This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

IN THE FAMILY COURT
SITTING AT MILTON KEYNES 

Date29/4/2014 

Before:

HER HONOUR JUDGE BROWN
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Re O (A child) (Fact finding.)

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Ms. Mitchell for the Applicant Father.
Mother in person.
Ms. Rahal for the Child
(By their Children’s Guardian ) Ms. Carin Rothmann

Hearing dates: 1 – 4th. April, 7th.
and 15th. April 2014.
Draft judgment sent out on 23rd. April 2014.
Judgment handed down on  29th. April 2014

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JUDGMENT
Her Honour Judge Brown sitting at Milton Keynes.

The Parties.

The parties before me are the Father represented by Ms. Mitchell, the Mother who is in person and the child O represented through his Children’s Guardian Ms. Rothman represented by Ms. Rahal.  All parties were present throughout the hearing save on 15th. April 2014 which had been listed for submissions.  On that day Mother informed Ms. Rahal by telephone that she had had a panic attack and was unable to attend court.  She was unable to drive.  It was conveyed to Mother that would be prepared to put the matter back until 2pm to wait for her to arrive at court but the message received was that Mother would not be able to attend.  Mother did not seek an adjournment.  Fortunately I had given all parties time to file and serve written submissions and I am very grateful to Mother who, although she was in person filed and served full written submissions which were very helpful and which I have read with great care.  I therefore proceeded to hear submissions in the absence of Mother.

The hearing.

The hearing before me is a fact finding hearing within Children Act 1989 proceedings involving a child O.  For the purposes of this judgment I shall refer to the parents as Mother and Father.

At the present time O is residing with Mother and her partner.  Father has not had contact with O since 9th. November 2013.

Before me are cross schedules of allegations.  The allegations are numerous.  I do not intend to deal which each and every allegation, but will deal with such allegations which I consider necessary.  

The key findings sought by Father are;

1.	Mother and D have had a difficult relationship and Mother has been violent to D on more than one occasion.
2.	Mother does not provide O with consistently good enough care.
3.	Mother has exposed O to unnecessary investigations and involvement with professionals in order to achieve her goal of excluding the Father.
4.	Mother has sought to exclude Father from O’s life.  Mother is implacably hostile to a relationship continuing between O and his father and has deliberately influenced O against his father.
5.	Mother is either not willing or unable to promote and maintain a relationship between Father and O.
6.	Such conduct has caused O significant emotional harm or is likely to cause him significant emotional harm.
7.	That Mother’s behaviour and conduct have caused D significant emotional harm to the extent that the section 31 threshold criteria are satisfied.  

 The key findings sought by Mother are;

1.	That when Mother asked Father for a divorce Father used the police to gain control of the children.  Mother’s case is that Father “set up” the incident on 6/7th. August 2010.
2.	That Father has acted in a sexually inappropriate way towards D.  
3.	Father has behaved towards D in an abusive and inappropriate way between 2010 – 2011 including locking her in her room and asking her to move out of his property.
4.	That in March 2012 Father hit O on his leg causing a bruise.  Father then made D lie to the police and social services to say that the bruise on O’s leg had been caused by him running into the sofa.
5.	Father has harassed D from July – October 2013.
6.	Mother has made in the course of the hearing allegations about Father acting in a sexually inappropriate way, including using adult pornography and masturbating when in private.   

On behalf of O the Children’s Guardian has asked that I make the following findings;
The key findings sought on behalf of O are;

“The court is asked to make the following findings on behalf of O based solely on the evidence of Ms. Finn as contained in her reports and Ms. Rothmann in her report dated 17.10.13 (D22).”

1.	O has inappropriate and detailed level of knowledge about the court proceedings. This is based firstly on what O has told his school teacher D26 Para 17 and 18, secondly on what he told Ms Rothmann regarding his paternal grandparents D 27 Para 23 and thirdly what he has said at D 30 Para 37 about the police being mean to his mother in trying to say go back to his father and helping his father. Fourthly O said that his father lies about his mother and lies in court about his mother, for example she did not take him to school for no reason. (D 28 Para 27.
2.	When O has been asked how he comes to have the above knowledge regarding court proceedings by Ms Rothmann he has repeatedly stated “it’s  what his mother told him". D27 Para 20,21, D 28 Para 25, D 29 Para 31, D 30 Para 37.
3.	O believes that his father will abduct him from his mother’s care this is based on what he his mother has told him. (D30 Para 38) He said his father is scaring him by saying he wants to take him. O says that he changed schools so that his father cannot take him. He said it was his mother’s idea as she knows his father will take him. She told O that his father will come and take him. I asked O if his father had ever tried to take him from anywhere and he said no and he does not know why he thinks that will happen now. O said that his father sister has a big holiday house and he will take him there, and his mother does not know where this is. O further states at D28 Para 25 that "his mother said that his father might come and hurt them or try to take him.”  He knew his mother was talking to the police because his sister told him to be quiet as his mother was talking to the police. At Para 26 O says that he "he does not like to go outside when it is dark , he will ask his mother to come with him in case his father turns up"
4.	When O told Ms Rothmann that his father is mean to him, he did not make any disclosures that his father is mean towards him he applied mean to be what he believes his father is doing to his mother. He shared with the Guardian that he believes that his father is mean by instigating court proceedings. D 31 Para 43 and 45.
5.	O may feel to some extent responsible for the current situation as suggested by his spontaneous remark to Ms Rothmann "I started it" D 27 Para 25.
6.	O describes a time before he knew all this was going on (court proceedings) as a time when he felt " happy, really happy" D30 Para 35.
7.	The impact of the above findings would be that O given his age and understanding would be confused and this could potentially  impact his psychological and emotional well being, his sense of security and stability. D 32 Para 49.
8.	Ms.  Finn ISW conducted 3 supervised contact visits between the father and O on 26.10.13, 31.10.13 and 9.11.13, she concluded that O was happy and relaxed. There was nothing inappropriate in the interactions and O was not afraid or anxious in the presence of his father.
9.	O told Ms Finn that his father is " trying to catch me out, he is trying to trick me, he's trying to trick the court to make me live with him" D43 bottom paragraph.
10.	The mother’s response to Ms Finn recommending the cancellation of a contact visit at D 50 Paras 38-39 is as recorded therein despite the challenge to the accuracy by the mother. Where there is a conflict between the mother and Ms Finn the latter evidence in the form of an email confirming the accuracy is to be preferred.
11.	O has written a note at D54 and the court will need to determine what weight to attach to this as an expression of O's wishes and feelings given that he was assisted by D who stated that she said " do you want to come and write your letter for the lady tomorrow ....he knew what I was talking about.....we sat with a pen and paper for about 20 mins". The court will need to consider the contents of the note alongside Ms Finns evidence about the way O presented in the 3 supervised contacts and the evidence of Ms. S about the quality of interaction at the bowling contact 3 days prior to the note on he 17.11.13. 
12.	Attempts by Ms. Finn to get O to attend contact on the 7 and 14 Dec 2013 failed, O was adamant he would not attend.
13.	A further attempt was made to get O to attend contact on at Xmas time by the maternal grandmother and Mr B the mother’s partner and this was also unsuccessful.

Given the reference by O to Ms Rothmann about his schooling the court may feel it necessary to make findings regarding change of O's school by the mother and the circumstances leading up to it following on from the suspension of the shared care arrangement on the 22.7.13 the end of the school year.

I have heard evidence from D, Mother, Mother’s friend Dr. X, Mother’s partner Mr. B, Father’s sister Ms. S and Father.  There is a long and difficult history in this matter which I set out below.

Mother chose to call her friend Dr. X about whom more will be said in due course.  Mother and Dr. X met in September 2006.  Dr. X has three children, DX, M and T.  Mother met Dr. X because D went to school with T.  It seems that Mother and Dr. X have become very close friends.

The history.

O was born in 2006 and is therefore now rising 8 years old.  The Father and Mother were in a relationship from about 1996, married on 17 August 2002 and separated in August 2010.  The Mother has an older daughter, D, born in 1994 and who is now 19 years old.  D had no contact with her biological father from the age of 18 months until recently, more about which will be said in due course.
	
The Mother and Father separated in August 2010, following an incident on the night of 6/7th. August 2010, which also involved the Mother’s parents and D, and resulted in Mother being arrested and accepting a Police Caution in relation to common assault against D.  Leading up to and on the night of 6th/7th. August 2010, Mother informed Father that she wanted to separate from him. After the incident father moved on an emergency basis to a house in Sussex for a week, then to his parents home before renting a house in Penn.  Father has never returned to live at the former matrimonial home.  
It is right to say that the events of the evening of 6/7th. August 2010 have caused untold difficulties for everyone within this family and the repercussions of them last to this day and have caused great damage to the family relationships.  For that reason I set out the events of that evening here.

The evening of 6th./7th. August 2010.

The mother accepts that she met her partner Mr. B in about May 2010.  By August 2010 she had decided that she wanted the marriage to end.  It is clear to me that she had decided that the sensible way forward as she saw it was for Father to move out of the family home and she would allow unrestricted contact between both children and Father.  It also seems to me that Father did not want the marriage to end and was not simply going to accept Mother’s decision that the marriage would end nor her decision that father would remove himself from the family home simply accepting that he would be the non custodial parent for O.

It is clear that there were discussions between the parents leading up to 6/7th. August about Mother’s desire to end the marriage.  Mother’s case is that Father begged her not to leave him.  Dr. X also told me that Father had lunch with her (at his instigation) in that week and had asked her to use her influence on Mother to encourage her not to end the marriage.  On the evening of 6th. August 2010, the parents, O, D and the maternal grandparents went out for a meal.  After the meal Mother and Father had a further discussion.  Mother told father that the marriage was over and that she wanted him to move out of the house for two weeks to give her some space.  Father informed Mother that he was not prepared to do that.  Father’s case is that Mother then effectively threatened him and said she would, “cry rape.”  Mother then left the house and went to Dr. X’s house.  Father, on his case, shaken and concerned by the conversation made a series of telephone calls.  D confirmed in evidence that she had also called her maternal grandmother seeking help and re-assurance.
Father telephoned his own parents, Mother’s parents and the police.  The records of the two telephone calls to the police for the evening of 6 – 7th. August 2010 is at F41 – 42.   The first telephone call is timed at 00.20.  At the point that Father telephoned the police, mother had left the home to go and stay with Dr. X.  The record notes,
“Caller states his wife has got drunk this evening and gone to a friends house and has told him after an argument she wants to end the marriage.  She has stated that she wants nothing to do with their 16 year old daughter however she does want to take their 4 year old son.  Caller is concerned that she is going to return this evening to take their son and this will cause a BOP as he will not let her.  Caller also said that his in laws (her parents) are currently with him at SIG….Caller stated to me that he has done nothing illegal and wanted to make this clear to the police as per police I have sent this over for attendance as it all stems from an argument…
Caller was quite clear in saying that he did not wish to ignite the situation and was looking for advice – advised him that units will attend due to policy…”

Mother then returned from Dr. X’s home and was angry that her parents had become involved (as she saw it) in the situation.  There then followed a most unfortunate  and distressing incident which has had negative and damaging consequences for every member of this family for the past nearly four years.

The evidence I have in respect of that evening are police statements from D and Father, a DVD of a police interview of mother and a note of a conversation with the MGM.

I start with the police statement of D.

On 7th. August 2010, D made a statement to the police.  She was taken through that statement very carefully by Ms. Mitchell on behalf of Father.  Save for a few details, D stood by that statement.  

D’s statement reads as follows,
“X is my mum and ever since she has associated with her friend Dr. X she has been abusive and violent.  In May 2010 during an incident my mum repetitively [sic] kicked me, grabbed my clothing from around my neck and broke my necklace.  On another occasion my mum grabbed me by the hair and dragged me along the hallway and partly down the stairs.  In addition to this around 2 years ago she slapped me in the face after picking me up from school.”

“On Friday 6th. August 2010 my mum, dad, brother, grandparents and my boyfriend all went out for a meal for my grandparents wedding anniversary.  Prior to us going my mum was on the phone to her friend (Dr. X), saying words to the effect of,
“This is my last gesture, after this they can fuck off.”  During the meal tensions were high and mum was bring grouchy towards my dad [father].  After the meal we all came back to my home address [ ] where my mum and dad had a private conversation upstairs.  After a while my mum came downstairs, said, “Where’s Father [ ]” and then left the house.  My boyfriend then had to get a taxi home as my dad did not want to leave my 4 year old brother alone.  My dad came downstairs and explained to me that things between him and mum were over.  My dad also told me some things my mum said about me which were not very nice.  I phoned my grandparents and explained to them the situation and they later came round to comfort us.  At around 2.10am, now the following day Saturday 7th. August 2010 my dad and I went to try and sleep on the sofa though I knew I would not be able to sleep.  I heard mum’s car turn up and she came in through the front door.  My mum then went up stairs into the living room and said, “Why are my parents here, get out my fucking house.”  My granddad then challenged her telling her not to swear so she responded by swearing at him.  I said to her “You’re a horrible person” and then she went for me.  She stomped towards me and swung her right hand at me that was what I would describe as being between a slap and a punch.  It hit me on the left top forehead by my hair line.  After this she then kicked me on my left shin doing it as f she was kicking a football.  Unfortunately I cannot remember what foot she used.  My dad then came over and restrained herein a bear hug fashion.  This made me angry and I did hit my mum’s right arm with my left hand the same fashion as she hit me that being it was not a slap but not a punch.  While this was happening my dad was restraining my mum who was trying to hit my dad in the face with her hands though my dad managed to deflect these.  My grandmother pulled me back while my granddad told my mum he was going to call the police on her.  After hearing this my friend who I know as A who is 6’7 and she told him to contact Dr. X.  As my mum was doing this my dad phoned the police and my grandparents and I went downstairs and told us not to worry.  I then heard a car pull up and Dr. X then came to the door and Dr. X, started banging on the door and shouted words to the effect of,
“Let me in the fucking house, [ ] (Father’s name) you pussy.”
My dad then opened the door and Dr. X came in.  She said, “You’re gonna fucking pay for this getting your mother arrested,” as she then said to my grandmother,
“You fucking bitch” and she continued to swear and mum then started laughing at the front door and talking.  The police then turned up and arrested my mum to which Dr. X stormed in and said, “I’m gonna burn your fucking houses down, D your gonna go first.”  She then left walking off swearing.  I would like to add that when Dr. X said she was going to burn your houses down she was referring to my house and the grandparents’ house who live around the corner at [ ].  I would also like to add that when my mum called [ ] she did this via the telephone as he was not there.”

D confirmed the truth of that statement save in a few minor aspects.  Firstly she told me that she now could not remember her grandfather challenging her mother or her mother swearing at her grandfather.  Secondly D was clear that she had not said that her mother had hit her on the top of the forehead by the hair line but had hit her on the top of the arm.  She could not remember her mother laughing when by the front door.  However, D was clear that her mother had used physical violence towards her and that Mother and Dr. X had been verbally abusive and had sworn that evening.

Father made a similar statement.  Of the assault against D, Father describes it as follows,
“Mother approached D and slapped her in the face using her right hand.  It made contact with D’s face but she did put her arms up to defend herself.  It would have been hard enough to hurt D.  D tried to get out of the chair she was sitting in to which Mother struck her again with her hand and also kicked her to her lower leg and then struck her with her arms to D’s upper body.”

