THE BACKGROUND
2In the bundle to the hearing, I have a litigation chronology from which I take the relevant background to the proceedings. Following the parents’ separation, the children initially remained in the family home with their mother and had staying contact with their father. In early 2018, A refused to go to contact. The twins continued to have staying contact.3On 12 December 2019, father made an application for the court to decide how much time the children should spend with him. He asked the court to order the children’s mother to cease her campaign of parental alienation and to order restorative solutions to remedy the severe effects of the parental alienation so that his relationship with his children could be healthier and more normal. He wanted the children to spend every other weekend and half the holidays with him and for there to be flexibility taking into account work commitments. 4In his application, father said mother subjected the children to adult themes and discussions, and derogatory remarks, and he accused her of being manipulative. He said that he had threatened to take her to court and then she made life even more difficult. That is not correct. He said that mother is, again, preventing consistent access to the children and has again, suddenly without cause or explanation, “dictated that I cannot have our twins overnight again.” I now know that an explanation was given. He failed to mention in his application the events of the previous weekend in relation to C. Up to then, the twins had been staying regularly with their father.5On the C1A, he said mother was a recreational drug user in her early life and her behaviour with regards to irrational and unreasonable prevention of access to the children suggests her judgment may be impaired by such activities again. He said mother regularly raised financial issues with the children and then he spoke to them about it. He said that an urgent hearing within forty-eight hours was required and he claimed a MIAM exemption.6In her reply, mother said father had told the children that they had to love his new partner and children as they were his new family and she said father kept guns and had scant regard for safety. She made allegations of neglect and of abuse by father towards the children. She also said she was concerned about what he said about her to the children. He, in turn, responded to that.7The case was listed for a First Hearing Dispute Resolution Appointment on 19 February 2020. Then the case was reallocated to District Judge Capon (as he then was) and the FHDRA took place on 26 February 2020. The safeguarding letter from Cafcass contained serious allegations made by mother. Domestic abuse was raised as an issue and directions were given for a fact-finding hearing, for there to be a list of allegations, responses, and statements. Police disclosure was ordered. It was agreed that indirect contact would take place three times a week. The parents agreed that the children would not be exposed to adult issues between the parties, that they would not post on social media or internet sites any reference to these child arrangement proceedings and that, save for an emergency, the form of communication between themselves should be written communication and WhatsApp messages. B and C were to spend time with their father on alternate weekends, either on Sunday between 10.00 a.m. and 6.00 p.m. with an agreed third-party adult present, or on Saturday at a contact centre.8There was a pre-hearing review on 6 May at which Judge Capon deleted some of the allegations from the schedule. He gave directions for further witness statements and for the father, who was in person, to send to the court his questions for cross-examination. At the fact-finding hearing on 24 and 25 August, Judge Capon made a number of findings against the father and he directed Cafcass to prepare a s.7 report. Father appealed to the Circuit Judge who dismissed the appeal on 9 April 2021. Father appealed to the Court of Appeal.9On 17 May 2021, at a time when contact with the younger children was meant to be taking place at a contact centre, father applied for an enforcement order because the mother had not made the children available for contact. He had not seen the children since 25 March. At a final hearing on 28 October and 25 November, Judge Capon found that mother had a reasonable excuse for breaching the previous court order for contact. He considered the evidence of the parents and the Cafcass officer and he made an order for the children to live with their mother and to have monthly indirect contact with their father.10On 8 April 2022, the Court of Appeal handed down judgment and gave guidance on the proper approach to fact-findings. I have read the judgment and also the judgment in Re H-N and Others (Children) (Domestic abuse: finding of fact hearings) [2021] EWCA Civ 448. I have also considered the President’s guidance on fact-finding hearings of domestic abuse in private law proceedings dated 5 May 2022. The Court of Appeal set aside the fact-finding judgment and remitted the matter for a Circuit Judge to decide whether a fresh fact-finding was required. The then designated Family Judge appointed a guardian pursuant to r.16.4, directed the parents to attend a Separated Parents Information Programme, which they have both done, gave further case management directions, and listed the case before me. 11I regret that the window for mediation to have a chance of working has passed. In the WhatsApp messages which father has provided from June 2019, the problem with contact seems to have been which weekends the children would be with him and if he has confined his application to that issue, mediation in 2019 might have been successful but not now.12On 5 August, I directed a list of allegations to be provided adopting the approach taken in Re B-B (Domestic Abuse Fact-Finding) [2022] EWHC 108 (Fam). Having considered Practice Direction 12J and the submissions made to me, I limited the issues for determination at the rehearing. The mother applied for permission to appeal my decision. She was refused permission to appeal by Sir Jonathan Cohen on 12 August. On 2 December, I gave further directions and settled the ground rules for this hearing. Father has provided his questions in writing. I explained the procedure to him. As these proceedings pre-date the Domestic Abuse Act, I have dealt with cross-examination and counsel for the guardian followed up on matters which he felt should be explored to assist the court and the family. I also allowed father to provide further questions in cross-examination. For the sake of completeness, I should add that the Supreme Court refused the mother’s application to appeal from the Court of Appeal.