Case No. EWFC-14

Recorder Samuels KC This judgment was delivered in private. The judge has given permission for this version of the judgment to be published. This version of the judgment may be published only on condition that the anonymity of the children and their family is preserved and that there is omitted any detail or information that may lead to their identification, whether on its own or in conjunction with other material in the judgment. This includes, but not exclusively, information of location, details of family members, organisations such as school or hospital, and unusual factual detail. All persons, including representatives of the media, must ensure that this condition is complied with. Failure to comply will be a contempt of court.1.I remain concerned with 2 children, C who is aged 7 and F who is aged 2. Their parents are M and F.2.In June 2022 I conducted a fact-finding hearing over 3 days. I handed down a written judgment on 14 July 2022. In that judgment I made significant findings against the father, principally of physical abuse of the mother. I said, towards the conclusion of that judgment, that:“The picture is clear. There was considerable violence inflicted by the father upon the mother in the course of their relationship putting both children at risk of physical and emotional harm. There were also additional elements of coercion and control, the father’s warning to the mother that the children would be removed if social services became aware of what was happening and his denigration of her as a mother in the course of these incidents. These are all issues which I consider to be directly relevant to the welfare decisions I will need to make in due course in relation to any unregulated or unmonitored time for the father with his sons.”I then added:“I would urge the father not only to consider carefully what I have said but to reflect upon it and to ‘reset’. These cases undoubtedly focus on the worst aspects of behaviour, but this father also has many positive attributes. I set out below the observations of Ms K… which clearly endorse much that is positive about the father’s parenting. He undoubtedly has the potential to be a good parent to his children and the mother’s warm description of his children’s love for him will, I hope, act as a catalyst for reflection and change. His children deserve not only to have a full relationship with each of their parents, but to be brought up in an environment free from violence or significant conflict and where each parent is able to respect and appreciate the positives of the other. The father has much to do and to think about, but also much to gain.” I concluded the judgment by saying:“The principal risks going forward centre on contact between the parties and the risk of arguments and, potentially, violence. However, there is also a potential risk of the father denigrating the mother to the children or of he or his family undermining her in their discussions with the children. I must also bear in mind the findings that I have made about the father’s loss of temper, that he has placed the children at risk of physical and emotional harm, and that he has physically chastised C. These are all risks that will need to be managed carefully and proportionately. A factor in any future consideration will clearly be the father’s response to this judgment.”3.Since that hearing contact has taken place between the father and both children as agreed between the parties and, where agreement has not been possible, as determined by me. The current arrangements are that the father sees the children for 8 hours on alternate Sundays. Handovers are monitored by a third party, currently the children’s former childminder, and the father then spends 4 hours in the community with the children unsupervised and 4 hours at home supervised by the childminder. The father also sees the children alternate Wednesday afternoons. Again, handovers are supervised as is time spent by the father with the children in his home. Additional contact by video takes place once a week and on alternate weekends when the father does not otherwise see the children. In December 2022 I made provision for additional contact over the Christmas period.4.At the conclusion of the fact finding hearing I directed that there should be a s.7 report from a Cafcass Family Court Adviser available by 9 December 2022. I listed the matter for a final welfare hearing this week, in February 2023, with a time estimate of 3 days.5.Following the fact finding hearing the father completed a course run by ‘Caring Dads’. This had been agreed by the parties as an appropriate course for him to attend given the findings that I had made and the absence of any Cafcass approved courses following the decision to cease to make any new referrals to the Domestic Abuse Perpetrator Programme from 30 June 2022. The father also attended the Triple P parenting course and the Separated Parents’ Information Programme. In his written statements to this court he says he has benefited greatly from the courses he has undertaken. He understands the need to be respectful to and about the mother and the impact of domestic abuse on children. He has spent some time in his most recent statement highlighting the parts of the Caring Dads course that he has benefited from which has reinforced his wish to build a stronger and more secure co-parenting arrangement with the mother. There remain, however, issues between the parties as to what, if any, benefit the father has derived from his attendance at these courses. Those issues could only be determined by me after hearing evidence from the father himself.6.On 8 December 2022 the s.7 report was filed. The Family Court Adviser rightly identified that “To feel reassured contact progression could be safe for C and F, the court needs to be satisfied the father has changed his behaviour otherwise the children will