Father describes D as hysterical and crying.  Father describes Mother hitting him.  Father describes the arrival of Dr. X stating that she swore and said,
“Open the door you fucking twat.”

There is a handwritten note by a police officer of an oral statement made by the maternal grandmother.  The note reads as follows,
“On the evening of 6th. August 2010 I was called by …grand daughter stating that her mother had left the house stating that she did not want her any more and my grand daughter was extremely upset so I decided to go around to comfort D.  I arrived at about 23.30 to find Father and D crying and upset over the argument that had taken place prior to my arrival.”

The MGM described Mother becoming very angry when she realised the maternal grandparents are at the house.    Although the MGM describes an assault by Mother on D there is a further note to say that the MGM did not witness the assault as she was in the corridor.

Mother was arrested and taken to the police station where she was interviewed.  She accepted that she assaulted D by hitting/smacking her on the arm and accepted a caution.  

Father left the family home with both children and moved into a holiday rental house in Sussex.  He remained at that address for a week before moving into his parents’ home in North Buckinghamshire.  He then moved into a rented home, partly financed by his sister Ms. S.  

Father’s actions immediately after this incident have been the subject of discussion and disagreement.  Father viewed this action as protecting the children from further unhappiness and he was concerned about Mother’s unpredictable behaviour as he saw it.  Mother views father’s actions as “abducting” the children and described her dismay and shock at being released from the police station to find the children gone to an undisclosed address.  She cross examined the father at some length about having contact with the children.

Father never returned to the family home.  He moved into a rented home in South Buckinghamshire.  He told me that he chose this home because it enabled him to continue working and D and O to attend school. 

Proceedings post the events of 6/7th. August 2010.

The first order I have in the court bundle is dated 28th. February 2011.  I therefore do not have a clear chronology of the orders made immediately post 7th. August 2010.  What is agreed is that within a few weeks of this, the parents agreed a shared care arrangement for O whereby O would live for 7 days with his mother and then 7 days with his father.  This arrangement continued from 2010 until July 2013. 

Following the incident in August 2010 the Father applied to the Court for a Residence Order in respect of O and other orders pursuant to section 8 of the Children Act 1989.  The Mother sought to have O returned to her care. I do not have a copy of those applications within the bundle but I have seen the statements of Father dated 26th. August 2010 and the Mother dated August 2010. 

In those statements the parents set out their versions of the events of 6/7th. August 2010.  Father describes in his statement his concerns about Mother’s shared views of spiritualism with Dr. X and the strength of that relationship and how it impacted on the family.  He also described D feeling that Mother showed a greater loyalty to Dr. X and her family than to her.  

Both parents describe the incident on 6/7th. August 2010.  

Mother puts in her statement at C3,
“I acknowledge at the outset that [ ] (father) is a good father to O.  They have a good relationship.  On weekends, father would make time to spend with O and arrange fun activities.  O clearly enjoyed having this quality time with his dad.”

Mother sets out in her statement two text messages that Father sent to Dr. X.  They show that father was still in love with Mother and very much wanted the marriage to continue.

Mother proposes in her statement that O live with her and have regular contact with father including alternate weekend and midweek contact.

In respect of D Mother writes,
“Insofar as D is concerned I recognise that she is entitled to make choices, given her age, about whether she wishes to return home.  I could not and would not force her to come back against her will.  I would not be surprised if she perceived the grass as being greener if she lives with [ ] (father), given that she will know she can do and act exactly as she pleases: the discipline and respect I expect her to show under my roof will not be imposed on her if she lives with [ ] (father).  I will respect D’s decision if she wants to remain with her stepfather.  I do want her to know she is welcome to return home at any time.  There is a place for her whenever she wants or needs it.  I want D to know that I will always love her, whatever she chooses to do.”

 What is clear is that a section 7 report was ordered which is at D1 of the bundle.

I should note that in respect of D, Mother had no contact with D between 7th. August 2010 and January 2013 save for very limited e mail contact.  The reasons for this will be examined in some detail below.

I have read the CAFCASS report which is at D1 of the bundle and is dated 8.02.11.  At the time of the report father was expressing concerns about mother’s spiritual beliefs as being a risk to O.    

In respect of D the CAFCASS officer notes that D “has made her wishes and feelings clear in wanting to reside with [ ] (father) and this decision was accepted by mother.  The report notes,
“Although contact between D and [ ] (mother) has been very limited, I gather from my discussions with the parties that this relationship remains fragile but both D and mother’s views with regard to things improving with some assistance from a third independent party seems optimistic.”

The CAFCASS officer (Kurrwren Edwards) concluded that both parents were able to meet O’s needs appropriately. Ms. Edwards did not consider O to be at risk from Mother’s spiritual beliefs but notes that Mother accepts she has been “physical” with D in the past and therefore was concerned that this would be a risk for O in the future.

Ms. Edwards also notes,
“I understand that since 6th. August, [ ] (mother) relationship with her own parents have been severed and from my discussion with her during our meeting, there was no indication that this is likely to be rebuilt any time soon.”

I note that in November 2010 both parents attended O’s parents evening together and were able to co-operate to that degree at that time.

 I note that father played an active role in supporting D’s schooling and education but regarding mother it is noted,
“There was no acknowledgment of [ ] (mother’s) role in D’s schooling other than a meeting which was arranged but later cancelled by [ ] (mother) with the deputy head.

Ms. Edwards recommended the making of a joint residence order and a continuation of the shared care arrangement.  In relation to D with her mother, Ms. Edwards recommended,
“the parties would benefit from working through their current issues with a mediator and I would urge them to seek assistance in this area as soon as possible.”

On 28.02.11 HHJ Hughes made a Shared Residence Order in respect of O.

In July 2012 the Father made an application for Specific Issue Orders in respect of the implementation of the Shared Residence Order. On 25.09.12 the Mother made an application for a sole Residence Order.   

I have read the CAFCASS report by Mr. Edward Lazell dated 23.8.2012.  This report succinctly sets out the parents’ concerns.  Of mother it is noted,
“(Mother) stated her view that the current application by his father would only increase O’s distress as O was finding it difficult to live two lives divided between his parents and their respective homes.”  It is noted in the report that Mother had told the CAFCASS officer that she has taken O to the GP who has diagnosed O as suffering from separation anxiety.

On his part Father had continuing concerns about mother’s “alleged violent tendencies and belief in spiritualism as having a potentially damaging affect on O’s wellbeing.”  However father was not alleging that O had complained of being physically harmed.  Father was also concerned that O had been absent from school for 16 days of the spring term and yet he had not appeared unwell when in his care.

On 21.01.13 an order was made by consent in respect of the issues between the parties, including the application for O’s place at a middle school, and the Mother was given permission to withdraw her application for sole residence. 

The shared care arrangement therefore continued until 22.7.2013.

On 22.07.13 the Mother refused to return O to the care of the Father during a period when the Father was supposed to be caring for him.  O had been picked up by D in order that he can attend a meal for D’s birthday.  According to D and mother, O became very distressed and refused to return home.  Father then did not have direct contact with O until 26.10.2013.

On 26.07.13 the Father applied for an order that O should be returned to his care and for a sole Residence Order. 

On 30.07.13 HHJ Serota QC heard from both parties in person. He adjourned the Father’s application until 10.09.13, directed CAFCASS to prepare a brief report as to whether contact between O and  Father should continue and in relation to O’s wishes and feelings by 06.09.13 and to attend on 10.09.13 and directed both parties to file witness statements by 09.08.13.   

In his statement dated 19.08.13 the Father stated that he wanted to maintain the alternate week arrangement for O’s care, but to have a sole Residence Order in his favour in order that the Mother could not disrupt O’s life.  He exhibited a positive report from O’s school to the statement.  

In her statement dated 19.08.13 the Mother says that O is scared of Father, and that she is concerned about O’s emotional wellbeing.  She says that on 22.07.13 O became hysterical at the prospect of returning to the care of  Father after attending a dinner for D’s birthday.

She also says that at some point D became pregnant and moved out of the Father’s home to live with her boyfriend, and that she and D are rebuilding their relationship. The Mother asks the court to make a sole Residence Order in her favour and says that she would welcome assistance from CAFCASS as to how to help O have a good relationship with the Father.  The Mother also exhibits a letter from the school, which is positive in respect of O’s progress.  The letter acknowledges that the Mother has approached the school to inform them of O’s anxieties, but states that these have not manifest themselves at school.  C71-78  

On 6.09.13 a Family Court Adviser sent a CAFCASS Letter to the Court under the Revised Private Law Programme.  She had spoken to both parents, and said that further assessment was needed. 

On 17.9.13 the Father applied for a variation of the order suspending contact pending an assessment by CAFCASS and an order requiring the Mother to disclose the identity of O’s school, as he believed that the Mother had moved O to a school of her choosing when it had previously been stated on the face of orders that School A “TG” was the preferred option.  B54-59

The Mother filed and served statements from her daughter D, her mother, (I shall refer to as MGM)  and her friend who I shall refer to as Dr. X.

The statement of D is dated 15.10.13.  She sets out her version of what happened in August 2010, says that she lived with the Father for 18 months after that incident but “couldn’t stand living there with him”, was made to lie by the Father in respect of an incident in March 2011, and made allegations about the Father’s care of O and herself.  She says that the Father was very angry when she became pregnant, but she was able to leave and find a place of her own.  She says that she has a daughter, F, aged 18 months.  She says that  Mother contacted her again in January 2013 and they have built a strong relationship  She says that she is in the process of getting an injunction against Father and that the police are in the process of issuing him with a harassment order as he has become more abusive and threatening over the last 10 months. C80a-f

The statement of the MGM is dated 15.10.13.  She says that they are now aware that the Father manipulated and lied to them.  C80i-l  

 The Mother’s statement is dated 16.10.13.  She refers to the Father harassing D,  to D’s residence with the Father not being successful, to O being frightened of the Father, to O being hit by the Father in March 2011 and D being asked to lie to the police about this and to the Father causing disharmony between the Mother and her family.  The Mother deals with the issue of O’s school in this statement, explaining that she had placed O at School B “KH” on 30 September 2013, primarily because of distance between her home and  School A “TG”.  C81-89

AT C86 Mother sets out her views about School A “TG”.  Paragraph 11 of her statement reads as follows,
“With regard to O’s schooling my home is more than 17 miles away from School A “TG”.  During a morning school run this journey is likely to take at least an hour and more if there are any incidents on the road.  The route would involve travelling along the A404 and then the feeder roads to and from the A404.  The return journey could easily take up to 2 hours.  If O wanted to attend an evening activity such as Beavers this would necessitate him hanging around after school for a couple of hours.  This is not feasible although the Applicant said that he thought that it was acceptable for O to wait around in a café doing his homework between school and his activity.  O did not have any close friends when he was at the lower school.  July of this year saw him finish at his school.  He had a place at a new school in School A “TG” (the first year of the Middle School) in September 2013.  Due to the distance of the school from his home and the fact that O was due to start a new school that term, I looked at the primary schools closer to where we live.”

The relevance of this paragraph is that it shows the practical difficulties for mother of O attending the school agreed upon by both parents when they appeared before HH Judge Serota QC.  Mother enrolled O into School B “KH” school without father’s knowledge or consent despite an assurance given to HH Judge Serota QC that O would attend the school at Tyler’s Green.  Father had no knowledge of these new educational arrangements and O started at this school before father knew of Mother’s plans.  However,   Mother’s version of what happened is as follows,
“Unfortunately O was late starting at this school because the Applicant (father) tried through the education authority to stop his admission.  He reported that I was excluding him from school and that O was a missing child.  This obviously was a lie, but inevitably the education authority had to look into it.  As soon as the facts were revealed to them O was immediately admitted to School B “KH”.  Such was the concern of Windsor and Maidenhead Borough Council who were involved in sorting this out, that they advised me to provide School B “KH” with a photograph of the Applicant in case he tried to remove O from this school.  He disrupted O’s start to this school year not me.”

Father relies on Mother’s actions in this regards.  His case is that the timing of Mother’s claims that O refused to be returned to his care in July 2013 is significant and was part of Mother’s plan to force a change of residence of O.  Part of that plan was to change schools.  

On 18.10.13, Carin Rothmann, a CAFCASS Family Court Adviser filed and served a report.  She spoke to both parents and to O on his own on two occasions.  Given the cross allegations, in my judgment it is important to set out the recording of the Children’s Guardian in full in respect of what O has said to her and the Guardian’s recommendations.
	
