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.

Date 5th. June 2015. 

Before:

HER HONOUR JUDGE BROWN

- - - - - - - - - - - - - - - - - -

Re A (Private law proceedings – 
Litigant in person and protracted litigation.)
- - - - - - - - - - - - - - - - - -

Mr. X (Father) in person.
Miss Y (Mother) in person.
Mr. Horsley for the Child.

(Through his NYAS officer Ms. Jo Masterton-Francis.)

Hearing on 11th. and 12th. May 2015.
Judgment circulated on 26th. May 2015.
Judgment handed down on 5th. June 2015.

- - - - - - - - - - - - - - - - - - - -
Judgment
Her Honour Judge Brown sitting at Milton Keynes.

The Parties.

Before me are proceedings in respect of a child called A born on XX and who is therefore three years and 8 months old.  His parents are Ms. Y and Mr. X.  I will refer to the child as A throughout this judgment and to the parents as Mother and Father or Ms. Y and Mr. X.

The parents met in Entebbe in Uganda in 2010.  Mother is of Ugandan origin and has now secured indefinite leave to remain within the UK.  Mother is one of 11 siblings and step siblings.  Her father, step mother and many of her siblings remain in Uganda.  Father is of Jamaican heritage but was born in B town.

The parents separated in December 2013.  Mother lives in Milton Keynes and father works and resides in B town.

The Issues in the case.

At the commencement of the hearing the issues in the case appeared to be;

The amount of time A is to spend with each parent.
The wording of the order.
Whether there should be a prohibited steps order prohibiting mother from taking A to Uganda for a holiday.

At the commencement of these proceedings I was unclear about father’s position. Having given the parties time to reach a settlement and being informed that they could not, I commenced the hearing.  Given the history, I considered it important that both parties be given the opportunity to give evidence.  I had made clear at a directions hearing on 9th. April 2015 that the parties would have the opportunity to present their cases without being rushed.  In my judgment two days was a very generous time estimate for this case given the narrow issues.

In evidence father told me that he is content for A to live with mother from Monday to Thursday but he wishes to collect A on Thursday afternoons from nursery and return A to Mother on Monday.

Mother, supported by the NYAS officer Ms. Masterton-Francis, sought an order that father have contact from Thursday afternoon until Sunday evening on alternate weekends.

Father and Ms. Masterton-Francis at the commencement of the hearing supported wording which indicated that A live with both mother and father and the order be expressed in terms of “apportionment of time.”  Mother wanted the order to be worded that A live with Mother and have contact with father.

At first glance one would have thought that this matter was capable of being dealt with on submissions within a day.  The issues, however important to the parents and A, were narrow.

The matter lasted over the two days which had been allocated.  In my judgment, for reasons which I will make clear, it has been necessary to set out in detail the background to this case, the evidence and litigation conduct of the parties.   I have therefore devoted a great deal of time to this case and to this judgment which the real issues in this case did not merit.

The parents.

Mother told me that her relationship with father ended in December 2013.  There is a dispute about what the arrangements for A have been since his birth.  Mother’s case is that she was the main carer for A until he was 7 months old.  In April/May 2012 mother was working and saving for a house in Milton Keynes.  A lived in father’s house for about 3 months.  Mother resided in Milton Keynes every Monday until Wednesday and then resided with A and father for the rest of the week.  In June 2013 Mother returned to live in Milton Keynes with A and A has resided with mother since that time.  Until December 2013, mother and father continued in a relationship and therefore there appeared to be a level of agreement between the parents about the arrangements for A.  Father would stay at the house with mother for periods of time although he continued to work and reside in B town.  It was only when the relationship broke down in December 2013 that there were difficulties (as father saw it) with contact and thus the litigation began in February 2014 and has been continuing to date. A has therefore been the subject of ongoing litigation for 16 months of his short life.

Both parents are professionals.  Mother has worked for the same company for several years.  She has bought her own house.  She presents as a well educated, organised and intelligent lady.

Father informs me that he is a solicitor.  No one has questioned this status but father produced three documents to the court.  The first is a document certifying that he is a chartered legal executive, the date of admission being 6th. March 2014.  The second document certifies that father is a chartered member of the chartered institute of housing.  The third document is a letter dated 15th. July 2014 from the solicitors’ regulation authority confirming that father has been admitted to the roll of solicitors of the Senior Courts of England and Wales on 15th. July 2014.  Father tells me that he works as a “Consultant” within the field of immigration law.  Father did not tell me whether or not he has a practising certificate.

I will set out what should have been the real issues in this case but I will also outline the complaints and appeals which father has sought to raise which have delayed and complicated what should have been a very straightforward set of proceedings.

I am very concerned for A who has been the subject of litigation for 16 months.  I am also extremely concerned for mother who has told me that she is worn down by father’s behaviour, his conduct and his challenging and argumentative behaviour as she sees it.  She has litigation fatigue and I accept that she is now being negatively impacted by father’s approach and continued litigation.  This will clearly have an impact on A.

Whilst I would like to concentrate on the real issues in the case, namely the appropriate child arrangements for A, it is necessary to deal with the wide range of procedural arguments and complaints that have preceded this hearing.  In my judgment it is extremely important that A is not the subject of continued litigation.  A child centred set of arrangements must be put in place for A which both parents must adhere to.  However, if the many issues raised by father are not adjudicated upon at this stage, my concern is that they will continue to be resurrected and litigation will continue.  It is time for the conflict to stop and for A to be allowed to grow up knowing both his parents free from litigation.  The future of these arrangements rests with the parents’ ability to adhere to these arrangements.  The purpose of this judgment is to put into one document the history of litigation in order that should there be any further litigation, any court dealing with this child will be aware of all that has gone before.

The history to the proceedings.

I need to start this section with events even before proceedings commenced within the County Court.  On 31st. August 2013 A suffered a burn from hot tea being spilt over his arm.  This is referred to in father’s first application to the court which is set out below.  In fact mother and father were both present when that accident occurred (something which father does not make clear when he refers to this document in his first application to court.)  Social services investigated and the social worker involved did not feel the injury was caused by “injurious or abusive behaviour perpetrated by [ ] father or his son’s mother.”  I have seen a statement from Mr. Glover-Wright a social worker employed by Milton Keynes who wrote a statement in answer to complaints made by father in respect of the actions of the local authority at the time A suffered the burn.  This statement is at D33 of the bundle.  Mr. Glover-Wright writes in his statement,
“I confirm that I had spoken to the Claimant [ ] on Monday 2nd. September 2013 and Wednesday 4th. September 2013.  Mr. X fully explained the circumstances to me and raised concerns about how he and his family were treated by officers of the Milton Keynes Hospital NHS (first Defendant) and an officer of the emergency social work team who dealt with referral from the Milton Keynes Hospital NHS.  Mr. X stated that he and his family were black and expressed that he felt that he and his family were discriminated against on racial grounds.”  

To be fair to Mr. X, Mr. Glover-Wright states,
“I found that the initial involvement with Mr. X by an officer in my team may have been better and I recommended training in this area.  I accepted this incident caused Mr. X distress and apologised.”

I do not know exactly what is being referred to here but it is important to note that at least part of the complaint was upheld.

However in respect of the incident involving the spilt tea Mr. Glover-Wright states,
“In this situation, it was concluded the injury sustained by Mr. X’s son was a consequence of an unfortunate accident and this has been recorded clearly in notes held on the Council’s Integrated Children’s System (ICS) data base.  We have also shared this information with the B town Children Services, B town Council and have requested they update their records confirming our findings in respect of Mr. X’s son.”

Proceedings in respect of A commenced on 13th. February 2014 when father issued applications in the B town County Court for  a Residence Order, a Prohibited Steps Order and a Contact Order.  Father’s concerns at that time were that mother “has consistently and repeatedly made decisions regarding their child without consulting the Applicant or in opposition to the Applicant’s expressed wishes.”  One of the key concerns of the father was that mother had taken A to Uganda against his wishes in May 2012 and according to father, A had become unwell when in Uganda.  Father alleged that mother had threatened to take A to Uganda again.  Further, concerns have been that mother had obstructed father from taking A to medical appointments and that on 31st. August 2013, A had suffered a “serious burn.”
In respect of the burn father describes it as follows,
“The child named in this application suffered a burn to his right arm whilst staying at the Respondent’s home on 31st. August 2013.  The respondent had recklessly or carelessly or without due care and attention to the welfare and safety of their child placed hot water in the proximity of their child which resulted in their child suffering burns to his right arm.”  The application goes on to state that the child was then taken to the hospital for treatment.

On 13th. February 2014 District Judge Hayes made a prohibited steps order prohibiting Mother from removing A from the jurisdiction.

It would appear that there were also proceedings in the Milton Keynes County Court as on 27th. February 2014 District Judge Perusko made a contact order (under the same case number as the B town proceedings), allowing for a detailed and frequent schedule of contact between father with A on three weekends out of four.  

On 7th. March 2014, District Judge Berkley in an order noted that A’s “present primary base” appears to be with mother in Milton Keynes and therefore District Judge Berkley transferred the proceedings to Milton Keynes.

