This judgment was handed down remotely at 10.30am on 20 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Mr Justice Poole:
Introduction and Background
- This judgment follows a final welfare hearing about H, the seven year old son of the Applicant father, DE, and Respondent mother, FG. In essence, the disputes between the parties concern the appropriate child arrangements for H. This case is in the High Court because it began with DE's applications under the inherent jurisdiction and the making of Tipstaff Orders after DE alleged that FG had brought H to England without his knowledge or consent and there was a risk of her removing H from the jurisdiction unless restrained.
- At the hearing before me DE was a Litigant in Person but was greatly assisted by his McKenzie Friend, Ms Taylor, including in the preparation of well-drafted written submissions. In accordance with her role, Ms Taylor did not address the Court but I am sure that without her help, the hearing would have taken longer and been more difficult.
- The mother has dual nationality in Britain and a country to which I shall refer as Z. The father is a national of a European country, Y. They met on the internet and then in person in 2015. FG moved to Y and H was born there in 2017. The family moved to another European country, X, in 2018. They separated and then divorced in X in 2021. There were a large number of court hearings in X and I have been provided with translated copies of various judgments from the courts of that country. In 2021 the mother applied to relocate with H to England but, ultimately, she was refused permission. In 2021 she applied to relocate with H to Z. She moved there in January 2022. There were a number of court hearings in X concerning H's removal to Z and DE's contact with H. There were also hearings regarding financial arrangements.
- The short and not necessarily comprehensive chronology of judgments and orders in X is as follows:
i) 17 June 2020 – the Court noted that DE was not pursing his application for divorce.
ii) 5 February 2021 – FG applied for urgent return of her furniture and belongings which she said had been removed from X to Y. The Court noted that DE had undertaken to return them and no order was made.
iii) 25 March 2021 – the divorce was granted with child arrangements. The Court noted that the parties had lived together in X until 24 January 2021 when the lease on the family home was unilaterally terminated by DE without prior discussion with FG, since when DE had been living in Y and FG had been put up by friends before managing to find somewhere to live in X. Psychiatric evidence did not suggest that FG was displaying any "psychiatric disturbance".
iv) In 2021 – FG obtained permission to relocate to England but that Order was overturned on DE's appeal on 2 August 2021.
v) 7 October 2021 – DE had instituted criminal proceedings on the grounds of the mother refusing all telephone contact between him and H. The Court noted that in fact the parents were working to try to maintain contact between father and son. It was recorded that "since the couple separated in January 2021 the child has been living only with his mother. Father has had contact every other weekend" and H had spent most of the first two weeks of August 2021 with DE but that FG had not respected the full order for contact.
vi) 4 January 2022 – the Court authorised FG to move with H to the capital city of Z. FG and H moved to the capital city of Z on 10 January 2022. It appears that the Court Order was subsequently overturned on appeal on 30 March 2022 but DE's application for H's immediate return to X was ruled to be "premature". DE was granted a right to overnight stays with the child as well as FaceTime contact. It does not appear that FG left for the capital city of Z unlawfully at the time – there was no Court prohibition in place - but she did so without the consent of DE.
vii) 11 July 2022 – DE's application for H to be domiciled in Y was declared to be "unfounded".
viii) 29 November 2022. DE applied for an Order that H should live with him. A full judgment was given which is of significance. The Court held (as translated):
"It is currently clear that [FG], on the basis of a provisional enforceable decision left X without warning and without having agreed this in advance with [DE] who has always opposed a move to live in Z. In so doing, the mother demonstrated that she does not respect the father's rights nor the child's interests in that she exposed the latter to having potentially to move twice were the decision to be overturned, as is the case at the present time. Moreover this is harmful for the child's stability, his life already having already been disrupted by his parents' separation, in that the mother did not organise this change in living arrangements ensuring there was reciprocal trust and respect for the interests of each one of them but imposed on the father and child without warning a sudden change in the child's living arrangements without regard to the impact such a decision would have on the child's wellbeing as suddenly, from one day to the next, he could no longer see his father with whom he had a good relationship, as set out above, nor his school friends.
…[FG]'s behaviour is utterly irresponsible."
Nevertheless, the X Family Court also found that H was well looked after in Z, was doing well in education, and that FG was supporting contact with DE but that he had responded with the abusive texts to which I later refer. The Court held:
None of [FG]'s requests in trying to bring the child closer to his father succeeded.
…
The Family Judge notes that despite all [FG]'s efforts in bringing the child closer to his father, [DE] blocks her and continues to issue death threats at every opportunity. In reality, no constructive discussions with [DE] about the child's interests are currently possible, whether on the part of [FG] or the Z central authority …
The Family Judge considers that at the current time, the father's behaviour is contrary to the child's best interests in that it smacks of a flagrant inability to respect the mother's rights. [DE] currently clearly does not have the capacity to accept the role of the mother in the child's life. [DE] clearly is still unable to put [H]'s' interests above his own feelings towards [FG] despite their separation dating back to January 2021. Indeed, [DE] has still not accepted that [FG] did not follow him to Y and that she does not wish to join him there.
It is therefore not clear that the situation, while evidently illegally created by [FG] conflicts with [H] or that it is in the child's best interests to establish his habitual residence with his father."
It appears that the X Court determined FG's application to "maintain" domicile in Z (not just in the capital city of Z) to be "founded". Orders were made for FaceTime contact between H and DE, three times a week for 30 minutes.
ix) 14 July 2023 – a detailed financial order was made. The Court recorded that DE had terminated his employment with effect from 31 August 2022 and received a payout in June 2023, that he was earning EUR 18,256 per month and that he had received a "substantial inheritance which he objects to providing further details about". He was paying child maintenance of EUR 400 per month.
- FG and H returned to X for a short while before returning to Z where they lived between March 2022 and July 2023 when they moved to live in England where FG had a property she had acquired when studying in England as an undergraduate and post graduate. It is not disputed that shortly after moving to England, FG told DE where she and H were living. H started school in London. The school quickly referred FG and H to social services due to concerns about their isolation.