“O’s Wishes and Feelings  

1.	I met with O on two occasions on his own, once at neutral offices and once at his school.  I asked O if he understood why he was meeting with me, to which he responded ‘because he is mean to me’.  O was aware of the Court case but that he is not allowed in there.  There is a Judge who will decide where he should go.  I explained to O that this court is a family court, and that it is a friendly court, not like he would see on television.  I also explained to O that the reason for talking to him was find out what he wanted with regards to his living arrangements and contact arrangements.  O indicated that he understood this.  
2.	I asked O if he knew why his parents were not living together anymore.  He said he thinks his father did something wrong.  His mother told him that he did something to upset her side of the family but he cannot remember what.  
3.	O can remember how his living arrangements worked previously, he said he lived with his father for one week and then with his mother for one week.   
4.	O said he is currently living with his mother and her partner, Mr. B.  They also have a dog called M.  His sister lives in their old house with her baby.  
5.	I asked O about people who are important to him but not living with him.  He mentioned his paternal grandparents but added that he does not really like them.  He liked them before he knew ‘all this was going on’.  O said his paternal grandparents are helping his father to get him back.  I clarified with O how he knew this, to which he responded his mother told him, he does not know this for certain.  His paternal grandparents did not do anything specific to make him dislike them.  O still has contact with his maternal grandparents and he raised no concerns about them.  
6.	When I asked what he meant by ‘all this going on’, O said about his father being mean.  I asked him to explain what he meant by ‘mean’.  O responded by saying that all he did when his father had a stitch on his stomach was to touch it lightly.  He said his father then punched him on his left leg with his fist.  He said he was about three years old then.  O could not recall where this incident happened.  O said he spoke to a Police woman about this.  His mother was outside the room.  O cannot recall what he told the Police woman.  
7.	O spontaneously told me that ‘I started it’.  When asked what he started, he said ‘the bit about where I want to live with my mother and that I do not want to be to my father’.  O said they were at a pub, he was playing outside and his mother and sister were there too.  He just thought of it then.  I asked him if there was a reason why he felt that way, O said it is because his father is mean.  He kept blaming O for something that he did not do, it was his friend.  He could not remember what it was.  His mother then called the Police because she thought something will go wrong.  I asked O to explain this further.  He said his mother said his father might come and hurt them or try to take him.  He said he knew his mother was talking to the Police, because his sister told him to be quiet at one point as their mother was talking to the Police.  
8.	O confirmed that his father did not try to hurt him or to come and take him.  He added that he does not like to go outside when it is dark, he will ask his mother to come with him in case his father turns up.  I asked O why he thought his father would turn up if he has not done so in the past.  His response was that his father ‘lies and does horrid things’.  
9.	I asked O to clarify what he meant by lies and horrid things.  He said his father lies to him and nearly everybody.  Again I asked O to explain what he meant by lies.  He said his father lies about his mother being horrid and about her taking him away from his father, he is nasty to her.  He said his father lies in court about his mother, for example that she did not take him to school for no reason.  He said he sometimes gets a bit ill then he cannot go to school.  
O remembered that there was a time when he left School A “TG”, when he was not in school for a little while, until he started again in September 2013.  That is not a lie then.  
10.	I asked O to describe what it was like for him when he spent a week living with his father.  He said usually his father picked him up after school, sometimes his paternal grandparents collected him from school if his father was late.  He liked going to his grandparents as they had fun, they played dinosaurs and made flapjacks.  His father then picked him up, sometimes he would mow the lawn and O will jump on the trampoline while he was doing that.  Other times they went shopping for groceries together.  O got to choose things he wanted to.  He usually chose grapes, strawberries and cucumber (his favourite).  He was seldom allowed to go down the ‘sweetie isle’ but he sometimes got a sweet as well.  I asked O what he liked to have for supper at his father’s house.  He said he liked spaghetti, the space shaped pasta.  He liked sauce or tomatoes on his spaghetti.  I asked O if this filled up his belly, he said yes, ‘but I am always hungry’, referring to him being a growing boy, and that this is the case at his mother’s house too.  
11.	With regards to behaviour management, O said at his father’s home he was sent to the naughty step or to his bedroom for 3 – 10 minutes.  At his mother’s house she will tell him off.  O said he will send himself to his room or naughty step if he feels he deserves more than being told off.  O was clear when asked, that his father had not hurt him in any way when he stayed there.  
12.	When I ended the first session with O, he randomly asked if his mother told me that he had wet the bed at his father’s house.  He said it happened once when he drank too much.  At his mother’s house he had wet the bed once too, but not his own bed.  
13.	The second session with O was on 17/10/2013.  I asked O about people helping his family.  He said his maternal grandparents help, they sometimes drop him off and pick him up from school when his mother is working away.  He does not have aunts, uncles or cousins on his mother’s side of the family.  O spoke about two cousins on his father’s side of the family and that he gets along fine with them, especially the boy cousin.  He also has an aunt who lives in America, but he saw her when she came to visit.  O also said that his mother’s partner, Mr. B helps his family.  He helps his mother to ‘keep him’ and with the court.  O does not really know how Mr. B helps with the court, that is just what his mother told him.  
14.	O said he gets along fine with Mr. B, he would make him laugh when they wrestle together.  O mentioned his sister whom he has a good relationship with.  He also likes his little niece and plays with her.  
15.	I spoke to O about things he liked about his life.  He said he likes going to Jungle Mania in Chessington.  His father used to take him there and said they had lots of fun.  
16.	I asked about what makes him feel good about his life.  O said he thinks his life is quite good.  He is allowed to do things, he gets things, play with things, he runs around in the garden and plays with his dog.  He is sometimes allowed to watch television in his bedroom.  He likes sleeping and said he is not good at getting out of bed.  
17.	I asked O what he liked when he still lived his father as well.  He said ‘before I knew all this was going on’, he liked a lot of things.  He jumped on his trampoline, ran in the garden when his father was mowing the lawn.  He said he ‘felt happy, really happy’.  
18.	O said he liked it when his parents still lived together, it is not good that they separated, he really liked them together.  After they separated he still liked being with them both but it was weird.  He described it was just awkward for him.  
19.	I asked about things that make him upset about his life.  O said people being mean to his mother.  He said for an example the Police is mean to his mother.  They tried to say he should go back to his father.  I asked how O knew what the Police said and that they were mean.  O said he asked his mother and she told him.  O said they are helping his father.  I explained to O that the Police have to keep to the law and that is their job, and that is why there is a Judge to decide about what should happen, it does not mean they are mean when they do their job.  
20.	O said his father is mean.  He said his father is scaring him by saying he wants to take him.  This makes him have nightmares about his father taking him.  O said he changed schools so that his father does not know where he was and cannot take him.  He said that was his mother’s idea as she knew his father will take him.  She told O that his father will come and take him.  I asked O if his father ever tried to take him from anywhere, he said no and does not know why he thinks this would happen now.  O said his father’s sister has a big holiday house and that he will take him there, and his mother does not know where this is.  
21.	I asked O about him getting nightmares.  He said he does not like the dark anyway, it makes him have nightmares.  He said he dreams about bears at his mother’s house and that his mother turns into a bear.  Once when he was at his father’s house, he watched spider man, and that night he dreamt about a giant lizard that was in the movie.  He did not indicate that his father did anything to cause him having nightmares.  
22.	I asked O what makes him feel worried.  He said he had no worries with his mother and Mr. B.  I asked him what made him feel worried when he still lived with his father, he said he had no worries there either.  
23.	I asked O how he was settling in at his school.  He said he is doing fine.  There are mean people, referring to one boy who called him ‘stupid’ for no good reason.  He is happy at the school though, he made some friends and he likes it when he can join in games with the other children.  He gets along fine with his teachers and he has no problems with bullying.  
24.	I explained different forms of contact arrangements to O.  His first response was that he will visit his father for ten minutes with his mother present.  He then altered his views, such as if he ever stays with his father it will be just for a minute.  He definitely wants to stay with his mother.  Maybe he will see his father every five weeks for a few minutes.  
Impact of the current proceedings on the child/children
25.	From the assessment it is clear that O is affected by the court proceedings.  He knows when his mother is attending court and the information he shared with me, he believes that his father is mean by instigating court proceedings.  
Professional Judgement
26.	O was co-operative during the interviews with him, he did not get upset at any point about any of the topics discussed with him.  
27.	O often used the words ‘mean and horrible‘ when talking about his father.  When clarifying what he meant by those words, he referred to ‘all this going on’, referring to the court proceedings.  O was able to distinguish between times before the court proceedings commenced, and things were fine then.  He spoke about one incident when his father allegedly caused a bruise to his leg, but could not recall further details.  He was clear that there was no other time that he was physically hurt by his father (or his mother).  O did not make any disclosures that his father was mean towards him, he applied ‘mean’ to what he believes his father is doing to his mother.  
28.	When information is clarified with O in order to establish how he knew certain things that a child should not know, he would say his mother told him about it.  He knows when she is going to court, he knows what Police apparently told his mother, he knows about some of the information that is disputed by his mother in court.  This is concerning as O should not know this, and should not be influenced in such a manner.  
29.	O remains worried that his father would take him from his home or from his school, even though there has been no direct threat from Father towards him in this regard.  If O is having nightmares about his father, it could be due to what he is told or possibly overhear at home.  He is in a difficult position where he knows some things but not the whole picture.  This is confusing for a young child.  
30.	O described good times when staying with his father, he reported to have had good meals.  He is not scared of his father when he stayed with him.  I did not identify safeguarding reasons as to why O should not have some form of contact with his father.  
31.	O is a young boy who has good relationships with both his parents.  Indications are that his relationship with, and opinion about his father is being affected negatively by inappropriate information shared with him.  Should this continue, it could result in a very confused child.  Mother will need to be more vigilant at home to ensure O is not affected by the adult issues, and to make every attempt that he is not influenced by other family members who may have strong views about father.  Attempts should be made to be positive about possible visits between O and his father, and to raise the positive memories and experiences with him.  
Recommendations
32.	It is recommended that the court consider a gradual process of contact to commence between O and father, in order for O to build up trust and confidence in his father.  The court can initially consider supported or supervised contact to help O overcome any fears he might have with regards to his father.  
33.	It is recommended that Mother make conscious attempts to prevent O overhearing negative feelings about his father and prevent him from finding out about information that is not meant for him to know, and that would influence him against his father.” 
The matter came before HHJ Hughes on 22.10.13.  He recorded that O’s name is O    [ ], and he should be known by this name at school.  He suspended the Shared Residence order made on 28.02.11 and adjourned applications in relation to residence and schooling.  Permission was given for the joint instruction of an Independent Social Worker, Ms. Finn, the costs to be borne equally by the parties.  He made an order for three sessions of contact with the Father, all to be in the presence of Ms. Finn, and listed a review hearing on 15.11.13.  B74-75

Ms. Finn supervised contact on 26.10.13, 31.10.13 and 9.11.13.  I have the records of those three contacts.  The reports of the three contacts are positive.  The note at the end of the contacts sessions dated 31.10. 2013 reads as follows,
“We arrived back at mother’s two minutes late.  As father parked the car, mother came out to greet us.  O showed her his skeleton and she hugged him and asked him if he had had a nice time; O said he had.  O then started to slowly walk away with his head down.  Father asked O if he could have a hug and O walked back to F and stood with his back to him.  F hugged O and kissed him on the head.  O immediately looked at mother and pulled a face as of to say, “I don’t like this.”  This behaviour was in stark contrast to how O had responded to father’s affection during the day.”

The record of contact on 9th. October 2010 again describes a positive contact.  However Ms Finn notes a conversation in the car between herself and O as follows,
“He said, “I just wanted to see my mum.”  I said I could understand this as he lives with his mummy and I am sure he loves his mummy very much.  O said, “I do love my mummy, more, much more than my daddy.”  Then in a stern adult like voice he said, “he’s (his father) trying to catch me out, he is trying to trick me, he’s trying to trick the court to make me live with him.”  I asked how he knew this and when he didn’t respond I asked if he had overheard someone talking about it.  He said, “no, I just know.”

Ms. Finn noted that she wondered where such comments came from.  She also notes,
“I have not observed O to be distressed or uncomfortable in his father’s presence, I would say he is quite relaxed.  O presents consistently in this way, despite expressing a fear that his father is manipulating everyone in order to gain custody of him.”

She observed O to be relaxed with the Father, but when on she was on her own with O he said that the Father was trying to trick her and the Court so that he had to live with the Father.  She wondered where this came from.  D34-44  

On 15th. November 2013, His Honour Judge Hughes, having seen the positive contact reports by Ms. Finn then ordered three sessions of unsupervised contact between O and father in 17th, 23rd. and 30th. November 2013.  The court also approved individual work with O with Ms. Finn.  However, those three sessions did not take place.  In a further report Ms. Finn wrote the following;

1.	“I met with O again on 21st November 2013.  O came into the room with a determined look on his face.  He placed his bag on the floor and took out a piece of paper and gave it to me and asked me to read it.  The note read “I don’t want to see my dad ever again because he makes me sick when I’m near him.  When I try to tell the truth nobody listens.  It feels like I’m going against her”. (See Appendix 1)

2.	I established with O that it was his handwriting and he had written it the previous evening.

3.	I assured O that he was not in trouble and not to worry about anything he might want to tell me.  I also clarified who he was referring to when he said he felt he was going against her?  O said he was referring to me.

4.	I asked O if he was able to explain what he meant about feeling sick when he is with his father and he told me that his ‘tummy feels funny’.  

5.	I asked O how long he had felt like this as up until July this year he had been spending every other week with his Father.  O said he didn’t know how long his Father had made him feel sick but he told me that when he there was a shared care arrangement he could not cope with it.  In exploring this further, O told me that he just felt confused all the time.”

As a result of O’s expressed views, Ms Finn recommended to the Mother that she did not take O for contact on 23.11.13.  She writes,

6.	“The following day 22 November 2013 I had a consultation with my Manager, it was agreed that the priority must be to listen to O’s wishes and this must be the over- riding factor.  As I did not have the authority to cancel the planned contact the following day, I could only recommend to Mother that she did not take O for contact on 23 November 2013.
 
7.	I telephoned Mother later that afternoon and advised her of above.  She screamed with delight and kept saying “Thank you, thank you”.  She then asked if she could tell O who was with her at the time.  I heard Mother tell O “O, you don’t have to see Daddy tomorrow, yay!”  She then asked “Can you hear him he is running around the kitchen, he is so happy”.

8.	I was concerned about Mother’s response to this, particularly in front of O, as it sounded like a big celebration rather than her telling  it was unfortunate that he couldn’t see his Father.  This clearly conflicts with Mother’s account that she is not negative about Father when talking to O.  I made it very clear to Mother that I was not telling her to cancel contact as I did not have the authority I could only recommend as ultimately it is her decision.  She was more than happy for the contact not go ahead.  I explained that I would therefore meet with father the following morning to talk about my sessions with O and the letter he had written.

9.	I also made it clear that next week’s contact must go ahead as directed by the Court and to ensure she prepares O for this and I would consider whether I should supervise that contact.  I agreed to telephone her on Monday 25th November 2013.  An e-mail was sent to the legal representatives of both parties advising of situation.”

On the same day (21st. November 2013) that O handed Ms. Finn the note D telephoned the police to and made allegations of sexually inappropriate conduct against Father.
	
On 29.11.13 the matter came before DJ Perusko on an application by the Mother to suspend contact.  The Father was not present as he had been arrested that morning in respect of the allegations of sexually inappropriate behaviour made by D.  The allegations are set out below.

Due to these allegations, on 3.12.13 Mother filed and served a statement in relation to the alleged sexual abuse, her case now being that neither O nor D is safe with the Father.  C96-99

On 5.12.13 the matter came before HHJ Hughes, who directed that there should be 2 sessions of contact supervised by Ms. Finn, joined O as a party with a CAFCASS officer to be appointed as Guardian, directed a section 37 report, directed that that the Father provide a statement in response to the allegations in the Mother’s statement of 3.12.13 and ordered disclosure of police material.  

There is a further report from Ms. Finn dated 16.12.13, setting out her efforts to facilitate contact on 7 & 14.12.13 and O’s refusal to go to contact saying that the Father makes him feel sick.  She was of the opinion that O would benefit from the expertise of a child psychologist D55-60

Dr. Berelowitz has been instructed and is due to commence his assessment on 29th. April 2014.  

On 20.12.13 HHJ Hughes made a further order for interim contact with the maternal grandparents collecting and returning O from the Mother’s house for contact.  

The contact did not go ahead as ordered and father has not had direct contact with O since 9th. November 2013.

The matter came before me on 1st. April for a fact finding hearing.
	
The Evidence.

The first witness I heard from was D.  She gave evidence in court behind a screen.  I have watched the DVD on several occasions as there is no transcript.  The key allegations made by D are;

On two occasions Father acted inappropriately to D.

The first occasion was a Sunday in January 2010.  Mother was out playing netball.  D describes her Mother as being, “out a lot.”  On Sundays this would be between 10 – 3pm and when there was evening practice mother would not be back until 10pm. 

Father, D and O were at home.  D went for a shower.  Although D in her interview states, “He would ask me if I needed help showering” D was in fact speaking of two separate incident not an ongoing course of action.

Both incidents occurred in the bathroom.  D states there is no lock on the bathroom.

On the first occasion D was in the shower.  Father went into the bathroom and asked D if she needed help showering.  D was washing her hair.  Father entered the bathroom and asked D whether she needed help showering.  D said no, jumped out of the shower, grabbed the towel and ran to her room and locked herself in the room.  D gave the detail that she didn’t finish having a shower, “I still had soap in my hair.”

Father was dressed and wearing normal clothes and Father asked D to touch “it.”  By “it” D believes father meant his penis because he was pointing at it.
D stated that father described this as their “special time.”

