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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> SMD v LMD [2014] EWHC 302 (Fam) (14 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/302.html Cite as: [2014] EWHC 302 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/02/2014

Mr Justice Keehan :

Introduction

1. I am concerned with one child, A who was born on 25 August 2005 and is 8 years of age. The applicant is her father SMD('the father'). By his application of 27 February 2012 he seeks an order for contact with A. The Respondent is her mother and primary carer, LMD ('the mother').
2. The mother has two other children. J is 14 years of age; his father is JR. Cs is 5 years of age; his father is the mother's current partner, PO.
3. On 16 January 2013 Mrs Jennifer Roberts QC, sitting as a deputy High Court Judge, gave judgment at the conclusion of an extensive fact finding hearing. The findings against the father are set out in paragraphs 181-182 and 184 of the judgment. The principal and most serious finding is that the father sexually abused A "on at least one, and probably more than one occasion" between December 2008 and November 2009. The father does not accept that finding nor any of the other findings made against him.
4. The findings against the mother are set out in paragraph 185 of the judgment. The essence of those findings is that the mother "had not sufficiently protected A from her feelings of antipathy towards the father". She does not entirely accept the judge's findings against her.
5. The father appeared in person. He presented his case forcefully. His appeal against the findings of fact made by Mrs Jennifer Roberts QC was dismissed by the Court of Appeal on 21 August 2013.
6. I repeatedly reminded the father throughout the course of the hearing before me that my starting point was the findings of fact made on 16 January 2013. I am bound by those findings.
7. On the third day of the hearing when I was to hear closing submissions, SMD, just before the court was to sit, suffered what was thought initially to be a heart attack. He collapsed and in doing so fell heavily and banged his head. The paramedics were called and carried out various checks on him. They advised him that he appeared to have suffered a stress related collapse. Out of an abundance of caution, however, they wanted to take him to hospital for further investigations; he declined.
8. When I came into court it was clear the father was not well. He told me he was suffering a migraine but, nevertheless, he wished the case to proceed. I was clearly of the view that it would not be fair or appropriate to do so. Accordingly I adjourned the matter for six days to 6 February to enable the father to recover fully from his collapse. I am grateful to the father for his brief written submissions which he spoke to after I had heard closing submissions from counsel for the mother and for the children's guardian.

Background

9. The history of this matter is fully set out in the judgment of 16 January 2013: see paragraphs 1-49.
10. For the purposes of this judgment the salient facts are that the parties were married on 16 March 2006. They separated in July 2007 and agreed a shared care arrangement for A. The parties were living in Spain.
11. In July 2008 the mother wrongfully brought A to live in the UK. The father instigated proceedings under the Hague Convention. In October 2008, as a result of mediation, the mother returned A to Spain. Thereafter the care of A was shared on a monthly cycle with the father caring for her for two weeks and then the mother would travel from the UK with her younger son, C, to care for A for the other two weeks.
12. In November 2009 the Spanish courts gave the mother permission to relocate with A to live in the UK. She did so on 14 November 2009.
13. A first disclosed the father's sexual abuse of her to an independent person in March 2010: see paragraph 99 of the judgment of 16 January 2013. She was the subject of an ABE interview which was conducted on 8 April 2010.
14. The father had his last contact with A in February 2010. He has not seen her since.
15. On 3 May 2011 the mother applied for a non molestation order against the father. It was granted by Peter Jackson J on 19 May 2011. The father made an application for contact with A on 27 February 2012.