- On FG's case, she has been the subject of coercive and controlling behaviour by DE and sometimes physical violence throughout and after the end of their relationship. She has produced text messages from and audio recordings of DE from 2022 through to August 2024 which include death threats. She also alleges that DE has a history of drug abuse.
- It is common ground that between August 2023 and August 2024 DE visited and saw H on some seven or so occasions and that the parties and H had a holiday together at a resort hotel in the Middle East.
- On 12 August 2024, DE made an unannounced visit to FG's flat in London. He kicked her door when she would not let him in. The police were called.
- Shortly after that incident, DE issued the current proceedings and on 21 August 2024 a without notice Port Alert and Passport Order was made. DE relied on a statement to support his application in which he stated that FG was mentally unstable and had threatened to remove H from the jurisdiction. He did not refer to the findings made in the X courts about his conduct. On 27 August 2024 police attended at FG's home address to execute the Passport Order. FG sought to challenge the Order and was arrested for not complying with it. H was made the subject of a Police Protection Order and removed from FG's care. The following day at a hearing before Katie Gollop KC sitting as a Deputy High Court Judge, FG indicated which passports she had and she was escorted to her property to retrieve them. The Court ordered that H should reside with DE on an interim basis.
- At a Court hearing on 4 September 2024 Henke J made an interim Child Arrangements Order as follows:
"In the interim, until further order, the child [H] shall live with both parents as follows:
a. With the applicant father until the conclusion of the school day on Friday 6 September 2024.
b. With the applicant father, for two nights, every Saturday from 6pm until Monday morning drop off at school, commencing Saturday 7 September 2024. The handover on Saturdays shall take place at [X] Underground Station or any other location agreed by them in writing.
c. At all other times with the respondent mother."
- On 14 September 2024, whilst H was in DE's care he suffered a closed metacarpal fracture to a finger. Various accounts of how the injury was sustained have been given but DE strongly denies being responsible. However, DE accepts that he did not inform FG of the injury when it happened nor the day afterwards when he took H to be seen by a medical professional – she only knew about it after H arrived at school on the Monday following the injury wearing a splint.
- On 22 September 2024 the parents were involved in some form of physical altercation at a handover. Each alleges that they were assaulted and injured by the other. Each has provided evidence of having sustained injury. H was present.
- On 24 October 2024 Cobb J directed DE to undergo hair strand testing. He made an interim Child Arrangements Order providing that during term time H should spend alternate weekends from Saturday evening to Monday morning with his father and at all other times live with his mother.
- At a hearing before me on 18 December 2024, both parties were intending to remain in England where H lives with his mother and attends school. Having previously sought permission to relocate H to Y, DE had moved to England and told the Court he intended to remain here. The mother also intended to remain in this jurisdiction. I made a further interim Child Arrangements Order under which H was to live with his father alternate weekends, from collection from school on Friday to drop off at school on Monday, and every Tuesday night, with arrangements to live with the father for half of the school vacations. At all other times he was to live with his mother.
- In the meantime, H was made subject to a Child Protection Plan ("CPP") by the London Borough of Camden ("LBC") on 12 October 2024. He remains under the CPP. The Court ordered LBC to produce a Children Act 1989 s7 report which was done in time for the hearing before me on 18 December 2024. I ordered a supplementary report. Ms K, social worker with LBC is the author of both reports and gave oral evidence at the final hearing before me.
- In December 2024 I identified the issues for the final hearing to be:
i) Whether there should be a Joint Lives With Order;
ii) Whether there should be a Lives With Order to the mother and a Spend Time With Order to the father;
iii) The division of time H should spend with each parent
iv) The parties' change of intentions to remain in this jurisdiction
v) The lifting of the Passport Order and Port Alert.
- In her witness statement, filed and served shortly before the final hearing, FG stated that she wanted to relocate with H to X. This was a significant change in her position. DE applied to the Court to vacate the final hearing. I refused to do so on paper and at the beginning of the hearing I ruled that the hearing should proceed. H needs finality and no further delay. There has been no formal application to relocate and detailed directions would be needed if such an application were made. Ms K has produced two reports to the Court without FG mentioning to Ms K her desire to relocate and so the issue of relocation has not been addressed within the reports. FG says that she is engaged to be married to a man, J, who lives in X and that she has an offer of a job there. FG can apply to relocate if she wishes but that will be after a determination of the child arrangements that are in H's best interests whilst he remains in England with both parents living here. DE also told the Court that FG had informed him that she wants to move with H to a different part of London which would involve H moving to a different school. It is not evident that FG has made a settled decision to ask permission to relocate to X.
- At the December 2024 hearing I determined that it was not necessary, relevant, or proportionate to conduct a finding of fact hearing, either as a separate hearing or as part of a final hearing. The parties were agreed that H should spend unsupervised, overnight time with each other. The primary issues were the form of any Lives With Order – whether it should be joint or only with the mother – and the exact division of time spent with each parent. The allegations each parent makes against the other are extensive and serious but the evidence before me was that H has a strong bond with both parents and that each is capable of meeting his practical needs. FG was not seeking to prevent H having time, including overnight stays, with DE. DE was content that H should live with FG. Hence, I have not conducted any finding of fact exercise. That does not mean that I can or should ignore the serious allegations that each parent makes against the other, nor admissions made by each parent in relation to certain conduct. I have to consider the evidence of past conduct because such conduct and, in particular, patterns of behaviour are clearly relevant to future risk and the child's broader welfare.
- As well as hearing oral evidence from Ms K, I heard from both parties.
- As to the Child Arrangements Order, DE's position at the start of the hearing was that there should be a Joint Lives With Order and an equal division of H's time between his parents. By closing submissions he was supporting an arrangement of five continuous nights with him every fortnight, from Thursday afternoon to Tuesday morning. FG proposes a Lives With Order in her favour with a division of time that at least does not extend the time H spends with DE under the current, interim arrangements, that is five nights in every 14. She would prefer that the Order provides for H's return to her on Sunday ever other weekend, rather than Monday, and that the weekday overnight stay with DE is removed.