On the second occasion Mother had gone to Loughborough for a netball tournament.  Father went into the bathroom, shut the door and stood back on it.  D states that father told her she needed help and she replied that she did not need help and asked father to leave the bathroom.  The main allegation is that father said to D,  “touch it, please touch it.”  D is clear that “it” refers to his penis.  D states that she said “no, it is disgusting, please leave me alone – he put his hands inside his trousers and started touching himself – in the end I managed to get out .”  D is clear that father was referring to his penis because she could see that father had an erection through his trousers.  The incident lasted about a minute and D thought Father had his hands down his trousers for about 15 – 20 seconds.

D describes her alarm as being so great that she did not even reach for a towel, but got out of the shower pushed past father and ran through the house naked into her room when she locked herself in.  

In relation to both incidents D alleges that father told her not to tell mother.  She states that she did not do so because she thought her mother would be angry with her.  D states that the reason she made the allegations in November 2013 was because she had moved back into the property in which this inappropriate sexual behaviour had taken place and “it has all come to the surface of me wanting to tell someone.”  D continued,

“My mum and I have built up a good relationship – that is why my confidence has come back – I can’t live my life knowing what he has done – what he could do to my little brother – I just feel dirty and I have a weight on my shoulder – I have a life now with my little girl – I just want to be happy.”
A further allegation made by D is that there was both an inside and an outside lock on her bedroom door.  D alleges that on one occasion father locked D into her bedroom and D snapped the lock to get out.  She alleges that father locked her in her bedroom after both incidents “not for long periods of time.”

In between these two incidents, D alleges that father would ask D whether she wanted to look at pornography he had delivered to the house.  The allegation is that father would say that the pornography is, “about the birds and the bees.”  D states that father would leave the pornography on her desk in her room and they would be spread out on the table.  She would see them and panic.

D stated that the conversations when father would ask D whether she wanted to look at the pornography would be “about 30 seconds.”

D also states that she found a “penis extender” , a ring and gel in her wardrobe.  D states that she found these in her wardrobe and raised this with father.  She alleges that father told her that he was trying to improve his marriage with mother.  D told father to put them in his own wardrobe.

D’s case is that mother knew nothing about this conversation or about the marital aids until after father had left the family home.

D’s case is that mother did not know that D had found these items until Father had moved out.

D goes on in this interview to state that the family split up in August.  D states that she, “barely spoke” to father between the second incident in May and the time when the family split up in August.  D stated that “she was desperate to stay with my mum all the time – I was so clingy – at the time we were having such a terrible relationship – I was terrible and back chatty – I had no one to turn to.”

D refers to the incident in August 2010 and states that Father called the police and “he made me write a statement that mum was hitting me and kicking me in the shins.”

D also spoke of attending a netball tournament with father and mother.  Mother was sharing a room with another netball competitor and father was sharing a room with D.  D stated that there was a double bed in the room and she was so scared that something would happen that she stayed up all night texting her mother so that father would know D was in contact with mother.  D stated that nothing inappropriate occurred that evening.

D also confirmed the truth of her statement dated 15th. October 2013.

D started her evidence by telling me that O is a changed little boy since living with mother.  She emphasised how happy he now is.  
D told me she has been in contact with her birth father in 2011.  Apparently he has accepted to her that he was abusive to Mother.  He told D that he wanted contact.  D said, “he fought for me and gave up because he thought there was no hope.”

D was asked at some length about why she lived with Father and why she had no contact with mother.  In short her case is that father somehow “forced” her to live with him and that “she had no choice.”

Asked about her lack of contact with Mother for 2 ½ years D told me,
“Father said my mother did not want to speak to me again – he would not give me her phone number and I did not know where she lived.  She changed her phone number.”

D accepted that she met the CAFCASS officer in 2011 and that she could have made it clear that she was desperate to have contact with mother.  D told me,
“The reason I kept siding with him is because I was kept being told that my mother did not want to speak to me.”  D told me that she asked, “why is my mother not fighting for me?”
D accepted that her mother had declined attempts at mediation.  D said that her mother had explained this that she was concerned that if she said something it “would be used against her.”  However D was willing to attend mediation.  D told me of her lack of confidence in the past and said sadly, “I don’t have any now.”

It was put to D that she could have lived with her grandparents.  D kept repeating that “she did not have a choice” and that her grandparents live very close to her mother.  She did not want to involve her grandparents.

D told me of bullying she had experienced from Dr. X’s children M and T.  She told me that T had called her a “mum beater” and that M shouted at her.  D said, “They had taken sides with my mother and so the only connection to my mother through them was not a good one.”
D told me that she had sworn at T and been reprimanded.  D said,
“I’m sure they told their mum or my mum.”  D seemed confident that Mother would have known about the bullying.

D was asked about her police statement.  In her witness statement D has written,
“Later that morning I was forced to make a statement by father saying I had to because my mother had gone mad and needed to be locked up for her behaviour.”  However, as noted above, when taken through the statement save where set out, D accepted the truth of the police statement.

Asked about her relationship with her mother, D said that her relationship changed after mother met Dr. X in 2005.  D told me of the amount of time mother spent with Dr. X and her children and said, “She seemed to have more compassion towards Dr. X and her children than she did towards me.”  I accept in some ways she prioritised them.  D told me that in 2009 she believes her mother gave T a laptop for Christmas when she received very little because she was told the family were short of money.

D spoke of an incident prior to August 2010 when her mother slapped her around the face.  Mother had picked D up from school.  Mother asked D if she had been smoking and D replied, “Why don’t you ask your guide that?”
The guide here refers to mother’s “spirit guide.”

D was taken through the events of 6th. August 2010.  She effectively confirmed her police statement save as set out.  D was clear that her Mother had slapped her on the arm not the face.  D was very clear that Dr. X had made threats including to burn the house down.
Of the events of that evening D told me,
“The reason why mother so upset is because her parents were there.  I did blame myself but I don’t any more – I was lippy – I said she was a horrible person – I was upset and angry – I shouldn’t have said it – she apologised when we got back in contact…she regrets we have not spoken – she has missed out on quite a lot of my life.”

D told me of an occasion when she went to sports day to see O.  Mother was there with Dr. X and her children.  D said that Mother saw her but did not acknowledge her.  

D told me that she had received emotional support from her paternal aunt Ms. S “at first” but not when she became pregnant.  

One allegation made by mother is that father told the police that mother had, “guns and knives” when he phoned the police on 6th. August 2010.  D told me that she had heard father say that to the police.

D was asked about her allegations against father.  She told me her motive for coming forward now is,
“I’m protecting my brother.”
It was suggested that she is currently financially beholden to Mother.  She is residing in the former family home although there is an order for sale on the property.

D makes allegations in her witness statement that father has become threatening and abusive towards her and she is so scared of him that the police have issued father with a harassment warning.

On 29th. September 2013 D telephoned the police describing Father as,
“depressed and very irrational.”
She refers to the allegation against Father that he punched O on the leg causing a bruise and “strangled her mother.”

D explains to the police that she is concerned about how father will react because she is moving into a house jointly owned by the parents.  D tells the police she would feel threatened if left alone with father.

D is advised to seek an injunction.

D explained this action as “trying to protect my daughter.”

In fact the “harassment” complained of was one heated discussion between D and father on the telephone.  D explained,
“I’m an anxious person when left on my own, I was scared he would come and get me out of the house.”

Interestingly D explained the phone call as,
“In preparation of me moving into the property I was protecting myself from father.”

D told me that she had found pornographic catalogues when she had moved into the former family home and she had told her mother.  However, she does not mention this in her October 2013 statement.

D was asked about a comment she is reported to have said to her mother in August 2009.  In her statement mother writes of an altercation between her and D,
“D remained angry and resentful about me putting a stop to her relationship with the twenty year old man.  We were at my parents’ home.  D became quite aggressive and vile.  She said she wanted me to stop interfering in her life.  She said she wished she had been sexually abused and that she wished she was homeless so she could live on the streets and do what she pleased.  It was as if she was saying the most outrageous things to me she could think of to try to get a reaction.”

D said of this,
“I did say I wish I had been sexually abused.  I was angry, emotional and had hatred towards my mother and it was an expression that came out…I was being challenging, I don’t know….. I was just being a teenager.”

D was asked about the occasion on 22nd. July 2013 when O was not returned to father’s care.  D told me that she had attended at father’s property and picked O up with her partner.  O was to attend a family meal to celebrate D’s birthday.  According to D, O kept saying he did not want to return home to father.  He said he did not want to go back and he was anxious about going back.

D took responsibility for that evening and said,
“I was the one who removed O.”

D was asked about the note that O wrote to give to Ms. Finn the independent social worker.  D told me,
“I helped him write what he wanted to write.”  D thought the first suggestion that O should write a note came form Mother who told her that O wants to write a note to Ms. Finn as he has an anxiety about speaking to people.

It was put to D that it cannot be a coincidence that she decided to make the allegations of sexual abuse on the day that O gave the note to Ms. Finn and that she had assisted O in writing to Ms. Finn.    D said the two incidents were not connected and she did not know when the note would be handed over.

The first telephone call made by D to the police was on 21st. November 2013.  The note from the police disclosure reads,
“When AGGD was 15 years old suspect would make her touch his genitals in the shower.  At the same time he would touch himself too.  He would make her look at his porn and sex toys.  This went on for about a year and only happened when AGGDS mother was away.”

D accepted that the contents of the complaint are inconsistent with the allegations now made.  Furthermore, there are only two separate incidents not a course of conduct throughout the year.

It was put to D that she was lying about the allegations.  She became very distressed and said that she had no reason to lie.  She maintained the allegations.  She denied that she was making the allegations to assist her mother with her case.

In respect of the “marital aid” or the “penis extender” D told me that she had found it in the property.

Under cross examination on behalf of O, D was asked why, given the sexual abuse allegations, D had decided to sleep in the sitting room on a sofa with father also sleeping on a sofa on the night of 6th. August.  Why did she feel safer to sleep in the same room as him?   D replied,
“I was scared of sleeping by myself.”  She said of father,
“I knew he wouldn’t do anything if the grandparents were there.”
D confirmed that there were no incidents of sexual abuse post August 2010 despite D living with Father.

D went for counselling between late 2010 and early 2011 to an organisation called,
“Healthy Minds.”  She went for “a few sessions” and she received this counselling through her GP.
D told me that she is very close to her maternal grandmother and at the stage she went for counselling she was close to her aunt Ms. S.  D told me that her grandmother knew how unhappy she was at not having contact with Mother.

D’s relationship with her current partner started in April 2011.  She moved out from Father’s home in February 2012.  D told me,
“I just wanted to get away from father.”  On 1.2.2012 D moved into a private flat with her partner.

D told me that in February 2012 she sent an e mail to her mother seeking contact.  She wanted to “re-kindle the relationship.”  The response from mother was to say that she knew the e mail had not been written by D and that once she knew it had really come from D she would speak to her.”

D also accepted that throughout the entire period that she had contact no contact with her mother, she had her mother’s e mail address which did not change.  Therefore at any time she could have contacted her mother.  However she told me that she had not e mailed her mother between August 2010 and February 2013. (In fact that is not correct because it later emerged that she had e mailed her mother although the precise date is uncertain as explored below.)   At one of the saddest parts of her evidence D, through tears, explained,
“I was scared to be rejected.”  D told me that she really really wanted to see her mother all the time.  She told me she was “desperate” to see her mother.  D also told me,
“I felt I was responsible for getting my mother arrested.”

D was asked many questions by Mother in re-examination, some matters were fresh and were not matters arising out of the evidence but given that other was a litigant in person I gave mother generous latitude.  Mother sought to bring out the times that she had spent with D and that D had also achieved a great deal in netball.

I then heard from Mother.

Mother told me that by May 2010 she wanted her marriage to end.  She said,
“I had made a decision that the marriage had ended – I should have handled it better.”  Mother wanted father to leave the home and she would allow contact between Father and O.  “ I said he could come and go.”  Mother told me of her distress about the events of 6th. August 2010 and she believes the police have over reacted.  She had made a formal complaint.

It was put to mother that she had described father as a good father in her first statement and she answered,
“He was very good at taking O to places.”

Mother told me of her distress at being “dragged through the courts” and said she is never the applicant, it is father who brings the cases.”  Mother told me that Father had said dreadful things about her, calling her a lesbian and in a relationship with Dr. X and being part of a “cult.”

Asked about O writing the note to Ms. Finn, mother told me the following,
“when I spoke to Katrina, she said it would be a good to be able to write something down.  I told O that he could write a note to Ms. Finn about how he felt about anything.”

The part of Ms. Finn’s report set out above in which mother appears triumphant when told that Ms. Finn would not be recommending that contract goes ahead, mother accepted that she said, “ thank you thank you” but she did not accept that she said, “Yay..” although she did say, 
“ Can you hear him, he is so happy.”

One area the mother was cross-examined about was of the change of O’s school in September 2013.  The parents had agreed that O would attend school A.  At the hearing before His Honour Judge Serota QC, on 30th. July 2013, after O has not been returned to father's care, Father specifically raised with the judge ((B51 of the transcript) that he was concerned that mother was planning not to send him to that school).  The transcript reads as follows,

“Sorry to interrupt.  On the application as well, I’m concerned now that it appears that O is going to be with his mother for that period of weeks.  I have concern based on what O told me that it’s his mother’s intention for him not to attend the school, as is part of the court order and we have agreed he will attend in September.”

HH Judge Serota QC specifically asked mother, “Is that right?” to which Mother answers “No.”

HH Judge Serota QC understandably re-assured by Mother’s answers says to father,
“There you are.”

An e mail from a worker at, “Beavers”, a group that O attended was put to mother.  The note is dated 30th. September 2013.  The note reads as follows,
“ it would have been the end of June beginning of July - the boys all talking about the middle school and he said he wouldn't be going there he was going somewhere else but he didn't say where.”

Mother could give no explanation as to why O would have said this to this lady.  I asked her whether I should simply see this as a coincidence given what later happened and she told me that I should. Mother denied that there was any premeditation on her part about changing school as far back as July 2013.

Asked about D’s allegation that she had been bullied by Dr. X’s daughter T, mother told me, “I spoke to T briefly.”  Asked if she had discussed this concern Mother said,
“Of course we spoke about D.”

Asked why she had not proceeded with mediation to repair and her relationship with D, Mother’s response was,
“I knew father was still using D as a pawn.”

However mother did go on to say that one of the reasons she did not speak to D was that with,
“All the mud slinging and accusations I did not want to be embroiled in anything further if I spoke to her – she was angry with me – it was my fault I now realise – I should have ignored it and not cared – I should have knocked on the door and said I want to see my daughter – I didn’t want the police put on me.”
Mother went on to say, “That is something that will be a regret – I didn’t pick up the phone and see she was OK.”

Mother accepted that in February 2012, D e mailed her to try and make contact.  Mother accepted that she thought it was not D’s words on the e mail and therefore she did not respond positively. 

Mother described herself as “foolishly and selfishly protecting herself from the mud slinging”  She described to me how she feels her life has been led for the last four years by a court.  She has been left in considerable debt.

Of the assault on the D,  mother said,
“Yes I assaulted her and I will regret it for the rest of my life.”