Law

16. I remind myself that in determining this application my paramount consideration is the welfare best interests of A. I have due regard to the relevant provisions of the welfare checklist set out in s1 (3) of the Children Act 1989.
17. I have regard to the Article 6 and 8 rights of the child, the father and the mother. Where there is, however, a tension between the Article 8 rights of the child, on the one hand, and of a parent, on the other, the rights of the child prevail: Yousef v The Netherlands [2003] 1 FLR 210.
18. My starting point is that contact with a non-residential parent is generally in the best interests of a child. Any restriction on contact with a child but, especially, an order that there be no contact, direct or indirect, may only be justified on the basis of the most cogent and compelling evidence.
19. In the case of Re H (A child) [2014] EWCA Civ the Court of Appeal reiterated the principle that the welfare of the child and not her expressed wishes and feelings was determinative of an application.
20. In Re A (A Child) [2013] EWCA Civ 1104 the Court of Appeal highlighted the approach a court should adopt when considering making an order for no contact; that was a case of implacable hostility. Such an order should only be made where the court is satisfied that there is a serious risk of harm if contact were to be ordered.
21. I am invited by the mother, supported by the guardian, to make a s91(14) Children Act 1989 order requiring the father to seek the court's permission before making an application for any s8 order. Further I am invited to make the order to last until 25 August 2021 when A will be 16 years of age.
22. Orders pursuant to s91 (14) should be made with great care and sparingly. They may be made in the absence of a past history of unreasonable applications if there is clear evidence that the welfare of the child requires it; Re P (section 91(14) Guidelines) [1999] 2FLR 573 and Re P (Children Act 1989 ss22 & 26: Local Authority Compliance) [2000] 2 FLR 910.
23. In such a case the court must be satisfied that the facts of the case go beyond those commonly encountered of parental animosity and that there is a serious risk that, without the imposition of the restriction, the child and/or the primary carers will be subject to unacceptable strain: Re S (Contact: Parenting Relationship with Absent Parent) [2004] 1 FLR 1279.
24. Further an order made to last until the child is 16 should be an exceptional step. The court must state clearly the reasons for making that order and what needs to be done to make a successful application in the future: Re S (Permission to seek relief) [2007] 1 FLR 482. Such orders are reserved for the most egregious cases where the strongest degree of forensic protection is required for the child: Re G (Residence: Restrictions on Further Applications) [2009] 1 FLR 894.
25. I have had regard to the guidance given in Re C (Litigant in Person: s91 (14) Order) [2009] 2 FLR 1461. I am grateful to Mr Hepher for ensuring that the father was told during the first part of this hearing of the intention to apply for a s91 (14) order. He was also given photocopies of the relevant authorities. I am satisfied that the father understands the meaning and effect of the order sought and has had a proper opportunity, over the intervening six days, to consider and make submissions to the court on this issue. The father opposes the making of an order in the terms sought or at all.
26. The mother further seeks an injunctive order prohibiting the father from issuing any material or broadcasting the same which identifies A as:

a) a child who is the subject of proceedings under the Hague Convention, the Children Act 1989 and the Inherent Jurisdiction; and/or

b) a child in respect of whom family members have been the subject of allegations of abduction, kidnap, sexual, physical, emotional or psychological abuse, parental alienation, abandonment, neglect or any form of perjury, lying or misrepresentation; and/or

c) a child who has been wrongly kept from or otherwise denied having contact with the father and/or the paternal family.

27. Further the father is required by the injunctive order sought to remove the website 'A's Website' from the internet. The father volunteered to do so but at the time of the hearing on 6 February 2014 had not removed all the relevant material.
28. In relation to this application for injunctive relief I was referred to, and have taken account of, the following two cases, namely Re J (A Child) [2013] EWHC 2694 (Fam) and Re R (Identification: Restriction on Publication) [2008] 1 FLR 1252.

Evidence

29. I have read all of the papers in the trial bundle. I heard oral evidence from Dr Derry, a consultant clinical psychologist, the father, the mother – by video link and the guardian, Ms Jolly.
30. In his substantive report of 21 November 2013 [D12-43] Dr. Derry advised that:

' The findings that SMD had sexually abused his daughter would place him at elevated risk of sexual abuse in the future…..His overall sexual risk profile would not place him at high risk of committing sexual offences in the future although the findings against him would indicate the need for risk management in any contact with A [para 1.4].

A little later he continued:

' His determination to pursue not only contact but ultimately to restore his primary care role for A would predict a much greater risk of continual legal action that would impact on his daughters feelings of anxiety and uncertainty about her care. He would tend to sublimate his feelings of anger and had the potential to channel…. feelings within legal and professional systems. His ongoing harassment of [the mother] or ongoing legal actions throughout A's childhood would be likely to have a significant impact on the quality of care that her mother can provide and undermine her security in her mother's care' [para 1.6].