Evidence
- Ms K is an experienced Social Worker who gave her evidence thoughtfully and carefully. She has developed a relationship with H and has liaised with his school including the designated safeguarding lead and H's emotional support worker. She impressed upon the Court the progress that H is making at his school and the considerable support he is receiving there. He has begun to trust school staff and to open up to them. H is a child under a CPP because of emotional harm. He has undoubtedly suffered and continues to suffer emotional harm because of parental conflict. Ms K emphasised that his best interests lie in maintaining stability which he has lacked during his childhood so far, removing him so far as possible from the parental crossfire, and giving him support to overcome the emotional harm already caused.
- Ms K said that H appears at ease in his father's care and that the school has no concerns in that regard. FG has reported that H is excessively tired after staying with DE but Ms K reported that the school does not agree.
- Ms K was asked by Mr Jarman about (i) the evidence of DE's abuse of FG, (ii) his drug use, and (iii) concerns about the injury to H's finger whilst in DE's care in September 2024.
- Ms K had only listened to the recordings of DE speaking to FG by phone in 2023 on the morning of the hearing. She had chosen not to do so previously, awaiting authorisation of the Court to do so. She had read extracts of what DE had said but she told the Court that hearing the recordings was a very different experience. DE's conduct in this regard was "very concerning" but she regarded it as "historical". Likewise, Ms K regards DE's cannabis use as historical. She had not read the material from the X Family Court.
- As to the finger injury, Ms K effectively discounted it as a concern because it had been investigated by the police who had decided that there was no allegation against DE to pursue and that no further action was required. H had said to the police and to the school that he had accidentally injured himself when trying to punch a toy – he had hit a hard part of the sofa instead. She accepted that nevertheless, DE ought to have kept FG informed of the injury.
- Ms K told me, strikingly, that in her opinion FG acts out of fear. Of H, she said, "He has said during a session with [his] emotional support worker that he likes to see his father but it makes his mother sad." She said that there is no doubt that H can live happily with FG. Ms K's recommendation was as follows:
"[DE] has adhered to the child arrangement order that is in place and has shown up for contact consistently with [H] and collected him and returned him to [his school] as per the Child Arrangement Order. [DE] has put in place tuition to support [H]'s learning. Due to the commitment that he has shown to [H], and the positive relationship that [H] has been observed to have with his father by teaching staff and his social worker, the Local Authority supports [H] having 50-50 Lives with contact with his parents, both during term time as well as school holidays. I agree that 2-2-5-5 contact arrangement would promote stability for [H] with both his parents, as it ensures that [H] has consistent days each week with his parents, and that weekends alternate."
- Ms K thought that child arrangements would have to be defined rather than being left to the parents to agree. She said that FaceTime contact was not working well. It seems that H will frequently refuse to speak to his father when he is in the care of his mother. Ms K's recommendation was to "listen" to what H wants in that regard and to ensure that FaceTime contact is for at least 30 minutes and is at defined times.
- DE gave evidence in a deliberate and controlled manner. English is not his first language and he was not represented, although assisted by an experienced McKenzie Friend. I take those matters into account. He readily accepted that his abusive and threatening texts to FG and his verbal threats to her by phone, were "horrible". He said he was "ashamed" of such conduct. He described them as a "mistake" and sought to put them in the context at the time – in particular in 2022 when he was not able to see his son, his father had recently died, and his mother was very unwell. He was, he said, "in a very dark place". Those written and verbal messages were extremely offensive and abusive. They included vivid threats to kill, to torture, and to rape FG. It was deeply unpleasant to listen to the recordings of DE's verbal threats. They were sinister and extremely intimidating. Repeatedly in texts and verbally, FG asked DE to stop but he continued. There is evidence from the X proceedings that these threats had started by October 2022. I have copies of such text threats through to the summer of 2024. By then DE was seeing H, albeit intermittently, and so the context in which his abusive and threatening messaging began, no longer applied.
- DE accepted that from shortly after the time when FG and H arrived in England in 2023, she had informed him where they were. In their first 12 months or so after arrival he saw H on about seven occasions including during a two week holiday in the Middle Eeast when, it appears, the family effectively stayed together in a resort hotel. However, he says that his contact with H was always under the supervision or in the presence of FG and she threatened to remove H back to Z if DE sought to do anything that was not on her own terms. He claims that FG stole the equivalent of about £150,000 from him in about 2019. He says she has a conviction for shoplifting in England from some time before the parties met. He says she sexually assaulted him during the holiday in the Middle East, that she has tried to blackmail him, that she has coached H to lie about his finger injury in order to frame DE as the true culprit. He has claimed that the mother is mentally unstable and is a habitual liar.
- It was not clear to me why, knowing that H was in England, and after seeing him here on a number of occasions, and in Egypt, with FG's co-operation, DE waited until August 2024 to make an application in the High Court, and why he did so without notice. The application followed shortly after the incident when, according to his written evidence, on 12 August 2024 DE turned up at FG's home. There was a common entrance and she refused to allow him in. He managed to enter the common area within when another person used the main entrance. He knocked on FG's front door but she would not let him in. He accepts that he kicked the door. This led to police involvement. At the hearing before me he said that he had acted wrongly.
- Shortly after this incident he made his without notice application for a Port Alert and Passport Order, which was granted. His evidence to the Court at that time made no mention of the abusive messages he had sent to FG which might well have given some context to her behaviour. He told the Court at that time that FG had sexually assaulted him during a holiday with H in Egypt. He said that FG had told him that H was not going to school (in fact, he was). He said that if he alerted English Social Services, FG would flee the country when in fact, perhaps unbeknown to him, Social Services were already involved with H. His without notice application was granted and led to the interim removal of H from FG's care albeit when she disobeyed the Passport Order.
- DE alleges that on 22 September 2024 at a handover of H, in public, FG struck him three times and that later that day she hit him to the head a further five times. He flew home to Y where a doctor recorded that he was unfit to travel due to concussion.
