) to say that because it was filed and is in the bundle, and because no one had expressly ruled on the issue before now, I should infer it has been allowed.

66. I was also not assisted by the various screenshots each parent had provided of their call history which were often confusing to follow (at one stage M's instructions had to be taken on the interpretation of one of the documents; it appeared even her own legal team were struggling to follow what M said the evidence showed). In any event, it is inherently improbable that F, who was desperate to have contact with A, would have hung up the calls instead of availing himself of the contact. This interpretation makes no logical sense and I reject M's suggestion it was done as a way of 'gaslighting' her. I remind myself that Recorder Daley has found that M has a tendency to view all of F's actions as harbouring malicious intent even where there may be a perfectly innocent explanation that is to be preferred (he rejected her earlier assertion of gaslighting in respect of the alleged theft of heirloom coins on this basis).

Litigation conduct

67. I also do not find - having now had the opportunity to consider over 1000 pages of material, a transcript of the DRA hearing, and hear extensively from each party - that F has used this litigation as a means to perpetrate ongoing domestic abuse.

68. I agree F has made comments in his documentation that show he does not accept many of the findings of Recorder Daley. Sometimes those comments have been rude, insulting, inappropriate and/or intemperate. I remind myself he is a litigant in person who has lacked the filter of a solicitor (albeit this is not an absolute excuse, and a lot of what he has said would in any event have been upsetting for M to read). I also take note of Ms Lambert's comment in her oral evidence that F may also have said inappropriate things simply because of a lack of insight and empathy rather than as part of a deliberate plan to use litigation to abuse.

69. I also note that there are times in the litigation that F has had just cause to feel overwhelmed as a response of the legal strategy deployed by M's lawyers. As I have already alluded to, when the court had directed a five-page statement confined to dealing with each party's response to the fact-finding judgment, it was completely inappropriate for M to instead file a statement running (with exhibits) to 174 pages, and which included several statements from third parties for which M had no permission. Nor was it appropriate, when the court had directed each party to file a 'position statement' for this final hearing, for Dr Proudman to have filed a 34-page skeleton argument in breach of PD27A. I accept F's evidence that when he has used confrontational and inappropriate language this was often in a (misguided) effort to defend himself against what he perceived to be an aggressive and unfair litigation strategy from M.

70. M has also said things in her own court documentation that, objectively, are capable of heightening tensions and making litigation more acrimonious (such as alleging in her recent statement that F is a 'sexual predator' who has sexually abused other women, when this was not part of M's case at the fact-finding and M's legal team are well aware that no finding of that nature was made).

An alleged breach of the non-molestation injunction in June 2024

71. As part of her case in support of the application for a non-molestation injunction M initially alleged that F had breached the non-molestation injunction in June 2024 by entering a zone he is prohibited from.

72. M in fact chose not to ask any questions of F (who denies the allegation) about this when he gave evidence. When I questioned this, Dr Proudman told me she wished instead to assert that the fact F is now due to be charged by the CPS for the alleged breach was something I should simply "take into account'" as "raising risk". As I made clear, findings of fact in the family court are binary and there is no room for suspicion or speculation. I can only properly conclude that behaviour is a 'concern' or a 'risk' if the underlying allegation is proven or admitted.

73. I am particularly mindful, in the context of this case, that when M alleged two incidents of breach of an earlier non-molestation injunction in April 2022 Recorder Daley did not find those allegations to be proven. The legal effect of not seeking a finding (and therefore no evidence being led on the issue) is that M cannot now rely on the asserted truth of this allegation (which is denied) in support of her application for a non-molestation injunction or as part of her case on welfare.

The CAFCASS evidence and my analysis of it

74. An initial CAFCASS s.7 report by Ms Evelyn Maclean was filed on 30 May 2024. Ms Maclean met with A for the purpose of her investigations and also spoke with A's school.

75. There are a number of passages in Ms Maclean's report which are of particular significance and which I have borne in mind as part of my decision.

i. At §17 Ms Maclean wrote "Knowing A has not spent any time with her father lately, I had to introduce the topic of Mr X gently, and I explored A's understanding of who Mr X is to see if she had any memories of past times spent. The only thing A said was that she has not seen her father, she continued with 'my Nani says my father is lazy', and 'I don't know where my father is'. I asked A if she wanted to see Mr X and she nodded in the affirmative that she would want to spend time with her father. A did not present as distressed at the mention of her father.

ii. At §18 Ms Maclean observed that A appeared to be "...overly concerned with her mother's emotional state" and opined that A's young age meant that she was likely to be influenced in her perception of her father by her sensitivity to her mother's emotions. She raised a concern that A was being exposed to adult opinions in her mother's home.

iii. At §33 Ms Maclean stated that F appeared to show a genuine interest in being in A's life.