31. In his oral evidence Dr Derry told me that because of his insecure attachments the father was less able to use thoughts and feelings to make balanced decisions. He said the father's fight for his rights dominated his thought process without any consideration of the effect on himself or on anybody else including A The father focuses on his fight for justice and for his rights rather than integrating his thoughts about the impact on A and taking a pragmatic approach.
32. Dr Derry further told me that the father would not be able to stick to limitations on any indirect contact with A. He would produce material in a volume and at a frequency that would overwhelm A and put her off contact. The father would push for A to return to his primary care. He is rigid in his beliefs and saw that he had a protective role to play in respect of the mother's care of A. He would continue to pursue contact regardless of the impact on A or any other person. Although the father presented an enhanced risk of sexual abuse of A the greater risk was of him causing A emotional harm.
33. Dr Derry's evidence was challenged by the father. In my judgment the questions asked by the father in cross examination, merely reinforced the opinions and conclusions of Dr Derry. At one stage he put to the doctor that he had 'no choice but to litigate'.
34. A medical note was provided by the mother from her general practitioner. It advised that she is suffering from anxiety and depression. The general practitioner said he suspected this hearing was making her very anxious and depressed and invited the court to consider excusing her attendance.
35. At my direction the mother attended to give evidence in the court building by video link. At her request the camera remained on me throughout her evidence. She did not wish to see the father when he cross examined her.
36. The father was very anxious that the mother give evidence from the witness box in court. He would not accept the suggestion that she give her evidence by video link. When I pressed him for the reasons for his stance he could not give any clear or cogent answer. I am bound to reach the conclusion that the father's adamant stance on this issue resulted from a desire by the father to intimidate the mother.
37. The mother clearly found the process of giving evidence and of being cross examined extremely difficult. She was plainly anxious and emotional. At one stage, during the father's cross examination, she suddenly got up and left the video suite. I rose to enable her to have some time to calm herself. After a short break she returned to the video suite and continued her evidence.
38. She told me she felt extremely tired and drained and was exhausted by the long running litigation. She spoke of A as a well and very happy little girl and painted a vignette of her life at home with her brothers.
39. The mother told me that A had come across the father's 'A's website' when in the care of her maternal grandfather. Fortunately, for reasons I shall set out later, she did not realise the website related to her and she was distracted to another activity by her grandfather.
40. She said A spoke about her father sometimes but she did not want to see her father nor did she wish to go to Spain. The mother told me she tried not to show her feelings about the father to A. Notwithstanding her negative feelings about the father, and her opposition to direct contact, she was agreeable to there being indirect contact so long as it was monitored for content. A had said she would like a Christmas card from her father but would not wish to write back to him.
41. The father's cross examination of the mother was based on his own belief system and did not take any account of the findings in the judgment of 16 January 2013. At one point in her evidence the mother said to the father 'you did sexually abuse A. I think you are deluded. You are a bully'. In my judgment she was right on all three counts.
42. The guardian observed in her second and last report that:

'As I have referred to earlier, considerable weight should be attached to A's wishes and feelings. She does not wish to re-establish a relationship with the father through direct contact and I do not think it would be safe given the father's current stance. However, A is receptive to indirect contact. This form of contact enables the child to maintain contact at a 'safe distance'. It provides her with the opportunity to receive information and knowledge about the father, and paternal family, which can inform her sense of identity. As Dr Derry suggests, it may also help A to reconcile her feelings about the father I order to make a decision about their relationship over time. However, I remain acutely aware of the father's lack of insight into A's needs and he continues to ignore the findings that have been made….I would very much like to support A's wish to have indirect contact from her father; given her experiences it is very much to her credit that's he wishes this to happen and I hope it will help her reconcile her feelings about her father. However, I would be putting a reasonable amount of trust in the father by supporting A in this……Before making a firm recommendation about indirect contact I would be very much assisted by hearing evidence from the father and Dr Derry……' [paras 42 & 43].