The order is unusual as District Judge Berkley felt it necessary to note aspects of father’s character whilst in court.  Given father’s conduct during litigation at Milton Keynes County Court I will set out those concerns.  

District Judge Berkley notes that father “vehemently opposed” the transfer of the proceedings to Milton Keynes and indicated that he would not attend a SPIP.

District Judge Berkley writes,

Para 12.
“At the conclusion of the hearing, the father approached the bench without invitation and requested the return of the spare copy of the CAFCASS safeguarding letter.  Given that this would leave the court file without this evidence and given that the copy had been marked by the Judge during the hearing, that request was refused.  Despite that refusal, the father continued to demand the return of the copy letter describing it in an increasingly agitated way as “his document”.  Those demands were refused and the father was asked by the Judge to step away from the bench.  The father returned to his seat and demanded to know whether the court was suggesting that his conduct had been in any way threatening or intimidating and that he would write down the court’s reasons for such a suggestion.  District Judge Berkley stated that the father’s behaviour was of concern given the repeated demands for the return of the letter in circumstances which it had been explained by the court that this was not possible or appropriate.”

Para 13.
“The hearing was brought to an end at this point to avoid any further difficulties.

Para 14.
Immediately after the hearing the mother reported to the court usher that the father had made threats towards her.  She was advised that she could report the same to the court manager and to the police.  Arrangements were made for the mother to leave the court building by another exit.

Para 15.
It appears to this court that this case has a number of features of potential intractability that will require careful ongoing consideration.”

I hardly need comment on how unusual it is for a Judge to consider it necessary to recite concerns about a litigant’s conduct on the face of an order.  However, that is clearly the view that District Judge Berkley took on 7th March 2014.

Despite the clear order that District Judge Berkley took in transferring the proceeding to Milton Keynes, father then issued a further application in the B town County Court under the same number of the proceedings which had already been transferred, seeking an order for an assessment of his relationship with A by an independent social worker.  I have seen no further orders made in B town and therefore assume that that application was transferred to Milton Keynes.  

On 14th. April 2014, District Judge Hickman made an order as follows,
“Upon reading a letter from the Applicant father dated 10th. April 2014 giving notice to withdraw his applications

The court orders

The matter be set down for directions on 28th. May 2014 at 11.30am.”

Therefore at that stage it appears that father was seeking to withdraw his applications and end the proceedings.

On 28th. May 2014 the matter came before District Judge Perusko.  Helpfully District Judge Perusko set out the positions of the parties as follows,

“The mother’s position is that she has made the child available to see the father but that he wishes her to reside with him and only wants to see the child if he is in a relationship with her.  She is happy for the child to see the father as set out in the order of 27th. March 2014.” 

(This court has not seen an order dated 27th. March 2014.)

The order continues,
“The father’s position is that;
“He would be prepared to see the child six times annually during school holidays, but is not prepared to travel to Milton Keynes to collect the child on a monthly basis.
He is not willing to give the court an undertaking not to visit the mother’s home or place of work uninvited.
The court strongly urged the father to reconsider his refusal not to visit Milton Keynes regularly to see the child but he refused.”

On the basis of the positions of the parties, the court made a child arrangements order that the chid live with mother and father was given permission to withdraw his application for contact.  All further directions within the proceedings were discharged including a direction made as far back as 27th. February 2014 by District Judge Perusko that CAFCASS file and serve a section 7 report by 19.6.2014 asking that a recommendation be made in respect of residence and contact.

Only 7 days after this order was made, Father then issued a fresh application in Milton Keynes which is the set of proceedings under the number MKXX.  Within those proceedings father set out his reasons for making a fresh application namely that 
“The Applicant has consistently and faithfully throughout carried out his paternal duties and responsibilities since the child’s birth.  The Applicant seeks to continue this which is not possible without an order of the court….
The Respondent has consistently sought to undermine the ability of the father to carry out his parenting duties through deliberately making spurious and false allegations against the Applicant misleading the court.
The Respondent has secretly made decisions affecting their child which required the consent of the Applicant – including circumcision which was carried out.  Such decisions not being in the child’s best interests…”  The reasons continue in the same vein.

Father then sought to appeal the decision of District Judge Perusko dated 28th. May 2014 in which it was recorded that father had sought to withdraw his applications.  The matter came before this court for directions on the appeal.  

Father had clearly changed his mind from the hearing on 28th. May and wanted A to live with mother Monday to Friday and to live with him every weekend Friday to Monday.  Mother who clearly never believed that father would withdraw from A’s life (as she expressed her concern at the hearing on 28th. May 2014) consented to a change of the arrangements and agreed to fortnightly contact with father every Friday to Monday.  When the matter came before this court the transcript of the hearing before District Judge Perusko was not available and it was therefore not possible to determine the appeal given that father was not accepting that he had sought permission to withdraw the proceedings.  There was also the fresh application before the court.  This court did not determine the appeal.
The outstanding appeal was listed before His Honour Judge Serota QC on 5th. September 2014.

There were therefore two sets of proceedings running at Milton Keynes County Court.

The appeal against the order of District Judge Perusko dated 28th. May 2014 was heard by His Honour Judge Serota QC.

I have now read the transcript of the hearing of 28th. May 2014.  I am of course not dealing with that appeal.  It has been adjudicated upon by His Honour Judge Serota QC but I feel driven to comment that in my judgment, District Judge Perusko went to great lengths to explain the procedure to both parties.  I commend him for the time and care he took.  I recognise the challenge that faced District Judge Perusko in trying to understand father’s case and why he was making an application to withdraw the proceedings at that time.

In my judgment it is important to place on record that it is clear from the transcript that father was seeking to withdraw his application for contact.  Of that there is no doubt.  It is in the transcript.    In my judgment the recitals and the pre-ambles set out by District Judge Perusko accurately reflect the position of the parties at the hearing on 28th. May 2014 as recorded in the transcript.  It is therefore somewhat baffling why father sought to make a fresh application 7 days later and sought to appeal the order of 28th. May 2014 which reflected the wishes of father at that time.  It was clear that both District Judge Perusko and mother did not consider this to be a wise course of action on father’s part.  Nor did mother really believe that father would maintain that stance and she was correct. 
District Judge Perusko was clearly concerned about father’s stance and stated at the end f the proceedings,
“I think he’s made a big mistake but I can’t see any purpose in continuing the proceedings where effectively [ ] father isn’t prepared to engage in the contact arrangements for A – not contact the arrangements for him to see A….”

In a later position statement father explains his conduct as follows,
(B33 of the court bundle.)
“On 28th. May 2014 I attended the hearing at Milton Keynes County Court where after discussion with the parties made a child arrangements order in favour of the mother which the Judge expressed as being by consent.  I did not consent to my son living with the mother on a sole residence basis.  I indicated during the hearing that I sought a “shared residence”.  However due to difficulties with contact arrangements with the mother, which I had complained in writing to the court, I sought permission to withdraw the application for contact.  The contents of the order and the positions as recorded by the court misrepresented my position.  This arose from false allegations by the mother that I had persuaded her by attending her home and work place unannounced and uninvited – which she pursued at court and is recorded in the transcript of the proceedings.”

In my judgment this shows flawed thinking on the part of father who told District Judge Perusko that he was withdrawing his application for contact and effectively withdrawing from regular contact save for holiday contact.  In my judgment the order approved by District Judge Perusko accurately reflected the hearing and the arrangements for A which he consented to.  Given that father was only anticipating seeing A six times a year, the reality was that A was living with his mother.

The appeal came before His Honour Judge Serota QC on 5th. September 2014.  His Honour Judge Serota QC allowed the appeal and the order notes,
“As the application by the father to vary the Child Arrangements order was not adjudicated upon, permission to appeal is granted and the appeal as follows;
	
 [ ] Father’s application for a child arrangements order whereby A spends additional time with him is adjourned to a date to follow…”

The matter was therefore set down for further hearing.

His Honour Judge Serota QC was therefore faced with a difficult situation.  Although faced with effectively an order whereby father had applied to withdraw the proceedings, at the hearing before me the arrangements had already changed with the consent of the parties.
I have not seen a judgment and therefore do not know why His Honour Judge Serota QC allowed an appeal against what was a consent order save that as noted, the position of the parties had changed and mother and father had subsequently consented to child arrangements whereby father would once again have more frequent contact.  It may have been a pragmatic decision on the part of His Honour Judge Serota QC but the reality is that District Judge Perusko was ready and prepared to adjudicate upon father’s application on 28th. May and father sought permission to withdraw.  He was not denied a hearing.

On 5th. September 2014 His Honour Judge Serota QC made a child arrangements order permitting fortnightly contact between A and father from Thursday between 5 – 6pm from the nursery until 5 – 6pm on Monday the delivery again to be at the nursery.

Both sets of proceedings continued at Milton Keynes County Court running together.  At that stage the proceedings were not consolidated.