76. Ms Maclean recommended that the parents have support from the Improving Child and Family Arrangements Service (ICFA). She did not consider that supervised contact, without prior support to reintroduce A to her father, would be appropriate. She observed that for an ICFA to be an option, M would need to cooperate with the service [§39].

77. Ms Maclean did not see any welfare-based justification for changing A's surname.

78. At the DRA hearing on 30 May 2024 (I have now seen a full transcript of the hearing as there was some debate between M and F about what was said in court) M, through Dr Proudman who also represented M at that hearing, sought a fresh s7 report from a different CAFCASS officer. The basis for this was that it was asserted by Dr Proudman "...well this Cafcass officer is woeful. This Cafcass officer has recommended mediation between a father that raped the mother and a rape victim when there is a non-molestation order in place. They've recommended ICFA which is not even allowed in cases where there's serious domestic abuse findings. There's been no risk assessment undertaken."

79. Dr Proudman also asserted that F had shown a lack of insight and acceptance of the findings, relying on comments F made in his statement filed on 25 March 2024 (being a statement in response to M's C2 application made in February 2024 in which she had extended her application to include, inter alia, a s.91(14) order, a change of surname, orders restricting his parental responsibility, and orders for costs).

80. DJ Hussain challenged the assertion that ICFA can never be used in a situation in which there have been domestic abuse findings, but accepted that the mother's consent was required (and noted that she did not consent) and also that, despite having told Ms Maclean he was 'remorseful', F was using language in his witness statement of 25 March (such as describing the sexual abuse findings as sexual 'harassment') which demonstrated a lack of acceptance of those findings.

81. DJ Hussain rejected the application for a new report or a change of CAFCASS officer and determined that issues with Ms Maclean's investigation should be put to Ms Maclean in cross-examination at the final hearing. But she did order an addendum report which she explained to the parties would be "...very short in terms of the time. I think it is about eight weeks because I think there are only two or three questions that need to be answered."

82. Unfortunately, what transpired was that Ms Maclean then left the employ of CAFCASS and there were subsequently two new CAFCASS officers allocated, neither of whom was ultimately able to do the report. Finally, Ms Lambert was allocated to the family, and she filed the addendum report on 25 October 2024 almost an entire year after the fact-finding hearing and some two and a half years after the FHDRA.

83. Moreover, despite being intended to be a short addendum by Ms Maclean to revisit the recommendation for an ICFA (as DJ Hussain had accepted an ICFA would not be available and/or suitable if M did not consent, and that F did not accept the findings of the court, as was recited on her order), the report of Ms Lambert was in effect a new s.7 report that took an almost diametrically opposed view of many of the issues already covered by Ms Maclean, including on the application for a change of surname. The report goes beyond the remit of the short addendum DJ Hussain envisaged.

84. Ms Lambert was called to give evidence at the hearing before me, her evidence being challenged by F (M broadly agrees with Ms Lambert's recommendations save for on the issue of the s.91(14) order). F agrees with the recommendations of Ms Maclean, who was not called to be cross-examined by M. The court was placed in the invidious position (as I explored with Ms Lambert when she gave her evidence) of having opposing recommendations and opinions from two different CAFCASS officers on the same issues, and only one of the CAFCASS officers being in attendance to assist the court.

85. Furthermore, Ms Lambert had chosen not to see A despite the fact that seven months had passed since A had been seen by Ms Maclean for the purpose of the first report, and in circumstances where M was alleging that indirect contact had broken down because A had become distressed during video calls and that she was too scared to participate in them (in stark contrast from the way A had presented to Ms Maclean when she had spoken with her in March 2024). Seven months is also a very long time in the life of a (then) four-year-old.

86. In oral evidence Ms Lambert agreed that she had 'built on' the investigations of Ms Maclean and told me "I don't go behind what Ms Maclean said in terms of [A's] wishes and feelings". She said that she did not think A's presentation/comments would have "...necessarily been significantly different had I met her". She also made the point that given A is just five years' old her wishes - whilst important - would not be determinative, and that A's safety and wellbeing had been her primary concern.

87. Whilst the direction had not been carried out in the way DJ Hussain intended it to (and has also led to significant delay in this case) I am satisfied that I have sufficient evidence through a combination of Ms Maclean's report and the report and oral evidence of Ms Lambert (as well as the wider canvas) to make final decisions about the arrangements for A.

