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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> M (Children), Re [2014] EWFC B214 (09 October 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B214.html Cite as: [2014] EWFC B214

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IN THE FAMILY COURT at Cambridge

		9th October 2014

JUDGMENT
1. This is an application brought by Mr M, who is the father of two boys. D was born on 6^th September 2007, so he is now 7, and F was born on 3^rd August 2009, so he is now 5. The litigation in this case began in 2009 when the parents separated prior to F's birth. The litigation has proceeded almost without ceasing to 2014, even though there have been two section 91(14) orders.
2. I am dealing with issues of contact for these children. I have no knowledge at all of financial matters but it appears from comments that have been made and from a chronology that the mother has produced that there is an ongoing financial dispute between the parents as well, which it seems has not assisted the parties, let alone the children. The case came before me in March 2014 on the father's application, which was made a day or two before the last section 91(14) order expired.
3. The pattern for these boys is as follows. They live with their mother and they have contact to their father. They have contact to their father every other weekend. The difficulties between these parents have been such that the only way they could be handed over was by professional contact supervisors being employed to be present at handover. This is an extraordinary situation for these children. It has cost the parents a great deal of money and the professional contact supervisors who have dealt with the handover made it clear in August 2014 that they are no longer available to do this piece of work. The case came before me on a very short application at the beginning of September 2014 to see if I could make an order to ensure that contact did not stop as the professional contact supervisors had dropped out. On that occasion the parents were each able to make proposals for some short-term arrangements. It was a very short-term plan until the case came before the court for a full day's hearing today and, on that basis, contact has continued using a combination of a friend and a contact centre as a pick up/drop off point. The boys are supposed to have contact to their father from Friday afternoon until Sunday evening.
4. The father's application is, first of all, that he would like to be able to collect the boys on weekends from school and take them back to school on a Monday morning. He also would like to have contact to the children for one half of the school holidays. He opposes the making of a section 91(14) order.
5. The mother says that contact should not start or end at school for a number of reasons. She proposes a number of third parties who could assist in handover at the beginning and end of the weekends and she says there should be no extension of contact in the school holidays. She asks for a section 91(14) order for five years.
6. I have had the benefit today of hearing from LH, the most recent CAFCASS officer who has prepared a report and made recommendations for a way forward for these children. She has given evidence and been cross-examined. I have also had the benefit of hearing from the father, who has been representing himself today, and from the mother, who has been represented by counsel.
7. I remind myself when I deal with this case that each of these children has rights pursuant to Article 8 of the ECHR. They have a right to respect for their private and family life. Any order I make must bear that in mind and any order I make must be proportionate, must be necessary and I must only interfere with their private and family life if I consider it necessary and proportionate to do so. The children have a right to have a relationship with both of their parents. The mother has no rights so far as the children are concerned. The father has no rights so far as the children are concerned. The mother has responsibilities so far as these children are concerned. The father has responsibilities so far as these children are concerned. So it is clear contact is a right of a child. Neither parent has any right to contact or right to any other order in this case. In making any order I have to take into account that it is the welfare of the child that is my paramount consideration and I am not, therefore, interested in the welfare of the mother or the welfare of the father unless their welfare is going to somehow impact on the children.
8. I must take into account the factors that are set out in the welfare checklist in s 1 (3) of the Children Act 1989. I take into account the fact that co-parenting is very often considered to be right and appropriate for the children but co-parenting does not mean that the children should spend equal or any other specific percentage of their time living with one parent or another. I should consider the global position of the parents' exercise of responsibility for the children, rather than counting hours or days or minutes or seconds of the boys' lives. These boys are young people in their own right. They are not parcels and they are not to be picked up and carted round the countryside as if they are. I have to take into account all the matters in the welfare checklist.
9. The children live with their mother. It is clear that they are well looked after by their mother. It is clear she is a devoted and caring mother and that she wants to do the best for her children. It is clear that they have a good relationship with their father, that they enjoy seeing him, that he is a devoted and caring father and he also wants to do the best for the children. So although this case has managed to create such acrimony and disharmony between the parents, the boys are, to a very great extent, fortunate children to have a mother who loves them and wants the best for them and a father who loves them and wants the best for them. However they are also the most unfortunate children because they have parents who clearly cannot stand each other. In hearing their evidence today, it was abundantly clear to me that, five years down the line, they still dislike each other with an intensity that they both found impossible to hide. They do not trust each other; they do not like each other; they cannot really think of anything good to say about each other. That goes for both the mother and the father and that is the saddest of things for these two boys.
10. I have said all this. I know it will not make any difference to the way the mother goes on from here or the way the father goes on from here. It does not stop me saying it and I have no doubt, when these two boys look back on their childhood, they will not thank their mother and they will not thank their father for the way they have been embroiled in litigation all their lives. They only have one childhood and it is extraordinarily sad that both parents seem to be incapable of understanding the damage they are each doing to these children.