Given that His Honour Judge Serota QC had allowed the appeal, the directions for a section 7 report were effectively resurrected under the original set of proceedings and the CAFCASS officer Ms. Buckle completed a report dated 13.11.2014.

I note with interest that Ms. Buckle sets out mother’s key concerns in November 2014 as follows,
“ [ ] Father’s applications to court, his withdrawals and appeals are ongoing and she feels they need to come to an end.
His alleged high levels of irritability when being challenged or not getting his own way and how this will impact upon A in the future
[ ] Father’s parenting style being significantly different to hers insofar as he does not implement boundaries or routine for A when he is in his care.  A’s behaviour allegedly regresses when he returns back home after spending time with [ ] father.
[ ] Mother expressed the need for a court order to provide clarity about the time A spends with [ ] father as she found that negotiating with [ ] father was challenging and not sustainable in the long term.”

Ms. Buckle’s recommendation was that A live with mother and have contact with father in a supervised setting such as Ward Andrews.

Father made a formal complaint against Ms. Buckle and Cafcass manager Ms. Thomas. 

At that time father’s case was that A was suffering emotional abuse due to Mother’s actions.

I have seen a long and detailed letter from Mr. Lisser, service manager of the customer services team of Cafcass dated 25th. November 2014 at D37 of the bundle.  

Mr. Father had made 9 complaints against the manager of Cafcass Ms. Thomas, a Ms. Burnett and the section 7 writer Ms. Buckle.    Father complained about the way (as he saw it) Ms. Thomas spoke to him.  Father clamed bias on the part of Cafcass in favour of mother.

I do not intend to set out those complaints.  I do however note the outcome of that complaint as follows,
“I have not found evidence to support your allegation that Ms. Thomas and Ms. Buckle conducted themselves inappropriately towards you although I acknowledge you were critical of their approach, for reasons set out in your complaint correspondence.  I accept nonetheless that in Ms. Burnett’s absence from the office on 13th. October 2014 your e mail of 10th. October should have been dealt with by another member of staff.
For reasons given I have not found evidence that either Ms. Thomas or Ms. Buckle have shown bias in their approach to your case or that Ms. Thomas has sought to blame you for not engaging with Cafcass.  This response represents the end of Cafcass’s complaints procedure.”

The matter then came before District Judge Burgher on 28th. November 2014 for a directions hearing.  

At this hearing father sought a child arrangements order that A live with him and have his main base in B town but that he sees his mother for regular overnight visits.  Mother also indicated that she wished to take A to Uganda for a visit.  I have read the judgment of District Judge Burgher and the lengthy order made on that date.  In my judgment it is clear that District Judge Burgher spent a great deal of time and care on this case.  
The section 7 reported Ms. Buckle attended that hearing with her manager Ms. Thomas. 
There was clearly discussion about the recommendation of Ms. Buckle as it is recorded on the face of District Judge Burgher’s order that mother had stated that she had made it clear to Ms. Buckle that she did not see the need for supervision of father for contact with A.    Father had made a complaint against Ms. Buckle which I have referred to above. At the hearing father was dissatisfied with comments made by Ms. Buckle in her report which he did not consider to be accurate.  I make no comment about that discussion save to note that District Judge Burgher made A a party to the proceedings and appointed Ms. Baker as a rule 16.4 Children’s Guardian, thereby ending the role of Ms. Buckle unless she was required as a witness.

The Children’s Guardian was to file and serve a report addressing the parents’ respective proposals for A’s child arrangements by 30th. January 2015.  District Judge Burgher effectively discharged the defined contact orders of HH Judge Serota QC and ordered that Ms. Baker would arrange facilitate and observe contact between A and his father.  

Father appealed the order of District Judge Burgher on the basis that the District Judge was wrong to discharge defined contact orders and replace those orders with an order that contact would take place when organised by the Children’s Guardian.  It is recorded that father agreed to this position something which father denies.  Again I make no comment about this as I have not seen a transcript of the hearing but I note that District Judge Burgher is clear that father agreed to the course that she approved.

The application for an appeal came before His Honour Judge Hughes on paper who ordered that father as Appellant must lodge an appellant’s notice and a transcript of the hearing after which the matter will further be considered on the papers.  The reason for the transcript being order was because there was disagreement as to whether father had in fact agreed the order as made.  This is the second time that a transcript of a hearing has been ordered due to disagreement as to what father has or has not agreed to at a hearing.

That has formed the basis not only of an appeal but also of a complaint against District Judge Burgher of racial and sexual discrimination by the court against father.

Father has sent several letters to the court in respect of this appeal and to express his dissatisfaction abut the hearing on 28th. November 2014.  

Father wrote to the court on 15th. December 2015 making a formal complaint in respect of District Judge Burgher.  

His Honour Judge Hughes extended the time for father to comply with the directions within the appeal and allowed father until 2nd. February 2015.

Father did not comply with that order and on 13th. April 2015 His Honour Judge Hughes made the following order which in my judgment should be set out in full,

“Upon the Court considering the applicant’s outstanding appeal in the light of the applicant having lodged the approved judgment of District Judge Burgher in relation to the hearing of 28th. November 

Against the background of the scope of the proposed appeal, the applicant was in fact ordered to provide a transcript of “the hearing”.  The court is mindful that part of what is alleged by the applicant is that he did not consent to the appointment of guardian and is the victim of judicial bias together with sexual discrimination

The court orders;

1.	Time be extended to the Applicant to file a transcript of hearing as previously ordered until 7th. May 2015.
2.	The application for permission to appeal shall be determined on the papers thereafter.”

Unfortunately and this is a matter of grievance to father, father did not receive that order until 8th. May, a day after the extension to the filing of the transcript.  His Honour Judge Hughes may not have been aware of that.  When Judge Hughes considered the file on 8th. May and discovered that the transcript had not been filed he dismissed the appeal giving father liberty to seek an oral hearing.  Father was served with a copy of the order dismissing the appeal when he attended at court on 11th. May 2015.  Whilst I accept that father did not receive the order extending the time for filing of the transcript until 8th. May 2015, that does not explain the inordinate delay in father complying with the original direction.  This appeal has therefore been ongoing since December 2014 and is but one small part of the litigation which father has been pursuing.

Going back to the main litigation, the matter then came back before District Judge Burgher on 11th. December 2014.  Father had appealed against and complained about the appointment of Ms. Baker as a rule 16.4 Guardian.  I do not know the precise details of the complaint.  However District Judge Burgher discharged Ms. Baker as the Children’s Guardian and appointed a representative of the National Youth Advocacy Service (NYAS) as Children’s Guardian for A.  In noting this I wish to make it clear that District Judge Burgher made no criticism of Ms. Baker and no criticism should be assumed.  I am simply recording that this appointment was discharged.  The NYAS officer was therefore the third childcare professional to be appointed within these proceedings.

The matter then came before District Judge Burgher on 7th. January 2015 and directions were made for NYAS to undertake a report.  Father made an application for District Judge Burgher to recuse herself which was refused.  This refusal was appealed by father and was considered by His Honour Judge Hughes on 19th. January 2015 who refused permission to appeal the refusal of District Judge Burgher to recuse herself.  

The matter was listed before District Judge Burgher on 5th. February 2015 and father did not attend that hearing.  I have seen a position statement filed on behalf of father dated 4th. February 2015.  In that letter father makes complaint against the NYAS worker.  There was (at the very least) a confusion about arrangements which had been made between father and the NYAS worker for a meeting and an observation of contact.  Father states in his letter that he continues to oppose the appointment of a Guardian for A.  In his letter father writes the following,

“The Applicant strongly feels that the judiciary namely HHJ Hughes and District Judge Burgher involvement in the proceedings have prejudiced the Applicant’s case for a Child Arrangements order.  By virtue of their involvement and the orders made the Applicant has been wrongly and unjustifiably “labelled” as someone who presents a risk of harm to his son.”

Further he writes,
“The Applicant strongly feels that there is an element of race and sex discrimination by the Judiciary and Cafcass against the Applicant in the contents of the section 7 report dated 14th. November 2014 reinforcing racial and sexual stereotypes, prejudices and predilections.  These complaints are maintained here.”

In father’s absence a detailed order was made which provided for assessment and meetings between the NYAS worker with father and A.  The order could not have been clearer.  The matter was set down for a final hearing before a Circuit Judge on 1st. and 2nd. June 2015.

On 13th. March 2015 District Judge Perusko made an order that the two sets of proceedings namely MXX (the original B town proceedings which were resurrected after the appeal before His Honour Judge Serota QC) and the fresh proceedings MKXX be consolidated.

On 9th. April 2015 the matter then came before this court.  The circumstances leading up to this hearing were therefore;
There remained an outstanding appeal against the order of District Judge Burgher dated 28th. November 2014 and father had failed to file a transcript of that hearing.
Father had not co-operated with any assessment by NYAS.

Counsel on behalf of A opened the case and pointed out that father had refused to co-operate with NYAS and it would be of enormous benefit to the parties and to the court if father would make clear at that stage what his case was and what the issue in the case were.  Father was asked to do exactly that.  Father did not answer the question but sought to raise a number of procedural matters including taking the court through a position statement and correcting rather insignificant typing errors.  