88. In some respects (but not all), I found the analysis of Ms Lambert to be fairly superficial. I accept she had followed the general outline of the 28 January 2025 CAFCASS Domestic Abuse Policy (an earlier policy was in force at the time of her report but she accepted under questions from Dr Proudman that she had adopted a very similar approach), but I consider that she was unduly influenced in her professional investigations by the recital in the annex to the order of DJ Hussain that read "The s7 report by Cafcass recommended a referral to ICFA however the court determined that ICFA is not suitable because father does not accept rape and domestic abuse and the mother does not consent to ICFA". This seemed to have closed Ms Lambert's mind to the availability of any other realistic options for maintaining a link between A and F.

89. She told me the key focus of her meeting with F had been whether he accepted the findings of rape and sexual abuse from 2015-2017 and she said they had limited time to discuss any of the other issues including the indirect contact difficulties and the concern F has that he has been denigrated by M and the maternal family.

90. She expressed insufficient professional curiosity about the comment made by A about her father to Ms Maclean. When she recommended a change of surname, this was because she had accepted the mother's report to her about why she wanted to change the name without asking any probing questions and without considering whether this might be part of a pattern of minimisation of the father's role in A's life. She had not properly considered the earlier assessment of Ms Maclean who had come to the opposite view about this application. This is particularly problematic in circumstances where the order of Recorder Daley that directed the original s.7 report had specifically asked CAFCASS to consider whether each party was motivated by a desire to promote the best interests of A (the Judge having emphasised that not all of the mother's case was proven and that, specifically, he had rejected her allegations of coercive control, financial control, and gaslighting and had also made some criticisms of the mother's tendency to view F in a negative light).

91. I was also surprised that Ms Lambert showed no particular concern about M's comment in her oral evidence (Ms Lambert was present in court to hear both parties give evidence before she gave hers) that A now views the maternal grandfather as her father. She did not seem to have considered whether this would be confusing for A, and may not have picked up, or reflected on, the finding of Recorder Daley that the MGF has a "...dominating and authoritarian personality..." [judgment §5.11] and had raised his fist at F in the course of their argument (F, too, raised his fist) and had been "very angry" [§7.6].

92. Ms Lambert also chose not to interview A when I think it would have been reasonable to do so. I was particularly concerned that she told me in oral evidence that she chose not to see A primarily because M had asked her not to, when this was something that was not recorded in her report and when it also appears F was not told that either.

93. When I asked Ms Lambert to identify the risks she foresaw for A if direct contact were to take place -and to specifically reflect on whether professionally supervised contact might be appropriate and might mitigate those risks - she said that she was primarily concerned about A suffering emotional harm if F were to make inappropriate comments during contact.

94. Whilst I accept that (following a question from Dr Proudman) Ms Lambert did also say that F might pose a risk of physical harm if he were to lose his temper in a supervised setting, she hesitated before providing that answer, and it was clear that she had been primarily concerned about the potential F might say critical things of M in contact or put emotional pressure on A. She did not appear to have given any real thought to whether that could potentially be mitigated by the use of professional supervision with notes being taken. I also did not think she had given sufficient consideration to the nature of the arguments and loss of temper by F and the fact that, as the Recorder found, they took place in the context of the marital breakdown (and so the risk of F losing his temper in supervised contact now, with neither M nor the maternal family being present, might reasonably be said to be of lower risk).

95. I had a general sense that she had not really studied the detail of Recorder Daley's analysis of the parental dynamic or taken on board the relevance of what was not found, or Recorder Daley's assessment of M's negative view of F. When Dr Proudman asked her if she had read the full judgment rather than just the summary of the findings she answered "yes" before qualifying that answer by adding "it was very long".

96. Ms Lambert's concern about the fact contact might never be able to move out of the contact centre placed insufficient weight on the potential loss to A of having no meaningful relationship with her father at all. In other words, there will be cases (such as Re A (A Child) (Supervised Contact) [2021] EWCA Civ 1749) in which long term supervision might be the appropriate order, particularly if the choice is between supervised contact and no contact at all. I did not think Ms Lambert had given sufficient consideration to the consequences for A growing up of having no meaningful relationship with her father, or that she had considered this issue in the context of M's application for a change of surname.

97. Having made these criticisms, I nonetheless accept and share her fundamental conclusion that A now needs a high level of support in order for contact to be reintroduced in a safe way that is in her best interests. In that, her assessment is aligned with Ms Maclean's.