- DE admitted in his oral evidence to a 30 year history of cannabis use. He would smoke cannabis regularly until in or about August 2023 and then he was, he said, prescribed cannabis in liquid form which he took until stopping that in or about August 2024. The Court's orders show that he opposed hair strand testing on two occasions before the High Court but was ordered by Cobb J in October 2024 to undergo testing. At the time DE sported long hair and a beard. He had his hair cut and he shaved off his beard before the testing.
- DE told me that even if the Court made a CAO in accordance with FG's proposals he would remain in England because that was for the benefit of H. He wanted H now to have stability. He hoped that he and FG could communicate respectfully and he would like to use a Parenting App for communication about child arrangements for H and was willing to pay the subscription. DE told me that notwithstanding his serious allegations against FG he accepted that there should be a Joint Lives With Order with H spending half his time with his mother because H had a strong bond with FG.
- FG gave evidence from behind a screen because she did not want to face DE when he was cross-examining her. There was no objection to that measure from DE and FG did not seek any further measures to help her give her best evidence. She otherwise sat behind her Counsel and next to her Solicitor in the court room with no screen between her and DE.
- FG has made serious allegations about DE being violent to her and his coercive and controlling behaviour during and after their relationship. She claims that in X, DE changed the locks on the family home when she was away on holiday with H, removed all her belongings, and effectively made them both homeless. She says that DE has not paid any child maintenance - which the X court ordered at EUR 400 per month - for over two years. DE accepted that but said that FG could take the equivalent monies from the large amount she "stolen" from him, but FG denies having stolen any money from DE and says that when they set up home in X, she used money in a joint account for the purpose, and not to the tune of £150,000 as DE alleges, but a much smaller sum.
- DE had alleged that FG has a conviction for shoplifting – FG denied that and I have no documentary evidence of a conviction.
- DE asked FG about records within Ms K's reports taken from information provided by the school. One item concerns an event on 21 January 2025 when H was picked up by DE from school for an overnight stay. FG attended at DE's home and, according to him, banged on the window in a distressed state, as witnessed by H. FG says that a member of school staff other than the safeguarding lead, told her that H had been crying and had to be dragged from under a desk to be handed over by the school to his father. She had gone to DE's home to check that H was not distressed. She only tapped on the window and was not upset herself. She denied the accuracy of a report by the school to Ms K that the following day FG chased the safeguarding lead across the school playground and had to be stopped by the School Head. FG told me that she did not think that the emotional support given to H at his school was helping him at all but rather that it was disruptive to him. She disagreed with Ms K's report and told me that every other sentence in Ms K's reports was inaccurate.
- FG said that H's school might well close down in May this year. This was not put to Ms K and I have seen no evidence to support that assertion.
- FG says that in October 2024 she became engaged to J, a man who lives and works in X. She met him in 2021 and they started a relationship in 2022. She also has a job offer in X and J has a home there in which she and H could live. She accounted for the fact that she had not told the Court about her wish to relocate to X any earlier because her recent statement was her first in these proceedings. It is true that it is her first statement.
- FG's explanation for her moves from one jurisdiction to another is that upon separation, DE changed the locks on the family home and left her with no belongings. She was homeless and desperate but had to care for H. When the parties divorced DE said that FG could move with H to England, where FG had a property. He then reneged on that agreement and opposed their relocation to England. He set out a robust case to the court in X saying that he had a very low opinion of England and the education that H might receive here. Permission to relocate to England was ultimately refused on appeal in X. Accordingly, FG sought permission to relocate with H to Z where her family lived. She had permission to relocate to the capital city of Z but shortly after moving there, her employer shut down their business in the capital city of Z because of an international conflict. She moved to the town some four and a half hours out of the capital city of Z where her parents lived. She did not confirm to me that she had told DE about that move at the time. She says that DE did not trouble to travel to see H nor to ask her to bring H to meet him in the capital city of Z or a third country. He had by then stopped paying any maintenance. Her case is that DE effectively abandoned her and H for three years until August 2024 when he made his without notice application to this Court. She moved to England in August 2023 because she had a property here.
- FG's evidence about how long she had intended to stay in England on coming here, was inconsistent. In her witness statement she said that she had never intended to stay here long term but in Court she said that on arriving here she had told H that England was now his home. She seemed to be reluctant to give a straight answer to the question of how long she had intended to remain here. This is relevant because the Applicant father's case is that FG's desire to move to X now is part of a pattern of moving jurisdictions to evade him. As it is, FG told me very clearly that so long as DE lives near her and H he will try to control and coerce her. He lays down rules as to what she can and cannot do. He uses financial leverage as part of his control.
- The mother accused the father of abuse and threats to kill (as evidenced by his texts and audio recordings), violence and assault, blackmail, financial control, emotional control and coercion.
Legal Framework
- The Children Act 1989 ("CA1989") applies. When determining any question with respect to their upbringing, the child's welfare shall be the Court's paramount consideration – CA 1989 s1(1). The Court shall have regard to the general principle that any delay in determining the question of the child's upbringing is likely to prejudice the welfare of the child – CA 1989 s1(2). When considering the making of a Child Arrangements Order under CA 1989 s8, the Court is to have regard in particular to the matters set out in the 'welfare checklist' at CA 1989 s1(3) and is to presume, unless the contrary is shown, that involvement of each parent in the life of the child will further the child's welfare, provided that evidence before the Court does not suggest that such involvement in whatever form, would put the child at risk of suffering harm – CA 1989 s1(2A) and (6).
- The 'welfare checklist' comprises:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question."