The court made clear to father that the proceedings had been ongoing for too long and that the final hearing, now listed on 11th and 12th. May 2015 would take place if the matter could not be resolved.  Father attempted to adjourn the hearing by stating that there was an outstanding appeal.  When this court informed father that the hearing would take place he then applied to withdraw the second set of proceedings which had been issued in Milton Keynes.  The reason for this application was because it was within those proceedings that NYAS had been appointed.  Father argued that as it was his application and he now wished to withdraw the proceedings, the appointment of NYAS would be discharged.  I pointed out to father that unless there was full agreement about the care arrangements for A the final hearing would be used to resolve all outstanding matters.  I also pointed out that the two sets of proceedings had been consolidated and therefore he could not withdraw one set of proceedings without withdrawing both.  In my judgment this application amounted to little more than procedural game playing.

Father told me that he would not co-operate with NYAS to complete an assessment.  Furthermore father told me that he would not co-operate by sending documents to solicitor on behalf of A in order that a trial bundle could be prepared.

Father was asked once again what his position was.  Father was asked on several occasions to set out his position.  Father did not do so.  There were robust exchanges during which the court made clear that these proceedings had gone on for far too long and father needed to be clear about his position.   Eventually father told the court that he wished A to reside with him with contact to mother under a form of shared care arrangement.

Father then made an application for this court to recuse herself on the basis of sexual and racial discrimination.  That application was refused.  Father sought permission to appeal my refusal to recuse myself.  That application was refused.

Father, without seeking permission to be excused, left the court before the end of the hearing and before going through the terms of the order.  

The court recorded father’s lack of co-operation within the proceedings on the order of 9th. April 2015.  The matter remained listed before this court on 11th. and 12th. May 2015 and it was made very clear on the face of the order that the hearing would proceed and a final order would be made.

That is therefore the rather long and tortuous history leading to the hearing commencing on 11th. May 2015.

The hearing on 11th. and 12th. May 2015.

I should note that on the morning of 11th. May 2015, just before 10am, father handed through a position statement to which he had attached a letter of complaint to the Judicial Conduct and Investigations Office dated 1st. May 2015 in respect of this court, District Judge Burgher and His Honour Judge Hughes.  Part of the complaints are allegations of racial and sexual discrimination by the Judges of this court against Father.
I was not sure of the relevance of such a document to the issues I had to decide.  I had already refused to recuse myself in respect of the final hearing when that application was made on 9th. April 2015 and wished to commence the hearing for the sake of all the parties in the case.    If such a document was intended to encourage the court to reconsider the recusal point and therefore to force an adjournment of the final hearing, it was unsuccessful.  In any event, this court put the letter and its contents entirely out of its mind when considering the narrow issues before it. 

 The judgment of this court was that litigation had been going on for far too long and it was in the interests of all the parties and most importantly of the child for matters to be resolved.

Despite father informing me on 9th. April 2015 that he would not co-operate with the NYAS worker, he had in fact done so.    Father had met with Ms. Masterton Francis on 23rd. April at the XXX Children’s Centre in Milton Keynes for observations between A and his father.  Ms. Masterton Francis had also travelled to B town on 24th. April 2015 to observe A with his father on 24th. April 2015.  I have the benefit of a lengthy, detailed and extremely helpful report for which I am very grateful to Ms. Masterton-Francis. 

The matter was called into court at 11am.  Mr. Horsley suggested that there may be some possibility of settlement given how narrow the issues were.  I therefore gave the parties until 12 noon for discussions on the basis that if no agreement could be reached I would start hearing the case.  Unfortunately discussions did not prove fruitful.

During the course of the hearing I heard evidence from father then mother and then from Ms. Masterton-Francis, the NYAS worker.  On the first day of the hearing proceedings continued fairly smoothly.  I will outline the evidence of the parents.  

Father confirmed the contents of his statements and position statements which he has already filed.  I do not intend to set out the contents of the statements, position statement and skeleton arguments that he has filed but I have read them all.

In his statements father emphasises the very close relationship which he believes he has with his son and the full role he wants to play in A’s life.  

Father told me in the witness box that he would like A to spend every weekend with him from Thursday after nursery until Monday.  He repeated several times that he wants flexibility for all arrangements made.  That seemed to be a key concern for him.    At the present time A is in nursery on Tuesday, Wednesday and Thursday.  Father told me that he realised that routines may have to change once A starts attending school and at that point he would agree to returning A to his mother’s care on a Sunday.  He would like to have A for 50% of the school holidays.  In respect of half terms he would like A for half of the week of the half terms rather than alternate all of the half terms.  Father told me in evidence that he would also be flexible about handovers and would be willing to pick A up from nursery and from the XXX Play centre.  He would be happy to attend “any suitable venue away from the mother’s home.”

Father was very clear that he wanted to play a full part in A’s life.  He enjoyed visiting him at the nursery and he does not want any restrictions on him attending the nursery.

I note in one of father’s position statements (B33) father writes the following,
“On 28th. May 2014 following the hearing, I attended my son’s nursery where I spent a number of hours with my son.  This was a very emotional time for both of us.  I had attended the nursery on previous occasions since 2013.”

Father told me that he is extremely upset about allegations which mother has made about him, in particular in respect of conflict between the parties during handovers.  One of father’s key complaints about mother is that she has made what he considers to be unfounded allegations against him and she has tried to impugn his character. 

He is particularly concerned about an allegation mother has made to the NYAS worker namely that mother believes father will kill her.  The circumstances arising from that are set out below.

Father seeks a prohibited steps order prohibiting mother from removing A to Uganda.  Father told me that mother had taken A to Uganda in 2012.  According to father mother had told him that she would like a home in Uganda and would like to educate A in Uganda and relocate to Uganda.  Father made the point that if mother took A to Uganda and decided to stay there it would be very difficult to force his return.

Mother did not feel able to cross examine father.  Although she tried, her questioning really became submissions on her part.  She therefore told me that she would rather just give evidence.  She did however put to father that the nursery are unhappy about the amount of time that father has spent at the nursery and that the nursery are unclear about when father is meant to collect A.  

On behalf of A, Mr. Horsley put to father that because of the poor communication between the parties, there needed to be clear arrangements for A to stop the uncertainty.  Father said, “In part I agree and in part I disagree.”    He continued to emphasise his desire for flexibility within the arrangements.

Father was very clear that he believes that it is in A’s best interests to spend every weekend with him.  He told me and I take this point,
“Alternate weekends do not reflect the relationship I have with my son.”

Father told me that at the present time, “I have no desire to take him on holiday.”  For the foreseeable future father will be based in B town.

Father told me that he would be prepared to attend parenting classes if that was recommended. 

One of the issues in dispute between the parents is the fact that A suffers from a swelling behind one of his ears which from time to time flares up.  Both parents have taken A to hospital for treatment and both appear to take A to separate consultants in Milton Keynes and B town about the same condition.  The NYAS worker is concerned that this duplication of professional advice may not be in A’s best interests.  Father told me that there are ongoing appointments in B town for A.

I then heard from mother.  Again she confirmed her statements and position statements which are in the bundle.  Mother explained the care arrangements for A as I have set out above.  She told me that when the relationship broke down in December 2013 that is when difficulties arose in respect of contact.  Mother told me that she has never tried to stop contact between father and child.  However she told me,
“I tend to give in to his requests – when I say no that is when the problems start – he overpowers me – he is more persistent – our relationship was confusing.”

Mother told me that essentially contact between father and A has been as father wants it, on his terms.

Mother was clear with me that she would like contact between A and his father to be on alternate weekends.  Mother works full time although her office has moved from Milton Keynes to S Town and she is now able to work from home on some days.  However she is still expected to work a full day 9 – 5.30 pm Monday to Friday even if at home.

Mother told me that she is opposed to an order whereby the wording is that A “live with both parents.”  She pointed in particular to recent events.  In the last month the police have been called three times due to conflict during handovers.  The most serious was on 12th. April 2015 and in my judgment it is important to set out those events.

Over the weekend of 9 – 12th. April A had been with father in B town.  Mother told me that father had e mailed her to tell her that he would be arriving at Milton Keynes Coach station at 8pm.  Mother went to the coach station.  In fact the coach did not arrive until 9pm.  A was put into mother’s car.  Mother told me that father kept saying to A, “don’t cry” when he was not crying.  He persisted in this and after a while A started to cry.  Father then removed A from the car seat and took him into the coach station.  What followed was effectively a three hour stand off whereby A remained with father in the coach station, mother was outside in the car.  Mother told me that father threatened to take A back to B town.  Eventually the police were called.  Mother told me that because she did not have an order stating that A lives with her, the police found themselves in a difficult position as to which parent A should be placed with.  On the evidence of both parents it is clear that A became very distressed.  Father has a recording of A crying which father wished to play to the court.  I gave him the opportunity to do so but he did not bring a computer to court which could play the recording.  However the NYAS officer has heard the recording and told me that although parts of it are unclear, she could hear A crying and he was clearly distressed.  Eventually Mother was able to put A in the car.  She did not return home until gone midnight with A.