98. I also accept her evidence that M is genuinely and significantly distressed about contact restarting and that she has some justification for feeling that way given the findings of the Recorder, compounded by F's denial of the findings and lack of remorse. I also think, though, that Ms Lambert had a tendency to place excessive weight on the impact on M's emotional wellbeing over and above all other considerations.

99. I also accept her view that F's refusal to accept the findings increases the risk of A and/or M being exposed to emotionally abusive behaviour as he has done nothing so far to address those behaviours. In that regard, I agree with her view that we are "...no further on..." from the fact-finding hearing, despite the passage of time.

Discussion and Decision

100. A's welfare is my paramount consideration. In reaching my conclusion about what is right for her (and by way of providing a framework to my analysis), I intend to deal with each category of the welfare checklist at s.1(3) of the Children Act 1989 in turn, providing my conclusions as I go. Although I do not intend to set out all of the provisions in detail in this judgment, I confirm I have also considered Practice Directions 12J and 12Q, the 28 January 2025 CAFCASS Domestic Abuse Practice Policy, as well as the Domestic Abuse Practice Pathway (including the reference to when it may be appropriate to use ICFA in a case in which there has been domestic abuse).

The ascertainable wishes and feelings of A (considered in the light of her age and understanding)

101. A is just five years' old. The only independent evidence of her wishes and feelings is contained within the report of Ms Maclean and is out of date. I accept when A saw Ms Maclean, she did not exhibit any distress at the mention of her father, and that she nodded when asked if she would like to see him. I also accept M's evidence that A has become distressed before and during indirect contact in 2023 and 2024. As I have set out earlier in this judgment, this is due to a combination of M's anxiety and negativity around the contact and F's exposure of A and M to his frustration when contact has not gone as planned. I also accept Ms Lambert's comment to me that given A's age her wishes and feelings, whilst important, are not determinative, and that where there is a risk to her safety (or contact is otherwise not commensurate with her welfare) her wishes (expressed when she was four years old) have limited weight.

A's physical, emotional and educational needs;

102. A is still of an age where she is highly dependent on the adults in her life to meet all of her daily needs. I accept that she has a close bond with her mother and will be affected, emotionally, by her mother's distress. She does not have any additional educational or physical needs over and above those of any other child her age and is doing well in school. She is able to write her own name [bundle p.546, original CAFCASS report] and is "...very aware of her surname" [original CAFCASS report p.557].

The likely effect on A of any change in her circumstances;

103. I have given considerable thought to what the impact would be on A if direct, supervised, contact were introduced at this stage (I make it clear that I reject F's suggestion that A could move to live with him now on an alternating basis and that no supervision or support or gradual build-up of contact would be required. I consider that to be a wholly unrealistic suggestion that demonstrates a lack of understanding of the needs of A).

104. I am acutely aware that if contact is limited to letterbox contact, A may well lose the opportunity to have any meaningful relationship with her father at all, and that such a loss is capable of causing significant and irreparable emotional harm to her and of affecting her future emotional development. I accept that an order for no direct contact is draconian in nature and a 'last resort' where there are no other realistic options commensurate with the child's welfare (see, for example, Re J-M (A Child) [2015] 1 FLR 838).

105. I have ultimately concluded, though, that in the absence of the availability of an independently supported professional service (such as ICFA; Ms Lambert was clear ICFA would not be offered if M did not consent and F did not genuinely accept the findings of Recorder Daley) supervised contact on its own without CAFCASS or social work input (e.g. if I had simply directed the parents to identify a contact centre and F to pay for supervision) will not work. I accept M's distress is genuine and that her fear and distrust of F is genuine, exacerbated by the positions that have been adopted over this lengthy litigation and compounded by F's refusal to accept that any of his behaviour was wrong or needs to change.

106. My view is that an order for supervised contact is not a realistic option until F undertakes perpetrator work and is open to accepting the additional professional support around contact that would need to flow from that. A is very young and has not seen F for over three years. She has become anxious around contact and an attempt to now 'force' her, without preparation and support, to attend a contact centre in circumstances where M has no reassurance contact is going to be safe (and will make her feelings known to A, even if through body language rather than words) is likely to embroil A in further conflict and cause her emotional harm.

107. I also accept that F continues to be someone with a short temper who expresses frustration by way of outbursts and abusive language. As he does not accept Recorder Daley's findings, he has not done anything to address this behaviour. Contact is likely to be a flashpoint, as indeed it was with the video contact. Taking all these factors together I do not think a change from indirect contact by way of letters and cards to video contact or direct supervised contact will, at this stage, promote A's welfare.

