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Category Archives: private law



This judgment is an appeal, where nobody involved comes out of it well.  There were moments when reading it where it was SO awkward that I felt each individual vertebrae try to leave my body so that they could stop dealing with the level of “awkward! warning awkward!” nerve signals that they were sending hither and thither.

Let us begin by saying that I don’t know ANY of the individuals concerned in the case, and I think in the interests of fairness it is best to read this whole thing on the basis that everyone involved on that day was just having one of those bad days and that succession of individual bad days cascaded and collided into a day so bad that it almost reads as though the Court had been the subject of some form of hallucinogenic gas attack.

A v R & Anor 2018

In very broad terms, this was a private law case, in which father was asking for contact with his 13 year old daughter T – with the sadly too familiar backdrop of a long history of Court dispute and litigation.

A psychologist, Mr Clowry, had been instructed to assess the child. The child had decided not to participate in the assessment. It is fair to say that nobody was enamoured of the report prepared (though it is obviously tricky to do a psychological assessment of a child if you don’t get to meet them).

  1. When the final hearing came before the court on 28 November 2017, it did so initially before a District Judge, for reasons I will come to, before latterly being placed before the learned Judge. As noted above, the order of 15 September 2017 made no provision for statements of evidence to be filed and served for the final hearing on 28 November 2017, nor for the filing and serving of a final report from the Children’s Guardian. In the circumstances, on 28 November 2017, the court was without up to date sworn evidence from the parents or a report from the Children’s Guardian on the issues that fell to be considered at the final hearing. For the reasons I have already set out, the expert report that had been produced the evening before the final hearing to inform the same was deficient by reference to the terms of the letter of instruction.
  2. At the hearing the Mother and the Children’s Guardian argued that the proceedings should be concluded. Both sought an outcome that provided for no order to be made with respect to the time the father spent with T. The Guardian’s Position Statement also urged the court to make an order pursuant to s 91(14) of the Children Act 1989 in respect of the father for a period of 12 months. However, no application had been issued. The father sought permission to instruct a replacement expert or an adjournment of the final hearing to permit him time to make a properly constituted application under FPR 2010 Part 25 for permission to instruct a replacement, with a view to him pursuing his argument for a far greater level of contact at an adjourned final hearing. In any event, the father sought a final child arrangements order that provided for a much greater level of time spent with T than was then taking place. The final hearing was, therefore, contested.
  3. Within this context, the learned judge proceeded, following submissions by counsel initially in front of the District Judge and then before the learned Judge, and contrary to the arguments of the father, to refuse the father’s application for permission to instruct a replacement expert or for an adjournment to allow the preparation of such an application. Further, and contrary to the varied positions of the mother, the father and of the child, the learned Judge proceeded to make a final child arrangements order. The final order made by the learned Judge in respect of the time the father would spend with T reflected the level of contact that was then said to be taking place. Accordingly, the order provided for the father to spend time with T for at least 2 hours once per month, with an additional 2-hour periods during the holidays, together with indirect contact.


Those of you who go to Court will be aware that the proceedings are tape recorded. Sometimes if the case is appealed, a transcript of the tape recording is made for the appeal Court. That’s what happened here, so these exchanges are exactly what was said in Court.  Prepare to cringe, and also prepare to have anxiety nightmares over the next few days of everything you’ve ever said in Court.


Make it stop, make it stop Prince Adam


  1. As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith’s list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry’s report and the proper course of action in respect of the report. The District Judge having expressed “severe concerns” regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.
  2. It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper’s submissions on the fate of Mr Clowry’s report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.
  3. The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father’s first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father’s contentions in this regard:
    1. His Honour Judge Scarratt: Yes well, I’m sorry you’ve had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.

Miss Cooper: Yes.

His Honour Judge Scarratt: And so District Judge Abigail Smith’s diary emptied yesterday and I’m afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I’m, I’m now free to deal this but you’ve really got limited time because I have to be at a meeting at 4 o’clock. I’ve got bundles here, I’ve not looked at them –

Ms Cooper: Yes.

His Honour Judge Scarratt: I mean I’m just going to go on what I know about the case and well I gather Brendan Clowry’s report was a nonsense so Judge Abigail Smith tells me.

Miss Cooper: Certainly the District Judge was not impressed.

His Honour Judge Scarratt: Yes, well I, I’ve, I have looked at that, eating my sandwich at lunch.

Miss Cooper: Yes.

His Honour Judge Scarratt: He’s gone completely off piste.

Miss Cooper: Well it, it is right to say –

His Honour Judge Scarratt: Well he’s gone off piste.

Miss Cooper: Yes.

His Honour Judge Scarratt: I’m putting it to one side and I doubt whether he’ll get paid.

Miss Cooper: Yes, well no doubt —

His Honour Judge Scarratt: So where are we now, that being the case.

Miss Cooper: You Honour, we are at the following bit of the case. What he had done was he had interviewed my client and my client and the mother had paid him quite a lot of money. The mother, I don’t know if you’ve seen, I did a further very short position statement, could I just briefly hand that up because I did it last night once the report had come —

His Honour Judge Scarratt: I mean at the end of the day your client’s got to accept that [T] has had enough. There’s a very poignant note to Mr Gaye, a very experienced Guardian, and last, I don’t think you were here last time.

Miss Cooper: No, I wasn’t your honour.

His Honour Judge Scarratt: No. Well can I tell you and this is the benefit of having me, judicial continuity.

Miss Cooper: Yes.

His Honour Judge Scarratt: That really last time, the application made by the Guardian being repeated today was made last time, but I felt your client should have a chance and that Clowry, who has now thoroughly blotted his copy book, I shan’t be having him again in these Courts, your, and, and I gave the chance for this to happen, but it’s not happened but, but at the end of the day I’ve got a 13 and a half year old girl there who’s saying actually, let’s have the contact, let’s have the drinks and the teas and the lunches or whatever, which have gone on. This is not a case where there’s no contact. So I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents. Does he agree that?

Miss Cooper: No, Your Honour.

His Honour Judge Scarratt: Well, I’m not having a final hearing with this little girl dragged in now. Have you read the letter from her?”

  1. Following this opening exchange, the learned Judge went on to conduct a hearing over the course of the next hour and a half. As I have noted, in his first ground of appeal, the father also contends that during this hearing the learned Judge proceeded to make final orders without any proper consideration of the arguments being advanced by the parties with respect to that issue. Within this context, the father also complains before me in support of his grounds of appeal that the hearing descended into what the father termed a “shouting match“. The genesis of these complaints by the father is apparent from the transcript.


Part of the father’s appeal was that the Judge was unprepared for the hearing. Given that he was only doing it because the hearing before the DJ had gone so wrong that it was moved to a different Judge on the same day, it wouldn’t be surprising if the Judge was unprepared.  Nor, given that he candidly says that he hasn’t read the bundle and has read the expert report ‘over a sandwich’ reaching a conclusion that it was ‘nonsense’  would it be surprising for the Appeal Court to agree that the Judge was unprepared.

The conclusion of the Appeal Court is, perhaps, surprising though.


  1. I am not satisfied that the father has made out his complaint that the learned judge had not prepared adequately to deal with the matter on 28 November 2017, nor am I satisfied that the father has made out his complaint that the learned Judge pre-judged the matter.
  2. As is clear from passages quoted above, it can perhaps be seen why the father, as a lay person, drew these conclusions from the statements made by the learned Judge at the outset of the hearing. However, with respect to the issue of preparation, whilst the learned Judge indicated he had not looked at the bundles, he had long experience of this matter, having dealt with it on numerous occasions previously. He was therefore well versed in the key issues before the court. Whilst the learned Judge’s announcement that he had read Mr Clowry’s expert report over his sandwich at lunchtime may suggest to a lay party a certain informality of approach, the need for judges to work through lunch in order to get through the work in their extremely heavy lists is the modern reality for judges up and down the country. Within this context, the fact that the learned Judge combined eating and reading is not an indication of a lack of diligence or preparation. Rather, it is quite the opposite. The learned Judge worked assiduously through his lunch break to ensure he had considered the material relevant to the hearing he was about to conduct.
  3. In relation to the father’s complaint that the learned judge had pre-judged the matter, the learned Judge did say at the outset that “I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents“. After asking Ms Cooper whether the father agreed with this analysis, and being told he did not, the learned Judge did respond, “Well, I’m not having a final hearing with this little girl dragged in now“. It is clear from the transcript that the learned Judge also continued, throughout the hearing, to press the then current contact regime as the appropriate outcome.
  4. Within this context, it is the case that the learned Judge expressed himself in robust terms early on during the hearing and I can understand why the father raises this issue before me. However, I also bear in mind that the matter was listed on 28 November 2017 for a final hearing rather than a preliminary case management hearing, at which final hearing the learned Judge was required to adopt an essentially inquisitorial role in pursuance of his duty to further the welfare of the child as his paramount consideration. Within this context, at least on one reading, the learned Judge was simply exploring at the outset of the final hearing the extent of the issues between the parties at the final hearing and inviting the father to consider a reasonable view on the information available to the court. Finally, as Mr Persson points out, upon being told that the matter was contested by the father, the learned Judge did go on to conduct a hearing and to listen to certain submissions from the parties.
  5. In the foregoing circumstances, I am satisfied that it cannot be said that the learned Judge failed to properly prepare himself to conduct the hearing. I am also satisfied that, whilst perhaps falling somewhat closer to the line marking the boundary between a robust, inquisitorial approach and premature adjudication (to adopt the phrase utilised by McFarlane LJ in Re Q) than is often the case, within the context of the case being listed for final hearing, the learned Judge was not guilty of pre-judging matters.