- In AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam) I referred to the Court of Appeal judgment in L v F [2017] EWCA Civ 2121 and concluded at paragraph [77]:
"Applying CA 1989 ss1 and 8, and the dicta from L v F, the following principles apply to a decision whether or not to make a shared lives with order:
i) The choice of whether to make a shared lives with order or a lives with/spend time with order is not merely a question of labelling – it is likely to be relevant to the welfare of the subject children and must be made by applying the principles of CA 1989 s1. In some cases where, for example, an unmarried father does not have parental responsibility, a shared lives with order will result in him having parental responsibility whereas a lives with/spend time with order (the children living with the mother) will not. That is a material difference to take into account, although it did not apply in the present case. In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child's welfare being the court's paramount consideration.
ii) The choice of the form of any lives with order should be considered alongside the division of time and any other parts of the proposed child arrangements order.
iii) A shared lives with order may be suitable not only when there is to be an equal division of time with each parent but also when there is to be an unequal division of time.
iv) It does not necessarily follow from the fact that the parents are antagonistic or unsupportive of each other that a shared lives with order will be unsuitable."
Analysis and Conclusions
- The parents' mutual animosity was palpable during the hearing. There is absolutely no trust between them. They each think that the other is dishonest and manipulative. They each exculpate themselves and express indignation when the other makes an accusation against them. They appear not to notice that the allegations they each make mirror the allegations made against them and that neither has a monopoly of reasonableness, truth, and goodness.
- As already noted, I had earlier decided not to conduct a finding of fact exercise. I am sure that that was the correct decision. There have been so many disputed allegations of a serious nature that it would take many days of court time to resolve them. It is not necessary, relevant, or proportionate to do so because the parents each agree that H can spend substantial, unsupervised time in the care of the other. I am satisfied that neither is coerced into that position save by the pressure of realism.
- Whilst a fact finding exercise is not justified, I must not ignore the evidence. Even disputed evidence must be taken into account and, in some respects, much of the important evidence is not in dispute or cannot reasonably be disputed. I rely on the following evidence:
i) Following the parties' separation in early 2021 there was an intense period of litigation between them in X. I can rely on the judgments from those proceedings. F was living in Y and strongly opposed H and FG moving away from X. FG wanted to move away and eventually obtained provisional permission to relocate with H to the capital city of Z whereupon she unilaterally decided to do so. That made it impossible for DE to have frequent contact with H and difficult to have any face to face contact at all. Nevertheless, contrary to DE's case, I accept the findings of the X court that FG sought to promote contact between DE and H once she had relocated to Z.
ii) Following the separation, H's circumstances in X were initially unstable when he and FG stayed with friends and in other short term accommodation. Subsequently, FG moved H from X to the capital city of Z, from there to a town some four and a half hours driving distance from the capital city of Z, then to England, and now intends to apply for permission to relocate H back to X. He is only seven years old. This instability has disrupted his education and his contact with his father. I acknowledge that she had the Court's permission to move to the capital city of Z but it appears that that was provisional and she did not obtain DE's consent. She moved to England without the Court's permission and without DE's knowledge or consent. The X Court found, and I accept, that FG's move to Z was against H's best interests. The move to England caused FG and H to be isolated causing sufficient concern at his school to require a referral to LBC's social services.
iii) DE has indulged in the most horrible verbal and written abuse and threats against FG. His texts to her over a sustained period were intimidating and violent. His recorded phone calls were sinister and malicious. On 12 August 2024 DE turned up unannounced at the door of FG's home in England and proceeded to kick the door when she would not let him in. His past conduct gives rise to a risk of repeated, similar conduct in the future.
iv) DE has a 30 year history of cannabis use which he has only relatively recently ceased. He used cannabis, on his own admission, to calm himself down. There is no evidence that he has sought or obtained professional help to maintain abstinence. I consider there to be a risk that, under further stress, he will revert to his long-established habit.
v) As noted, the parents are extremely distrustful of and hostile to, each other. H has clearly suffered emotional harm due to parental conflict. They have not shielded him from such harm. He is on a Child Protection Plan due to emotional harm and he has an emotional support worker. He needs protecting from parental conflict. He needs continuing access to professional support.
vi) H has a close, loving bond with his mother who has been his primary carer for the past four years, with limited time spent with his father.
vii) I accept the evidence of Ms K, relying on reports from H's school including his emotional support worker and the designated safeguarding lead, that he is content now to be picked up from school by his father and that he is making progress with support in terms of his emotional wellbeing, confidence, and trust in others. He is comfortable in the care of his father.
viii) FG has been described as highly anxious about H's contact with DE. It is clear that much of her anxiety can be explained by her experience of DE's conduct, including his abuse of and threats to her. However, she is also resistant to what she sees as outside interference with her parenting. For example, H first became known to LBC social care in July 2023 when his school made a referral because of concern over his and FG's isolation having just come to England. Early help was offered to FG but she did not accept it. H's attendance at school was only 80% by March 2024 and she was not open and frank about the reasons for his absence. His attendance fell to 75% by June 2024. There are records of her being confrontational with those at H's school who are trying to give him support. In court she said that she regarded their efforts as being unhelpful and positively disruptive to her son. FG's tendency to reject any support is contrary to H's best interests. So is her anxiety about H spending time with DE. I hesitate to say that she is over-anxious because DE's conduct has been inexcusable, but she must recognise that her anxiety transmits itself to H and causes him emotional harm. She does not seem to mind that H is exposed to her anxiety and her feelings towards DE, indeed she appears to take no steps to shield him.
ix) DE lacks empathy and seems to impose his own will in respect to H's parenting, having little to no respect for FG's own parenting, notwithstanding that she has been H's main carer. He has little to no insight into the impact of his conduct on FG, on her anxieties, and thereby on H.
x) Neither parent appears to realise that their denigration of the other is likely to harm their child's relationship with each parent, his trust of adults, and his self-esteem.
- I make no findings of fact as to FG stealing the equivalent of £150,000 or any other amount from DE, nor in relation to the details of the incident on 22 September 2024 when each parents alleges that they were physically assaulted and injured by the other. The mother has produced photographs of injuries, the father a medical note about concussion. The evidence of the mother's injuries is particularly concerning. Without making findings about the details, it is quite clear that a violent incident occurred in front of H at a handover and that this was a particularly bad example of his parents' hostility to each other and how he suffers as a consequence. I make no findings about the alleged sexual assault on DE by FG.