108. As far as A's surname is concerned, I consider that changing her surname from X to Y - particularly in circumstances where the contact she will be having with her father will be limited to letters and cards at this time - would not be in her best interests either as it would constitute a further rupture in the link she has to her father in a way that is not justified or proportionate. I take into account M's evidence that she is distressed at seeing the surname X written down, and that she finds seeing the name to be 'retraumatising', but A is now five years' old and is, as Ms Maclean has said in her report, very aware of her surname which is a part of her identity and provides an important connection to her father and paternal heritage.

109. I think that a change to her name is not only likely to be confusing for her, but that M has been motivated by a desire to erase all reference of F in A's life and that it would be actively harmful to A's sense of identity were I to accede to the application.

110. Ms Lambert told me that the impact on M and her reported distress at seeing and using the surname X was the main reason she had advocated a 'compromise' whereby Ms Lambert suggested M be able to use the surname Y for A in day-to-day life, with X remaining A's 'official' surname and on her birth certificate.

111. The reality is that if A is 'known by' the surname Y, the fact that her birth certificate (which she is unlikely to regularly consult) will still have her father's surname on it will not mitigate the risks I have identified.

112. F asked Ms Lambert whether she had considered double-barrelling A's surname (M does not agree to double-barrelling the surname in any event and her case was that A's surname should be changed to Y solely). Ms Lambert said she had considered it, but that she had ultimately rejected this as a viable option because of M's view about the continued use of the name 'X' in any part of the double barrelled version of the surname (e.g. as Ms Lambert was placing significant weight on M's wish not to have to look at the name X written down, she felt the same problem would arise if the name X was part of any double-barrelled name).

113. I consider that changing A's surname to a double-barrelled surname is likely to be as confusing for her as changing her name to Y. Given M's position in relation to the name X, and her reluctance to a double-barrel format being used, there is a high risk in my view that M will gradually drop the 'X' portion of the double-barrelled surname anyway and use only her own surname. Moreover, I have said, A is of an age where she is aware of her registered surname and able to write her name. She is a child who has been through significant disruption already in her young life. I do not consider that requiring A to change her surname to a double-barrelled name enhances her welfare over and above simply leaving her name as it is.

114. I add that I was not at all persuaded by M's evidence of there being practical difficulties associated with M having a different surname to her daughter - many, many children (for example, but not limited to, those of unmarried parents) do not share the same surname as one of their parents, and the authorities with whom Ms Y will have to interact (such as school, or the doctors' surgery) will be well used to such a situation. M's concerns are in any event outweighed by the harm caused to A if her surname were to be changed.

A's age, sex, background and any characteristics of hers which the court considers relevant;

115. I have dealt with the fact A is a young child with increased vulnerability due to her age and due to having grown up in a home in which there has been domestic abuse.

116. I accept the concern raised by M that, as a female child, it is particularly important that she is not exposed to harmful attitudes about women and girls (I note here in particular F's attitudes and sense of entitlement around sex, as found by Recorder Daley). I repeat that as F has not shown any insight, it follows he has not begun to address any of those harmful attitudes.

Any harm which A has suffered or is at risk of suffering;

117. I have dealt with the issue of harm at length in this judgment and under earlier headings. I add here that I have specifically considered §36 and §37 of PD12J and in particular F's lack of capacity to appreciate the effect of past domestic abuse on M and A.

How capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs;

118. M is capable of meeting all of A's physical, and most of her emotional, needs. A is thriving at school and is well cared for in terms of basic care. I accept the evidence of Ms Lambert that A is "resilient" and that this suggests she is well cared for by M who has created a stable home for her. However, I have also taken into account the effect of M's feelings about F on her ability to promote A's welfare in the round, and I consider that her applications for a change of surname and for a 91(14) order to last until A is 16 years' old have not been motivated squarely with A's objective best interests in mind, but rather by a wish to erase F from her (M's) life.

119. I acknowledge that F loves A and I also think that he may, in the future, be capable of having good quality contact with her and of forming a more meaningful relationship with her. But at the moment he is a relative stranger to A and his abusive behaviours (to which she was exposed) also comprise, as Dr Proudman invites me to find, 'parenting failures'. His inability, now, to acknowledge his harmful behaviour and to seek help for it is also a parenting failure. His ability to meet her basic needs is untested (Recorder Daley found that F had had limited involvement in A's day-to-day parenting when in a relationship with M).