And yes, I did contemplate “premature adjudication” as the title of this post, but there’s no way I’m typing THAT into Google Images.


The Guardian also gets a rebuke (which might ordinarily be stinging, but in the face of everything else going on in the case is mild) for promising the child that the next hearing would be the last one, which was of course outside of her control and a promise which should not have been made.


  1. The email from the Children’s Guardian of 4 October 2017 is, in many respects, carefully drafted. It is of concern however, that the Children’s Guardian also informed T in that email that the learned Judge had “promised” that the proceedings would end on the next occasion. This is not an accurate reflection of what the learned Judge had said and, in any event, is not a promise he could have made, not least having regard to the right of a party to appeal. The email from T of 1 October 2017 appears to have been disclosed to the father’s legal team some time after it was sent, even though it was plainly relevant to the question of expert evidence.


MacDonald J is critical of some drafting, in the order authorising the instruction of an expert – where the wording is reminiscent of ‘mission statements’  in that nobody could ever actually believe in or support the opposite


  1. The letter of instruction to Mr Clowry is contained in the appeal bundle before me, dated 18 September 2017, which letter provides as follows with respect to the instructions to Mr Clowry:
    1. “Pursuant to the order of His Honour Judge Scarratt dated 15 September 2017, you are instructed to meet with the parties and the child, as set out in your letter dated 25 August, to prepare a report setting out a robust, clinically legitimate and reputable plan of clinical work for the sound and lasting advancing of contact between T and her father.”
  2. Leaving aside the rather peculiar terms in which the instruction is couched (parties to proceedings would hardly wish a report that was not robust, clinically legitimate and reputable), the term “Pursuant to the order of His Honour Judge Scarratt” at the beginning of the instructions to Mr Clowry is a potential cause of confusion. Whilst the letter of instruction limits the instructions to Mr Clowry to the preparation of a “robust, clinically legitimate and reputable plan of clinical work”, the permission given in the order of the learned Judge is in somewhat wider terms, namely “to prepare a report in respect of the time that T should spend with her father.”



Now the expert.   We remember that the Judge had said he’d gone off piste and his report was nonsense… well, he had been asked to attend, so the Judge got him in.  Oh God, this is hard reading.


  1. in the context of the District Judge having expressed “severe concerns” regarding the report of Mr Clowry, and the learned Judge having stated that his report was “nonsense“, that Mr Clowry had “gone off piste“, that he had “thoroughly blotted his copy book” and that the learned Judge would be putting the report aside, and despite strenuous objection from Ms Topping, the learned Judge decided to hear from Mr Clowry, who was invited into the courtroom. His opening gambit to Mr Clowry was as follows:
    1. His Honour Judge Scarratt: Afternoon. Just, just come and sit there for a moment will you. Everyone is thoroughly disappointed with this work you’ve done. When I say everyone, I mean everyone. It not what we asked for at all.”
  2. Notwithstanding the views expressed by the learned Judge during the course of the hearing, and his level disappointment stated directly to Mr Clowry, the learned Judge then proceeded to enquire of Mr Clowry when the work he had been instructed to undertake could be completed if his instruction was continued. Mr Clowry having stated his work would not be possible if T would not agree to see him, the learned Judge also put to Mr Clowry that forcing T to see a psychologist would not work, in respect of which Mr Clowry responded as follows:
    1. Mr Clowry: Well, with respect to the language I think if that were the attitude and the way in which it was manage, forcing putting great pressure on a child but I think encouraging a child would not, might be productive.

His Honour Judge Scarratt: Well to be fair that’s exactly what the Guardian has done in a response, in a, in an email response. He has encouraged her, really, really encouraged her to go.

Mr Clowry: But, I would tend to see situations like that Your Honour not in terms of black and white. Sometimes in a preliminary meeting a child who has never seen psychologist or social worker might, perhaps if I saw the child with the mother, feel then on the basis of evidence having met the person reasonably inclined to continue. If the child is caught up in a very powerful adversarial situation there’s a high probability the child is going to reflect certain of the adult attitudes and opinions. If the child were enabled to meet the psychologist whether it be me or anybody else the child might then be prepared to reconsider. I don’t know, I don’t know the child.

His Honour Judge Scarratt: So you could, you could have a plan of work available by the end of next week could you?

Mr Clowry: Yes, indeed.

His Honour Judge Scarratt: Provided the mother and [T] saw you in the week?

Mr Clowry: Yes indeed Your Honour”

  1. Whilst having heard from Mr Clowry the learned Judge told him that he was “released”, this appears to be a term of art as there is no indication that Mr Clowry was sworn, and no party was permitted to cross examine him. The status of the information Mr Clowry provided to the court is, accordingly, unclear. He did not give evidence and his report was, by common acclaim, considered deficient by all parties. However, at one point during the hearing, and despite the criticisms levelled at the report of Mr Clowry by the Children’s Guardian, Ms Topping was permitted to rely in her submissions on that self-same report as evidence that the father had not reflected on his behaviours, whilst almost in the same breath stating the report was deficient and could not be relied on.
  2. Within this context, it is also unclear what status the learned Judge attached to the report, and to the contribution of Mr Clowry at the hearing when considering his decisions with respect to the instruction of a further expert and with respect to whether to conclude the proceedings. However, immediately before giving judgment the learned Judge said:
    1. His Honour Judge Scarratt: Yes well, I’ll, on the basis no wants to say anything else I’ll, and having now heard from Mr Clowry about what he can and cannot do, I’ll make a decision.”



MacDonald J, hearing the appeal was very critical of the way counsel had dealt with their submissions. My mental picture is of a Chimps Tea party, where the tea was laced with PCP, re-enacting an episode of Jeremy Kyle, but that may be too harsh.   Like I said earlier, anyone can have a bad day, and this is best chalked off as just being one of those rather than be taken as being representative of how anyone involved generally conducts litigation.


  1. During the course of the unstructured and unfocused submissions regarding expert evidence, at times the Judge appeared to be dismissing the question of a further expert out of hand. At other times, the learned Judge appeared to indicate it was an issue he was prepared to decide. The precise ambit of the issue the parties are addressing in respect of expert evidence is only belatedly defined and no party ever got to the point of concluding their submissions on the question of further expert evidence, although Ms Cooper made a valiant effort to conclude organised submissions to the Judge in support of permission for a further expert or a short adjournment to allow the preparation of a properly constituted Part 25 application.