- I make no findings as to the cause of H's fractured finger. I note that H's account to the police was broadly consistent with the account given in contemporaneous medical records, but between those times he gave a different explanation that blamed his father. FG distrusts DE's account and DE is concerned the FG manipulated H to say something untruthful. What I can record is that the injury happened in DE's care at a time when he had not often had H in his care over the past four years. He did not inform FG of the injury at the time even when he had sought medical attention for it. The injury does not appear to have adversely affected H's relationship with his father. The lack of timely communication about it has contributed to FG's continued distrust of DE.
- I found FG's explanation for why she had not previously informed the Court of her intention to apply to relocate to X to be unconvincing. If, as she says, she became engaged to J in October 2024 it is likely that for many months now she has considered moving to live with him in X. In the meantime DE has entered into an expensive tenancy of a home in London.
- Likewise, I am sure that DE tried to avoid Hair Strand Testing last summer because of the extent of his then continuing cannabis use, and that he has not been fully open about that or about why he cut his hair and shaved off his beard prior to the testing.
- Having considered the evidence and listened to the parents with care my conclusion is that the hostility each parent has towards the other is borne of distrust and fear. FG fears DE's anger and abuse, his control, and the exercise by him of economic power over her. She fears that he is bent on separating H from her. DE is fearful that he will forever lose his relationship with H due to FG moving him around and creating an emotional barrier to H feeling comfortable to spend time with him. It is telling that H said to his emotional support worker that he enjoys being with DE but it makes FG sad. He feels that he cannot enjoy time with his father without it upsetting his mother. On the other hand, I am sure that DE wants to exercise control over FG to an excessive degree because she has so strongly obstructed him in the past. Her recent declaration that she wants to move H to X has only deepened DE's distrust of her. Both parents sometimes lose their self-control, DE to an appalling extent when he has abused and threatened FG is such a shameful manner.
- Having regard to the welfare checklist I note that H is a young boy with no siblings who has been in his mother's care for the past four years, with some staying time with his father, which has increased since these proceedings began. He has undergone many changes in residence – within X, to Z, within Z, and to England. He is suffering emotional harm due to such disruption and the high level conflict between his parents. He needs emotional support and stability. He needs consistent parenting and for his parents to support, not work against, his school and the services he is receiving there. Further significant change will tend to be detrimental to him and continuing parental conflict is certain to cause him further emotional harm. His mother is capable of giving him practical support and love, but she cannot let him go and cannot allow him freely to enjoy the support of others including his father and staff at his school. She overreacts to setbacks or to any hint that H is not happy when out of her care. She cannot accept any criticism of her conduct. The father lacks empathy. He can look after H on a practical level but he has a history of threatening and abusive conduct and of drug abuse. I accept that his recent drug tests have been clear and that I have made no findings of violent or abusive conduct by him in the past three to six months. However, I have to take into account his admitted thirty year cannabis habit and his appalling verbal and written threats and abuse of the mother over a sustained period right up to beginning of these proceedings. So each parent, in different ways is not fully able to meet H's emotional needs and he is at risk of further emotional harm in the care of each of them. That is why he is under a CPP which, Ms K told me, is to continue whatever the outcome of this hearing. Neither parent seemed to me to have understood the significance of H being under a CPP. It means that in the view of LBC, H is suffering or is at risk of suffering serious harm – here, emotional harm – and that if the plan is assessed as not working, consideration would have to be given to care proceedings. The fact that there is a CPP in place is some reassurance to the Court. I also take into account that I can make closely defined orders to seek to regulate the parents' communications and conduct.
- I have considered not only the Children Act 1989 provisions but also Practice Direction 12J. In this case DE has acted in a threatening manner and was emotionally abusive to FG when he communicated with her as set out above. I have no doubt that H is suffering harm due to his experience of domestic abuse and the effects of it on his primary carer, FG. By paragraph 35 of PD12J:
"When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child."
By paragraph 36 (2) and (3):
"2) In particular, the court should in every case consider any harm-
(a) which the child as a victim of domestic abuse, and the parent with whom the child is living, has suffered as a consequence of that domestic abuse; and
(b) which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made.
(3) The court should make an order for contact only if it is satisfied-
(a) that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact; and
(b) that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent."
- The noise of parental conflict can often drown out the voice of the child. In the present case, the answer to what child arrangements are in H's best interests is found by listening to his voice. I have tried to focus on what his actions and words have told me and on his perspective. He wants and needs stability. He is progressing well now that he has become established at his school. He needs the continued professional support he is receiving there. He needs settled friendships. He needs a routine. He has a close bond with his mother and she is the primary carer that he knows. He enjoys time with his father and wants to be able to spend time with him without that upsetting his mother. His exposure to parental conflict must be reduced as much as possible. He should have the opportunity to develop a relationship with his father whilst protecting the solid foundation of his relationship with his mother. He needs to know that he is loved by both, as he is, and that both have responsibility for his upbringing.
- I have considered very carefully the recommendation of Ms K for an equal division of H's time between the parents. The father relies on her evidence to propose a Joint Lives With Order with H spending time with each parent on a 2-2-5-5 model. This might mean that H spent two days with DE then two with FG, then five days with DE then five with FG on a repeat pattern. Variations of that are possible but the end result is an equal division of time. I was impressed by the care Ms K has taken to get to know and understand H but I was not persuaded that she had fully taken on board the impact on H of a change for the current arrangements, which themselves have only been in place a relatively short time, to an equal division of time. As of August 2024 H had lived with FG since his parents' separation and had not seen very much of his father, certainly not on a regular basis, since early 2022. He suffered the upheaval caused by application and events of August 2024. He then spent alternate weekends with his father – two nights in every 14 during term time – before the introduction of an extended alternate weekend and a weekday night which was effective from the start of term in January 2025. I acknowledge that he has spent more extended time with his father over the Christmas vacation but his term time routine now involves him spending 10 nights out of every 14 with his mother. A change to only 7 nights in every 14 would be a very significant change, particularly since only three months ago he was spending 12 out of every 14 nights in term time with her. Ms K impressed on the court the need for H to have stability at this time in his life but the change she proposes would be de-stabilising. Furthermore, I am sure that a change to an equal division of time would have a detrimental effect on FG and her ability to provide good parenting to DE. Given the abuse she has suffered from DE, it is unsurprising that she is fearful of DE seeking to take control over her and over H. She has acted to H's detriment by showing her fear, distress, and anger in front of him. She must take some responsibility for that, but I have to take into account the impact on FG and the likely indirect effect on H of a significant change to an equal division of time.