120. I do not think the findings in this case are such that F is someone who will never be capable of having a relationship with A and I consider that, particularly in view of A's age, if F reflects on this judgment and on the earlier decision of Recorder Daley, and accesses appropriate support to address harmful behaviour and attitudes, the court may in the future see fit to allow some progress to the contact arrangements. But for the reasons I have already set out I do not think direct contact (even supervised) is a realistic option at the present time.

The range of powers available to the court under this Act in the proceedings in question.

121. Whilst I have concluded that direct contact and video contact are not in A's best interests at this time, I have decided that the order for contact between A and F should be for indirect contact by way of a letter and/or small gift at a frequency of six times a year. I think the frequency of twice a year proposed by Ms Lambert is too draconian and is not justified on the facts of this case, particularly where I consider the door should be left open for future progress if F takes the steps required of him. This is a reduction on the current monthly contact which has not been entirely without difficulties. My decision is one that aims to strike an appropriate balance between the need to maintain a link between A and her father whilst also acknowledging that both parents need respite from litigation, and from each other, and that M may find it difficult to receive letters that have come from F more frequently. I think if letters are sent more frequently, M's response to that may render the contact counterproductive.

122. F may enclose a recent photograph of himself once per year. A should not be obliged to write back (this must be child led), but M must send (or cause to be sent) (i) a recent photograph of A to F twice a year; and (ii) a list (once a year) of A's interests so that F can tailor the content of his letters and small gifts accordingly.

123. I reject the application for a change of surname for the reasons I have given.

124. As far as the application for prohibited steps orders is concerned, I do not see any justification for restricting F's parental responsibility to the extent proposed by M. There is no evidence F has tried to misuse his parental responsibility to date and his request for A's school reports and his polite (as I find it to have been) letter to A's school when she first commenced reception was appropriate and understandable. Recorder Daley rejected M's depiction of a controlling and coercive relationship; if anything, F was apathetic during the marriage when it came to day-to-day parenting matters (something M had criticised him for).

125. I do consider that a prohibited steps order should be made in the more limited terms that F should not attend A's school unless by prior written appointment with a teacher to discuss her progress (and in any event no more than once a year, with neither A nor M to be present when F attends). I will make that order so as to prevent any distress and confusion for A were F to attend the school and inadvertently come into contact with her or M. F is entitled to receive school reports directly from A's school and my order should recite this, with a copy to be provided to the school.

126. I will also make a prohibited steps order to say that F should not contact A's GP without prior written agreement from M, but on the basis that my order will also say that M must notify F (she can ask someone else to do this on her behalf, such as her mother, if she does not want to do it herself) if A requires emergency medical treatment in the future, such as an admission to hospital, or significant medical treatment, such as an operation.

127. I will also make a 'lives with' order in favour of M and so the reality is that M will have sole responsibility for day-to-day decision making in any event. She must still consult with F if there are significant questions to be resolved in respect of her upbringing, but she will not be required to consult F about daily, prosaic, parenting matters. And so, whilst I accept Ms Lambert's evidence that it is not realistic to expect these parents to be able to 'co-parent' (in light of the findings and the history of this case), the reality is that save for limited, significant, welfare decisions (an example might be the choice of secondary school, which is a long way off as A is only five) M will largely be able to manage A's day-to-day care without involvement from F and so I consider further restrictions to his parental responsibility to be disproportionate.

The Section 91(14) application

128. I will now turn to M's application for orders under s.91(14).

129. I have considered the authorities provided to me by Dr Proudman in her skeleton argument, as well as PD12Q, and §37A of PD12J.

130. In particular, I have considered the authority of Re A (a child) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749.

131. S.91(14) provides a protective filter, made in the interests of the child, to prevent future applications to the court without permission. As PD12Q emphasises, the circumstances in which an order can be made are wide and varied and its use is not limited to those cases in which there have been repeated and unreasonable applications to court. PD12Q §2.3 is a non-exhaustive list which specifically includes the situation "where a period of respite is needed following litigation" as well as "where a period of time is needed for certain actions to be taken for the protection of the child".

132. I have not found that F is someone who has used this litigation as part of a pattern of abusive behaviour, but I also accept that the motivation of a F is of less relevance than the impact of a party's behaviour/ongoing litigation on the child or the other party (I refer on this point to the judgment of King LJ in the Re A case at §36).