It was put to Mother that her actions have caused D emotional harm.  Mother said,
“There will be some, yes.”  However Mother told me, “I didn’t reject her, I have never rejected her – my mistake was I should have picked up the phone.”  Mother accepted that and D will have viewed her behaviour as a rejection.

Mother was asked about another assault on D in May 2010.  Mother accepted that during an argument Mother dragged D along by the arm and at one point by the hair.

Of the events of 6th. August 2010 Mother’s case is that father had pre-meditatively set mother up for her to react badly and for him to abscond with the children.  Mother gave evidence at some length about the aftermath of the events of 6th. August 2010.  To this day she clearly feels deeply aggrieved that father left the family home with the children to an undisclosed address.

Regarding the allegations of sexual abuse by D, it was put to mother that she has somehow influenced D to make the allegations.  Mother emphatically denied that she had anything to do with D’s allegations and told me that she believes D.  At one point Mother told me she would “like to see Father in prison for what he has done to D.”

Mother was asked whether her intention is to exclude Father from O’s life.  Mother did not answer the question directly but told me,
“He’s a happy boy now, he has not got the stress and strain and tension.”  Mother emphasise to me that O is just very very happy.

Under cross examination on behalf of O, a section of the CAFCASS report (set out above) setting out O’s views, was put to mother.  Mother was at her most evasive and difficult when answering questions about this document.  Mother denied that she had involved O in discussions about court and told me she does not understand why O has made the comments reported or why he has told the CAFCASS officer what he did. Time and time again mother denied that she had given O the information or ideas he discusses in that section.  Mother told me that she does not know why O does not like his father or why he is scared of his father.  Mother could not assist for example with why O told the CAFCASS officer that the “police are mean to mummy.”

Mother told me that she has only discussed the court proceedings with O insofar as she has explained who would be speaking to O or why.  Mother told me that the police have attended at the home in respect of the allegations regarding D.  According to mother O knew the people who visited were police.

Mother was asked about the impact of the schooling issue on O and Mother’s response was,
“he had a fantastic summer actually.  The school thing did not have an impact because he is flying at school at the moment.  It must have had some impact.  Since he has not seen his father he has not been a difficult child.”

To the direct question,
“Not seeing his father has had no impact on O – he is better off not seeing his father – he is a lot happier,” Mother responded, “yes he is.”

However Mother told me that she supported the supervised contacts between O and his father and that O had particularly enjoyed the contact involving  A his cousin.

Mother was asked about the two contacts when O refused to have contact with his father.  Mother accepted that there was nothing physically wrong with O but ,
“I just don’t think he wanted to see his father.”  Mother told me that O would not get out of bed – sometimes apparently he is still in bed at 10/11am on a Saturday.  Mother had organised that her mother and her partner would take O for the contact on 17th. November but O “refused to go.”

The next witness I heard from was father’s sister Ms. S.

Ms. S has a degree in law and in history.  She has assisted father with the proceedings and has attended at court with father although she has not been present in the court room.  Ms. S has a number of professional commitments including chairing the selection panels of the JAC.  She has two children one nearly 7 and one of 9.  Tragically she has been diagnosed as suffering from a grade 4 glioblastoma (brain tumour.)  She has successfully undergone radiotherapy and chemotherapy in February - June 2013, but if the tumour starts to re-grow the prognosis is bleak.

Ms. S told me that she has always regarded D as her niece.  She gave evidence at some length about the events after 6th. August 2010.  Ms. S told me that D felt anger towards her mother but was also in "huge distress."

Ms. S told me in some detail of the discussions that took place after the events of 6th/7th. August 2010.  She spoke of how father with her assistance, "was trying to figure out what would happen."

Ms. S told me that there were several discussions with D.  Ms. S told me,
"We were all so shocked."  Ms. S was clear that D told her she did not want to go back to live with her mother.  D told Ms. S of the extent of the verbal and psychological abuse she had been suffering as a result of her and mother's deteriorating relationship with her and some aspects of physical abuse.

Ms. S discussed with D the options including D living with her grandparents.  According to Ms. S D wanted to continue with her education and be in an area where she can continue at school.
D was clear that she did not want to live with her grandmother as she found her "annoying".  "It would have driven her nuts."

Ms. S told me that she had been concerned when D had become pregnant and felt she was too young and too insecure.  She was concerned that she was not ready to have a baby.  Ms. S told me that D had told her that she had previously had a termination from a previous pregnancy.  D had denied to me that she had had a termination prior to her pregnancy before her child.

Although Ms. S did not approve of the pregnancy and was concerned how D would cope, she accepted that D had coped very well with her child and as far as she was concerned she continued to have a good relationship with D after the birth of the child, paying for D, her partner and the baby to go to Butlins for a holiday.

Ms. S told me that she had last seen D at court after Mother had refused to return O to her care.  She was sitting outside of court.  The paternal grandmother was also at court and said to Father and Ms. S,
"I can't talk to you - you need to understand, I need to support my daughter."

Ms. S told me that she was tearful and upset because she had been so ill and the medication was at that time not controlling her epilepsy. She spoke to D who sat with her.  D sent Ms. S a supportive e mail after the court hearing which is in the bundle and which Ms. S was, "touched by."

Ms. S told me that D had wanted to make contact with her mother.  She told me that she had helped D write an e mail to her mother.  However, she thought this e mail was much earlier than February 2012, she thought this was about September 2010.  Ms. S's recollection is that D asked her mother if she had received her e mail when Mother came to collect O for the alternate week.  Ms. S remembers D telling her that Mother had said,
"I'm not going to reply to it because I do not believe you have written it."  Ms. X describes D as feeling, "terribly rejected."

Of her brother Ms. S told me,
[ ] is one of the most loving fathers I have ever met - he is amazing - he puts effort in."  Ms. S told me how father would be very involved in O's life, take him to the library and be very active.

Mother cross examined Ms. S about her level of contact with Mother prior to August 2010.  Ms. S accepted that she had not had a high level of contact with Mother and often father and then children would attend family events and not Mother.

Mother cross examined Ms. S about the week after 6th. August 2010 and Ms. S was clear that there was real concern about what Mother would do.  She said to mother,
"we were shocked to discover what had been going on."

Asked about her impression of the marriage break-up Ms. S stated that she knew the parties were becoming more distant.  She said,
"you were frustrated father did not have his own interests.  I got the impression you were disappointed in father."

Asked about the contact in November 2013, Ms. S told me that she was surprised how relaxed O was, given the break in contact.  She described that O was "entirely comfortable" with his father and was "entirely natural."  Ms. S was clear that nothing had happened at the contact in November which could have led to O refusing contact with his father subsequently.

I then heard from Mother's friend Dr. X.

Dr. X has made a statement although undated was made in about November 2013.  The tone of Dr. X's evidence is perhaps shown by the last two paragraphs of her statement which I shall set out.

"When Mother was under police arrest I telephoned the police several time throughout the night to warn them repeatedly that he would abscond with O.  When I went to pick Mother up the following morning, father had indeed vanished with O having neatly set the scene with lies.  Mother accepted a police caution because the police told her to and all she wanted was to get out and ascertain O's safety.  That night ruined her life and her reputation and has dogged her ever since.  She reported O missing but was told it wasn't a police matter.  She then spent a great deal of money forcing father into court and has been a living nightmare since that night.
Finally things seem to be turning around s O has got older and more articulate in his wishes.  Since he has been with her full time I have seen him blossom.  Everything father says about him being unclean is downright lies.  He has said so many lies about her, things that should be obviously ridiculous such as she has joined a cult and doesn't want O to attend school.  He is an extremely devious and deceptive man who has had a good run of it due to the head start he got by having Mother arrested but thankfully now the truth is coming out.  I pray that mother will be able to move on with her family because I have never seen such viciousness."

Dr. X explained that she and mother had met through their respective daughters, D and T.  She understood mother's marriage to be under strain.  She told me that the maternal grandmother had visited her and expressed concern at the amount of time Mother was spending with her.

Dr. X told me that as far as she was concerned she was friends with father.

As she put it,
"Mother decided to end the marriage and all hell let loose."

Dr. X told me that D had approached her before August 2010 and told her she wanted a relationship with an older man.  This had caused friction within the home.

Leading up to 6th. August 2010 father had contacted Dr. X asking for her support and assistance as he knew the marriage was in difficulty.  Father did not know about mother's embryonic relationship with Mr. B although Dr. X did.  Dr. X told me that father had asked her to use her influence to try and persuade mother not to end the marriage.

Dr. X told me of the events of 6/7th. August 2010 and she told me in graphic detail of the miscarriage of justice (as she saw it) of mother being arrested that evening.  Dr. X tried to intervene to stop mother being arrested.  She told me,
"I told the police that it was my belief that they (the police) were being used in a nefarious way to establish rights over a child in a domestic situation."  Dr. X explained that by removing mother from the home father would "take advantage" and "consolidate his position" with the house and O "which he did - he disappeared with his son."  Dr. X told me,
"We were dealing with a child abduction case."

Dr. X old me,
"It is my understanding that this was a pre-meditated attempt by father to discredit mother because 2 days before he had been begging me to use my influence to get mother to stay in the marriage."

Dr. X told me that when mother returned to the home that evening (from her house) she was "not looking for trouble."

Dr. X told me,
"I did feel, as her friend that this was an abuse of the legal system to establish a picture of my friend that was unfair."

Of her beliefs Dr. X told me that she has an interest in spiritualism and she is a Roman Catholic.

Asked about her understanding of why mother did not make contact with D, Dr. X stated,
"As far as D went my understanding was that mother thought she was being incredibly rebellious over the Andy character"  Dr. X described mother as "confused and frightened to make contact."

Dr. X told me that her impression of the contact regime of shared care was that,
"My impression was that he was finding the constant change of environment disruptive."
Her impression of him now is that he is,
"A very happy content little boy."

Dr. X gave her views about D's allegations.  She told me,
"I have no reason to disbelieve them.  Why would she come up with something like that?"

Mother asked Dr. X to be present when Ms. Finn attended at the home to pick O up for contact with father.  Dr. X said to mother,
"You asked me to be present in the capacity of another pair of ears - you did not want anything to be mis-interpreted or taken the wrong way."  Dr. X told me,
"I felt at the time he was being hounded in his own bedroom - if all the hatred could stop and he could be asked what he wants - it is so sad it has come to this from nowhere."

Dr. X told mother that in her view she did not abandon D and that it was a "temporary problem."

Dr. X changed her name from FB to Dr. X.  She is a qualified Reiki healer and a "sound therapist."  She has a PhD in psychotherapy, hence the title which she likes to be used, of Dr.  Dr. X is also a Roman Catholic.

Asked about her relationship with mother Dr. X told me that she considers herself to be, "a good and honest friend."

Dr. X described father as "an extremely vengeful man."

Asked about the police statements of 6th. August 2010, Dr. X denied making threats or being abusive although she accepted calling the maternal grandmother a "bitch."

Dr. X was asked about the allegations of bullying by D.  Dr. X said that D had made allegations about her children and she had spoken to the teachers at the school explaining that D was caught up in a nasty marital break up  She told me that her children are not bullies.  Dr. X almost complained that she has been dragged into someone else's personal and private life.

Dr. X accepted that she had rented the former matrimonial home without father's consent.  She is now renting a property owned by Mother's current partner Mr. B.

Under cross examination on behalf of O, Dr. X confirmed that in her opinion father set up the situation on 6th. August 2010.  She went onto say,
"I feel throughout all of this his main objective has not been on O but it has been about to harm my friend and harm her reputation."

Dr. X made the allegations that on 7th.  August 2010 Ms. S had given D £100.  The implication is that Ms. S had somehow tried to bribe D.  Dr. X told me,
"I think Ms. S has been prominent in making sure father has been getting the most out of the legal situation."

I then heard from Mother's partner Mr. B.  He has known O for four years and has lived with O for just over 2 years.  He and mother met at work and started a friendship (Mr. B denied it was sexual) prior to the marriage breakdown in August 2010.  He told me of his shock when he learnt that mother had been arrested in August 2010. 
Asked by mother about D, Mr. B said
"I'm aware of the difficult relationship you had with her when she was 15/16 - she was seeing an older man - you've never willingly distanced yourself you have always been concerned for her wellbeing."

Mr. B told me that during the period of the shared care arrangement O suffered frequent mood swings, wet himself and mother would have to sleep with him.

Now that he is living with mother he is,
"a totally different child."

Mr. B told me that he is an ex-teacher and enjoys working with O.

Mr. B told me that he is surprised that his views have never been sought given that he has lived with O for over two years.  He finds it, "astounding."  He said to mother,
"I don't think the system has supported you."

Mr. B told me O is a "wonderfully happy child."  Of D's allegations Mr. B said to mother who was taking him in examination in chief,
I can't believe you are sat in the same room as him - it is almost cruel you are being put through this."

Mr. B said of mother that she is,
"A great example of motherhood - I do not think I can fault you at all."
Mr. B runs his own business and has varying office hours but on occasions takes O to school.

Mr. B told me that every time O was due to see his father he showed signs of not wanting to go.  He told me that he had taken a photo of O's bed with vomit on it, which he took as evidence that O had been sick prior to one of the planned contact visits in the autumn of 2013.

Mr. B did not seem to know the details of D's allegations but believed the wholeheartedly.

At the end of Mr. B's evidence he was asked about the change of school for O.  He accepted he had been part of the discussions and accepted that at no time did he discuss with mother informing father of their decision to move schools.  I asked Mr. B how he would feel if such a decision had been made about his child without him being informed.  Mr. B told me,
"I think if I had done what he had done to his wife I would have lost the right to be informed."  

I then heard from father.

Father told me that O is a delightful little boy and he loves spending quality time with him.  He was referred to paragraph 5 of the CAFCASS report which sets out Mother's impressions of O during the shared care arrangement when O was having nightmares, chewing his nails, being clingy and vomiting.  Father told me he has never seen O behave in this way.

In respect of the incident in August 2010 father stood by his original police statement.  He emphatically denied that Ms. S had given D money on 7th. August 2010 as she had not seen D that day and denied that there had been any bribe to D to make that statement.

Father described D as at times confrontational and would give "back chat."  Father had not witnessed any of the previous physical altercations between Mother and D but had been told about them.

Asked about the allegations of sexual abuse Father emphatically and categorically denied that he had ever acted in a sexually inappropriate way towards D.  He denied that he had ever entered into the bathroom when D was in there and would never have done so even to get a small item when D was in the shower.

Father was asked about Mother's case that the events of 6th. August were effectively a pre-meditated set up on his part to gain an advantage over what would be a custody battle over O.  Father denied this absolutely.  He told me of D's distress after the assault by mother.  D was "sobbing and wailing” stating, "I don't understand."  As father pointed out he had no way of knowing that mother would be arrested that evening.
Father told me that he removed the children from the property on the advice of social services who told him to remove the children from any danger.

Father described D as "very lost" after the incident struggling to come to terms with the loss (as she saw it) of her mother.

Father gave similar evidence to that of his sister in respect of the round the table discussions they had with D about her options, including living with her grandparents.

Father remembers that the e mail sent by D to her mother was late 2010, not 2012.  Father told me that mother was invited into his home when D asked mother if she was going to respond to her e mail.  He described the mother and D as "throwing insults around."

