E, F and G (Interim Child Arrangements)

Hearing date: 23 July 2024

Approved Judgment

This is an appeal by a mother against orders made in private law children proceedings between the parents of three girls, hereafter referred to as E, aged 11, F, aged 10 and G, aged 8.

The mother, who was born in Egypt, and the father, who was born in Pakistan, met in 2010 and married the following year. The three children were born in 2012, 2013 and 2015 respectively. At an early age, G was diagnosed as being on the autistic spectrum. The marriage ran into difficulties and the parents separated for short periods in 2018 and 2020, with the mother and children moving into a refuge on each occasion.

In July 2022, the marriage broke down finally and the mother and children again moved into a refuge, where they remain. The proceedings started when the father applied under s.8 of the Children Act 1989 for a child arrangements order, a prohibited steps order to prevent the mother removing the children from the jurisdiction or outside their home town, and a specific issue order that the father be allowed to take the children on holiday.

Subsequently, the father made a further application for a female genital mutilation protection order (“FGMPO”). It is his case that the mother comes from a culture where FGM is prevalent and that, if she is allowed to take the girls to Egypt, there is a likelihood that they will be subjected to FGM there.

The mother opposed all applications and raised allegations of domestic abuse, including physical abuse of the children, and coercive and controlling behaviour towards her both during their marriage and after their separation. The mother alleged that the FGMPO application was an attempt to utilise the litigation as a means of coercive control. The father denied her allegations and made cross-allegations that the mother had been aggressive and abusive to him in front of the children. He also alleged that she had tried to poison him with rat poison. The mother denied all the allegations.

At the First Hearing and Dispute Resolution Appointment before a district judge in October 2022, the father's contact was restricted to weekly indirect video contact for 30 minutes plus one letter a month. At a further hearing on 24 March 2023 before the designated family judge, HH Judge Moradifar, a series of interim orders were made including (1) FGMPOs and prohibited steps orders against both parents preventing them from removing the children from the jurisdiction (made on the basis that neither parent opposed the orders without making any admissions as to the allegations); (2) an order for the father to have supervised direct contact with the girls at a contact centre, plus telephone contact; (3) a direction for a Cafcass report under s.7 of the 1989 Act; (4) permission to the parties to instruct a single joint expert in FGM; (5) allocation to HH Judge Tolson KC and listing for a pre-trial review with ancillary case management directions, including special measures and interpreters.

On 19 May 2023, the s.7 report was filed by the Cafcass officer. In the course of her inquiries, she had spoken to the children. Her report included the following passage:

“37. Multiple and complex allegations are maintained between parties regarding both abusive behaviour toward the other and of both towards the children. The children make allegations that [the father] has locked them in their rooms, hit them with items such as coat hangers and shoes and is critical of their clothing. They report feeling scared due to incidents and both G and F wish their father to be calmer and stop being angry. They all remember an incident where they feel their father tried to hurt himself with scissors/knife and by banging his head on a wall. E remembers her parents arguing every day and has nightmares. Both E and F allege they witnessed their father damaging their mother's car from the window of the family home. None of the children reports any concerns in relation to their mother's care. All of the children have both negative and positive memories of their father but they share that they do not feel safe in his care and believe he has difficulties managing his anger.

38. “[The father] has admitted to throwing a phone in the presence of the children and damaging a laptop. He felt that the children would not have noticed that he had damaged the laptop and this would not have affected them. [The father] states he is currently two sessions in to the Managing Strong Emotions” course which he believes he started in around January 2023. He states the delay is due to ‘them being really busy’. [The father] does not feel he has difficulties managing his emotions or anger. He stated he ‘would do anything to spend time’ with his children. I am concerned that, should the wider allegations being made by [the mother] and the children regarding his behaviour be true, [the father] lacks insight into his own behaviour and is unlikely to benefit from such a course, in addition to the significant length of time that this course is currently taking. My understanding is that the maximum length for such a course is 8 sessions of 2 hours each. [The father's] rate of progress regarding this is therefore a concern as it may be an indication of a lack of commitment and/or prioritising this to make positive changes in risk for his children.”

The Cafcass officer's recommendations included that a fact-finding hearing into the cross-allegations be held as the allegations presented “a barrier to safe contact progression”; that following the hearing there should be an addendum Cafcass report in the light of any findings made; that in the interim, contact should continue to be supervised at a contact centre on a fortnightly basis for two hours, with contact records kept and disclosed to the court; that the telephone contact should continue on a different basis; that the father give an undertaking not to criticise or speak negatively to the children during contact; and that the father attend a parenting programme and an additional programme for parents of children with autism.

At the PTR before Judge Tolson on 21 July 2023, directions were given for a fact-finding hearing over two days in October 2023. The contact arrangements were varied so as to provide that “father and the children may during the contact session leave the contact centre and spend time in the community, provided the contact remains fully supervised.”

At the hearing on 12 October, however, the fact-finding hearing was adjourned to dates in March 2024. Directions were given for the single joint expert on FGM to be asked further questions. Further case management directions were given, including for a qualified legal representative (“QLR”) to be appointed on behalf of the father. The Cafcass officer was directed to file an addendum s.7 report “that shall focus upon her recommendations of the progression of contact and record her updating discussions with the children”. The contact order was varied again to provide:

“Mother shall continue to make the children available to spend time with the father on a supported basis at the contact centre for 2 hours each fortnight. This shall mean that the requirement to provide contact notes and for full supervision is no longer necessary, however a third party shall be present throughout to support contact.”

The Cafcass officer's addendum report was filed on 29 January 2024. Both parents told her that contact had gone well. The father told her that the children kept asking him when they could come to spend the night with him, and that the mother had recently sent a text message asking for forgiveness and wanting to resume the relationship. In passing, I record that a copy of the text message was included with the father's skeleton argument for this appeal. The father had been on the Umrah pilgrimage to Mecca at the time. The mother wrote:

“I hope you a good Umrah and all the best and also give my forgiveness to you for anything that I might have done wrong to you Allah is witness I didn't mean any harm to you. I want all the bad things stay in the past and us opening new page in our relationship for the sake of our children, I wish all the best in your life”.

At the hearing before us, Mr Christopher Hames KC, who appeared leading Ms Olivia Gaunt on behalf of the mother, stated that this message did not disclose any wish to resume the parties' former relationship. The father, however, told the Cafcass officer that he took the email as evidence that all the mother's allegations of abuse were untrue. He said that he would like unsupervised staying contact every fortnight.

In her addendum report, the Cafcass officer set out details of her further conversations with the children which she summarised as follows (paragraph 21):

“The children's wishes and feelings remain clear regarding how they would want time with their father to look. They were clear that their experiences with their father at contact since May 2023 to present have been positive in the main, but they do not want overnight stays with [him] and want to continue to see him on a fortnightly basis in the community, particularly to be able to do a wider variety of activities with him. Positively, all the children stated they would feel comfortable spending time with him unsupervised. The children's reasons for not wanting to...