133. I do not accept Dr Proudman's submission that, as a matter of public policy, it would be inconsistent with PD12J §37A (the requirement to consider a s.91(14) order in every case in which a finding of domestic abuse is made), and with the provisions of PD12Q more generally, for a court to ever make a s91(14) order against parents jointly, where one parent is the survivor of domestic abuse. Whilst protecting a survivor of abuse from the harm that might be caused by a future court application is one of the reasons in which the power might be exercised (and a very important one), it is plainly not the only situation in which a s.91(14) order can be made.

134. As King LJ emphasised in Re A, the order provides for a filter to reduce the prospect of future litigation, to be exercised in the interests of children. I remind myself that this is ultimately a welfare decision and A is my priority.

135. Neither parent has obtained the outcome that they sought in this judgment and, given the very high level of conflict and litigation acrimony in this case, F and M are both equally likely, in my view, to make future applications to court to change the arrangements. I note M unsuccessfully made an application to suspend indirect contact in July 2023, again on 27 November 2023 (albeit F was warned about the content of the cards), and then a further C2 application on 8 February 2024 which was then dealt with at the hearing in May 2024. M has been excessively critical about some of the indirect contact and is as likely to make future unmeritorious applications in respect of contact as F is.

136. I consider that in any event M, F, and most importantly A, need respite from these damaging and protracted proceedings.

137. I have decided that a s.91(14) application preventing either parent from making an application to the court for a s.8 order for contact/live with or prohibited steps orders without permission is appropriate, for a period of 24 months. In setting this timeframe I have in mind also the reasonable period of time F would need to access and undertake an appropriate perpetrator programme and develop the level of insight that would be required before any court application is realistically likely to be productive, as well as ensuring each parent and A have a period of respite from litigation. I have borne in mind the advice of Ms Lambert that the RESPECT accredited programme does not currently accept self-referrals from parents who have, in the last 12 months, made an application for a child arrangements order and so the reality is F may not be immediately accepted on to a DAPP even if he self refers now.

The non-molestation injunction extension

138. I refuse M's application for an extension (for ten years) and widening of the non-molestation injunction of Recorder Hellens of 29 June 2023. M does not allege any breach of that order in the last c.20 months, save for the allegation that dates to June 2024, which she chose not to pursue at the hearing before me, and on which no findings are made.

139. This is not a case in which F has been found to have harassed M post-separation with, for example, repeated attempts to contact her or attend her home. Indeed, Recorder Daley did not find M's allegations of April 2022 proven. Whilst F has on occasion made inappropriate comments in his cards to A (some of which were designed to complain to M about what he considered to be the unfairness of her stance in the contact proceedings), these proceedings are now at an end and the flashpoints that surrounded M's termination of video calls in 2024 are behind the parties. I am not satisfied that a non-molestation injunction - still less one made for ten years' duration - is proportionate to the asserted risks given that the parties are living separately and F has not tried to contact M directly; I also consider the risk of F attending M's home to be low.

Costs

140. M has sought an order that F pay her costs of the Children Act and Family Law Act proceedings. The combined costs incurred by M amount to £182,568.

141. F also filed an N260 claiming £25,273 of costs of which £17,133 related to the costs he has attributed to his own time spent on the case. F did not make closing submissions on the issue of his own costs but had alluded to his schedule within his position statement prepared in advance of the final hearing. In that statement he asserted that M had been "...lying to the court..." and was "unreasonable" and that she had been very litigious throughout the proceedings.

142. The first set of Family Law Act proceedings were compromised by consent on a 'no order for costs' basis.

143. In 2023 Recorder Hellens made an order reserving the costs of the Family Law Act proceedings to the conclusion of the fact-finding hearing. However, at the conclusion of the fact-finding hearing it appears the issue was not dealt with, and the order was silent about (and did not reserve) costs. The costs of the fact-finding hearing would have more appropriately been dealt with at the conclusion of that hearing, but for whatever reason (perhaps lack of court time) were not (and were not reserved).

144. I indicated that to save the cost and time of further arguments about costs I would nonetheless determine as part of this judgment whether, as a matter of principle, there should be an order for costs against either party.

145. Section 51 of the Senior Courts Act 1981 gives the court an absolute discretion as to who should pay costs and in what sum.

146. The Family Procedure Rules 2010, rule 28.1 provides that the court may make such order as it thinks just.

147. The Civil Procedure Rules apply and r 44.2(4) says, so far as it is relevant, that when it considers costs, the court will have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded.

148. The general practice concerning costs orders in family proceedings involving children is that there is no order for costs in the absence of "reprehensible behaviour or an unreasonable stance" (Re T (Children) [2012] UKSC 36, [2012] 1 WLR 2281 at [44]; followed in Re S (a Child) [2015] UKSC 20, [2015] 1 WLR 1631).