  1. At this point, discipline in the hearing appears to have broken down entirely. The father himself begins to make submissions to the learned Judge, Miss Cooper, Mr Persson and Ms Topping continue to make points with little order, structure or focus, and even Mr Gaye enters the arena at one point. All this occurred as the learned Judge continued to propound his view that a final order should be made at the hearing, reflecting the then current level of contact, and sought repeatedly to press the parties to agree to that course of action.
  2. Within the foregoing context, it is of particular note from the transcript that no party was ever able during the hearing to get to the stage of making submissions on the key issue before the court, namely the question of whether, if the court decided to proceed to conclude the proceedings, a final child arrangements order should be made and, if so, the nature and extent of the contact in any final child arrangements order. Whilst counsel were able, up to a point, to make submissions on the question of whether the learned Judge should proceed with the final hearing or adjourn it, the increasingly unstructured nature of the hearing meant that, as conceded by Ms Topping and Mr Persson before me, no party ever reached the stage of making submissions, nor did the learned Judge invite submissions, on what outcome with respect to contact was in T’s best interests if the learned Judge determined, against his initial instinct, that it was right conclude the proceedings then and there. This was the case even though Miss Cooper had made clear on behalf of the father that the matter was contested, and that the father would be seeking more extensive contact in any final order than that then taking place, and even though Ms Topping’s instructions from the Children’s Guardian remained that there should be no order as to contact and an order pursuant to s 91(14) of the Children Act 1989 with respect to the father for a period of 12 months.
  1. In allowing the appeal, it is difficult not to have a good deal of sympathy for the learned Judge. He sought to assist the parties by taking the matter at short notice into an already busy list after the final hearing had already commenced before a different judge. Having done so, the learned Judge tried to further assist the parties by attempting to cut through a protracted dispute between two parents in what, on any estimation, was a long running case involving a young person with her own strongly held views about the way forward.
  2. Within this context, I make one additional observation. As I have already pointed up, the transcript of the hearing demonstrates that the learned Judge was not assisted in his difficult task by the approach of the advocates in this case. Both the transcript of the hearing before the District Judge, and the transcript of the hearing before His Honour Judge Scarratt, record each of the advocates, although counsel for the father a good deal less so, regularly interrupting each other. The net effect of that approach was that, as I have observed, neither judge received properly structured submissions, in the proper order on the points that were in issue between the parties, and no issue was ever fully run to ground. It is quite clear from the transcript why the father chose to describe the hearing as having descended into a “shouting match“.
  3. I am satisfied that this unfortunate situation before the learned Judge materially contributed to the primary reason this appeal has been successful, namely that, before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made.
  4. FPR r 12.21, deals with the order in which a court hears submissions or evidence at a hearing and confers on the court a discretion in that regard. FPR r 12.21 reflects the fact that properly sequenced submissions constitute a vital constituent of a fair hearing. The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.


The appeal was allowed, and sent back for rehearing.


  1. As I have set out above, the transcript of the hearing makes plain that, notwithstanding that the hearing was contested on the central issue of whether a child arrangements order was appropriate and, if so, what arrangements for contact were in T’s best interests, no party ever got, during the hearing, to the stage of making submissions on those key issues before the court. The increasingly formless and fractious nature of the hearing meant that no party made submissions on the need for an order or the appropriate level of contact before the learned Judge gave his judgment on those central issues, nor did the learned Judge invite such submissions. The substantive submissions made by counsel were limited to the procedural question of whether the learned Judge should deal with the final hearing or adjourn it.
  2. In the circumstances, and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard submissions on the issue of whether to proceed to determine whether to make a final child arrangements order but not on the issue of the merits of a final child arrangements order. Notwithstanding this, in his judgment the learned Judge determined both issues. Accordingly, even if one accepts that the learned Judge was operating within the wide ambit of his procedural discretion in dealing with the final hearing summarily on submissions, he dealt with the matter without hearing submissions on the merits. Even though Ms Cooper had made clear on behalf of the father that the matter was fully contested with respect to child arrangements, and that the father would be seeking more extensive contact in any final order than that then taking place, the father never got to argue that case at the final hearing, whether on submissions or otherwise, before the final order was made.
  3. The consequences of this situation are clear from the learned Judge’s judgment. In examining the judgment delivered by the learned Judge I have, of course, taken into account that it was delivered ex tempore at the end of an extremely busy list and in the context of the considerable burden of other responsibilities that routinely fall to be discharged by a Designated Family Judge at the end of the court day. I note that the learned Judge expressly states in the final paragraph of his judgment that, at “the end of a long and hard day“, he would have wanted to have time to hand down a judgment but that he felt it was important for the parties to know the outcome. One can only have sympathy with that view. Within this context, it is not the job of this court, with the greater time available to it, to undertake an overly fine textual analysis of the learned Judge’s ex tempore judgment.
  4. However, reading the transcript of the hearing and the judgment together, it is clear that the learned Judge was not able to rehearse the father’s substantive arguments on the merits for a greater level of contact in any final order, or indeed the substantive arguments of the Children’s Guardian that there should be no order for contact and an order pursuant to s 91(14) of the Children Act 1989, or the mother’s substantive arguments with respect to the nature and extent of contact moving forward, as he had not heard any of those arguments.
  5. In the foregoing circumstances, I am satisfied that there is force in the father’s complaint that the learned Judge proceeded to make a final child arrangements order without proper consideration of the arguments. Indeed, I am satisfied that, as is clear from the transcript and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard no substantive submissions on the merits of the father’s case, or indeed the case of the mother or the Children’s Guardian before making final orders. Within this context, the learned Judge moved to make a final child arrangements order in a case that remained contested without hearing submissions on the issues at the heart of the case.
  6. I accept that, in line with the judgment of the Court of Appeal in Re C (Family Proceedings: Case Management), a judge is fully entitled to deal summarily with a final hearing in an appropriate case. However, even where the court determines that it is appropriate to deal with the case in this manner, it is equally clear that in doing so, each party must first have a fair opportunity to put their case to the court before the court moves to make final orders. Within this context, even if he or she elects to determine the final hearing summarily following oral submissions, the judge must be careful to ensure, with the assistance of the advocates, that each party has had a fair opportunity to make their respective cases by way of submission on the issues that the court is required, albeit summarily, finally to decide. Issues that may often include, as in this case, whether to make a final order and if so, which order in the best interests of the child. In this case, such an approach was even more important where, as I have noted, the learned Judge did not have the benefit at the final hearing of final witness statements from the parties, nor a final report from the Children’s Guardian, and in circumstances where the expert report that had been considered by the court prior to the final hearing to be necessary to resolve the proceedings justly was deficient having regard to the terms of the letter of instruction.
  7. Within the foregoing context, I am satisfied that the fact that the father, and indeed the other parties, did not have a proper opportunity to put their case to the court by way of submissions on the question of whether a final child arrangements order should be made and if so, what order was in the best interests of the T, before the court moved to make a final child arrangements order, amounted to a serious procedural irregularity. In the circumstances, I am satisfied that the appeal must be allowed on that ground alone.

Cross-examining alleged victim without a lawyer


Readers may remember a long-running issue about the fact that in crime, an alleged perpetrator of rape is banned from cross-examining the alleged victim whereas we have ended up in private family law of that being something that is not only not banned but cropping up more and more as an issue, because the Government cut legal aid.  Readers might also remember that following a campaign in the Guardian, the Lord Chancellor at that time declared that legislation would be introduced to fix that problem. The draft legislation was drawn up, and then the Government decided to embark on the Greatest Political Idea of All Time TM, in which in order to increase their working majority, they held an election years early and converted said working majority into a hung Parliament.

I’m afraid that I can’t see the draft legislation now for all of the long grass that it is hiding within. Anyone in the Press want to remind the Government that they promised to fix this mess and haven’t?


Apologies in advance for pedants – the law report uses McKenzie Friend and MacKenzie Friend completely interchangeably and nobody in the Court of Appeal seems to have corrected this.  It should be Mc, NOT Mac.  /Furiously checks document

This is an appeal where the father in a set of private law proceedings was accused of having raped the mother and he denied it. He did not have a lawyer, but did have a McKenzie Friend. Should the McKenzie Friend have been given rights of audience and allowed to cross-examine the mother?



Panini McKenzie Friend stickers album – “Got, got, need, got, oh NEEED”


(actually, the sticker should have been one of Duncan’s friends, not Mr McKenzie himself….)


Re J (Children) 2018

  1. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.
  2. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:
    1. “15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”
  3. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.
  4. The judge refused the application saying:
    1. “19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”



What ended up happening in the case is that the finding of fact hearing never took place, because of the anxieties the Court had about how the mother could be questioned about these events. By the conclusion of the private law proceedings, the children were expressing very strong views about their father


  1. The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:
    1. ‘A gave [NYAS worker] a statement he had prepared and said no-one had read. He would be delighted to give evidence against his father. Despite what he said, it appeared later in the report that the children, which really means A and B, had written at the suggestion of their mother acting on advice from her solicitor. … What I do note is that A’s statement … even assuming that what A was saying factually was true, is a very disturbing document to read. It has the imprint of his mother’ accusations. However, even allowing for the possibility of him imbibing unquestioningly all his mother had said, he nevertheless presents as an intelligent and fiercely independent young man’.

The judgment continues by describing the content of the statement the force of A’s negative opinion of the father that is expressed within it, before recording the judge’s overall opinion that the statement

‘is an extremely distressing read – I am not sure I have seen such a vitriolic condemnation of a parent by a teenager for many a long year.’