Father told me that by early 2012 he had to find an alternative property he had been renting a property for himself and the two children with the assistance of his sister.  D was in a relationship and had a partner.  Father informed D that she would either need to find accommodation for her and her family or she would have to contribute to the rent.  He asked her for £250 per calendar month.  D would not agree to make this payment.  D moved out of father's home in March 2012.  After she moved out she visited father.  Father had last seen D on 22nd. July 2013.  The last telephone conversation he had with D was a call in August 2013 when according to father D was very angry and said he had not been a good father.  He said it,
"escalated into a nonsensical conversation."

Father told me that he is very concerned about the future.  He feels that great damage has been done to O and he is concerned that O will ever be permitted to have a normal relationship with him now if he remains with his mother.   He told me that his parents have not seen O since July 2013 yet when O was with him, he made sure O saw the maternal grandparents.

Father was asked about his impressions of D.  He told me that in the past she has told lies about going out, who she has seen, homework she has had to do etc.
He told me that he believes she has been influenced by mother.  He believes she is a troubled young person who has never resolved the issues surrounding mother's assault of her and he believes D is desperate for her mother's love. 

Father told me that the former family home has been apportioned and he owns 49% of it.  There is an order for sale but mother does not want a sale because after the mortgage and her debts are redeemed she will be in debt. Clearly this is a real source of tension between the parents.

Father told me he has little confidence in mother now because as far as he is concerned she has breached court orders.

As mother was in person Mother had to cross examine father.  This was a difficult experience for both parents and mother in particular found this very difficult.  Mother asked father in great detail about the events of 6/7th. August 2010.  The thrust of her case is as follows;
The events of 6/7th. August 2010 were a set up to exclude mother from the house, to gain control of the children and to discredit Mother.  Furthermore, father knew he had sexually abused D and knew at some stage it would come out.  He therefore sought to exclude mother from D's life.

Mother repeatedly accused father of making inaccurate comments about mother.  Mother put to father that he had told the police she was a threat to the children.  However, there is no evidence that father told the police that during the first telephone call.  Mother asked father about the reaction of the police and father responded by stating that he could not explain why the police responded in the way they did.  He accepted that during the second telephone call he reported the assault on D.  The second phone call was a 999 call.

Mother put to father that he has tried to discredit mother by alleging that she drinks too much.  Father stated in evidence that on occasions mother did drink to excess

Mother put to father that he has called her various names such as child abuser, lesbian, has sexual fantasies about African men, parent alienator and a cult member.

Going through those concerns, father stated that one of the marital aids he had bought to use during sex with mother was because mother had a fantasy about African men.  Father denies that he has described mother as a cult member but has referred to mother's spiritualism which father has had concerns about.  In relation to his concern about mother's relationship with Dr. X father told me that he did not understand the relationship or what the nature of it was as the two women spent so much time together.  Father told me,
"I thought there was a relationship which went beyond a friendship."

Father does not know how or why the allegations by D have emerged but he feels at the least there has been "subtle incitement" by mother to D.  He is convinced there have been conversations between mother and D about the court proceedings.

Mother put to father that prior to 6/7th. August 2010 she had texted father asking for a separation and asking that there be no nastiness.  She wanted father to go and live with his sister.  Father accepted that that conversation may have taken place.

Interestingly when cross examining father about the 6th. August 2010, mother put to father that he asked her parents to come over and said,
"You knew that would be my button to push."  Father responded, "No that is not the reason why I brought them over."

Father told me that he had always been friendly towards Dr. X as she was such a close friend of Mother's but he had not been comfortable with her views.  He accepted that he had had a Reiki treatment with Dr. X although he did not think it had made any difference to him. He told me,
"My relationship with Dr. was built around the need to be friendly with her as a friend of mother's."

Asked about Dr. X's views, father told me that Dr. X saw herself as, "the vessel for delivering the grandson of god" and that O was the protector of the "grandson of god to ensure the future of humanity."

Mother put to father that their sex life had waned after the birth of O.  Father told me the "penis extender" mentioned by D had been bought by him in 2009/2010 for use with Mother.  Mother challenged father on this and put to him that their sex life had stopped entirely by 2007/2008.  

Mother challenged father about whether there was a lock on the bathroom door.  Father maintained there was a lock.

After O moved schools to the school of mother's choice father went to the school to meet the head teacher.  He informed the head teacher of some of the background to the case including the fact that Mother had been cautioned for assaulting D.  Mother expressed a great deal of anger and upset about this during the cross examination.

One of mother's questions to father was,
"You have persistently tried to alienate me from all of the agencies."  Father responded, "I have spoken to CAFCASS."

Mother asked father why he seeks to remove O from her care when he is so happy.  Father told me that having listened to the evidence he believes there is an unwillingness on the part of mother to encourage a positive relationship between father and O.  Father is particularly concerned by the influence of Dr. X and Mr. B.  "There seems to be no capacity to allow for a relationship to be promoted between O and I."

During one pat of the cross examination mother produced a catalogue which had been delivered to the former family home.  The catalogue had been sent to father.  It was a catalogue of adult pornography (DVDs) and marital aids.  Father accepted that he had ordered items from the catalogue.  Mother referred to a title which was a DVD encouraging incest.  However mother was not suggesting that father had ordered that particular catalogue.  Father accepted that he ordered pornography and that he had watched it whilst alone.  Mother then cross examined father about his masturbation habits.  Father accepted that he masturbated in private, sometimes needing to use a tissue or t-shirt.  Mother suggested that it was inappropriate for father to put soiled t shirts in the laundry basket.

Under cross examination on behalf of O, father told me he is content with the accuracy of the contact reports by Ms. Finn.  Father told me he thought that contact had gone extremely well.  Asked about the events of July 2013 father told me,
"I believe it was her (mother's intention) that O live with her - the specific timing - the end of the school term."  Father told me that his view is mother had no intention of taking O to the chosen school, it was too far away from her and so she engineered the difficulty in July to force a change of the shared care regime.

I did not hear from Ms. Finn the independent social worker.  Neither father nor the children’s guardian challenged her evidence.  Mother did not seek to call her.  However during the course of the hearing when mother gave evidence that the note O handed to Ms. Finn had been written at Ms. Finn’s suggestion, questions were put to Ms. Finn by e mail.  Furthermore Mother challenged the reaction of her as described by Ms. Finn when she informed mother that she was recommending that the contact on 23rd. November 2013 should not go ahead.  The following questions were asked;

“The mother has said in her evidence to the court that you advised her that it would be a good idea for O to put his wishes and feelings down in writing.  
Can you confirm whether you said this to the mother and when this conversation took place.  Please elaborate on the context of such conversation if it did take place.

Ms. Finn responded,
“I do not recall at any time advising Mother to get O to write down his wishes and feelings.  I was surprised when he gave me the written note in our second session at school.”

The second question was asked as follows;
Please refer to para38 and 39 of your report dated 28.11.13 (D50) the telephone conversation between you and the mother on the 22.11.13 regarding your recommendation that the contact not proceed and Mother’s response.

The mother gave evidence that this was not an accurate recording in the following respects;
i.	she did not scream with delight
ii.	she did not say “yey”
iii.	you are wrong in describing it as “sounding like a celebration.

Do you wish to make any corrections to your report in light of this?

Ms. Finn responded” I do not wish to make any changes to these comments, this is as it was.”

I did not hear from the maternal grandmother.  Mother told me that her mother was too stressed and upset to give evidence and had not attend at court.  I asked Mother whether she wanted me to adjourn the case to another day but mother did not wish me to do that.  She consented to the matter proceeding to submissions.  I was concerned that the parties had every opportunity to consider their respective cases and so I adjourned the case to 15th. April 2014 for submissions.  I am extremely grateful to all parties for their written submissions which have been of enormous assistance to the court.  All the parties have raised issues during the course of the hearing and in their written submissions.  I cannot hope to address each and every issue.  I have addressed the issues which have seemed to have been of  importance to the parties and those which I consider to be relevant to the matters which will assist me in due course in determining what is in the best interests of O.

Analysis.

I will consider the evidence and the findings.   For the avoidance of doubt when considering the findings the burden of proof is on the person making the allegation.  The standard of proof is the balance of probabilities.

The nature of this hearing is that it is a fact finding hearing.  I was extremely conscious throughout that mother was a litigant in person.  This court has given great latitude to mother to put her case.  The case was adjourned at particular times to give mother time to prepare her cross examination or her submissions, or when I considered that mother needed time to consider the evidence she had heard.  There were times when mother was very distressed and I considered it only fair to adjourn the proceedings to allow mother to compose herself and consider how she wished to present her case.  I was also conscious that both advocates treated mother with courtesy and respect and Ms. Rahal on behalf of O attempted to assist mother as much as she was able to.  Ms. Mitchell obviously was in a more difficult position to be of assistance.  I am satisfied that all that could have been done was done to ensure equality of arms as between the parties, given that mother was unrepresented.  However, I accept that having to cross examine one’s former partner on the matters involved in this case was extremely difficult and distressing for all concerned.

Even by the standards of family courts, this is an extreme example of the damage that can be caused to children and adults after the breakdown of a relationship, when all trust has gone and when parties become embroiled in disputes over children and property.  This family has been involved in a protracted and bitter battle for four years with enormous cost to all involved, both adults and children.  

One always hesitates to make unpalatable findings against a parent, particularly within the context of private law proceedings, because one strives not to hurt the feelings of the parties any more than has already occurred through the family breakdown and through the litigation itself.  However, having reviewed the file, it seems to me that the court has tried and in particular His Honour Judge Hughes has attempted to move this case forward without the need for a fact finding hearing and without the need for battle lines to be so starkly drawn.  The parties have been given every opportunity available to the court to move forward in a conciliatory way.  Ultimately His Honour Judge Hughes set this down for a fact finding hearing.  Having heard the evidence I now have to set out my findings based on the evidence before me.

So what are my findings?

Mother strikes me as an intelligent lady who is energetic and dynamic.  She is a strong personality.  She is emotional and headstrong.  I accept that she has worked hard professionally, starting her own consultancy business and she achieved a high level of skill in her netball.  It is clear to me that prior to August 2010 she was spending a great deal of time out of the home during evenings and on Sundays playing netball and father cared for O and D for long periods due to these activities.  I do not criticise mother for that but it is clear that outside of working hours, father cared for both children alone on a frequent basis.

Father is a far more reserved character.  He is intelligent, articulate and strikes me as a deep thinker.  He, like mother, also has a good work ethic and has held a number of different posts within the civil service.

It is clear from the evidence that the marriage ran into difficulties by 2010.  Father's sister told me that she felt mother was frustrated by father's lack of outside interests and hobbies and almost seemed disappointed in him.  It certainly seems that the excitement had gone out of the marriage for mother.

Mother had also met Dr. X in 2006 and it is clear that they had started a close friendship.  Mother appeared to become interested in spiritual matters through this friendship.

I was struck by D's evidence that she felt mother prioritised Dr. X and her children.  I was also struck by D feeling that Mother was away from home a great deal.  It is clear to me that prior to August 2010, D felt emotionally neglected by mother and resented the attention mother heaped upon Dr. X and her family.

In May/June 2010 Mother met Mr. B.  I am not convinced that a sexual relationship did not start between them prior to August 2010 although Mr. B maintains that it did not.  In any event, it is clear they were attracted to one another and perhaps this new relationship was the trigger mother needed to end her marriage which she had found unsatisfactory for some time.

Mother decided that the marriage was to end and that the sensible way forward was for father to move out of the property, for father to have unrestricted contact to O and that was how things were going to be.  I do wonder, if father had simply acquiesced to this plan whether any of the following events would have taken place.  (I am not suggesting that father should simply have acquiesced but had mother got her way in the first place, I suspect history would now be very different.)

However, father was not going to accept mother's plan. Firstly he did not want the marriage to end.  Secondly he did not see why he should move out of the house.  Thirdly he did not agree to mother being the main carer for O.  I do not criticise father for this.  He did not know about Mr. B.  He hoped the marriage would continue.  At the very least he needed time to come to terms with what mother was proposing.

At the same time mother had a difficult and fractious relationship with her daughter.  No one suggests that that was the fault of Father.  No one suggests that father had negatively intervened to cause that difficult relationship.  I am concerned that before 6th. August 2010, on the case of both mother and D, there had been two physical altercations between mother and D.  On one occasion Mother had slapped D around the face and on another mother had dragged D by the arm and the hair.  Therefore Mother must take responsibility for this difficult relationship herself.  She cannot place this at the door of father.

By 6th. August 2010 mother wanted to end the marriage and for father to leave quietly, no doubt so that she can organise her new life with Mr. B.  I was struck by how markedly egocentric her view of this period was and is.  She simply could not understand why father would not simply acquiesce to her plan.  To tell someone that their marriage is over and they must move out of the family home can be a profoundly shocking event, but mother seems to have no insight, empathy or compassion for father.  She no longer wanted the marriage and she wanted father gone.

Clearly tensions were running high during the anniversary meal on 6th. August 2010.  Father was not complying with Mother's wishes and clearly father made it clear to mother that he was not "going quietly."  I am unclear about the precise conversation between mother and father on the evening of 6th. August 2010 after the family had returned from the meal, but I am satisfied that mother told father what she wanted and father told mother he would not comply.  It may be that father's lack of obedience and compliance shocked her.  She had been the stronger personality and it is clear father had accommodated her lengthy absences from the family home to pursue her netball without complaint.  He had simply accepted it and got on with caring for the children.

I accept that father was shaken and concerned by the conversation and telephoned the police on the first occasion because he was genuinely concerned.  I do not accept mother's case that father put into action a pre-meditated course of conduct with the aim of discrediting mother and giving himself an advantage over mother in terms of the separation.

Firstly, father did not know whether mother was returning on the evening of 6/7th. August 2010.  Secondly not only father but D called the maternal grandparents.  The maternal grandmother told the police that she had attended at her daughter's house to comfort D.  Thirdly, I accept father's evidence when he states he did not know how mother would react.  Mother reacted violently and hysterically.  It may be that she felt a sense of guilt that she was in fact carrying out an extra marital affair (or wanted to commence a relationship with Mr. B) and was ending the marriage.  What I am satisfied of is that instead of understanding the concern of her family, mother reacted in an abusive and unacceptable way.  Whether or not she struck D on the face, she clearly assaulted D which left her distraught, shaken and feeling profoundly rejected.  She was abusive towards her own parents.  In fact, she did not make any allegations against father that evening save that he had tried to restrain her by giving her a bear hug from behind.  It was interesting that mother put to father in cross examination that he knew which "buttons to push."  Mother’s case is that father knew she would react violently and abusively.  In fact that is not father’s case.  His case is that he was profoundly shocked by Mother’s behaviour.

Father gained nothing financially by moving out of the former family home.  He has never returned, has lived in rented accommodation and to this day there is a bitter battle over the sale of the home which is currently occupied by D without father’s consent.  Interestingly D told me with confidence that the house would not be sold because mother has said it will not be sold.  There is an order for sale in force.

A child centred response by mother to this situation would have been calmly to ask her parents to leave or simply to tell them that she did not wish to discuss the situation with them.  Mother must take responsibility for her own actions.  It is she who assaulted D.  I accept there have been negative consequences for Mother flowing from the caution but she cannot blame father for that.  It is time for her to face up to her own actions.