149. In the very recent decision of E (Children; Costs) [2025] EWCA Civ 183 the Court of Appeal confirmed that the same test (i.e. the requirement of reprehensible behaviour or an unreasonable stance in the litigation) applies equally to fact-finding hearings.

150. At §28 of E (Children; Costs), Jackson LJ summarised the principles to be applied in the following way:

"There is a general practice of not awarding costs against a party in family proceedings concerning children, but the court retains a discretion to do so in exceptional circumstances. These include cases in which a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings. This practice applies equally in public law and private law proceedings, and irrespective of whether a party is legally aided. Nor is there any difference in principle between fact-finding hearings and other hearings. The court can make costs orders at any time: FPR 28.1."

151. I have reached the clear view that it would not be appropriate to make a costs order against either party.

152. Whilst the father denied the allegations made against him (and I note that a number of M's allegations were, in fact, not proven) the denial of allegations is not as and of itself reprehensible behaviour or the adoption of an unreasonable stance in relation to the proceedings such as would take this case outside of the general approach.

153. I have borne in mind that F denied the very serious allegations of sexual abuse that were proven, but the length of the fact-finding hearing (and the proceedings more widely) were not significantly extended by the inclusion of those allegations (conversely, as Recorder Daley observed, excessive time was taken up with M's allegations of financial control and coercive behaviour, which the Judge rejected; at §6.1 the Judge criticised the way in which M had raised her allegations of coercive control and financial abuse; at §6.5 the Judge commented on the "...significant amount of time and evidence" spent by M on matters that were simply the product of an acrimonious divorce).

154. Whilst I have found that F's position in relation to direct contact was unrealistic and showed a lack of insight into A's needs, it was not unreasonable or reprehensible for F to challenge a position advanced by M that would result in the severing (for most practical purposes) of F's relationship with his daughter, or to invite the court to determine the issue. Indeed, I have not acceded to M's application for a change of surname, or made a 91(14) order for the duration sought by M, and so it was right that the court had the opportunity to consider the arrangements for A with care and in detail.

155. As far as non-molestation injunction application is concerned, these were not Children Act Proceedings (albeit they were consolidated with the Children Act Proceedings) and so I have a 'clean sheet' discretion as to whether a costs order should be made. However, the reality is that M was relying, in her application for an injunction, on essentially the same case as she was within the Children Act proceedings (which is why they were consolidated and no doubt why Recorder Hellens reserved costs to the conclusion of the fact-finding hearing, albeit they were then not dealt with and not reserved again). Recorder Hellens had recorded on his order of 26.6.23 "The issues raised in the non-molestation order application shall be dealt with at the fact-finding hearing in the children proceedings".

156. M was not successful at the fact-finding hearing in relation to the two alleged incidents in April 2022 or more generally in respect of her case of post-separation stalking/harassment. The order made by Recorder Hellens had been made on the basis of no findings or admissions. M's case before me was that she did not allege any breach of the order of Recorder Hellens save for the allegation of June 2024 which she then chose not to pursue. I have ultimately determined that a further non-molestation injunction is not necessary or proportionate.

157. F did not specifically pursue a costs order in his closing submissions but as he had alluded to it within his earlier position statement (and had filed an N260) I have nonetheless considered the issue.

158. F's position on costs set out briefly within his written documentation was advanced on two bases. First, F asserted that M has been "lying" to the court. Secondly, F submitted that M has been highly litigious.

159. Whilst Recorder Daley did not find M to have proven her case in relation to a number of allegations, he did not find that M had fabricated her case or lied to the court. Nor have I made a finding that M has lied to the court.

160. Secondly, whilst I accept that M has at times taken an approach to the litigation that is to be deprecated and which caused F to become overwhelmed (e.g. filing excessively long documentation without permission) I have already taken that into account when considering the effect of that behaviour on the father's own approach to the litigation and how the language used in his own documentation should be viewed. Ultimately, I find this litigation to have been highly acrimonious and litigious on both sides and that both parties have struggled to prioritise A and have, at times, adopted extreme positions.

161. For all these reasons I make no order for costs against either party in relation to any aspect of the proceedings.

	X (father)	Applicant
	- and -
	Y (mother)	Respondent

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> X (father) v Y (mother) [2025] EWFC 62 (B) (10 March 2025) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2025/62.html Cite as: [2025] EWFC 62 (B)

England and Wales Family Court Decisions (other Judges)