Mother told me that she does not object in principle to father having A for 50% of the holiday.  At the moment the private nursery that A attends does not have school holidays and therefore he can attend throughout the school holidays as normal.

However mother told me that she believes father’s interest is in continuing to control her.  He will not commit to arrangements and he is constantly changing the arrangements.

Asked about Uganda, mother told me that she had taken A to Uganda for three weeks when he was very young. At one point she had plans to live in Uganda and considered A being educated in Uganda because she would have been able to pay for private education  She would very much like to take A to Uganda one day as her family do not know A.  Mother told me that she would like to retire to Uganda but as she pointed out that is 20 - 30 years away.

Mother told me that although her father is Muslim and she continues to follow some Islamic rules such as not eating pork, she is now a Christian.

She accepted that she had A circumcised.  She had discussed this with father and knew he did not agree but she went ahead with the procedure.

Under cross examination mother told father that she does oppose A living with him.  She told me that father is not organised and he often works late and completes his work after 10pm.  She told me that his house is messy and he does not cook proper meals.  She said that within his friends he, “likes to be the light of the world”  She said that father acts like a “ghetto” boy with them.  Mother said that some of father’s friends are not good role models for A and she referred to “Uncle L” who has gone to jail.  Mother told father that she considers him to be a negative influence as he “treats A like an adult and as a friend and he is trying to buy a child’s love.”  Mother thinks father forgets that A is only 3 years old.  As mother said,
“You and I are on two totally different pages.”

Father challenged mother stating that mother attempts to portray him in the most negative light at every opportunity.

Mother was asked about the events which lead to the police being called.  Mother made the point that she wants arrangements settled in advance and to be clear about them.  Her complaint is that father will not stick to clear arrangements.

Mother explained how father through his behaviour can cause great disruption.  She told me how father managed to bring the whole of Entebbe airport to a halt when he had objected to immigration control taking a photo of A.  She referred to father shouting at medical staff in the hospital when A was taken therein 2013 after he suffered a burn and as already noted, father made a complaint of racial discrimination against staff at the hospital.

Mother told me that when the parents were arguing at the coach station A was telling his parents to, “Shush!”

Mother said to father,
“Your behaviour is just not acceptable.”

Mother told me that she considers father to behave in an aggressive manner and she is concerned that A is going to believe that such behaviour is acceptable.

Father became more offended by mother’s evidence.  He asked her whether “she knew he was a solicitor of the Supreme Court.”  Mother said that she did.  He asked her whether she considered that he is law abiding.  Mother stated that, “You are someone who likes to do your own thing, you are not law abiding.”

Father embarked on further aspects of cross examination which strained the wide latitude I had given him in terms of relevance.  He asked mother about an abortion she had in February 2014 as evidence that their relationship had not ended in December 2013.  Mother pointed out that the unborn child had been conceived prior to the relationship ending.  Mother was asked about her sister.  Father had assisted her sister with immigration issues.  She had a 10 year bar to entering this country because she had used a false passport.  I kept asking father of the relevance of these issues.  Father’s response was that they all went to mother’s credibility.

An issue which grew in importance to father throughout the hearing is an allegation made by mother that she believes father will kill her.  This seems to stem from a text message that father sent to mother’s sister on 13th. April 2015 after the incident at Milton Keynes coach station on 12th. April 2015.

The NYAS officer sets out the details of that text as follows,

“I asked [ ] father about a text message that [ ] mother had forwarded to me on 13th. April 2015 that was sent to her sister from [ ] father on 13th. April 2015.  It reads,
“Hwn: H, your sister called the police on me yesterday in Milton Keynes and they took my son from me.  I must warn you and the Y family that there will be a very hard response to your sister’s actions.”
I asked [ ] father if he thought this message could be perceived as threatening, to which he stated it was not.  He began to explain how he had been contacted by [ ] mother’s sister about immigration issues and advice, however he was not prepared to assist her. [ ] Father said he did not wish to explain any further details.  I asked [ ] father if he accepted any descriptions of himself as previously documented including those recorded at court for example, “confrontational” “threatening”, “intimidating” and “aggressive” to which he said he did not however he was, “determined” and “passionate.”  At this point of the meeting [ ] father played me an audio recording of the incident that took place on 12th. April 2015.”

In another part of the NYAS report Ms. Masterton-Francis writes,
“ [ ] Mother believes that A should remain in her primary care.  She believes that A is settled with her and has formed some strong friendship groups inside and outside of nursery.  Despite the ongoing challenges she says she faces with Mr. X, she says that she believes it to be important and significant for A to maintain and develop a meaningful and safe relationship with his father.  []  Mother acknowledges that A loves his father and enjoys spending time with him.  What [ ]  mother is unsure about is how she is able to positively work with Mr. X when she finds him to be “aggressive and confrontational” at times.  [ ] mother says that she does not, not like Mr.X however she is concerned in the way in which his demeanour and moods change and the impact that this could have on A as he grows up.  [] also fears what consequences may occur upon Mr. X learning of the information she has provided for the preparation of this report.  She says she fears he may kill her based on what he has said to her in the past about the Cafcass report and references to his mother having mental ill-health problems.  She believes that the telephone and text message he sent her sister on 13th. April 2015 are threatening.  She believes that unless she agrees to his demands he will continue to disagree with her, just to be awkward and will continue to vary the frequency and consistency of contact as a way of, “getting back at her.”  She says this is not appropriate or fair to A.”

(The reference to father’s mother having mental health problems is mother telling me that she father’s mother suffered from schizophrenia, something which father is extremely sensitive about.)

Mother confirmed in the witness box that she had told the NYAS officer that she believes that father will kill her.  She referred to the text which she considers threatening.  She also commented that she finds it hard to understand why father sees things so differently to her and others and constantly changes his mind.  She wondered whether he needed to see a doctor.

There was then an exchange about Father’s mother.  Mother told me that the paternal grandmother did suffer from schizophrenia (this was challenged by father.)  Mother told me that she had met the paternal grandmother on one occasion.  (This is denied by father.)

Father challenged mother about the following apart of the NYAS report (page 33.)
“Mother also says that she finds A very challenging to deal with if he cannot have contact with his father, so she gives in to A’s demands to see his father “for an easy life.”  Mother says that she does not inform Mr. X about certain developments in A’s life as Mr. X will demand to know where the information has come from and will want to speak to professionals or friends about what is going on.  Mother says that none of her friends including the childminder will speak with Mr. X for fear of his aggressive behaviour or complaints.  Furthermore, mother says that A cannot have friends outside of the nursery as Mr. X demands to know whom he is seeing and will then want to contact the parents.”

Father cross examined mother at some length about this paragraph pointing out that it suggests that mother has to appease A by promises of contact with father which shows how much A wants to see his father. Mother says she sometimes says to A as an incentive for good behaviour,
“if you don’t do that you won’t see daddy…”

Mother told me that father does give some money for A but it is on an ad hoc basis and very irregular.  Once again she cannot rely on father for consistency.

Mother was asked about some character references provided by father including a statement from Dr. E.  Mother accepted that she knew Dr. E as a Pastor of father’s church.  She also knows a lady who has provided a statement called Ms. A who is father’s cousin but she does not accept she knows A very well as well as a lady named Ms. F.  When being asked about these effective character references who describe father as a good father, mother said that she does “not disagree that you are a good father – you are not a physical risk to A you are an emotional risk.”

Mother was briefly cross examined by Mr. Horsley. She emphasised that she wants certain arrangements.  She is tired of father cancelling contact and then turning up unannounced.

By the end of the first day father told me that he is so upset by the allegation made by mother that she believes that he will kill her that he will not have any further contact with her be it by phone, text or e mail.  I decided to adjourn until the next day to see if his view would moderate overnight.

On the morning of the second day I decided not to press father for his position as that appears to be when he becomes agitated.  I therefore simply allowed Ms. Masterton-Francis to be called and hoped that father would put his proposals for contact to the NYAS worker following his pronouncement the previous day of refusing any communication whatsoever with mother in the future.

I say at once that I am extremely grateful to Ms. Masterton-Francis for her report.  In my judgment it is a careful and considered piece of work which has been of enormous assistance to this court.  I rely on the report in its entirety but it is worth setting out key recommendations within it.

Ms. Masterton Francis writes,
“In my opinion Mother has demonstrated a strong commitment to her son.  Mother clearly enjoys being with A and focuses on A during her time with him, interacts well with him and plainly wants A to be happy and have a good time with her.  I have observed behaviours in A indicative of a secure and routine attachment to his mother.”

“In my opinion father has demonstrated a strong commitment to his son.  There are issues about the way in which father presents in respect of his “determined” and somewhat “direct” approach to professionals and other however I believe this is born out of his immense and overwhelming frustration at wanting to be part of A’s life and not just a part time weekend father.  He very much wants to be treated as an equal parent to that of mother.
Father appears to enjoy being with A.  He is generally focussed on A during contact, however needs some support in understanding the importance and significance of ongoing age appropriate verbal stimulation and development between himself and A as well as the impact that his disputed behaviour may have on A as he grows up.”