  1. The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:
    1. ‘She wrote that she wanted all the bad things dad had caused to go away. She wished they had never gone to the refuge and she wished she did not have nightmares about dad. She did not want to see him EVER (ever in capital letters). No-one could drag her kicking and screaming to see her father. On the second visit she was even more emotional and angry.’


At the Court of Appeal, the father had the assistance of his McKenzie Friend and the Court of Appeal were complimentary about the help that the McKenzie Friend had given to the Court.


  1. For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.


The Court of Appeal recognised the vexed issues that this case threw up.


  1. Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:
    1. ’57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).

58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

  1. Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.



In deciding whether the Judge was wrong to refuse the McKenzie Friend rights of audience to conduct the cross-examination of the mother, the Court of Appeal decided that he was not


  1. In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

  1. For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.
  2. If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.


The Court of Appeal did, however, find that the Court was wrong not to have resolved the factual dispute between the parties at a finding of fact hearing.  The appeal succeeded on that basis.


However, it was a pyrrhic victory, because the Court of Appeal ruled that because the children were still of the same strong views about contact as they had been 18 months earlier they saw no prospect of father re-establishing any contact (the children were now 16 and 11) and did not order a re-hearing.

High Court admonishes Guardian, psychiatrist and (to a lesser and interesting extent) Child’s Solicitor

Re F v H and Another 2017

This was a knotty and horrendous private law case in which parents separated and mother made a series of grave and utterly unfounded allegations that the father had sexually abused the child. She persuaded a series of doctors to undertake intimate examinations of the child and later left the country with the child when the Court hearings were going against her. The Family Court then placed the child with the father and directed that there should be a psychiatric evaluation of the mother to see if there was any prospect of contact taking place.

The judge said that “the court cannot envisage a situation whereby it could be considering looking at direct contact again other than where she has received extensive psychological therapeutic help.” The decision of the judge in respect of the need for the 1st Respondent to receive treatment prior to contact taking place or to any reintroduction of her mother was based on the welfare of B and the evidence of the 1st Respondent’s behaviour. It was wholly justified.

During the period where mother was awaiting criminal trial for the child abduction, she continued to make a series of allegations about father to professional agencies, all unfounded. Mother received a four month sentence for the child abduction offence, suspended for six months.

When the psychiatric report finally emerged, it wasn’t terribly useful, since the psychiatrist had decided to do the report without reading the judgment from the family Court about her behaviour that had led to the need for the report… And he believed everything that the mother said and recommended strongly that the FATHER was the one who needed a psychiatric assessment.

Safe to say that Ms Justice Russell was unimpressed by that approach.

28.There was no psychiatric assessment of the 1st Respondent so that on the 20th March 2017 when there is a further hearing before the judge this issue remained outstanding as the reports ordered by the court on 29th February 2016 and 25th May 2016 have not been produced. In March 2017, the Court again “made it clear” that this is 1st Respondent’s last opportunity to cooperate with a psychiatric assessment and she did not attend the next appointment arranged for her, her application would be dismissed and a s91(14) (CA) order would be made for a period of two years.

29.Finally, on 25th May 2017 the 1st Respondent was seen by a psychiatrist, Dr Oyebode, who filed a report on 5th June 2017. For reason that are far from clear to this court and to the court below Dr Oyebode conducted his assessment of the 1st Respondent without reading the court documents provided to him, including the judgments; instead he read and relied on the documents given to him by the 1st Respondent and the report of Dr Beider (who had not seen the documents or had access to them at all). Thus, his assessment was partisan, based on the 1st Respondents version of the history of events and on psychiatric evidence obtained outside the family court proceedings and without the permission of the judge.

30.Moreover, not only had Dr Oyebode had not challenged the 1st Respondent on the basis of the court documents or judgement (because he had failed to read them) he also accepted her assertion that the 1st Respondent had made no further allegations since 2014; this was patently untrue as she had made allegations in 2016 and sought to defend the criminal case on the basis of duress and necessity. He neither referred to or considered the 1st Respondent’s behaviour which led the court to make non-molestation injunctions against her. In direct contradiction of the judgment of the court he reached the conclusion that the 1st Respondent was a capable mother who had genuine concerns for her daughter’s welfare. He suggested that the Appellant undergo psychiatric treatment, having accepted the 1st Respondent’s version of events. Quite rightly the judge, at the hearing on the 9th August 2017, described Dr Oyebode’s report as offering the court no assistance and as being “completely flawed”.

That psychiatric assessment being worthless, the case then took a significantly wrong turn.

31.At a further hearing before the judge on 21st June 2017 B was joined as a party to the proceedings and on 5th July 2017 Catherine Callaghan (a Cafcass officer) was appointed as her guardian. Ms Callaghan was provided with some limited papers, consisting of parents’ last statements and Dr Oyebode’s report on 7th July 2017. She met the Appellant and B briefly on 19th July 2017. The guardian spent some two hours with the 1st Respondent on 26th July 2017. She did not receive the court papers, which include the judgments, until 28th July 2017. She could not have been, and was not in, a position to challenge the 1st Respondent’s version of events when she met her; and her views at the time would have be based on what she knew then, which included the flawed and inadequate report of Dr Oyebode. The Guardian did not see the parties or the child again. Although she had had sight of the case papers before preparation of her position statement this was not until after she had seen the parties and her meetings with them to place in ignorance of the circumstances of this case.

32.At six o’clock in the evening of 8th August 2017 the guardian’s solicitor sent her position statement to parties which included the recommendation that there should be direct supervised contact for the 1st Respondent with B. I shall return to her position below; but she had not prepared any analysis or report for the court, which considered the welfare of the child with reference to the statutory provisions contained in s1 of the CA 1989; nor did she explain to the court what form the contact would take; any details of the explanation of what was to happen, and by whom, would be given to the child. She did not proffer any advice to the court as to what would happen if, on the receipt of competent psychiatric assessment of the 1st Respondent, it was found that the risks to B of further harm was considered to be high, without some prior professional intervention. The judge did not hear any oral evidence.

33.The next day on 9th August 2017 the judge, in what she described as a finely balanced decision, which from her judgment, was a decision based largely on the oral submissions made on behalf of the guardian, acceded to the application made on the instructions of Ms Callaghan and made an order which provides for direct contact between B and the 1st Respondent supervised by the guardian herself. The judge stayed the order for direct contact until 30th August to allow for the application for permission to appeal to go before the High Court. In her short judgement, the judge set out her reasons for reaching the decision that some supervised contact should go ahead which, as previously observed were based largely, if not wholly, on the guardian’s recommendations.

34.The precondition for any reintroduction of contact, which the judge had repeatedly reiterated, was not only that the 1st Respondent’s mental health had to be assessed, but also that there should be some treatment with her commenced to avoid repetition of her previous harmful behaviour towards B. Following the oral submission of the guardian (who is not qualified to assess the 1st Respondent’s likely psychiatric or psychological response to any reintroduction to B) the judge reversed the decisions she had made previously. The decisions she had previously made were properly based on the evidence before the court that there should be prior assessment and treatment (as set out above) there was no evidence before the court which supported a reversal of that decision. Moreover, as a result of the inadequacies of the psychiatric report, on 10th August 2017 an agreed letter of instruction was sent to Dr Datta to carry out a further assessment of the 1st Respondent. This letter, agreed by the parties, contained the instruction that the “Mother continues to be of the view that [B] is not safe in her father’s care.”

Ms Justice Russell sets out in detail why the Judge was wrong to have resiled from her earlier position that contact could not be countenanced until there had been a proper psychiatric evaluation of the mother, and largely blames the Guardian for persuading the Judge to do so, and moreover, to have fallen into much the same trap as the psychiatrist – in conducting investigations and reaching conclusions without having properly engaged with the source material.

The father, obviously, appealed and that is how the case came before Ms Justice Russell.

37.The history of this case has been set out at some length as it forms the background to the decision the judge made on 9th August 2017. When viewed as a whole the harm caused to this child by her mother was significant. Not only was she found to have repeatedly subjected to intimate examinations, solely at the behest of her mother, she was prevented from having uninhibited relationship with her father as an infant. On any view, the repeated invasive intimate examination, as found by the judge and set out in her judgment, were in themselves abusive and any long-term effects on B, along with any emotional trauma that may have been at the time, has never been investigated or assessed.

38.The guardian has seen this child on one occasion for a brief period yet she has seen fit to reach conclusions as to the child’s resilience and current psychological and emotional status and ability to deal not only with the re-introduction of her mother but also with the possible, if not probable, cessation of contact should that prove to be necessary. There is no analysis of how she reaches these conclusions, no details of her qualifications to do so and no application of the welfare checklist in reaching her conclusions. Consequently, the judge was wrong to rely on them and to effectively reverse her previous decisions on what amounts to flimsy evidence.