43. Having heard that evidence the guardian told me she did not support indirect contact. She had considered the advantages and disadvantages to A of such contact. On balance however, she concluded that the father would not adhere to set boundaries. Accordingly she was concerned about introducing A to the indirect contact which she did not then receive because the contents of the same were found to be inappropriate.
44. The guardian had in her report offered to monitor any indirect contact sent by the father to A If indirect contact was not received by A because Ms Jolly did not consider the content to be appropriate she was concerned about the adverse effects on A and about her having unmet expectations.
45. She considered whether indirect contact could be limited to cards at Christmas and for A's birthday. She told me that unless one could be confident that the father would keep to the set terms of contact, it would be contrary to A's interests to permit any cards to be sent at all. She did not have that confidence in the father.
46. A is worried about the father coming to find her, about him undermining her placement with her mother or being returned to Spain. The guardian told me that there is a high risk of even indirect contact causing A emotional and psychological harm.
47. The guardian supported the mother's applications for a section 91 (14) order and the injunctive relief sought. She was greatly concerned about the effect of further litigation and further disputes between the parents on A and on the mother's parenting capacity. She was firmly of the view that this family needed a respite from litigation. She said that the mother provided a good home for A but she had never heard the father acknowledge that fact. The father did not and would not acknowledge the adverse impact this litigation was having on the mother. His response was that it was regrettable but necessary. She said the father had made it plain to her that he considered it important for A to know the truth: that is, his version of events.
48. She considered the father's website about A to be potentially harmful to the child. It is intrusive and the material is overwhelming.
49. The father gave evidence after Dr Derry. He was a litigant in person and so I sat slightly shorter than normal court hours to accommodate the burden he had of representing himself. He went last in cross examining Dr Derry, the mother and the guardian and delivered his closing submissions last.
50. During his evidence he spoke of his great love for A and that of the wider paternal family, especially his mother. He told me about the benefits of contact and how much they had enjoyed contact together in the past.
51. Throughout his evidence, and indeed throughout this hearing, the father maintained that the findings made against him were wrong; they were false allegations as far as he was concerned. He accused the mother of coaching A to make false allegations of sexual abuse against him and of alienating A from him. He said the mother "plays the victim as she has done all her life".
52. When asked if he accepted any of the findings made against him, he said 'No'. When asked if he had any regrets about any of his past actions or behaviour he replied "I wish I had defended myself better." He asserted the mother was stressed because "she believes the truth will come out". He repeatedly said that A needs to know the truth. In his view A has been coerced into hating him.
53. He did not accept that A would be frightened or overwhelmed by the content of his website about her. His objective was for A to come and live with him in Spain. He continued:

"through fraud and deception the mother brought A to the UK and based on false allegations. I am worried sick about my daughter and about what she is being coached to think about me"

He did not accept that A needed to be protected from his feelings. He did accept that his strength of feelings "sometimes get the better of me…… I feel so frustrated that the truth is not known". A little later when being cross-examined on behalf of the guardian he said "she will know that I have not abused her. I would tell her it was untrue". When asked whether there was anything wrong with A being told that she, on the father's version of events, had been lied to, he replied "it is a horrible thing to do but it is necessary".

54. He concluded his evidence by accepting that in relation to the website there were times (eg 24.01.14) when he posted material that was ill advised. He did so, he explained, out of "despair and frustration".
55. The entry posted by the father on 24 January 2014 reads, in part, as follows:

"There are many horrible things being said by people that should have your best interests at heart. This is so wrong and should be a lesson that you should never tell lies especially ones that hurt people. Whatever you might be told we love you with all our hearts and one day very soon, I pray that we are reunited because you deserve the love of your family……I miss you so much and I am sure once people realise that your Daddy is a good person and how much love we have, that we will be able to go to all of the fun places again……"

This extract gives an accurate flavour of other postings on the father's website.

56. I remind myself that A is just 8 years of age.
57. The father's relationship with A's school is not an easy one. I have a report from B Primary School dated 10 January 2014. It remarks on A's good academic progress. It concludes with the following passage:

"SMD's communication with (the) school is unfortunately not a fortuitous one. He regularly emails the school with request of a legal nature, quoting parts of law. The frequency of his emails make the school feel harassed by his actions. The number and frequency of his emails, both in terms of school time to manage and respond to them and in terms of emotional response due to the tone of his emails and the pressure to respond are particularly difficult to manage. As a result of his continual 'litigation heavy narrative email correspondence', the school has passed on communication to the S Education Legal Team who are responding on the school's behalf."

Analysis

58. I have no doubt the father greatly loves A. His fight – perhaps battle would be a better term – against perceived injustices is all consuming and totally blinds him to the welfare best interests of A. His frustration at not having contact with her and his anger at the findings made against him leads him to act unwisely, inappropriately and wholly contrary to A's best interests.
59. He is incapable of putting aside his frustration and anger. I entirely accept the opinions and conclusions of Dr Derry. The father's conduct of his case at this hearing, his evidence and the tenor of his cross-examination all offered powerful and eloquent support of Dr Derry's assessment of the father.
60. On the basis of the findings made by Mrs Roberts QC in her judgment of 16 January 2013, the father plainly represents a real risk of further sexual abuse of A. There is, however, in my judgment an even greater risk that if permitted to have contact with A he would cause her serious emotional and psychological harm. I so find for the following nine reasons:

d) he resolutely refuses to accept any of the findings of fact made against him;

e) he has a strong sense that he is the victim of a grave injustice;

f) he is highly critical of the mother and accuses her and her partner of coaching A to make false allegations against him and of alienating the child against him;

g) he has nothing good to say about the mother whatsoever;

h) by his own admission, his anger and frustration overwhelm him to the extent that acts or takes steps which are not in A's best interest;

i) he has repeatedly asserted that A must and will be told his version of the truth;

j) he is incapable of adhering to any set boundaries of what is or is not appropriate material to be seen by A or for her to be told about;

k) I am satisfied, so that I am sure, that if permitted to have contact the father would feel compelled to discuss wholly inappropriate matters with A;

l) I am satisfied so that I am sure that if permitted to have contact with A the father would:

i) seek to undermine her placement with her mother;

ii) seek her return to live with him in Spain; and

iii) tell her his version of the truth.

61. I have carefully reviewed the authorities I referred to earlier in this judgment. I recognise an order for no direct contact is a Draconian step for any court to take. Sadly I am wholly satisfied that it is the only order I can make in A's welfare best interests. To do otherwise would imperil her future welfare. I consider it to be a proportionate step to take in this matter.
62. The father is his own worst enemy.
63. I have considered whether, despite the final oral recommendation of the guardian, I should permit the father to send Christmas and birthday cards to A I have found this to be a most difficult decision. The advantages would be that:

m) A has some communication from her father;

n) It would help with some greater sense of her identity; and

o) It may help A have some happier and positive views of her father.

Balanced against that are the nine matters I set out in paragraph 60 above.

64. I have no confidence at all that the father would abide by any terms and conditions set out by the court in relation to such indirect contact. I regret that I have come to the reluctant conclusion that indirect contact by means of cards would not be in A's best interests. Whilst the father might – I stress might- be able to contain himself for the first few cards, I find he would not do so in the medium and longer term.
65. I accept the guardian's evidence that to introduce the concept of indirect contact to A but then for cards not to be passed on to her, because of inappropriate content, would not be in her interests. It would have the real potential to confuse and unsettle her. Accordingly an order for no contact, whether direct or indirect, is the only proportionate order I can make in the child's best interests.
66. I turn now to consider the mother's application for a s91(14) order. In doing so I have well in mind the guidance in the authorities which I set out earlier in this judgment.
67. On the basis of my previous findings I am wholly satisfied that the father will not desist from the campaign he has fought over, at least, the last four years. Unless restrained from doing so he will, I find, make repeated future applications pursuant to s8 Children Act 1989. If he does I am in no doubt that will have an adverse effect on the mother. It will be debilitating and is very likely to affect her parenting capacity for A. I accept the guardian's evidence that this child and this mother each have a pressing need for a respite from prolonged and bitter litigation.
68. In all of the exceptional circumstances of this case – most importantly the strength of the father's powerful feelings of being a victim of a grave injustice – the only proportionate order in the child's interests is to make a s91(14) order in the terms sought until A is 16 years of age.
69. In order for the father to succeed in an application for permission to apply for a s8 order he must:

p) accept the findings of fact made against him;

q) successfully undertake the psychotherapeutic intervention recommended by Dr Derry; and

r) demonstrate that he is consistently able to put A's welfare best interest to the fore and to recognise the beneficial role of the mother in A's life.

Very sadly I doubt the father will be able to achieve any of the above.

70. It is to the father's credit that in the course of this hearing the father volunteered to take down his website from the internet. I was told by counsel for the guardian that he had in fact only removed part of the material. The father told me he would remove the balance. Perhaps so. I find, however, on the basis of my earlier findings and the conclusions set out in this judgment that the father will not be able to resist posting the same and similar material on the internet in the near future. There is a very real risk that he will not limit himself to the internet as hitherto. I find there is a substantial risk he would more widely seek to broadcast or publish material in pursuit of his campaign via other means and media.
71. I am entirely satisfied that the publishing or broadcasting of such material and any attendant publicity would be wholly contrary to A's welfare.
72. Taking account of the guidance and authorities earlier referred to, I am satisfied that the balance falls decisively in favour of protecting A. Accordingly I propose to make the injunctive orders in the terms sought on behalf of the mother. No less restrictive order would protect her or be propionate to the risk of harm I have identified.