- I am not satisfied that Ms K has thought through the impact of a change now to an equal division of time between each parent. She believes that it would promote the stability that H so obviously needs, but I believe that it would lead to more conflict, more emotional turmoil, and more instability. In itself it would be a major change in H's daily life and he is still adapting to the changes that have already occurred. DE may have shown a commitment to contact but it takes more than that to demonstrate that even more time with his father, and correspondingly less time with his mother, will be of benefit to H.
- In my judgment, Ms K was wrong to view past abuse, threats, and drug use as "historical". They have relevance to future risk. She also failed to take into account the important evidence from the X Family Court.
- I do not agree with Ms K's recommendations about an equal division of time. Furthermore, Ms K did not appear to have considered the advantages and/or disadvantages of a Joint Lives With Order – I do not understand her to have made any recommendation in that respect. The parents' mutual distrust has led to an emotional tug of war over H. It appears to me to be important for H's long term welfare that it is made clear that whether or not they can communicate face to face, each parent has responsibility for his welfare, health, and education. Neither parent has a "trump card" in that respect. Significant decisions about important aspects of H's upbringing need to involve both of them – neither has an exclusive right of control. Other agencies such as schools and healthcare professionals need to know that H has two parents with responsibility for him. Whilst I recognise that very clear rules need to be set down regarding the division of time, travel abroad, and the sharing of information, a Joint Lives With Order has a benefit to H over a Lives With Order only in favour of FG. The implacable mutual hostility between the parents does not preclude a joint lives with order. Making an Order in favour of the mother alone would risk sending a signal that the Court considers her the more important parent. The parents have equal responsibility for H and the tug of war between them must stop. A Joint Lives With Order, with or without an equal division of time, would mean that each parent's responsibility for H was the same. They would have the same rights and responsibilities, subject to other specific parts of the Child Arrangements Order. In this case that needs to be made clear and so there is a benefit to H from the making of a Joint Lives With Order.
- Sadly, there is currently no prospect of H's parents working constructively together in his best interests. They can barely stand a minute in each other's presence. However, perhaps remarkably given the degree of mutual hostility, both parents are agreeable to H spending extensive, unsupervised time with the other. Such has been DE's past conduct that, notwithstanding FG's agreement, I have had to consider very carefully whether H can be safe in his care. Having regard to Ms K's evidence I am so satisfied but I also find that there is a risk of H suffering emotional harm if he now moves to spending more time with his father than he presently has. H is emotionally very vulnerable. His mother has been his primary carer during his life, and until recently he has not been used to spending regular, weekly time with his father. There is a significant emotional toll on his mother, due to past events and DE's past conduct, when H spends time with DE, especially overnight, and that has an adverse effect on H himself. It would be too trite to say that FG needs to overcome her anxieties given the experiences she has suffered due to DE's conduct. It will take a long time before the family dynamics allow H to feel sufficiently emotionally secure to spend less time with his mother and more time with his father.
- On the other hand, the current arrangements seem to me to promote, or at least have the potential to promote, H's welfare. He has time with each parent and can spend both school days and weekends with each. He retains an identifiable main home which I believe is important to him given the somewhat nomadic existence he has had over the past few years. The present arrangements allow him to develop a relationship with his father whilst maintaining the solid bond he has with his mother and without giving him or FG any basis to feel that their bond is jeopardised by the arrangements. It strikes the right balance. The evidence of Ms K was that under the current arrangements, H has made progress and his emotional health is improving. There is evidence therefore that the current division of time is beginning to work. FG complains that H is tired after staying mid-week with his father, but the evidence from the school, reported by Ms K, does not at all support that complaint.
- I have considered whether the current division of time of five days every fortnight with DE, and nine with FG, can be maintained but under a different arrangement, for example consecutive nights with the father from Thursday evening to Tuesday morning in alternate weeks, as DE proposed in his closing submissions as an alternative to a 50/50 division of time. I would be concerned about the strain placed on FG of H spending five consecutive nights away from her on a regular basis. Ast the Court hearing on 18 December 2024, FG did voluntarily agree to H spending the first seven nights of his Christmas vacation with DE. However, I believe that the current arrangement of a three night weekend with the father on alternate weeks, and one night every week day, currently Tuesday night, is the better arrangement considering H's welfare. He then does not routinely spend long periods away from each parent during school terms which could be unsettling to him. The current arrangements means that every other week he spends three consecutive nights with the father and away from his mother, but I fear that extending that to five nights would be detrimental to his welfare. Thus he will spend five nights out of every 14 with his father, and nine with his mother. He will spend Friday evening through to Monday morning every other weekend, and Tuesday nights (or, if the parents prefer, Wednesday nights) every week, with DE. He will spend every other term time night with his mother.
- FG may well apply to relocate H abroad. I do not make any judgement about the merits of such an application but she has changed her mind previously and may not so apply. In any event, H needs stability and an end to these current proceedings now. Also, any application to relocate should be made in the context of a final child arrangements having been made in H's best interests and with time allowed to see the benefit or otherwise of those arrangements. Circumstances can change and I cannot predict the circumstances in which any future applications are made, but I can do my best to determine the arrangements that now and foreseeably serve H's best interests whilst he is in this country with both parents.
