Case No. ZE17P01593

(1)This section makes further provision about orders under section 91(14) (referred to in this section as “section 91(14) orders”).(2)The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—(a) the child concerned, or(b) another individual (“the relevant individual”), at risk of harm.(3)In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment or the impairment of physical or mental health.(4)Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.(5)A section 91(14) order may be made by the court—(a) on an application made—(i) by the relevant individual;(ii) by or on behalf of the child concerned;(iii)by any other person who is a party to the application being disposed of by the court;(b) of its own motion.(6)In this section, “the child concerned” means the child referred to in section 91(14)22.This has to be read in conjunction with PD12Q: “Key Principles 2.1 Section 91(14) orders are available to prevent a person from making future applications under the 1989 Act without leave of the court. They are a protective filter made by the court, in the interests of children.2.2 The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.2.3 These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person’s conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse.2.4 A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.2.5 There is no definition in section 91A of who the other individual could be that could be put at risk of harm. However, it is most likely to be, but is not limited to, another person who has parental responsibility for the child and/or is living with or has contact with the child, or any other individual who would be a prospective respondent to a future application.2.6 In proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a section 91(14) order on disposal of the application, even if an application for such an order has not been made (since the court may make an order of its own motion – see section 91A(5)).2.7 Section 91(14) orders are a protective filter – not a bar on applications – and there is considerable scope for their use in appropriate cases. Proceedings under the 1989 Act should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.2.8 The court should consider case law for further guidance and relevant principles, bearing in mind Parliament’s insertion via the 2021 Act of section 91A into the 1989 Act.”23.The following practice guidance is given in relation to duration of orders: 4.1 Sections 91(14) and 91A are silent on the duration of a section 91(14) order. The court therefore has a discretion as to the appropriate duration of the order. Any time limit imposed should be proportionate to the harm it is seeking to avoid. If the court decides to make a section 91(14) order, the court should explain its reasons for the duration ordered.24.The protective provisions agreed by the parties were to extend until the youngest child had reached 18. I consider that this was necessary and proportionate. Having conferred with his client, Mr Foster told me that F was able to agree to the making of an order pursuant to Section 91A and for the same period. Again, on the facts of this case, I consider the duration of that order reflects the nature of the identified harm. 25.Thus, the only remaining issue before the Court was the question of the indirect contact recommended by the Cafcass Officer, in the terms already referred to at para. 14 above. The indirect contact that had been taken up by F plainly troubled the mother, though for reasons that she struggled to articulate. However, I found the maternal grandmother’s (MGM) statement insightful and powerful. I set out her observations: “Our whole family is emotionally, physically and mentally drained from the damage the Applicant has exerted on us over the years… The indirect contact that is currently in place provides the Applicant with the opportunity to abuse or manipulate the children in the future; especially once these proceedings conclude. It should be highlighted that the Applicant has only sent the children cards twice since this was ordered, and in fact he again undermines the Respondent by writing the card to [“B”] and further asking in the card, “I wonder if you’ve learnt how to write your name”. In [S]’s card, the Applicant has sent a card with two elderly people, not what I would call child friendly and talks about “sky gardens” and “a Punt in Cambridge”, this would his wishes to again brag above living his alleged highlife… Our family have grave concerns for the welfare of [Y] and [S] in the event that the Applicant is granted any direct contact with the children. I do not believe the Applicant wishes to have a relationship with his children and his motives are questionable. It is hard to believe that the Applicant is able to love anyone else but himself from his previous actions, which is evident through the way he has continued to treat [the other families].”26.MGM concludes as follows:“Our life has been in complete limbo and will continue to be until this case reaches a conclusion in favour of our daughter’s position in respect of any future contact between the Applicant and the children. We are concerned from the knowledge we have been provided by one of the other families, that the Applicant continues to pose a risk and clearly has no insight into his behaviour. My husband and I are extremely concerned of how the Applicant will continue to deceive professionals to further himself in obtaining contact with [Y] and [S]. Currently, as [Y] and [S] are so young, they are without a voice. This worries me further as the Applicant seems to damage and ruin everything he touches, which can be seen in the psychological and emotional trauma he has caused to the [Z] children, who are much older than his own. It has always crossed my mind whether the Applicant requires professional psychological help to assist him in his urges to manipulate, control and abuse women and children. All we can hope for is that these proceedings will acknowledge the damage the Applicant has inflicted upon us and bring some justice to enable our family to heal, grow and progress.”27.The Cafcass Officer told the Court that if the parties had not been married, she would have been recommending revocation of F’s parental responsibility. This begs an inevitable question. If that were so, why would she recommend indirect contact? It struck me that the Cafcass Officer had reverted to general principles, without weaving them into the particular circumstances of this deeply troubling case. It is a professional and, indeed, a human instinct to preserve some thread, however vestigial, that leaves open options for a child who does not have contact with a parent. Generally, this is considered to be an opportunity for a child to obtain some understanding of their cultural and genetic inheritance. As a principle, it is obviously both sound and important but it must not be seen as automatic. The need for it and the potential damage that might be caused by it, need properly to be evaluated. Nor, in my judgement, should the importance and reach of indirect contact be underestimated. 