39.The emphasis and assumptions of the guardian are apparently based on the need to reintroduce contact with the child’s mother. If so this is a misinterpretation of the law; although that the amendments to section 8 of the CA and section 1(2A), introduced by the Children and Families Act 2014 emphasised the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further the child’s welfare, this presumption is subject to the requirement that the parent concerned may be involved in the child’s life in a way that does not put the child at risk of suffering harm. This case includes findings of abusive behaviour towards B by her mother, which, if repeated would compromise the child’s safety and reintroduce the possibility of further harm, both physical and emotional.

40.B is a young and vulnerable child whose first few years of life were blighted by her mother’s irrational, abusive and harmful behaviour culminating in an B’s unlawful abduction. The courts can and should consider ordering no contact when the child’s welfare and safety demand it

(illuminating to compare and contrast with the Court of Appeal stance on the transgender father v ultra-Orthodox jewish community case earlier this month…)

Get ready for the pain

47.While it is understandable that the judge acceded to the guardian’s application, it is the decision of this court that she was wrong to do so. The guardian was quite simply not qualified or equipped to reach the conclusions that she did in respect of this child’s psychological and emotional resilience. She was even less qualified to assess the 1st Respondent’s mental state and her ability to conduct herself appropriately when B spent time with her. She had carried out anything other than a cursory consideration of the history, evidence and court documents before she briefly met the child with her father; little wonder failed adequately to explain the basis of her conclusions.

48.In a case such as this with a protracted, complex and convoluted history it is incumbent on the professionals who are called on to proffer advice and recommendations to the court, be they Cafcass officers or others concerned with child welfare, to fully inform themselves about the case and, at the very least, read through the judgments before they commence their investigations. Nor should they consider experimenting or trying out with contact for the child or children concerned against a background of previous harmful behaviour and abduction; in this case the guardian even accepted that contact may prove to be unsuccessful and be terminated or suspended again. Any contact that took place would have provided little or no useful evidence for the court as the guardian is unqualified properly to assess this mother’s ability to deal with and contain her behaviour. For that reason, and for those set out above this appeal will be allowed.

That’s a serious burn. Is it fair and justified? Well, I will leave that to the reader to decide.

The bit that interested me was this, however.

In relation to the position statement filed on behalf of the Child’s Solicitor (bear in mind that the child in question is 4 1/2, so absolutely no prospect of the child being competent to give instructions or even to give their views to the solicitor independently) the Court said :-

There was and are no submissions on behalf of the guardian as to why and on what basis she purported to have reached this conclusion on behalf of this child. A child who as, on any view, be subjected to repeated intimate physical intrusion, flight to Israel and had been fed misinformation about her father throughout her infancy. The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement.

I’ll give you the last bit again

The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement

I suspect there are many solicitors for children saying to themselves, well of course the solicitor acted solely on the instructions of the guardian. The child was 4 1/2.

Is it the place of the solicitor for the child to disagree with the instructions of her professional client (where the lay client is not in a position to give instructions?) – is it the place of the solicitor for the child to lay out in a position statement a case wholly in the alternative to that the Guardian is instructing should be pursued?

That seems a stretch to me. I think it is acceptable that the solicitor for the child ask the Guardian to address some of the consequences of the course recommended and provide analysis as to why, despite any adverse consequences it is the preferred option. But if the Guardian sticks by her course, I don’t think the solicitor for the child can advance in a position statement an argument contrary to her instructions.

(Of course, if the Guardian is making a mistake in law, or there is authority contrary to the position being advanced the solicitor for the child has to draw this to the Court’s attention, but I’m not sure that’s the case here. That possibility is raised earlier, so I may be misreading. It seems to me though that this is an issue not as to law and principle but a welfare and risk analysis by the Guardian. If the child’s solicitor and the Guardian disagree about welfare and risk analysis then they should thrash it out in discussions, sure, but ultimately it is the view of the Guardian that goes into the position statement and is advanced at Court, not the view of the child’s solicitor. )

I shall keep an eye out as to whether this theme recurs.

Sin is not valid legal currency

A mind-blowingly tricky case, involving hot-button issues on either side.

A mother and father have five children, ranging in ages from 3 to 13. The family are all part of the ultra-orthodox North Manchester Charedi Jewish community. The father left the family home in 2015 and became transgender, he now lives as a woman.

The ultra-orthodox Charedi Jewish community view the father’s actions as ones of choice, and as a sin, and he would be ostracised from the community. If the children were to spend time with their father, they also would be marginalised by their community.

The Judge at first instance, Peter Jackson J (as he then was), concluded that the children would not be upset or traumatised by their father’s transgender status and would cope with it, but that they would be harmed by being ostracised within their religious community. It was a difficult balance expressed eloquently :-

8.Peter Jackson J identified (judgment, para 166) fifteen arguments in favour of direct contact which he described as “formidable”. He could identify (para 168) only two factors that spoke against direct contact. Of the first, relating to the father’s “dependability”, he found (para 172) that “if it were the only obstacle to direct contact, it could probably be overcome.” That left only one factor, which he described (para 173) as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father.”

9.On this, his findings were as clear as they were bleak. He found (para 156) that:

“The children will suffer serious harm if they are deprived of a relationship with their father.”
10.Nonetheless he decided, as we have seen, that there should be no direct contact. He explained why. First (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.”

Then (para 181):

“I … reject the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults.”

And then this (para 187):

“So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact (emphasis added).”
11.We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?

The case went to the Court of Appeal.

Re M (Children) 2017

2.This is an appeal from a judgment and order of Peter Jackson J, as he then was, made in private law proceedings between the father and the mother of five children, whose ages now range from 13 to 3 years old. His judgment was handed down on 30 January 2017: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, [2017] WLR(D) 142. The judgment, which was necessarily lengthy, is freely available to all on the BAILII website, so we can be more limited in quoting from it than might otherwise be appropriate. We do, however, urge anyone who has occasion to read our judgment to read Peter Jackson J’s judgment first.

3.The order was made on 2 February 2017. It was expressed as being a final order. The judge dismissed the father’s application for direct contact (the children live with the mother). The order contained a child arrangements order providing for limited indirect contact, a specific issue order directing that the children were to be provided with “staged narratives” in age-appropriate terms, and a family assistance order under section 16 of the Children Act 1989, naming the children’s guardian as the relevant officer, to remain in force until 1 February 2018. The father sought permission to appeal; the perfected grounds of appeal are dated 17 March 2017. Permission to appeal was given by King LJ on 16 June 2017. On 27 October 2017, McFarlane LJ gave both Stonewall Equality Limited (“Stonewall”) and Keshet Diversity UK (“KeshetUK”) permission to intervene in the appeal, limited to making written submissions. On 10 November 2017, the father applied for permission to admit further evidence, which we admitted de bene esse.

4.The appeal came on for hearing before us on 15 November 2017. Ms Alison Ball QC and Mr Hassan Khan appeared for the father, Mr Peter Buckley for the mother, and Ms Frances Heaton QC and Ms Jane Walker for the children’s guardian. Ms Karon Monaghan QC and Ms Sarah Hannett filed written submissions on behalf of Stonewall and Ms Jane Rayson and Mr Andrew Powell filed written submissions on behalf of KeshetUK. At the end of the hearing we reserved judgment, which we now hand down.

The case in outline
5.The outcome of this appeal is of very great importance to the father, to the mother and the children, and to the ultra-orthodox North Manchester Charedi Jewish community in which the children have always been brought up. But in its potential implications this appeal is of profound significance for the law in general and family law in particular. For on one view it raises the question of how, in evaluating a child’s welfare, the court is to respond to the impact on the child of behaviour, or the fear of behaviour, which is or may be unlawfully discriminatory as involving breaches of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of the Equality Act 2010.

I suspect most readers have already formed a firm view as to what is the right outcome here – but I also suspect that not everyone will have the same firm view. It is decidedly tricky. For my part, I struggle to see how the views of an intolerant religious community should deprive the children of their relationship with their father (until such time as the children can make up their own mind about where their preferences lie), but I am mindful that I come to this as a wholly secular person who does not hold religious beliefs. Might I think differently about it if faith was a major part of MY life, as it clearly is for this family?

The judgment
12.Having thus introduced the issues which confront us, we turn to a more detailed analysis of Peter Jackson J’s judgment. After an Introduction (judgment, paras 1-11) and a section dealing with Terminology (paras 12-16), he set out a Narrative of events (paras 17-36), to which we refer the reader. For present purposes, there are only two matters we need to refer to. The first, (para 33) relates to the minutes of a “Team around the children meeting” held within the community in April 2016. Of these minutes, the judge made this observation (para 34):

“These Minutes are of interest. Not having been prepared with these proceedings in mind, they illustrate the prevailing mindset. There is at least as much concern for the community as for the children. The father was entirely ignored.”