11. I turn then to the welfare checklist. I have read the bundle and I have heard oral evidence. I have heard from the CAFCASS officer. I take into account the wishes and feelings of the children. It is clear from the reports I have read that these children enjoy living with their mother and they enjoy seeing their father. Mr M was extremely critical of the CAFCASS officer because she had not seen the children or asked them any questions about their wishes and feelings. I am not critical of her for her approach. These boys have been seen and asked questions by far too many people. There is no doubt that the wishes and feelings of these boys are that they would like to spend time with their father. I have no doubt also that they would like their parents to stop arguing about them. They would probably like their parents to grow up but it is not within their hands to make that happen. It is wrong to criticise the CAFCASS officer for not having spent any time observing the children on contact when there is no question but that they enjoy contact. There is no point in asking the question. It would be damaging to the children for them to have been interviewed yet again, so I reject that criticism. As I say, I have no doubt they enjoy their time with their father.
12. Next, I must take into account their physical, educational and emotional needs. It is clear that the mother is meeting their physical needs well and it is clear that the father is meeting their physical needs well during contact. It is clear that D has very particular educational needs. He is a little boy who has found school incredibly difficult. The school have gone through the statementing process with him. The education authority has rejected the statementing process because the school are already putting in place one-to-one teaching assistants for D. I have not seen the response of the education authority - they may feel the school are handling D in the appropriate way at the moment and they do not seem to want to give the school any additional resources to fund extra work for D. I accept he does have very particular educational needs. I am satisfied that the mother is fully involved and on board with that process and, although the father has not been able to attend the CAF meetings, he has been able to have other meetings with the school and has had input into D's educational needs. I am satisfied both parents are fully aware of D's special educational needs and both support the school in the work they are doing with him. I have no doubt both parents want to support D in his out of school education as well.
13. F found it a bit more difficult to settle into his first year at school, which was last year, the reception year. He is a young child for his year. He is an August baby. He would have been one of the youngest in the class and he took a bit of time to settle in but by July 2014, he had made huge progress and I am satisfied that both the mother and the father support F in his educational development.
14. So far as the emotional needs of both boys are concerned: it is a worry to all the experts that there have been in this case (including Dr Bisby and Dr Rosenberg) and to the CAFCASS officers - that neither parent is fully able to meet the children's emotional needs because each of the parents is so caught up in the acrimonious relationship they have with each other that they are not able to support each other in meeting the boys' emotional needs. That is a real concern and I have to consider what impact any order will have on the boys' emotional needs and development.
15. Effect of change on the children: D finds change difficult to manage. Dr Rosenberg in his reports and letters has indicated that any change should be managed very cautiously because it would be quite wrong and damaging if there was a change that D could not cope with. I have to bear that in mind if I am going to make any change to the current arrangement. Any change needs to be dealt with sensitively and cautiously, given D's particular needs.
16. I must take into account their age, sex and any special characteristics. I have dealt with that, in particular the concerns there are for D.
17. I must take into account any harm they have suffered or risk of harm. I have already identified the harm that there appears to be to these children by being caught up in this acrimonious relationship that five years down the line does not appear to be diminishing in any way. The risk to these boys is that if this continues, they will, at some point, vote with their feet or become so damaged emotionally that one or other parent is no longer able to continue their relationship with them and possibly neither parent can continue their relationship with them. That, I know, is not what either parent wants but they must both think very carefully about the harm or risk of harm to these boys of continuing in the way they have.
18. I look then at the capability of the parents. The mother is extremely anxious and it appears that because of her dislike and lack of trust she cannot separate her own anxiety about Mr M from her worry about the children. The mother's anxiety is having an impact on her and, consequently, may well be having an impact on her ability to really look at the children's needs
19. The father is over-focused, controlling to some extent and determined. He has a desire to have a shared care arrangement for the children and his approach to this case has meant that he, just like the mother, is incapable of standing back and really looking at what these boys need.
20. So the parents are very capable in many ways but each of them, I am satisfied, has lacked focus on the boys because of their own approach to the case. Over the years, there have been suggestions that therapy might assist. The mother has had some assistance. The father is now having CBT. What I have seen in court today does not give me any indication that either of them has been able to change their view of the other and, therefore, they have not been able to identify the needs of the children in the way that I have looked at this.
21. Having considered those matters, I have to look at the range of orders there are. I could make no order, in which case I am satisfied nothing would happen. The boys would not see their father and that would not meet their needs. I could make an order to continue the current order and as the current order is that the professional contact supervisors have to continue to do the handover. That is unrealistic because they are no longer available. The parties have each had ample opportunity to find an alternative professional person. Neither has been able to do so. Therefore I am going to have to make a new order. I am satisfied these boys need consistency and, as I have already said, any change must be handled carefully.
22. I turn then to the two specific issues I have to deal with before I look at the section 91(14).