28.MGM had rightly identified that F was projecting an image to his children that cast him in a glamorous way. She talks of his ‘highlife’ which she sees reflected in a photograph of him in a punt in Cambridge. This tendency can be seen in the earlier judgment. Referring to the evidence of the second victim’s mother, I made the following observation:“[69] She told me how in February 2018, her daughter brought F to stay for the weekend. She recalled some facts to which she attributed significance, correctly in my view. F called himself 'Jordan', that was not his name, as emerged a few weeks later. He said that he was 40 years of age, he was 26. He stated that he had a Master’s degree, that his family lived in Windsor and that he had been educated at Eton College. He claimed to drive a white Mercedes sports car and to live in a flat near London Bridge, where he was looked after by a housekeeper. I am not sure whether Mrs G had met many old Etonians, but she had perhaps seen sufficient of them in the media to cause her strongly to suspect that F was not one of their number. All this background was fantasy.”29.None of this leads me to have any confidence that F is capable of fulfilling the Cafcass Officer’s hope that he might, through indirect contact, be a conduit by which the children might know something of their cultural origins. He is, as I concluded above, a fantasist. Already MGM spots something of this fantasy life creeping into the limited indirect contact he has taken up. I consider her judgment to be correct and I entirely share her concerns. I note that F signs his cards off by stating “I love you a lot and I miss you…”. This is, on the face of it, innocuous but in the context of the background of the case, it is manifestly unsettling and confusing for the children. I emphasise again, that F has never seen the youngest child. Throughout these proceedings, F has not revealed the slightest insight into his own behaviour nor have I seen him exhibit even a scintilla of empathy for those whose lives he has grievously damaged. In cross-examination by Mr Stott, F was arrogant and even, at times, belittling of Counsel’s questions. 30.MGM is also right, in my view, to comment on the nature of the cards. They are not strikingly ‘inappropriate’ in any offensive way, but they are cards intended for an adult. One of them shows an old couple walking along a road together, but there is something dark and slightly frightening in the image. It is intentional on the part of the artist. It is far from the type of card that one would send to children of this age. F told me that he bought the card because he had been talking to a woman at the Tate who had created the images on the card and was selling her own work. He told me that he engaged in conversation with her and that she was an artist from the South-West. He wanted to encourage her work. This may be a laudable sentiment, but it failed entirely to recognise that this was a card for his children and not an opportunity for philanthropy. I found the absence of empathy, warmth or sentiment towards the children to be striking. I agree with M that the casual inappropriateness of the card is, itself, illustrative of F’s attitudes and behaviour. MGM puts it simply: “It is hard to believe that the Applicant is able to love anyone else but himself”. 31.Analysed in this way, it is impossible to identify any benefit that indirect contact might bring to these children in this case. By contrast, it is easy to see how it might be unsettling and potentially harmful to the security of both the mother and children. After reflection in the witness box, the Cafcass Officer decided that this was a case where indirect contact was not appropriate. Though M, through her previous counsel, had been prepared to agree to an order for indirect contact, it was plain that she was doing so in an attempt to avoid conflict. It is equally plain that she could see only trouble coming from it. Additionally, she is very respectful to authority and I think, had been prepared to accept that if the Cafcass Officer had recommended indirect contact, it must have been in the interests of her children. That she was prepared to take advice that ran counter to her own instinct, reflects her determination to do what is right for her children at every turn but, it is also a signal that she has not yet fully achieved the capacity to assert her own autonomy. In my view, she should follow her parental instincts. Despite all that has happened to her, she is proving to be a very good mother. Her children are both doing extremely well. I asked M if she had their school reports. She told me that she had and brought them in the next day. They were in a folder in chronological order. This was not prepared for the Court; it was how she kept them and it reflected her obvious pride in them. The reports also told their own story, particularly, in relation to Y. The growth of Y’s confidence can be tracked with each passing term. She is now doing very well academically. However, she knows when her mother and grandmother have had to attend Court and this causes her anxiety. It would have been impossible to conceal this from her given that the litigation has endured for 5 years and required many court attendances. 32.Ultimately, at the very end of the hearing, F decided that he would not oppose an order for ‘no indirect contact’. For reasons which are clear from the above paragraphs, the case requires a judgment to be given. Moreover, there are occasions where it is necessary to recognise a disagreeable truth. There is, sometimes, though very rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case. When children are received into the care system and subsequently adopted, indirect contact is invariably ordered, though on a very limited basis. This recognises that though parents will not have been able to provide a satisfactory standard of care for their children, the children continue to be loved and their parents have an important contribution to make to their evolving understanding of their lives. The decision not to order any indirect contact has to be seen in this light, truly to understand how uncommon the order is and why. My comments in respect of this father are not ones that any Judge makes lightly. Judges do well to avoid emotive terms, but equally, where a clear finding requires to be made, it cannot be concealed in abstruse and cryptic language, which might only serve to soften or occlude the message. My conclusion accords exactly with that of M and her family. In the light of all they have experienced, it seems to me that they are entitled to know and in unambiguous terms, that their assessment of this father is, in my judgement, entirely accurate.