Ms. Masterton-Francis writes,
“I can see no benefit to moving A to live with his father as opposed to remaining with his mother.  Both parents work and would be using various childcare provisions.  Mother’s home is more conducive to the needs of a chid and A is unfamiliar with his daily routine in Milton Keynes.  What A is highly likely to be unfamiliar with is the consistency and frequency of contact with his father.  There have been significant periods of breaks on contact the reasons being disputed by the parents, however weeks and months in the eyes of a three year old child is a significantly long period of time.
What the court needs to respectfully consider is the exact detail of the contact arrangements between A and his father as this is where I believe A’s instability stems from.  If mother and father were able to be more consistent in their approach to contact, supporting a more robust handover and agreeing to openly share information between them I am confident that A’s global needs can be met.  In fact, if both parents were able to work more collaboratively together, this would without a doubt enhance A’s well being two fold.
In my opinion if A’s parents are unable or unwilling to resolve their differences A is highly likely to be at significant risk of emotional harm moving forward.  The incident on 12th. April 2015 would suggest that the parents’ difficulties have reached a peak, however the handover on 27th. April 2015 went ahead without event.  This clearly shows that both parents are capable of working together.”

Ms. Masterton-Francis went to great lengths to state that father is just as important in A’s life as mother but remains concerned that, “it is the acrimony that could be particularly distressing for A as he grows up.”  

In her report Ms. Masterton-Francis makes a series of recommendations but essentially her recommendation is for A to live with his mother and have staying contact with father on a fortnightly basis.  In her report Ms. Masterton Francis supported the contact being between Thursday and Monday whilst A is at nursery reverting to Friday to Sunday once A starts school.  

In examination in chief Ms. Masterton- Francis confirmed the contents of her report.    Ms. Masterton-Francis confirmed that her recommendation is for contact to be on a fortnightly basis which ensures quality time for both of the parents.  She remains very concerned for A during handovers which is the point at which she feels A is at risk of suffering harm.  In respect of father’s new position that he will not tolerate any contact whatsoever with mother, even by text or phone, Ms. Masterton-Francis pointed out that these parents have another 13 – 14 years before A reaches his majority and they must communicate over contact but also over a whole range of issues.  Ms. Masterton-Francis told me that if father really will not communicate with mother then contact may have to take place in a contact centre.  That would protect A from the parental contact.  If father is constantly late in such a setting the contact centre may take the view that it will not accommodate this case.  Ms. Masterton- Francis accepted that this regime would be far less flexible and it would be regrettable but it is something that the court will have to consider if the parents cannot achieve stress free handovers.

Ms. Masterton-Francis told me that she had heard the recording of A on the night of 12th. April 2015.  A is clearly distressed.  Ms. Masterton-Francis was clear that A should have been at home at that time and the handover was far too late.  She is very concerned that A, at the age of three, asked his parents to stop shouting at each other.  Ms. Masterton-Francis understands that father does not want to put himself in a position whereby he is vulnerable to false allegations (as he sees it) due to his profession.

Asked about the wording of the order Ms. Masterton-Francis told me she did not think this would make a difference to A but she accepted there may be difficulties if the police have to become involved again if there is not clarity as to who A lives with.  Ms. Masterton-Francis recommended that a clearly defined and robust child arrangements order is now needed.  Ms Masterton-Francis stated that the parents must try and work together to effect handovers which they have done on the past.  It may be that mediation will assist them.  Ms. Masterton-Francis recommended that a 6pm handover was the latest she could support.

Father was given the opportunity to cross examine Ms. Masterton-Francis.  He cross examined her for over an hour.  He concentrated on the allegations that mother had made and it is clear that he is distressed by Mother’s evidence that she believes father is going to kill her.  He pointed out that there had been no allegations of physical abuse and no allegations that he has ever physically assaulted mother.  I have taken on board of all father’s cross examination.  Father took me to the police logs.  He seemed very focussed on the fact that at the top of the police logs are the words “domestic violence.”  He cross examined that there were no allegations of domestic violence.  With the greatest of respect, he seemed to miss the point of the harm caused to A by the events of 12th. April 2015, namely emotional harm.

Given mother’s allegations that she believed father will kill her, father asked Ms. Masterton-Francis if she believed mother was suffering from mental instability.  Ms. Masterton-Francis stated that she was not qualified to comment on mother’s mental stability.  She has seen no indications in her dealings with mother to believe that mother is suffering from mental instability.

Ms. Masterton-Francis told father that she does not believe that he poses a physical threat to A but she stated that her concern is that father becomes agitated and the impact this may have on A as he grows up.  Ms. Masterton-Francis was asked about the passage in her report which I have set out at in respect of mother effectively using contact with father as a bribe.  Ms. Masterton-Francis accepted that is what mother said to her.

Father put to Ms. Masterton-Francis that given mother’s allegation that he will kill her it is not unreasonable of him to want no contact with mother at all, even indirect contact.  Ms. Masterton-Francis made clear that as far as she is concerned the parents have to have some means of communication but arrangements must be put in place for there to be minimal contact.  

Father asked whether Ms. Masterton-Francis believes that mother really believes father will kill her.  Ms. Masterton-Francis answered that all she can do is state what mother has told her.  “I can only comment on what she has said.”  Ms. Masterton- Francis believes that mother is concerned about father’s unpredictability and mood swings.

After an hour of cross examination, I informed father that whilst I understood his distress at the allegations, the issues remain the same and rather narrow namely whether there should be every weekend or alternate weekend contact between A with him and the wording of the order.  Father told me that he would move on to that issue but continued with his cross examination which was not assisting the court.  After another 15 minutes or so the court once again asked Father to put his case as he now saw it, given that he was saying that he would not have any contact with mother whatsoever.  Father effectively ignored the court’s request and asked Ms. Masterton-Francis, “Does A love me.”  I pointed out to father that A’s love for both his parents was not in issue as was their love for A but what the court had to decide were the most appropriate arrangements for A and that father needed to put his case to this witness especially given that he had said he would have no contact with mother.  Enough latitude had been given.  Father stated that given the way he had been treated by this court he was leaving the court.  This court attempted to tell him that the proceedings would continue in his absence but he spoke loudly over the court and left the court room at 11.40am.

Through Mr. Horsley, an invitation was extended to father to return to the courtroom as the proceedings were continuing.  I was informed by Mr. Horsley that such an invitation had been given to father who was in the court house waiting area writing a letter of complaint about the court and/or an appeal.

The proceedings continued.

Ms. Masterton-Francis continued in her evidence this time cross examined by mother.  Mother asked Ms. Masterton-Francis about the conversation they had when mother made the allegation against father.  Ms. Masterton-Francis told me that mother had explained that the paternal grandmother suffered from schizophrenia and mother is concerned because father presents with similar types of behaviour as his mother.

Ms. Masterton-Francis told me that she had considered seeking an expert assessment of father but at this stage she did not consider that there is enough evidence for her to come to the conclusion that father poses a physical risk to A.  There has been no evidence of physical violence or aggression by father.

Ms. Masterton-Francis told me that her recommendation now is for contact to take place from Thursday straight from nursery until Sunday at 5pm.  The delivery to be at XXX contact centre.

Ms. Masterton-Francis is concerned that father prolongs the handovers and this distresses A.  He must simply hand A over and leave.  Ms. Masterton-Francis accepts that staff at the nursery feel compromised and caught in the middle of contact between the parents.  She supports the staff at the nursery having a copy of this order so that they know when father is permitted to collect A.  Ms. Masterton-Francis accepts  that A loves seeing his father but he needs stability and certainty.  She supports a prohibited steps order preventing father from attending the nursery other than when he is due to collect A for contact.  Ms. Masterton-Francis told me that she does not think father has an appreciation of the impact his behaviour has on others in particular mother.  She wondered if he could attend a conflict management (as opposed to an anger management) course.  Ms. Masterton-Francis does not believe father appreciates the potentially negative impact his behaviour has on A.

Asked by Mr. Horsley whether she believed an injunction should be made to protect mother, Ms. Masterton-Francis thought mother was in abetter position to assess that need.

Ms. Masterton-Francis told me that she agreed that the order should be worded that A “live with” mother.  She told me that she has been trying to find a solution which alleviates father feeling so frustrated and the fact that he feels he is not being treated as an equal fuels his frustration and anxiety but on balance she would now support an order stating that A “lives with” mother.

By the end of her evidence Ms Masterton-Francis had made the following recommendations;

That A live with mother and that the order be worded to state that A should live with mother.

That father A should have fortnightly contact with A every Thursday with a collection from nursery and a delivery on Sunday at 5pm at the XXX children’s Centre.

That there be a prohibited steps order prohibiting father from attending at the nursery save for collection of A as per the child arrangements order.

That once A starts school he should spend half of school holidays with father.

Ms. Masterton-Francis was very concerned that handovers must be undertaken with a minimum of delay and that he should be simply handed over and father leave in order to avoid distress for A.