The practicality of handover

23. The suggestion that a third party or third parties will be involved is, inevitably, likely to lead to some occasions when there are some difficulties. To tie third parties down to being available either on a Friday or a Sunday is very difficult. For example, there is a friend called AB who may or may not be available; she is happy to help out but is not putting herself forward for every Friday or every other Friday or every other Sunday. Ms M suggests a GH, who is her ex-partner who may be available most but not necessarily every Sunday or Friday. There is a suggestion that Ms M's 15-year-old son K could be involved. I consider that is wholly inappropriate he would be quite the wrong person to be involved in this. Mr M's mother and father, that is the boys' grandparents, have been available on occasions. I am told they really can only be available in the school holidays. I do not know why the grandmother cannot be available at weekends because she had been available at weekends on occasions but I am told that if she is not available, the grandfather could be available. There are quite a lot of potential hiccups in involving these parties.
24. What is the matter with pick-up and drop-off from school? From the reports I have read, D has found it extremely difficult to go to school, particularly last year. There were days he could not be left in the playground with other children and special arrangements had to be made for him to be taken into school by his mother. Eventually, he decided he could stay in the playground and has managed to line up and go in with the other children most of the time but not necessarily every day. There have been a couple of days when he actually found it difficult to go to school at all. It has been much better but I was told there was a recent occasion, once this term, when he did not want to go to school and mother had to work out a careful strategy to take him. So dropping off at school is not something that D would take to calmly, confidently or easily. I am satisfied that to make any arrangement where D is dropped off at school at the end of a contact would not be in D's interests at this stage.