- Arrangements need to include school holidays and possible trips abroad. Balancing the need for H to develop and then maintain a good relationship with his father, whilst maintaining the important bond he has with his mother, I believe that an equal division of time is beneficial during all school holiday save for the long summer vacation when he should have more time with his mother. Nevertheless, frequent handovers during all vacations need to be avoided because of the conflict they engender. Accordingly, I shall order an equal division of time during half terms and the Christmas and Easter holidays, with H spending the first half with one parent and the second with another as shall be reflected in the detailed order. As for the long summer vacation I shall order that H spends two, fortnight periods with DE and the other weeks with FG. The parents will either now agree the arrangements or I shall impose them.
- FG wants to take H to Z to see his maternal grandmother who is said to be ill. H has previously had holidays abroad and a mechanism needs to be laid down to ensure that he can do so in the future without giving rise to an unacceptable risk that he is not returned. Neither parent trusts the other to take H abroad without returning him but he should not lose out on international visits because of that distrust. As Mr Jarman KC put it to me, H is an "international child". He should be allowed to travel abroad but arrangements need to be laid down to reduce to the minimum the risk of his wrongful retention abroad and to quell the anxieties of his parents.
- A clearly defined Child Arrangements Order is required because these parents cannot work together in H's best interests – at least not at present. Having stepped back, considered all the evidence, submissions, and the legal framework, I have decided that in H's best interests, the following elements must be included in the final Child Arrangements Order:
i) There shall be a Joint Lives With Order.
ii) H shall live with each parent as follows:
a) During term time
i) In every other week H will live with DE from Friday afternoon/evening through to Monday morning. DE will pick him up from school on Friday afternoon and drop him off at school on Monday morning.
ii) Every Tuesday night H shall live with DE. DE shall pick him up from school on Tuesday and drop him off at school on Wednesday morning (or, if the parents prefer, every Wednesday night with corresponding arrangements for pick up and drop off at school).
iii) At all other times H shall live with FG.
b) During school holidays
i) During all school holidays except the long summer vacation: H will live with each parent in an equal division of time.
ii) During the long summer vacation: H shall live with his father for two, continuous two week periods and live with his mother at all other times.
The precise arrangements will have to be agreed in advance using an agreed mechanism or be imposed by Court.
c) Birthdays and other special days
i) The arrangements above shall be varied so that H spends the night of his birthday with each parent in alternate years.
ii) I understand that for religious and cultural reasons, the parents would prefer to divide the Christmas vacations so that H spends every Christmas Eve and Day with DE and every New Year's Eve and Day with FG.
d) Trips Abroad
i) During the periods when H is living with either parent during school vacations, that parent may take him abroad to any country that is a signatory to the Hague Convention 1980, only on the following conditions:
(a) No trip may be for longer than 14 continuous nights and must not interfere with the ordered or agreed arrangements for H to live with the other parent.
(b) Return flights or other return travel arrangements are booked more than three weeks before the trip abroad.
(c) Copies of the return bookings and confirmation of payment of those bookings is provided to the other parent no less than two weeks before the trip abroad.
(d) No less than one week prior to departure the parent with whom H is travelling abroad shall lodge financial bond which shall be forfeited to the other parent in the event that H is not returned as arranged. Arrangements for DE to lodge a financial bond, and FG to secure a bond on her English property, shall be set out in the Order.
(e) FG shall hold H's passports and will deliver them to DE via an agreed third party or other agreed mechanism, by no later than five days prior to the planned departure.
(f) Neither parent may remove H from the jurisdiction save for in compliance with the Order or the prior written agreement of both parents or further or different Court Order.
e) Handovers
i) When either parent picks up or drops off H at school, the other parent shall not be present at or near the school.
ii) Handovers during school holidays shall be at a public place, being the current place arranged for handovers, to be varied to another public place only with the prior written agreement of both parents.
iii) When H is living with one parent, pursuant to the arrangements set out above:
i) The parent with whom H is living shall make him available for FaceTime communication with the other parent for up to 30 minutes each day at 6pm (British time).
ii) H may choose to FaceTime the other parent at other times as he so wishes, and the parent with whom he is living will permit him to do so and facilitate such communication.
iv) Use of Parenting App
i) DE agrees to pay for and both parents agree to use a Parenting App for communications between them.
ii) The parents shall use the Parenting App exclusively for communications between them including in relation to matters concerning H's education, health and welfare, and his holidays including trips abroad save in the case of an emergency concerning H in which case they must communicate with the other parent directly.
iii) Each parent shall inform the other as soon as practicable, if H sustains any injury or is seen by a healthcare professional whilst living with them.
v) Variation
The arrangements set out above may be varied only by prior written agreement of both parents.
vi) Duration
The arrangements set out above shall remain enforce until H's 16th birthday subject to variation by prior written agreement of both parents, or further or different Court Order.
- These are the fundamental elements of the Child Arrangements Order I shall make but I shall consider any submissions from the parties as to the details of the wording of the Order. That way, a clearly defined Order can be finalised which will govern the child arrangements for H. It follows that the Port Alert and Passport Order will be discharged. They are no longer required in my judgment and given the Child Arrangements Order I shall make. It is intended that this structure will give H stability and reduce his experience of parental conflict. It will allow H to develop a relationship with his father without disrupting his routine and whilst maintain the vital relationship he has with his mother. It is designed to provide routine and stability, reduce opportunities for parental conflict, and to give an assurance to both parents, so that H will know, that they are both responsible for his upbringing. I hope that in time he will benefit from witnessing his parents working together constructively.
- I have considered whether to make s91(14) orders to prevent further applications without the Court's permission but whilst there has been extensive litigation in X, there has not been in this jurisdiction and none anywhere, but for the application herein, for some time. It would be wrong, in my judgement, to impose such a restriction on the mother who has already indicated a wish to relocate. However each parent should know that further applications might lead to the Court imposing restrictions on them being able to pursue later applications. They must not use litigation as a means of carrying on their hostilities to the detriment of their son.
- I shall write a letter to H explaining my decision which Ms K will share with him at a time and place which she considers most suitable.