be placed at risk of significant harm.” However, she was hampered in addressing this issue directly in discussions with the father because “the father was not prepared to discuss the court findings with me, he said due to advice from his solicitor and the ongoing criminal proceedings.” As a result, she said she was not able to support any progression of contact “until the father has demonstrated a reflection of his behaviour and undertaken therapy to change this, where he will no longer perpetrate domestic abuse on intimate partners.”7.At the DRA on 15 December 2022 the final hearing was confirmed. However, on 26 January 2023 (6 working days before the hearing) I received an email from the father’s solicitor seeking an adjournment of the final hearing. I was informed that the father had recently been charged with assault and controlling and coercive behaviour against the mother. He has entered a not guilty plea at the Magistrates’ Court and the proceedings have been transferred to the Crown Court. There is to be a directions hearing in February with a trial date anticipated to be listed for the end of 2023 or the beginning of 2024. I was informed that the criminal court, may, in the meantime, impose bail conditions upon the father. If he is convicted of these offences he has been advised that he may face an immediate custodial sentence. The email continues,“The father is concerned about his ability to participate in the family proceedings given the privilege against self-incrimination, which undermines his ability to put his case in the family proceedings and/or to answer any questions at all about your findings. This issue - he says - is already evident in the CAFCASS report. His ability to give evidence is hindered further now that he has been charged and the criminal proceedings are formally underway. Both parties are agreed that in those circumstances a final hearing where both parties give oral evidence cannot take place.”8.I was told that the parties were agreed that the final hearing should be adjourned and relisted for a one day hearing in March or April 2023. It was agreed that the current child arrangements should, broadly, remain in force pending that hearing. However, the parties were not agreed as to what should happen at the adjourned one day hearing. The mother’s position was that this should operate as the new final hearing date whereas the father’s position was that this should be an interim hearing at which the court could take stock of any bail conditions imposed by the Crown Court and could give further directions for an adjourned final hearing to be listed after the criminal trial (and sentencing) had concluded. Immediately on receipt of that email I attempted to list the case for an urgent directions hearing, but no date could be found suitable to the parents and their representatives in the limited time available. As a result, I said I would leave the matter listed and directed skeleton arguments to be filed on the issue of any proposed adjournment. I commented that “I am not clear why the matters raised on behalf of the father necessitate an adjournment of these proceedings, which have already been running for a considerable period of time. I would wish to hear further argument on that and consider any authorities relied upon.”9.I have heard from Mr McAlinden on behalf of the mother and Ms Pomeroy on behalf of the father. I have read their detailed and helpful skeleton arguments filed. By agreement between the parties I have not heard any oral evidence either from the Cafcass Officer or from the parents.10.The parties’ agreed position remains that the current child arrangements should, broadly, stay in place during the pending criminal proceedings. They spent most of the day yesterday discussing, with the assistance of Mr McAlinden and Ms Pomeroy, possible variations to those arrangements. They were able to reach agreement on all matters apart from the limited issues as set out below. I commend the parties for their engagement in that process and hope that this can work as a template for them to resolve their disputes in the future without the involvement of the court. 11.That leaves the question of whether the arrangements are to be reflected in a final order or an interim order.12.The father’s position is that his “privilege against self-incrimination prevents him providing any evidence whatsoever – whether in his own statement or via questions put to him – in response to the findings made by the court. The result is that he is not able to challenge either CAFCASS report on M’s position which accords with it”. As is clear from his written evidence, the position he would wish to advance is that there should be a shared care arrangement in place with respect to his sons, not the limited and regulated arrangements currently directed. As in the email from his solicitor, he says that the final hearing should be relisted once the criminal proceedings have concluded. The advantage of this, from the father’s perspective, would be that his case would be ‘in the system’ and he would not have to reissue proceedings and wait months for the case to pass through the FHDRA and DRA processes. The court should reconsider the interim arrangements once the outcome of the criminal hearing later this month is known and, in particular, whether any bail conditions have been imposed.13.The mother’s primary position is that I should make final orders today. As a secondary position she says that there should be a short purposeful adjournment to await the outcome of the criminal hearing “to factor in any bail conditions that impact on child arrangements”. Any longer adjournment would represent an unacceptable burden to the children but also to her. The father’s position means that there is, effectively, no substantive issue for the court to determine. There is therefore no benefit to any adjournment of these proceedings.