The other matter relates to something which the judge referred to (para 36) as an example of the high level of tension surrounding the proceedings:

“In November [2016], on the first morning of the hearing, an unidentified member of the community posted this WhatsApp message:


Family [name]’s (A Mother & her 5 Children) fate is in court this morning (for the next 10 days). Please Daven [pray] for them. We can’t afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent. The family know and want it to be sent. Pls forward this message. The koach of tefilloh [power of prayer] can achieve everything.””
13.The judge then turned to the law (paras 37-56). There has been no challenge to his analysis.

14.Then in a long section (paras 57-142) the judge rehearsed the evidence. For present purposes we can be selective. In the course of setting out the mother’s evidence (paras 69-77), the judge said this (paras 73-74):

“73 The mother described the father as having been “severely ostracised” by the community. She had no other experience of the reaction of the community to transgender or homosexual people, but described the problems for a neighbour’s children when their mother wanted to leave the religion and the consequences when one of her female cousins began to deviate in her style of dress. She said that she was very aware that the schools must uphold British values, but that “the parent body are the school”. Respect must be shown for people, no matter who they are, but at the same time the ethos of the school must be upheld, no matter what. Transgender is extremely alien to the community and against religious law. As for homosexuality, young children are not faced with it. As she put it: “I uphold the British law within our faith.” If there is a conflict between law and faith, she would follow her faith, though she would not commit a crime. The present circumstances put her in a very difficult position.

74 The mother said that there is no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment. She said this, even though she knew that she and the children are entitled to legal protection against victimization. The schools would probably not throw out the children, but the environment would become hostile. The parent body would not allow their children to play with the children, and no one can tell others how to bring up their own children. “They will protect their children from contact. They wouldn’t want my children to suffer and will have every sympathy, but their own children will come first.” The children’s next schools would not have to take them, and could just say they were full. “Are we going to get the whole community to tell them off?” The mother can see the children being rarely invited to family events and festivities because people would be nervous about what they would say. There would be extreme supervision and the children’s participation would be kept at a very basic level. Already, A is being asked questions and is reluctant to commit himself fully within his peer group. This, said the mother, is “the reality – it’s who we are”.”
15.Particularly striking in this context, was the evidence of Mrs S, a very experienced foster carer who identifies herself as an observant modern Orthodox Jew, of whom the judge said this (paras 108-111):

“108 Mrs S, who clearly has a close knowledge of the workings of the community, described its unhappiness at children being fostered outside the community, though it acknowledged that she was a preferable carer to any of the available alternatives.

109 Mrs S provided two striking instances of the way in which children exposed to ‘outside influences’ will be ostracised. In 2015 Child A, a 15-year-old girl who had been sexually abused in the community was placed in her care. The girl was not invited to Hanukkah gatherings by her classmates. When Mrs S challenged the mother of one of the girl’s close friends about this, she explained that she could not risk her daughter hearing about “things” as children in the community were kept innocent and sheltered. When Mrs S described the distress that these actions were causing, the mother did invite the girl to her house, but only under strict supervision. The child lost her best friend and all her childhood friends. She now attends a different school and has absolutely no association with her former social circle.

110 Mrs S spoke of Child B, whom she had fostered from another ultra-Orthodox community. The child, aged 14, had been sexually and emotionally abused within her family and the wider community since the age of 11. She had made statements to her school about her abuse. The response had been to put her on a plane out of the country and invent a story to explain her absence. When she was returned to the country and placed in foster care, “all hell broke loose”. Mrs S said that she personally had a broad set of shoulders but that it had been a struggle to protect the child at the beginning. She was rejected by her family and no longer allowed to talk to friends. As Mrs S put it, “It’s the knowledge that is the issue.”

111 Mrs S freely described these as “awful case studies”, which she related to assist the court to understand that this response was the norm where religious culture, identity and laws are breached. She said that they were not “standout cases”. At the beginning of her fostering career, they would have had her “up in arms”, but she now saw this behaviour as being unchangeable – by local authorities, foster carers, courts and the law. “They will find a way around it.””

Of the cases described by Mrs S, the judge said this (para 178(3)-(4)):

“The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people … They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).”
16.Also of importance, as we shall see, in influencing the judge’s thinking, was the evidence of Rabbi Andrew Oppenheimer (paras 90-102). This part of the judgment requires to be read in full. Here we merely quote the salient passages. First (paras 91-92):

“91 Rabbi Oppenheimer describes Charedi communities as “warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives … The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of the country) and place the family and its welfare at the heart of life … Allegiance to the lifestyle … means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society.”

92 Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22.24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22.5).”
17.Next (paras 95-96):

“95 In regard to the attitude of the community, Rabbi Oppenheimer writes:

“Where a person decides to take action likely to be irreversible to transgender, Ultra-Orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws. Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the sheltered position of the community from the standpoint of open society. Knowledge of transgender amongst children in the Ultra-Orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media. There is no known precedent in the UK of a transgender person being accepted living in an Ultra-Orthodox community.

The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible. If the family of the transgender person nevertheless seeks, or indeed is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed. The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children. The impact on the family in such circumstances in terms of social isolation will be devastating.

In considering the best interests of the children the obvious conclusion from the discussion above is that the children of an Ultra-Orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances. It will no doubt be argued against this approach that it is cruel, lacking in tolerance, unnecessary and denies the rights of the father. But Torah law (Halacha) has the same approach to English Family Law in this type of situation, regarding issues of residence and contact, that the interests of the children are paramount. In other words the father is expected to give precedence to the needs of the children over his own needs.”

96 In his oral evidence, Rabbi Oppenheimer remarked that “ostracise” was perhaps not the best word to use for a process that would not be organised but more subtle and inevitable – “it would be so much more”.”
18.Then this (para 97):

“He … asserted that under the Torah and in reality a person is considered to have a choice, albeit a difficult one, as to whether they become transgender. If they do, they choose to place themselves outside the embrace of the community. In Torah law, to be gay or transgender is to be a sinner. Even though it may be looked on with compassion, and some people may extend the hand of friendship, that does not alter its unacceptability. The mother could not remain married to a person who made that decision. She should still seek in a constrained way to promote respect for the father but at the same time to protect the children from the consequences until they are old enough to deal with them. Young people cannot deal with these issues without undermining their faith. There is too much of a conflict to understand. There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being. By educating children in the way of the Torah, they are brought up as upright people.”
19.And then, finally for present purposes, this (paras 99-101):

“99 Rabbi Oppenheimer explained that excluding ideas that might damage the development of children is “the price we pay – we limit ordinary social contact so that we transmit our spiritual ethos to the next generation”.

100 When pressed about the impact of ultra-Orthodox custom and practice in a case such as the present, Rabbi Oppenheimer replied with some warmth that this had nothing to do with emotions or feelings – it was contrary to Torah law for the children to be exposed to transgender. Further pressed as to the basis for this assertion, the Rabbi fell back upon the overriding consideration in Leviticus to be holy and to separate oneself from anything contrary to the Torah.

101 Indirect contact, on the other hand, would not, he thought, give rise to such a risk of ostracism, as it would not enable the children to have “a living relationship”.”
20.Pausing at this point there are two points which require emphasis.

21.The first is the community’s determination – what Rabbi Oppenheimer described as its “obligation to protect the children from finding things out that are likely to damage … their growth and spiritual well-being” – to shield its children from knowledge of and exposure to such matters as sexual abuse, homosexuality and transgenderism and, more generally, what Rabbi Oppenheimer called the “excesses of modern open society”; and to restrict its children from coming into contact with children who have such knowledge or have been so exposed.

22.The second is Rabbi Oppenheimer’s chilling explanation as to why indirect contact would not give rise to a risk of ostracism: “it would not enable the children to have “a living relationship”.”

23.Peter Jackson J’s response to this was brisk (paras 179-180):

“179 In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land. Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences. The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

180 It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion. Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children.”
24.In striking contrast with Rabbi Oppenheimer’s evidence was that of Rabbi Ariel Abel (paras 78-83), who described himself as mainstream Orthodox and falling under the authority of the Chief Rabbi. He grew up in the North Manchester Charedi community and has experience of communities in London, Liverpool and Manchester at various levels of orthodoxy. The judgment (paras 80-81) summarised his evidence:

“Rabbi Abel emphasised the central importance of honouring one’s parents within Jewish law and tradition. He said that there is scarcely any circumstance in which the obligation to honour one’s father does not apply. Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists. He considered this aspect of the matter to have been left untreated by Rabbi Oppenheimer.