It was suggested by Mr. Horsley that a non molestation order may be appropriate for mother.

At the point of submissions a further invitation was issued to father to rejoin the proceedings.  Mr. Horsley informed me that father did not reply to such an invitation.
I was therefore in the process of hearing submissions by Mr. Horsley when father entered into the courtroom at 12.45pm.  I asked him to sit down as I was hearing submissions.

I outlined the final recommendations of Ms. Masterton-Francis to Father who had not been present for some of Ms. Masterton-Francis’s evidence.  I invited father to make submissions.  He told me that he was “too unwell” to make submissions because of the way this court had treated him.  However after been given the opportunity for a second time he made submissions for 20 minutes.  He did not accept the recommendations of Ms. Masterton-Francis.  He repeated his case that he seeks an order that A live with both his parents and he wants A with him every weekend from Thursday after nursery until Monday.  He seeks a prohibited steps order prohibiting A from been taken to Uganda.  He strongly opposes a prohibited steps order limiting him from attending at the nursery and pointed to two letters at D6 and D10 which sets out his close involvement with the nursery which I have read and considered.  He is very concerned about continued involvement because of an attempt by mother in the past to remove his name from the nursery records.  He submitted that mother is seeking to diminish his role in A’s life.

Father’s final position at court was that he will not communicate with mother at all and “if she texts me or emails me I will telephone the police.”  He said, “there is no possibility of me meeting the mother anywhere.”  Father told me that handovers will have to involve a third party. That is a most unhelpful stance and renders any possibility of flexibility impracticable.  It seems to me almost impossible to put forward a person who will involve themselves in the long term with contact handovers.  Moreover, I do not know how father proposes communication between the parents will take place in respect of subjects such as cancelling contact because A is unwell or discussing future educational provision.  Father must rethink this stance.  Whilst I understand he believes he is at risk from unfounded allegations by mother, communicating though text or email protects him from that.  There will have to be communication between these parents.

I should note that both mother and father state that they do not have a current passport for A or the red book for A.  Mother believes father has retained both documents and father believes mother has the passport and denies having the red book.  I make no finding about who has these documents.  Mother has told me that both parents should look again to see whether the red book can be found.  In respect of the passport I am noting that both parents are stating that they are not in possession of a valid passport for A and therefore it is effectively lost.  

Father made a further application for this court to recuse itself.  This was refused.  Father handed in an appeal form against the decision by this court to recuse itself. No fee had been paid.  Clearly the application should have been filed with the Court of Appeal.  

Analysis and orders made.

Let me start with the positives.

A is a child who is much loved by both parents.  Both parents have had a very great deal of involvement in A’s life.  Mother felt sufficiently confident in father’s ability to leave A as a 7 month old baby in father’s care for three days a week whilst she was in Milton Keynes.  Despite a high level of conflict, contact has continued although the level of contact between A with father appears to have varied at different times.  

I have considered section 1 of the Children Act 1989 and the section 1(3) welfare checklist.  I accept and adopt the checklist as set out by Ms. Masterton-Francis in respect of both parents in her report.  I cannot better it and therefore do not repeat it.  It is an excellent piece of work which has assisted this court enormously.

I accept that both parents have the basic parenting skills to care for A.  I accept that the parents have different parenting styles and mother may well be a more organised person.  In saying that I recognise that both parents have a great deal to offer A and A wants and needs a relationship with both his parents.

I should also note that one of the few aspects of the case that has not been in issue is that father is prepared to do the travelling between Milton Keynes and B town.  So often in cases of this type, parents argue as to who undertakes the majority of the travelling.  To be fair to father he has always undertaken the travelling and pays for that travel to and from B town. He raised this during the hearing before District Judge Perusko in May but he has not raised it as an issue before this court, despite Ms. Masterton-Francis suggesting mother may undertake some of the travel.  Father has said that he will travel and bear the cost.  That is very much to his credit and I commend and thank him for that.

The fact that mother lives in Milton Keynes and father lives in B town is a factor which must be taken into account when considering practical care arrangements for A.  Both parents work full time.  If I were to accede to father’s request for A to spend every Thursday to Monday with him in B town, mother would have no quality time with him save during holidays given her work commitments.  This child needs a base.  In my judgment it is clear that his needs will be better met by the consistency and security of living with his mother.  I accept the recommendation of Ms. Masterton-Francis in this respect.  Father himself accepts that during the week A should live with mother.

In my judgment A needs to spend weekend time with both of his parents and the most appropriate way to achieve that is for A to spend alternate weekends with his father.  That is the order that I am going to make.

In respect of the wording of the order, I have considered the case law father has referred to in terms of the cases of “shared residence.”  Of course matters have moved on as there is the new Child Arrangements Programme but I have considered those cases in the light of the new wording of the child arrangements order.  The difficulty in this case is the conflict between the parents.  I am extremely concerned by the incident of 12th. April 2015.  Without making findings as to precisely what happened, it is clear that A was involved in a three hour standoff at Milton Keynes coach station when he knew his mother was outside waiting for him and he remained inside the coach station with his father.  Whatever the events, it seems to me that at any point father could simply have put A in mother’s car and left thus ending the conflict.  For reasons he did not explain, father did not do so.  It is hardly surprising that by midnight A was extremely distressed and probably exhausted.  In my judgment being involved in such a situation was highly damaging and distressing.  The level of harm which in my judgment A must have been subjected to on that occasion, would meet the threshold for section 31 Children Act 1989.  I hold back from making such a finding at this stage but if this case ever comes before me in the future and I learn that A has been placed in such a situation again, I will consider making such a finding and the parents have been put on notice.  At that stage I may invite the local authority to become involved and the door to public law proceedings will be opened.  That is something which I hope both parents will seek to avoid at all costs.

Handovers are clearly times when conflict can arise and cause A harm.  Handovers must therefore be in a public place, at a reasonable time for a child of this age and the minimum amount of contact must take place between mother and father.  Moreover, contact must be practicable in terms of the parents’ working arrangements.  Father’s work arrangements appear to be very flexible.  Mother’s hours are 9 – 5.30pm.  I have thought very hard about when A should be returned.  Mother seeks return on Sunday and father on Monday.  If I order return on Monday that will cut into mother’s working day unless the handover is on Monday evening.  It is precisely that arrangement which has caused problems in the past.  In my judgment it is entirely inappropriate for father to return A at 8pm on a Monday when this small child is meant to be in nursery the following morning.

In my judgment the best two venues for handovers are at the nursery when father can simply pick A up from nursery at an allocated time or from the XXX Children’s Centre.  Mother asks that A be returned on Sunday to ensure that she can settle A on Monday and that he will therefore be ready to start nursery on Tuesday.  I have given this aspect of the case a great deal of thought.  I am keenly aware of how anxious father is that his contact is not decreased and was drawn to father’s proposal to allow the extra day on Monday. However I am also aware of mother’s anxiety about A being returned at an appropriate time and A being in a routine.   On balance I accept the recommendation of Ms. Masterton-Francis that father should return A by 5pm on Sunday evening to the XXX Children’s Centre.  This will not interfere with Mother’s work and A will be settled for the week.  

Turning to the wording of the order.  I accept mother has at times acted in a way which has caused father distress.  Father did not agree to A being circumcised and yet mother went ahead with that procedure.  Mother took A to Uganda without father’s consent.  Father believes mother was trying to have his name removed from the school records, another way of trying to sideline him from A’s life.  Mother has alleged that father will kill her, something which father tells me he is extremely distressed about and for which he submits there is no evidence.  He feels his character has been impugned.  Mother told me when father was not present in the court room (when he had chosen to leave) that father had once hit her with a remote control but other than that he has never been physically violent.  This was not raised with father and I do not know his case on this point.  However mother’s case is that it is father’s unpredictability and mood swings which concern her.

There is force to the points made by father.  However, father fails to appreciate how his behaviour has had and is having such a negative impact on mother.  He denies that the text he sent on 13th. April 2015 to mother’s sister could be construed as threatening and yet in my judgment it could clearly have been construed as threatening.

These proceedings should and could have been completed very quickly.  After an extensive review of this case this court is driven to the conclusion that father as a litigant in person has disproportionately prolonged and complicated these proceedings.

I accept the view of Ms. Masterton-Francis that father’s behaviour may stem from a genuine anxiety and fear that he will be sidelined or marginalised within A’s life and that he has a right (and A needs him), to play a role in A’s life equal to mother’s.  However the reality is that with the geography of these parents’ homes, there has to be an unequal division of the time spent with each parent but that does not undermine father’s role.  Moreover, father through his behaviour has forced this court’s hand in coming to the conclusion that well defined arrangements are now the only realistic option for A as it is clear that flexibility in arrangements simply leads to further conflict.