In respect of the post 7th. August 2010 I accept that father acted in what he thought was in the best interests of the children.  Firstly I reject any suggestion that Father influenced D into making a statement to the police or influenced what D put in the statement.  D was carefully taken through her police statement and even to this present day accepts the truth of most of it.  Whether father needed to remove the children to an undisclosed address, I am less sure of.  I understand why mother views this as an over reaction and a calculated move to gain advantage.  However, having heard Ms. S and father, I accept father and D were genuinely in shock and father, who clearly does not seek confrontation, genuinely felt it was the appropriate course of action.  I do not criticise father for this but understand mother's shock and distress when she returned home to find the children gone.
The events of that night have caused such emotional scars to mother, father and D that the course of these proceedings have been shaped by them.

I entirely reject the evidence of D that she chose to live with father because of undue influence on his part.  I accept the evidence of father and Ms. S that all of the options were discussed with D including D living with her maternal grandparents.  I am satisfied that D chose to live with father in the circumstances in which she found herself, namely post 6th. August 2010 when she had been assaulted by her mother and felt thoroughly rejected  by her.  

The parents were able to agree the shared care arrangement for O by the Autumn of 2010.  Had father wanted to alienate or shut mother out of O's life he could have been far more difficult in negotiations than he clearly was, given the events in August 2010.

I am particularly concerned by Mother's behaviour towards D.  There is a conflict on the evidence as to when D attempted to contact mother.  Ms. S and father believes D sent the e mail (assisted by Ms. S) to mother in later 2010.  D believes it was in February 2012.  On balance I prefer the evidence as to the timing of this of Ms. S and father.  However, in a way it matters not.  The reality is that Mother chose not to have contact with D from August 2010 until January 2013.  That is a profoundly concerning part of this case and I am  dissatisfied with Mother's explanation for this.  Mother had every opportunity to try and rebuild her relationship with D far sooner than January 2013.  Father actively encouraged mediation and D was desperate for it.  However Mother effectively refused to take part and did not proceed with it.  Mother was considering her own hurt, anger and betrayal (as she saw it) by D about the events of 7th. August 2010 rather than the needs of her daughter.  Whenever the e mail was sent, be it 2010 or 2012, mother did not embrace it warmly and seek a reconciliation, but once again rejected D by saying she would respond when she thought it came from D.  Mother professed never to have rejected D.  If mother cannot understand the profound sense of rejection felt by D she has very little insight, empathy or understanding of the needs of her daughter.  I am concerned that Mother did not intervene when she knew that D was concerned about the behaviour of Dr. X's daughters T and M.  Whilst I of course make no negative comments about those children, the fact is that D felt she was being bullied by them.  Mother seems to have no comprehension that her loyalty for Dr. X and her family (as D perceived it) was a further rejection for D who so badly craved her mother's love and support.  I am baffled how mother could have failed to make contact with D, even when she knew that she was expecting her first child. ie. Mother’s first grandchild and she did not see F (the grand daughter) until she was 7 months old.  Mother even blamed father for the fact that D became pregnant.  I asked mother whether she really blamed father for that, to which mother responded, “well she was in his care at the time.”  Once again Mother’s lack of insight into D’s emotional needs, was evident.

These are the bold facts of this case and mother, (and now D) seek to blame father for all of this.  

I accept the evidence of father and Ms. S that they went to great lengths to consider the needs of D and O post 7th. August 2010.  Father took D in and positioned his rented house (subsidised by Ms. S) in order that D could continue her education.  Mother gave father no credit for this at all.  

I was also very concerned that Mother seems to lack insight into the effect on D of living in a household where every week for many months, she would see her brother leave the house to go and spend a week with her mother with whom she had no contact.  The sense of rejection must have been re-enforced week in and week out.  It was an extraordinary state of affairs, not just for D but also for O.  What sense must he have made of his mother not speaking or having contact with his sister. 

In 2011 Mother made an allegation that father had slapped/hit O causing him bruising to the thigh.  I have seen the ABE interview of O.  I have not seen the section 47 investigation carried out by the local authority although it was ordered by the court.  I have seen no medical evidence.  D gave evidence that father had asked her to lie to say that she had seen O run into a chair thus causing the bruise.  Father denies this.  Father’s case is that O ran into a chair which caused the bruising.  Of most concern is that O was sitting on Mother's lap during the ABE interview.  At key moments during that interview he looked at his mother when answering key questions.  I asked Mother how it came to be that she was present and indeed had O on her lap during the ABE interview.  She told me the police officer had asked her to be present.  I find that very hard to believe.  I have never seen an ABE interview carried out when the child is sitting on the lap of one parent when he is making "disclosures" against another parent in the context of a bitter marital breakdown.
Furthermore there is no general concern that this father physically chastises O.  He is not a physical man in that sense.  There is no allegation that this man loses his temper or has ever used or threatened violence against anyone.  If anything he is reserved, controlled and avoids conflict.  For all of these reasons I do not make a finding that Father slapped or hit O causing a bruise to him in 2011 and I remain extremely concerned about the influence mother exerted over O by sitting in the ABE interview whilst he was being questioned.

In respect of the allegations made by D against father, I have found this a particularly difficult aspect of the case.  I approach allegations made by a young person with great care and respect.  I take the view that if a child or young person has gone to the lengths of disclosing his or her concerns and has put themselves through an ABE interview and indeed the trauma of giving evidence, the court must assess their evidence sympathetically and carefully.

I have watched D's police interview on several occasions.  Taken in isolation it presents as quite a compelling account of inappropriate conduct by father. 

Furthermore the allegations themselves are interesting.  They are limited.  I have considered the possibility that had D simply wanted to smear father for whatever reason, she could have made far more serious allegations including father touching D, father exposing himself to D or any abuse occurring on multiple occasions.  This D has not done.  She has referred to two occasions as well as inappropriate discussions between her and father and father leaving pornography out for D to see.  I also considered the possibility that the abuse had been far more extensive but D had only been able to disclose part of the abuse.  Given that Mother was a litigant in person I have taken particular care to consider the cross examination I may have heard had mother been represented.

 However, once one considers the context into which the allegations must be placed and having seen D give evidence, I have formed the judgment that I cannot rely on her testimony in respect of these allegations.

Firstly D made no complaint against father until 21st. November 2013, a time when mother was putting forward a case that O was very distressed by contact and wanted no contact with father (and on the very day that O gave Ms. Finn “the note”.).   (I have considered D’s case that she made complaint at this time because the experience of living back in the former family home triggered these memories.)

There was no suggestion by D of any inappropriate sexual activity by father until that point.  
D chose to live with father after August 2010.  If D is to be believed her case is "I would prefer to live with a man who has sexually abused me rather than risk further rejection by my mother or live with my grandmother who annoys me."  Those are not D's words but when one boils her case down, that is the reality of it.  In my judgment it is hard to comprehend how D lived with father from August 2010 until March 2012 if she had felt sexually abused by him in the past.

D tried to portray father as controlling and the reason for her lack of contact with her mother.  This evidence was simply incredible.  At first D told me that mother had changed her mobile telephone number and she could not get hold of her mother.  It later emerged in her evidence that she had mother's email address throughout.  She told me that she had tried to contact her mother but had been rebuffed (as set out above.)  She had seen her mother at O's sports day and mother had ignored her.  (Mother had said she had not seen D.)  D made a statement in 2013 in which she portrayed father as a man who had harassed her in 2013 to the point that the police were going to issue a harassment warning.  In fact, in oral evidence it is clear that father had not engaged in any conduct which could reasonably be described as amounting to harassment.  The reality is that there was one heated telephone call in August 2013.   D accepted that she telephoned the police in September 2013 almost to protect herself because she did not know how father would react to her moving into the former family home without his consent when there was an order for sale.  The reality of the situation bears very little relation to the picture portrayed by D in her statement.

 D told me in evidence that she could not wait to get out of father’s home and yet the reality was that father had asked D to make a contribution towards the rent once she had become pregnant and had a partner.  Father felt that D should set up home with her own family.  I suspect D saw this as another rejection.  

In her police interview D goes so far as to state that she is concerned father will kill her.  That is a very serious allegation.  There is no evidence whatsoever that this father poses a risk of physical harm to anyone.  There is no allegation of domestic violence by mother or D and no evidence that father has ever been physically violent to anyone (save for the allegation by mother that father hit/slapped O.)  D did not state in oral evidence that she was genuinely frightened of father.  I do not believe she is.  To make such an unfounded allegation against father in a police interview is extremely serious.  D should not have done it.  It undermines her credibility as a witness.

The reality is that the picture painted of father by D in her DVD and written statement simply did not bear scrutiny under cross examination.  In fact what emerged was a tragic picture of a vulnerable, insecure young person who felt emotionally neglected by her mother when she was living with her and then has been terribly hurt by what she sees as a total rejection of her by her mother for 2 1/2 years.  I felt and continue to feel very concerned for D. However for all of the reasons set out above, I cannot place sufficient weight on her evidence and her allegations are not proved.  

I have considered why D has made these allegations and whether Mother knew or had a part to play in why D made the allegations and at the time that she did.  There are several possibilities.  However, I cannot be satisfied to the requisite standard about any of them.  I can only find that the allegations are not proved to the requisite standard.

There are numerous other small issues and consequent findings sought.  Mother criticises father for the food he gives O.  Father criticises Mother for a lack of hygiene for O.  I am not going to consider these at any length.  Having looked at the evidence in respect of these concerns I am not satisfied that any of these cross allegations are made out at this stage.  I see no cogent evidence before me that either parent is unable to meet O’s physical care needs.  

I am also not satisfied that Mother’s spiritual beliefs pose a risk to O.  Whilst I take the view that mother minimised them and emphasised that she is a Roman Catholic, in my judgment mother is perfectly entitled to hold spiritual views and have an interest in spiritual matters.  I hope that she is careful not to impose those onto O until he is old enough to make decisions of his own, but there is insufficient evidence before me to find that at this time, these views pose a risk to O’s emotional or psychological well being.

Father raises concerns that Mother told the court that O had been diagnosed as suffering from anxiety having been taken to the GP.  Whilst I understand father’s concerns about this I am not satisfied to the requisite standard as to exactly what was said, to whom and therefore I make no finding about that.

However, one issue which concerns me greatly is the period when Mother withheld O from Father on 22nd. July 2013 and refused to return him in breach of the shared residence order.  Furthermore, I am concerned about O’s change of school with no reference to father.  The parents had agreed on school A, commencing in September 2013.  O was not returned on 22nd. July 2013.  The matter came before HH Judge Serota QC on 30th. July 2013.  By that stage Mother had convinced the court that O was refusing to return.  Father, fearing that Mother was not intending to send O to the chosen school, specifically raised this with the Judge.  Mother categorically denied to Judge Serota QC that she had plans to change the school.  However, that is exactly what she did.  Moreover I have seen the e mail from “Beavers.”  O knew in the summer term he was not going to the chosen middle school.  I heard Mother on this issue.  She was entirely unconvincing.  She could give no compelling reason for O telling his leader at Beavers that he is not going to that school.  Mother was asked whether I should view this as simply a “coincidence.”  Mother said I should.  I do not. I do not accept her denials that her decision to change school was very much last minute. If that had been the case she should still have consulted father.  According to Mr. B there was no discussion or even thought given to father being informed.  Father had parental responsibility for O.  He had the right to be consulted.  Mother decided his opinion would not be sought.  

In my judgment mother had no intention of sending O to School A.  She has set out in great detail in a later statement how inconvenient the journey would have been for her.  In my judgment, having considered the evidence, I find Mother intended, as far back as the summer of July 2013 that O would not attend the middle school.  That leads me on to consider the circumstances of O not being returned.  Father had agreed that O could attend a birthday meal with D and mother.  Mother and D gave evidence that O became distressed and did not wish to return to Father.  I simply do not accept that evidence.  When one couples that with the evidence of the e mail, in my judgement, I find that Mother had planned from the summer to orchestrate a change of residence.  She was determined that O would live with her.  That entailed breaching a joint residence order.  It also entailed lying to a Judge of this court when mother re-assured Judge Serota QC of her intention to honour the agreement.  I am extremely concerned by Mother’s conduct in this regard.  She has breached court orders and manipulated the court, D and O.  This must never happen again.    

Having established residence of O and O attending a school convenient to her, Mother then had to consider contact between O and father.  I accept the evidence of Ms. Finn that the supervised contacts went well.  I accept the evidence of Ms. S and father that nothing happened in the contact that would have lead O suddenly to become so distressed about having contact with father.  I am extremely concerned by the fact that O wrote the note to Ms. Finn on 20th. November 2013 which was then handed to Ms. Finn on 21st. November 2013.  I reject mother’s evidence that Ms. Finn had suggested that O write a note.  Ms. Finn in her written answers to questions put was clear that she had not suggested that O write a letter.  I do not accept Mother’s evidence that Ms. Finn suggested it.  In my judgment the most probable reason for O writing the letter was because mother told him to.  That again is a manipulation of O.  It is damaging and it must stop.

I was particularly struck by the appearance of O at the end of contact on 31.10.2013.  He went from a happy boy with his father to being acutely aware of his mother’s presence.  It was as if he was seeking permission from his mother to enjoy being with his father.  This tension for a child is potentially very damaging.

I am extremely concerned by Ms. Finn’s description of mother almost celebrating when she was told Ms. Finn would recommend that a contact would not go ahead.  I accept the description as set out by Ms. Finn.  Mother’s response was entirely inappropriate.  It could only have a negative impact on O for him to see his mother so exuberant about contact being cancelled.

I am concerned that on two key occasions, on 22nd. July 2013 and at the time of the letter writing, D has almost acted as a “witness” to these events.  I am concerned that whilst mother is manipulating this situation, she then attempts to step back and use D to deflect responsibility from her.

The picture of O sitting in bed, sullen and not wanting to go to contact in December is extremely concerning.  There is no cogent or compelling reason why this child would not wish to see his father, with whom he had an extremely good relationship.  I cannot know exactly what mother has said to O but  I am satisfied that Mother has involved O inappropriately in the minutiae of these proceedings as she sees it.  There is no other credible explanation for the comments made by O to Ms. Rothmann.  I was struck when Mother was asked about these passages how evasive, argumentative and almost sarcastic she became.  She referred time and again to certain parts of the evidence which she felt criticised her and yet perhaps one of the most important pieces of the evidence, O’s own wishes and views as expressed to his Guardian, mother did not wish to particularly comment on and at one point suggested she could not remember exactly what O had said.

I am also concerned that as with D, Mother had brought Dr. X in almost as a witness when Ms. Finn attended to facilitate contact to show O’s reluctance to attend contact.  

In my judgement O has been intimately caught up in mother’s anger, rage and resentment at what she sees as the injustice of the last four years commencing with the events of 6/7th. August 2010.  She simply cannot get over the fact that she was arrested and cautioned, something which has affected her ability to coach netball and she says affects her ability to travel to Australia and the USA.  Mother has almost re-written history about what happened and why and seeks to blame father for everything.  In my judgment father’s only “offence” is that he did not comply with Mother’s views as to how the separation should be handled.  