In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified. He contends that there is no valid reason why any person should plead ultra-Orthodox faith as a reason to disenfranchise a person in the position of the father. “There is no legitimate reason to maintain that children who are transgender-parented cannot experience in the ultra-Orthodox community a full and satisfying Orthodox Jewish life, physically, spiritually, emotionally and communally.” On the contrary, there is every reason to reunite parent and child as it is the well-being of the nuclear family and not the social preferences of the wider community that truly matter. He points to commentary by the noted encyclopaedist, the late Rabbi Waldenberg, in support of his contention that Orthodox Judaism, correctly understood, recognises the existence of, and to a certain extent accommodates, a number of non-binary identities, including transgender. He argues that the transgender issue cannot be ignored and that parents’ relationships with their children are inalienable.”
25.The judgment continues (paras 82-83):

“Rabbi Abel objected to the concept (introduced by Rabbi Oppenheimer) of the faith as a club from which people could be ejected, though he observed that this evidently happens. An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worst-case scenarios. This is a social cultural reality, not a valid Orthodox reason for separating children from parents. There is a lamentable habit of censoring. Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief. In his view, this should not be accommodated or excused in Jewish or English law. On the other hand, he had never heard of total ostracism in practice, provided the contentious matter was treated privately within the family, and not paraded before the community. However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help. What was needed was psychological support: religious teachers should be kept out of it.

The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester community. He argued that when it comes to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A’s bar mitzvah. There are ways, and it can happen if there is a will. The issues are significant, but not insurmountable. The community is not monolithic, but multifarious. It will step back if proper arrangements are made by both parents. If the situation is unregulated, the community will take matters into its own hands. If direct contact was ordered, and the law laid down, he did not think that the community would “go to the wire” fighting an unwinnable battle.”
26.We have set this important evidence out in full because it seems to us to hold out hope of a change. Rabbi Abel demonstrates that there exists what we imagine is a lively debate, perhaps within this thoughtful, law-abiding and intellectual community and probably Orthodox Judaism generally, of the issues to which transgenderism gives rise. Does it not provide some support for a conclusion in this case that the views which drove the judge are not universally inflexible?

So even within the religious community there was a deep schism about what the Torah says and what in practice might happen if the children were to see their father. Of course, the Judge dealing with the case didn’t have to deal with what position the ultra-Orthodox community SHOULD take, but what position they realistically WOULD take

30.The judge then turned (paras 143-161) to consider the welfare checklist. For present purposes, we need refer only to this (paras 156-157), which really encapsulates the dilemma confronting him:

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”
31.Finally (paras 162-191) the judge set out his Assessment and conclusion. He began as follows (paras 162-165):

“162 I find this a very troubling case. These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It is painful to find these vulnerable groups in conflict.

163 A great deal of time has been spent at this hearing on consideration of the laws and customs of the ultra-Orthodox community. This is natural, given that it is the community within which the children live. However, Ms Ball QC and Ms Mann for the father argue that one must not look only through an ultra-Orthodox lens. I agree. Despite its antiquity, Jewish law is no more than 3,500 years old, while gender dysphoria will doubtless have existed throughout the 120,000 years that Homo sapiens has been on earth. Both sides of the question must therefore receive careful attention.

164 Faced with this intractable problem, it is not for the court to judge the way of life of the ultra-Orthodox Jew or of the transgender person. The court applies the law, and in this case its task is to identify the outcome that best upholds the children’s welfare while minimising so far as possible the degree of interference with the rights of all family members.

165 Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.”
32.He then (para 166) listed the fifteen “formidable” arguments in favour of direct contact to which we have already referred. In relation to the second factor identified by the guardian (see paragraph 28 above) he said this (para 172):

“… the father’s approach to contact would not be a reliable, static factor. It would be a variable amongst other variables. I share the view of the Anna Freud Centre and the Guardian that this must be taken into account when considering children’s welfare. It speaks for caution, but no more than that, and if it were the only obstacle to direct contact, it could probably be overcome.”
33.Turning to the “the central question of the reaction of the community if the children were to have direct contact with their father,” the judge (paras 174-176) summarised counsel’s competing submissions before expressing his conclusion as follows (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. I say “driven” because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father. The evidence that was available before the hearing contained dire predictions, but no actual examples of ostracism. I pointed this out, and this led to a number of new statements being gathered, including significant evidence from the foster carer, Mrs S.”
34.He explained his conclusion (para 178) in twelve sub-paragraphs of which we quote the following:

“(1) It does not depend upon any view of what Jewish law is in relation to transgender, but upon what the community is likely to think it is and act upon. It may be that the humane and progressive views of Rabbi Abel and Mr Bernard will one day gain acceptance in the ultra-Orthodox communities, but I consider that in the present day the community in which the children live and go to school will, rightly or wrongly, defer to the stance described by Rabbi Oppenheimer and the authorities he cites.

(3) The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people (emphasis added).

(4) I cannot distinguish these cases in the way suggested by Ms Ball. They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).

(5) There is a consistent account from all those within the community of how it will behave …

(6) The father [and his witnesses] all accept to a substantial degree that this is what the community is like. Their thesis is that it can be managed or made to change.

(7) There is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status (emphasis added). However, the fact that the practices may be unlawful does not mean that they do not exist.

(8) I was particularly impressed by the evidence of Mrs S, an informed outsider, who compellingly described the reaction of the community to situations of which it disapproves.

(9) I was also struck by Rabbi Oppenheimer’s unyielding defence of the religious and social position as illustrating the stance that can be taken by educated persons.

(11) There is no evidence that any person in a position of authority or influence within the community wishes to challenge the behaviour of its members, still less that significant change could be expected within these children’s timescale.

(12) In these circumstances, I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court’s focus from the welfare of these five children.”
35.He continued (paras 182-183):

“182 And here we come to the sad reality. I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The mother, a religiously observant person, would be required to sustain something that she has been taught is religiously wrong. A, aged only 12, is already extremely anxious about contact and now feels protective towards his mother and younger siblings. Embarking on contact would place him under extreme pressure, which would inevitably have a detrimental effect on his development.

183 The children, and the mother on whom they depend, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result is that their individual and collective well-being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with … “a negative impact on how they function in the widest possible sense both now and in the future”.”
36.He added (para 185):

“These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.”

The Court of Appeal had some very difficult issues to consider

42.It is important at the outset to be clear as to why the court – the State – is involved in the present case. It is because the parents have been unable to resolve their family difficulties themselves, whether with or without the assistance, formal or informal, of the community, and because one of the parents, in this case the father, has sought the assistance of the court. The court cannot decline jurisdiction. And, as judges sitting in a secular court, we must necessarily determine the case according to law, in this instance the law as laid down by Parliament in section 1(1)(a) of the Children Act 1989: see Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras 92-93.

They conclude that the case had to be sent back for re-hearing (note that they do not say that the father MUST have contact, just that the case needs to be re-heard )

Our reasons for disagreeing with the analysis of the judge
76.In our judgment, Peter Jackson J’s judgment is vulnerable on a number of grounds, all interlinked but which, for purposes of clarity and analysis, it is appropriate to keep distinct.

77.First, the judge, having arrived at his conclusion (judgment, paras 182-188), did not at that point step back and ask himself what, we think, were a number of highly pertinent questions. We have already touched on much of this, but it bears further elaboration. For example, he should, we respectfully suggest, have asked himself: how do I, indeed, how can I, properly accommodate this conclusion with my role as the judicial reasonable parent applying the standards of reasonable men and women today? Can I properly come to a conclusion dictated, as I have found (judgment, paras 34, 178, 181), by the practices of a community which involve discrimination and victimisation and where the community’s focus is as much on itself and the adults as on concern for the children or child welfare? Is it enough simply to proceed on the basis (para 185) that “These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this (emphasis added)”? Should I not directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court may have to consider drastic steps such as removing the children from the mother’s care, making the children wards of court or even removing the children into public care? Should I not directly and explicitly confront the mother and the community, which professes to be law abiding, with the fact that its behaviour is or may be unlawfully discriminatory? And, not least, how can this outcome meet even the medium let alone the long-term needs and interests of the children? How can this order give proper effect to the reality, whether the community likes it or not, that the father, whether transgender or not, is and always will be the children’s father and, as such, inescapably part of their lives, now, tomorrow and as long as they live? The judge’s omission to address these questions seriously undermines, indeed, in our judgment vitiates, his ultimate conclusion.