I regret to have to find that father has proved himself to be challenging, unco-operative and at times extremely disrespectful to this court.  Father has made serious allegations in respect of three Judges of this court.  Father needs to understand that making an allegation of sexual or racial discrimination against anyone is a very serious matter.  He should not do so without clear and compelling evidence.  Someone taking a different view to his does not constitute such evidence.  I have seen no evidence of bias towards father throughout this litigation, indeed quite the reverse, I have seen an inordinate amount of time devoted to considering the complaints made by him and trying to assist the parties in coming to an agreement. In my judgment father has been given every opportunity by five Judges of this court to litigate these proceedings which have continued for far too long.  Father has now made formal complaints about this court, District Judge Burgher and His Honour Judge Hughes.  A great deal of court time has been taken up dealing with father’s complaints about the court and court procedure rather than focussing on the welfare of A.    Father has applied for three Judges of this court to recuse themselves on the basis of racial and sexual discrimination against him, appealed at least two previous orders of the court and sought the replacement of the section 7 reporter Ms. Buckle, the Children’s Guardian Ms. Baker and then opposed the appointment of the NYAS worker.  I have become increasingly concerned about his conduct.

Father has walked out of this court on two occasions and was about to on a third when I pointed out to him that as a solicitor of the Supreme Court (something which father emphasizes) he should realise that this shows contempt for the court and he should know better than to behave with such discourtesy.  At no point has father apologised for his unacceptable behaviour.  This is noted for this reason.  This court allows latitude to parents who are genuinely distressed and who become overwhelmed with emotion.  (Even in those circumstances they do not walk out of court.)  It is understandable and usually little if any notice is taken of it.  Invariably parents apologise and explain how difficult they are finding the process.  Father has shown no such remorse.  He is combative, oppositional and entirely convinced that he is in the right.  Father is a man who is cavalier with his insults, complaints and serious allegations against others and yet he appears hyper sensitive to the actions and behaviours of others even when a great deal of time and effort has been put in by them to assist him, something which he has in my judgment failed to see on several occasions.  Father presents as a man who simply cannot tolerate a view which is in any way different to his own.  He will not accept the role of the Judge and will not accept judicial intervention.  He considers himself to have an unbridled right to cross examine and make submissions without due regard to relevance or time constraints.  When challenged he quickly resorts to the attack, alleging racial and sexual discrimination, rather than calmly arguing his case.  In this court he has done so when pressed on what his case is.  His submissions are frequently rambling and difficult to follow.  He has been given great latitude by this court and by other Judges within this court house to argue his case.  However father has sought to challenge and complain rather than, in my judgment, focus on the real issues in the case.  It is deeply regrettable that father considered it more appropriate to sit in the waiting area and complete an appeal form and/or a further letter of complaint than to listen to the evidence of Ms. Masterton-Francis and put his case to her.  That in my judgment demonstrates how distorted his thinking becomes when he believes he has been slighted or wronged.

I am extremely concerned about the effect father’s conduct and the ongoing and interminable litigation is having on mother and in turn the risk of harm to A.  In my judgment mother has experienced bullying through litigation from father and this court is not going to permit that to continue.  The same issues have been raised time and time again.  As far as this court is concerned this litigation will stop.  Father will not be permitted to continue his vacillation and continued complaints.  They are damaging to his family and a poor use of the limited resources of this courthouse and the Judges within it who must apportion court time to the many families requiring resolution to family conflict.  Final orders have been made.  Father must comply with them or he will not have contact with A.  That would be a tragedy.  It will be the responsibility of father to reflect on the past 16 months and try to understand that he must accept the decision of the court and work within this child arrangements order.  His desire is for flexibility but through his own behaviour he has made that impracticable.  In my judgment he has himself to blame for the position he finds himself in.  It is time for him to take responsibility for his own actions and understand that instead of blaming everyone else he may like to consider that his conduct has not been child focussed but time consuming and damaging to his family.

Given all of the above, I do not consider it to be in A’s best interests to make an order that A lives with both parents. At this moment father has told me that he will not allow mother to communicate with him at all including texting or e mailing him.  That stance has to change if he wishes to continue a relationship with his son in the long term.  There has to be a level of communication, however minimal and even if it only takes place through text and e mail.

Furthermore, I cannot allow another situation to develop whereby there is a three hour handover and the police have to intervene.  Father must know when he must hand A over and he must do so at the right time and leave.  If father continues to behave in this way and mother has to call the police, she must be able to show an order which reflects that A spends most of his time with mother.  It is a great pity but I can see no other way forward which will protect A from harm.  This child cannot be involved in a tug of war again.  There needs to be clarity.  

I am going to make an order prohibiting father from attending at A’s nursery other than at times of collection as per the order.  I know father will be distressed by this but I accept the evidence of mother and the recommendation of Ms. Masterton-Francis that the nursery must not be used by father to drop in and have contact as and when he decides to do so.  That is putting the nursery staff in a position of conflict.  Father in his own statement writes how he attended at the nursery after the hearing on 28th. May when he was clearly distressed and he writes that it was emotional for both of them.  Nursery should be a place where A can attend knowing that the parental conflict and distress will not follow him.  The same must be true when A attends school.

In respect of the medical issues I am not going to make any orders.  Clearly if A requires medical attention whilst in his father’s care, father must access medical care for him.  However, A’s GP and ongoing specialist treatment should be with medical professionals in Milton Keynes area or where mother is living.

Turning now to the issue of Uganda.  I am making a prohibited steps order preventing mother from relocating to Uganda with A.  Mother tells me she has no plans to do so but in my judgment it is important that father feels security on that issue.  

I am not prepared to make an order prohibiting mother from taking A to Uganda for a holiday.  Clearly if mother has plans to take A she must inform father and I will make an order that she does so no less that three months before her planned trip.  If father really has barred all communication with mother then mother will not be able to communicate her plans to father.  In those circumstances mother will be able to take A for no longer than two weeks at any one time.  It will be a matter for father whether he reconsiders his attitude on this point. 

I am loathe to suggest any further litigation in respect of this child but if the parents cannot agree about any particular trip for A to Uganda, there will have to be an application to the court on this issue by one of the parents.  However, I am not going to prohibit mother from taking A to Uganda per se at this stage as from a welfare viewpoint there may be great benefits to A of meeting his family in Uganda and learning about that side of his family and culture.  However, Uganda is a non Hague convention country and therefore I understand father’s concerns.

I will also make a separate order that on both parents informing the court that they do not hold a current valid passport in respect of A, mother shall apply for a passport.  Father is prohibited from applying for such a passport.  I make this order because I fear that without clarity as to which parent is to take control of this situation there will be further interminable arguments.  I have ordered that this child shall live with mother.  A should have a passport and it should remain with the child. There should be one passport for A and both parents should know where it is held.  Father told me he has no plans to take A away on holiday at this stage and therefore I can see no reason for him to hold A’s passport.  Mother is to retain the passport unless and until there is agreement between the parents to hand the passport over or further order.  Again I understand that father may feel distressed and sidelined in A’s life because of this.  That is not the court’s intention.  The orders are made for the benefit of A to stop the arguments and provide clarity for A.

I am granting permission to both parents to disclose this judgment to any Judge dealing with A in the future.  Given that these parents have been unrepresented it is sometimes difficult for a Judge to have an overview of the history of litigation.  I hope this judgment will assist in that task.

Mother is clear that she does not want father to attend at her house.  Father told me that he has no intention of doing so but would not give an undertaking.  Mother has not applied for an injunction at this stage.  I sincerely hope that father does not attend at mother’s home and the parents can be civil at handovers.  They must understand that they are A’s role models.  If they behave badly how can they expect their son to know how to behave.

Therefore I make the following orders;

[Orders set out]

These are the orders of the court.  As far as this court is concerned these are final orders.  The parents must agree the weekend on which the alternate weekend contact commences.  If they cannot do so the court will order a start date.

This court does not expect to see these parents back in court in respect of A save that there may be a legitimate issue about A travelling to Uganda.  In my judgment there should be no further litigation about the child arrangements order.  The litigation must stop.  Clearly these arrangements will be put asunder if either parent fails to co-operate.  Father must communicate with mother.  To suggest that he will have no further communication even by e mail is a most unhelpful stance.  It must change.  If father cannot have contact with mother even by e mail or text (which protects him from allegations from the mother) it will demonstrate that he cannot put the needs of his child first.  If father cannot commit to regular contact in accordance with this order he may find that his contact is increasingly limited and restricted.  I sincerely hope that will not happen but this court will not allow this child to spend a large proportion of his childhood embroiled in litigation.  When one considers the orders this court has made, the orders now made could have been agreed upon months ago with a great deal more flexibility for both parents had this conflict not ensued.

I note that His Honour Judge Hughes has granted father permission to apply for an oral hearing in respect of the appeal against District Judge Burgher, having refused permission to appeal on the papers.  In my judgment that appeal is now redundant as matters have significantly moved on.  I hope father will consider the merits of pursuing such an appeal at this stage.  This judgment will be placed on the appeal file.

I also put both parents on notice that if this matter comes back before the court and the court takes the view that this litigation is without merit, the court should consider making a section 91(14) order restricting the relevant parent from making any further applications in respect of A without the permission of the court.  The parents are now on notice.

This is the judgment of the court.