Picking up from school at the start of contact

25. Again, most unusually, the school have made an arrangement with the mother that she comes into school every afternoon for about half an hour, 20 minutes, before the end of school to help D deal with the transition between school and home. Today, while we are at court, the maternal grandmother has had to do that. Father, in fact, goes into school one day a week and does reading with the school, so he is often at the school. He is in school every week for a day. He also goes on school trips or outings with the school. I see no reason why the father cannot one day a fortnight do that half hour transition with D. So the order I am going to make will provide that the father can collect the boys from school on a Friday.
26. I make that order taking into account the fact the school are concerned that there is no fuss or trauma and it may be that this does not work. It may be D becomes so anxious that the father recognises that something else has to happen and has to ask the mother to come back in and do the handover. I take into account that LH, the CAFCASS officer, was concerned about this but I am satisfied this is a gentle change that is worth trying. The father must realise that if D is distressed, he is responsible for ensuring that he stops doing the transition and that the mother comes back in to doing the handover on a Friday.
27. This part of the order is not going to start straight away because D needs time to get used to the idea. I am going to direct that from 14^th November 2014, father can collect from school at the end of school. However, the handover on a Sunday will be by the paternal grandmother or paternal grandfather to the mother's home into the hands, as it were, of GH. If GH is not available, it will be to AB, so the handover on a Sunday will continue. The only change to the Sunday will be that the father is to make sure the children have been given their main meal before they go back to their mother at six o'clock. From 14^th November 2014, the weekend contact will be father collecting from school and the Sunday will remain as it is.
28. That pattern will continue for the rest of this academic year and until October 2015. That will give D one further year and a month of the new school year to get used to what is going to happen next, which is from the first contact weekend in October 2015, father will drop the children at school on a Monday morning. I have taken into account that any change needs to be gradual and carefully handled. I am satisfied that a year for D would give him time to get used to the idea and for father to find a means of coping and a strategy if there is any difficulty in getting D to school. From October 2015, it will be collection from school on a Friday and delivery to school on a Monday. That pattern will continue. Again, I have taken into account the evidence I have heard about how gently one has to handle change.

School holidays

29. Father wants half of each school holiday. I am satisfied that there could be some additional contact in the school holidays but it again needs to be handled very carefully. The order I am going to make is that contact in the school Christmas holidays can be extended by one day. I am told they would be having contact with their father on 26^th December 2014, which is Boxing Day, so collection will be at twelve noon on Boxing Day and they will be returned at twelve noon on Monday, 29^th December 2014. They will be collected by the paternal grandmother or grandfather from GH at the mother's home and they will be handed back on the 29^th December 2014 by the paternal grandmother or grandfather to GH at the mother's home.
30. In the school Easter holidays, I do not know which dates they will be but if there is a weekend in the school Easter holidays, that will also be extended by one day. If I am asked to specify which day or what time I need to be told the dates of the Easter school holidays.
31. In the school summer holidays of 2015, each weekend contact can be extended by two extra days. In other words, it could be Thursday to Monday or it could be Friday to Tuesday. If I am asked to say which it should be, I will say the first of the weekends that occurs in the school summer holiday, it will be Friday to Tuesday. The second weekend in the summer holidays would be Thursday to Monday. If there is a third weekend in the school holiday, it will be Friday to Tuesday and in the school holidays, on each occasion, collection and handover will be at twelve noon. That also applies for the half-term. If there is a half-term which has got a contact at the beginning or end, it will just be Friday to Sunday until October 2015. From October 2015 it will be Friday to Monday and, on each occasion, it will be twelve noon to six o'clock on the Sunday because that is the normal return time. If it is a Monday, it will be twelve noon on the Friday to twelve noon on the Monday. That pattern will continue. In other words, there will be one extra day added to the weekends in the Christmas holidays and the Easter holidays and two extra days to the weekends in the school summer holidays.

Section 91(14)

32. I am satisfied from everything I have read and heard that these boys need a further period of peace, tranquillity and no litigation. I am going to direct that there should be a further 91(14) order. I consider that five years is too long in the life of these children. There would be far too many potential changes within that time span. The order I have made provides as to what is to happen in 2015 and I am going to direct that pursuant to section 91(14) Children Act 1989 neither parent may make any further application without obtaining prior permission from the Court until 1^st July 2016.

HH Judge Lindsay Davies

Judgment approved

8 December 2014