 As I have heard the case my concern about Mother has increased.  My key concern is Mother’s ability (or inability) to accept a different point of view from her own.  There are so many families where the trust has broken down and relationships become very strained due to conflicts over arrangements for the children.  However, in this case Mother’s reaction was so extreme.  She assaulted her own daughter and not for the first time.  She was rude and verbally aggressive towards her own parents.  She therefore chose and that is the reality of the situation, she chose not to have contact with D for 2 ½ years a period of time which included D giving birth to her own child.  She also broke off all contact with her own parents for nearly three years between August 2010 and July 2013.  O only saw his maternal grandparents during that period because Father facilitated it.  I have not heard from the maternal grandmother and I place no weight on her statement.  However, I was concerned by the comment Ms. S reported that the maternal grandmother had made that she had to be seen to support her daughter.  Mother appears to have an entirely rigid view of personal relationships.  You are either in her camp or you are not.  She seems unable to tolerate dissension of any sort. 

My concern in respect of her parenting is that as O grows older and enters adolescence, will Mother give him the autonomy to grow and develop as a young person in his own right.  How will mother react if O defies her.  Will mother assault O as she has assaulted D?  Furthermore, I am concerned about the time Mother was prepared to spend out of the home.  D clearly missed her mother when she was out of the house playing netball and was also upset by the amount of time and attention Mother paid to Dr. X and her family, in her view prioritising them over her.  Will mother give O sufficient time and attention?  These are matters which I would like Dr. Berelowitz to consider.

Given the care that the advocates and the court had taken to assist mother during this trial I was particularly disappointed to read the first paragraph of mother’s submissions,

 “It has been made very clear to me not only over the last 4 years, but also the last 5 days in court that no one is prepared to listen to me or my children.  Despite all the information presented to the court (and other agencies) it was clear during the last hearing that parent alienation and child abandonment were the only focus of the court and those attending.  What my daughter and I were put through during that hearing was inhumane. And to what purpose? The key issues to discuss were surely the welfare of both O and D, particularly as O’s residency is in question and D was sexually assaulted?”

This paragraph  is a good illustration of how mother simply cannot listen to a different point of view.  Firstly this hearing was a fact finding hearing.  It was made necessary because of the cross allegations made by both parties and by D.  Mother should be able to understand that a court cannot proceed on the basis that D’s allegations are true simply because the allegations have been made.  The evidence needs to be tested.  This court has listened at great length to mother and the case she has put forward.  A great deal of court time has been allocated to it.  

Mother surrounds herself with individuals who are entirely loyal to her.  I listened to the evidence of Dr. X.  She is an intelligent, interesting and somewhat colourful character.  The evidence she gave had a theatrical quality about it, at one point she broke out into a French accent in order to mimic the maternal grandmother.  She was one of the most opinionated non expert witnesses I have ever heard.  However, within her evidence there were flashes of insight.  It was Dr.X who made the point that she felt O was not tolerating the shared residence arrangement well.  

That may be true and not a criticism of either parent.  It may be that O could not cope with the continual passing between two households, particularly when there was so much tension between them.  Moreover, there was the constant strain of the lack of contact between D and her mother.  I also accept that Dr. X neatly summarised the case when she said, “mother asked for a divorce and all hell let loose.”  Where I depart from Dr. X is that her evidence was so partisan and so lacking in objectivity.  She may be a close friend of mother’s and may wish to support her, but her inability to see the situation with any sort of objectivity was disappointing.  Furthermore, I prefer the evidence of father and D about the events of 6/7th. August 2010.  In my judgment Dr. X made threats and was verbally abusive on that occasion.  She inflamed the situation.  Given her influence over mother, subsequently, she could have acted as wise counsel and tried to assist mother to move on and come to terms with the past.  In my judgment she has not done so.  In my judgment the greatest service Dr. X can perform for O, is to keep her trenchant views about his family entirely to herself.

Likewise, Mr. B has accepted Mother’s version of events without question.  He is her champion and told me Mother is a “great example of motherhood.” Given the way mother has behaved towards D, I find that a generous statement.  I am pleased for mother that she is happy in her relationship with Mr. B but Mr. B is not O’s father.  I was disappointed by his evidence that given father’s behaviour, in his opinion, father had “waived his right” to be consulted about the school issue.  It is little wonder that father has no confidence in his position as O’s father being promoted within that household.

Mother suggests in her submissions that the court will place undue weight on the evidence of Ms. S because of her legal training and her involvement with the JAC or within the “judicial system”, as mother puts it.  I can assure mother that nothing could be further from the truth.  All witnesses have been assessed by the court on the strength of their evidence.  Mother is also wrong to suggest that only Ms. S was asked about her profession.  I heard about the professions of mother, father, Ms. S, Mr. B and indeed I asked Dr. X about her PhD.  
Having said that I found Ms. S to be an extremely impressive witness.  She was calm, succinct and had the ability to see the situation objectively.  Unlike Dr. X or Mr. B, she could understand from both sides why there had been problems in the marriage.  I have no hesitation in accepting the evidence of Ms. S, not because of her professional achievements but because her evidence was measured, cogent and compelling.

FINDINGS OF THE COURT.

The findings sought by father.

1.	Mother and D have had a difficult relationship and Mother has been violent to D on more than one occasion.  This finding is proved.

2.	Mother does not provide O with consistently good enough care.  This finding is not proved.

3.	Mother has exposed O to unnecessary investigations and involvement with professionals in order to achieve her goal of excluding the Father. This finding is not proved although it should be noted father did not seek to pursue it.

4.	Mother has sought to exclude Father from O’s life.  Mother is implacably hostile to a relationship continuing between O and his father and has deliberately influenced O against his father. 
The court finds that Mother engineered a change of residence in July 2013 in breach of a court order.  Mother then changed O’s school contrary to an express assurance given to His Honour Judge Serota QC on 30th. July 2013 and without any reference to Father.  The court finds that Mother has involved O in the court proceedings and conveyed her own emotional distress and anger about father to O.  The court finds that Mother has influenced O against father and has not promoted contacted between O and father since July 2013.

5.	Mother is either not willing or unable to promote and maintain a relationship between Father and O.
The court is extremely concerned about mother’s ability in the future to promote this relationship.  The court’s view is that Mother must change her attitude towards this matter and actively promote this relationship.

6.	Such conduct has caused O significant emotional harm or is likely to cause him significant emotional harm.
This finding is proved on the basis of likelihood.  The court is satisfied that if mother continues to involve O in her battle, anger, distress and resentment against father, O is likely to suffer significant emotional harm to the level which would satisfy section 31 of the Children Act 1989.

7.	That Mother’s behaviour and conduct have caused D significant emotional harm to the extent that the section 31 threshold criteria are satisfied.  
This finding is proved.

The findings sought by mother.

1.	That when Mother asked Father for a divorce Father the used the police to gain control of the children.  Mother’s case is that Father “set up” the incident on 6/7th. August 2010. This finding is not proved.

2.	That Father has acted in a sexually inappropriate way towards D.  This finding is not proved.

3.	Father has behaved towards D in an abusive and inappropriate way between 2010 – 2011 including locking her in her room and asking her to move out of his property.  This finding is not proved save that it is proved (and conceded by father) that Father suggested to D that she should set up home with her new partner and baby in 2012.  I do not see this as a matter of criticism of the father.  It should also be seen in the context of Mother having had no contact with her daughter since August 2010 and providing no support for D at the time of the birth of her first child.

4.	That in March 2012 Father hit O on his leg causing a bruise.  Father then made D lie to the police and social services to say that the bruise on O’s leg had been caused by him running into the sofa.  This finding is not proved.

5.	Father has harassed D from July – October 2013. This finding is not proved.

6.	Mother has made in the course of the hearing allegations about Father acting in a sexually inappropriate way, including using adult pornography and masturbating when in private.   Father has accepted that he masturbates in private and watches adult pornography.  He has also accepted that he has bought marital aids.  His case is that he has used these during sexual activity with mother.  Mother denies this.  The court makes no finding about this last issue as the court does not consider it to have any relevance to the issues to be decided in respect of the welfare of O.  Private masturbation or private viewing of adult pornography is not a matter which will assist me in determining child welfare issues.  I do not find the allegations made by D proved.  There is no allegation father has acted in a sexually inappropriate way in the presence of O.

The findings sought on behalf of O.

“The court is asked to make the following findings on behalf of O based solely on the evidence of Ms. Finn as contained in her reports and Ms. Rothmann in her report dated 17.10.13 (D22).”

1.	O has inappropriate and detailed level of knowledge about the court proceedings. This is based firstly on what O has told his school teacher D26 Para 17 and 18, secondly on what he told Ms Rothmann regarding his paternal grandparents D 27 Para 23 and thirdly what he has said at D 30 Para 37 about the police being mean to his mother in trying to say go back to his father and helping his father. Fourthly, O said that his father lies about his mother and lies in court about his mother, for example she did not take him to school for no reason. (D 28 Para 27.  This finding is proved.

2.	When O has been asked how he comes to have the above knowledge regarding court proceedings by Ms Rothmann he has repeatedly stated " what his mother told him". D27 Para 20,21, D 28 Para 25, D 29 Para 31, D 30 Para 37.  This finding is proved.

3.	O believes that his father will abduct him from his mother’s care this is based on what he his mother has told him. (D30 Para 38  ) He said his father is scaring him by saying he wants to take him. O says that he changed schools so that his father cannot take him. He said it was his mother’s idea as she knows his father will take him. She told O that his father will come and take him. I asked O if his father had ever tried to take him from anywhere and he said no and he does not know why he thinks that will happen now. O said that his father sister has a big holiday house and he will take him there, and his mother does not know where this is. O further states at D28 Para 25 that " his mother said that his father might come and hurt them or try to take him. He knew his mother was talking to the police because his sister told him to be quiet as his mother was talking to the police.” At Para 26 O says that he " he does not like to go outside when it is dark , he will ask his mother to come with him in case his father turns up"  The court finds this proved to the extent that the court is satisfied Mother has suggested these matters to O and they are now matters which concern O.  The precise state of O’s knowledge and belief is of course uncertain but the court finds that O has a level of anxiety about contact with his father due to discussions with Mother.

4.	When O told Ms Rothmann that his father is mean to him, he did not make any disclosures that his father is mean towards him he applied mean to what he believes his father is doing to his mother. He shared with the Guardian that he believes what his father is mean by instigating court proceedings. D 31 Para 43 and 45.  The court notes this as a matter of concern but can make no specific finding about it save that it is further evidence of inappropriate discussions between mother with O.

5.	O may feel to some extent responsible for the current situation as suggested by his spontaneous remark to Ms Rothmann, "I started it" D 27 Para 25.  The court notes this as a matter of concern but can make no specific finding about it save that it is further evidence of inappropriate discussions between mother with O.

6.	O describes a time before he knew all this was going on ( court proceedings ) as a time when he felt "happy, really happy" D30 Para 35.  The court notes this as a matter of concern.

7.	The impact of the above findings would be that O given his age and understanding would be confused and this could potentially  impact his psychological and emotional well being, his sense of security and stability. D 32 Para 49.  This finding is proved in relation to all of the findings made above (including those sought and proved by father.)

8.	Ms  Finn ISW conducted 3 supervised contact visits between the father and O on 26.10.13, 31.10.13 and 9.11.13, she concluded that O was happy and relaxed. There was nothing inappropriate in the interactions and O was not afraid or anxious in the presence of his father.  This finding is proved.

9.	O told Ms Finn that his father is "trying to catch me out, he is trying to trick me, he's trying to trick the court to make me live with him" D43 bottom paragraph.  The court finds that O made this comment and it is a matter of concern.

10.	The mother’s response to Ms Finn recommending the cancellation of a contact visit at D 50 Paras 38-39 is as a recorded therein despite the challenge to the accuracy by the mother. Where there is a conflict between the mother and Ms Finn the latter evidence in the form of an email confirming the accuracy is to be preferred.  This finding is proved.

11.	O has written a note at D54 and the court will need to determine what weight to attach to this as an expression of O's wishes and feelings given that he was assisted by D who stated that she said " do you want to come and write your letter for the lady tomorrow ....he knew what I was talking about.....we sat with a pen and paper for about 20 mins" . The court will need to consider the contents of the note alongside Ms Finn’s evidence about the way O presented in the 3 supervised contacts and the evidence of Ms. S about the quality of interaction at the bowling contact 3 days prior to the note on he 17.11.13. The court finds that the letter was written at the instigation of the mother.  Mother involved D in this process.  The precise circumstances in which the letter came to be in existence is one which the court has concerns about but the court is unable to place weight on the evidence of Mother or D on this issue.  The court is not prepared to accept that the note represents the true wishes and feelings of O given the warmth of the relationship between O and his father when contact has taken place.

12.	Attempts to get O by Ms Finn to attend contact on the 7 and 14 Dec 2013 failed, O was adamant he would not attend.  This is factually accurate.

13.	A further attempt was made to get O to attend contact on at Xmas time by the maternal grandmother and Mr B the mother’s partner and this was also unsuccessful.  This is factually accurate.

14.	Given the reference by O to Ms Rothmann about his schooling the court may feel it necessary to make findings regarding change of O's school by the mother and the circumstances leading up to it following on from the suspension of the shared care arrangement on the 22.7.13 the end of the school year.  The court finds that mother engineered a change of residence in July 2013 and part of that change of residence was changing O’s school without reference to father.  Moreover the court finds that mother deliberately lied to His Honour Judge Serota QC on 30th. July 2013 when she assured the court there was no intention to change the agreed school for O.

Orders and further directions.

I sincerely hope that Mother can read and consider the findings in this judgment.  She needs to stop blaming father and anyone who disagrees with her and understand that she must take at least some responsibility for her actions in the past.  I know she is hurt and angry about the events of 6/7th. August 2010 but she played a very full part in the consequences which flowed from that evening.  

The court will proceed on the basis that father poses no risk, physical, emotional or sexual to O.  I accept that O may have genuinely been stressed and anxious by the shared care arrangements and passing between two households where there are different parenting styles.   However I do not accept that O is scared of his father.  In my judgment the far more probable explanation is that O is acutely aware of the distress and anger mother feels towards father.  This must stop.  There must be a fundamental sea change in Mother’s attitude.  She must give O the emotional and psychological space and freedom to enjoy a relationship with his father.  If she does not the full range of powers of this court will be considered.

The court made the following orders on 23rd. April 2014.

1.	Mother is to make O available for all appointments with Dr. Berelowitz required for the court approved assessment.
2.	Mother is prohibited from removing O from the jurisdiction until further order.
3.	M is prohibited from moving O from his current school namely School A until further order of the court.
4.	M must inform the court, the father and the Children’s Guardian of any proposed change of residence no less than 7 days before any such change of residence.
5.	Solicitor on behalf of the child is to disclose a copy of this draft judgment to the appropriate local authority.
6.	Permission to the solicitor on behalf of the child to send a copy of the draft judgment to Dr. Berelowitz.
7.	There will be a directions appointment on a date to be fixed and notified to the parties, reserved to HHJ Brown.
8.	The approved judgment will be handed down on 29th. April 2014 at 10 am.  No party need attend.  All copies of the draft judgment are to be destroyed on receipt of the approved judgment.  Any suggested amendments to the draft judgment are to be submitted by e mail by 4pm on 28th. April 2014.  No submissions in respect of the merits of the case or the findings made will be entertained.