78.Secondly, and in saying this we are very conscious of the forensic reality that this part of the case was not much explored before him, and he did not, of course, have the benefit of the submissions we have had from Stonewall and KeshetUK, we are bound to say it is very unfortunate that the judge did not address head on the human rights issues and issues of discrimination which plainly arose. His judgment recites though largely without analysing (judgment, paras 44-51, 53-56) various Convention and statutory provisions to which the father in particular had referred. But apart from the passages we have already set out, the judgment says virtually nothing else about these vitally important issues – no doubt, in this respect, reflecting the limitations of the arguments that had been addressed to the judge. This is a matter we return to below.

79.Thirdly, there is much force in the argument that the judge did not sufficiently explain why, given the basis of the mother’s and the community’s objection to direct contact, it was nonetheless feasible to contemplate indirect contact. Indeed, there is little discussion of the issue in the judgment. The judge recorded the mother’s position as being (judgment, para 9):

“The mother had been opposed to any contact but, having seen the professional advice, now accepts that the children should have indirect contact with their father three times a year. She opposes direct contact of any kind during their childhoods as that, she claims, will lead to the children and herself being ostracised by the community to the extent that they may have to leave it.”

We have already recorded (paragraph 22 above) Rabbi Oppenheimer’s views on the subject. The judge was pressed in argument (judgment, para 174) with what we think was the well-founded point, “It is not clear why indirect contact is said to be acceptable, while direct contact is not.” After all, as we have observed (paragraph 21 above), the concern of the community is to shield its children from knowledge of and exposure to such matters as transgender, and to restrict its children from coming into contact with children who have such knowledge or have been so exposed. Surely, from that point of view, indirect contact must carry with it precisely the same kinds of risk as direct contact. The judge did not address the point, merely saying (judgment, para 188) that, having refused an order for direct contact, “I will instead make an order for indirect contact. I see no reason why this should not take place four times a year.” We emphasise that this is not an argument against indirect contact; on the contrary, it is, it might be thought, an argument in favour of direct contact.
80.Fourthly, we think there is considerable substance in the complaint that, as Ms Ball puts it, the judge “gave up too easily” and decided the question of direct contact then and there and without directing even a single attempt to try and make it work. The judge recognised, by making the specific issue order directing preparation of “staged narratives”, that there was further work to be done by the guardian and the Anna Freud Centre. As Ms Ball asks rhetorically, and in our judgment there is substance in the point, why not defer a final decision on direct contact pending the outcome of that, and perhaps further, work, including work by the GesherEU Support Network about which the judge (judgment, paras 84-89) had heard evidence? Moreover, as we have already observed, why not first directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court might have to consider the drastic steps we have referred to? Why not directly and explicitly confront the mother and the community with the fact that its behaviour is or may be unlawfully discriminatory? And why not attempt, even if the prospects may have seemed forlorn, the kind of step by step process adopted by Her Honour Judge Rowe QC in Re X (Number 1: Religious Differences: Schools) [2014] EWFC B230, Re X (Number 2: Orthodox Schools) [2015] EWFC B237, and Re X (Number 3: Division of Religious Festivals) [2016] EWFC B91. In our judgment, the decision which judge came to was indeed premature.

81.It follows that, in substance, the father makes good all three grounds of appeal.

82.The parties were rightly agreed that if this was our decision it would not be appropriate for us to determine what the outcome should be. The matter will have to go back for a further hearing which, in the circumstances, will be before Hayden J. Precisely what the scope of that hearing should be will be a matter for the judge. We do not anticipate a rehearing of the very full evidence on the religious views which Peter Jackson J heard but otherwise leave the scope of the evidence at the rehearing to the judge. That said, we need to make explicit what ought to be clear enough already. What we say about the community is based on the evidence adduced by the parties to these proceedings and on the findings of the judge. The community are not parties and have had no opportunity to make representations. Our observations about the community should be read on that basis.

83.In view of the fact that, for the reasons set out earlier, we propose to allow this appeal and remit the case to the family court for reconsideration, it is unnecessary for us to address at length either the issues of equality law which may arise or the issues under Article 9 of the Convention. However, we hope that it will assist the family court in its reconsideration of the case if we set out some of the issues that may have to be addressed, dealing first with equality law and then with Article 9.

The Court of Appeal then did address the equality issues

95.It is well-established on authority that discrimination which is motivated by a religious belief (however sincerely held and even if the discrimination is mandated by that religious belief) does not make discrimination under the Equality Act lawful: see Regina (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728, para 35 (Lord Phillips of Worth Matravers PSC) and para 65 (Lady Hale JSC). See also Regina (Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, para 58, where Lord Walker of Gestingthorpe cited with approval what had been said by Mason ACJ and Brennan J in the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, at 136:

“Religious conviction is not a solvent of legal obligation.”
96.In the present case we are anxious that no assumption should wrongly or unfairly be made that any school attended by the children concerned has acted unlawfully or will do so in the future. As we have already mentioned, if a school were to ostracise a pupil on the ground of his or her father’s transgender status, that would be likely to amount at least to the imposition of a “detriment” on that child which is unlawful under the Equality Act. The courts of this country expect schools to comply with their legal duties under that Act as well as generally.

97.Nevertheless, we are equally concerned that, should there be action by a school which is unlawful under the Equality Act, the courts of this country should not, as a matter of public policy, simply treat it as a factor to be weighed against permitting direct contact between the father and children. To do so would, in our view, be contrary to the rule of law.

98.Accordingly, when this case returns to the family court, we would expect the judge to consider very carefully:

i) whether there would in fact be unlawful conduct even in the face of an order of the court granting the father direct contact with her children; and

ii) to what extent such unlawful conduct should be given weight in the balance to be conducted in assessing what are the best interests of those children

115.When the present case returns to the family court we anticipate that the court will wish to scrutinise with care the suggested justification for the apparent discrimination which the father faces on the ground of her transgender status, not least to ensure that the court itself does not breach its duty under section 6 of the HRA.

What about the issues about religious discrimination? What guidance do the Court of Appeal give in that regard?

130.In the absence of any further finding by the judge about the nature of the debate on transgender in the Charedi community, we must proceed on the basis that the views which Rabbi Oppenheimer attributed to the Charedi community are the community’s views and that their actions to exclude the children would be an expression of those beliefs. That approach then puts their religious beliefs at their highest.

131.If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball’s submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 (see paragraphs 119 and following above). In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children.

132.The mother and children also have their rights under Article 9, but they are outside the discussion in these paragraphs. Clearly, the courts must likewise not restrict their rights to any greater extent than that permitted by Article 9(2). The courts have a statutory obligation under section 6 of the HRA to act compatibly with the Convention.

133.We can, therefore, return to the question whether, if this court were ultimately to make an order for direct contact, that would violate the rights of the community under Article 9.

134.It is not appropriate for us to give any final view in answer to this question as that stage has not yet been reached. Provisionally, however, it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being. As the President held in Re G, para 43:

“In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.”
135.In making that decision, the restriction under consideration would meet the requirements of being prescribed by law. It is part of the court’s jurisdiction to make orders regulating parents’ access to their children. It would be proportionate because it would not be made immediately on the father’s application, but only after a period of further reflection in which the court has had time to consider further evidence if it wished so to do.

So whilst the Court of Appeal say that they have not reached a conclusion about the merits of the case other than that it should be re-heard, they drop the heaviest of hints that if the trial Judge finds himself in this dilemma

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”

Then the religious community are going to be the ones to lose out.

Very difficult case. Just in case the first hint was not over enough, the Court of Appeal hire a very large crane and use it to lower a heavier hint into position

Concluding observations
136.It may very well be when the matter has been further considered that there is room for some compromise position. As we have made clear, we consider that, under Strasbourg jurisprudence, each side has to be prepared to compromise. That means that it must be ready to make some concession, and the compromise must be one which is appropriate in a plural, democratic society governed by the rule of law.

137.Moreover, by the time any direct contact takes place, subject to the further directions given in these proceedings, these children are likely (as mentioned) to have had assistance of the highest standard in coming to terms with their father’s decision. We envisage that the assistance will make them aware of the need to be sensitive to the views of others, including (as at present) their own community, which is unable as we understand it to accommodate changes of identity within their own interpretation of their religious laws. These are difficult areas for the holders of faith, which underscores the need for broadmindedness and tolerance in our diverse society.

138.In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives.

Forty tons of Toblerone

Relocation cases bore me, so I would have skipped over this one. But it was Justice Peter Jackson, who is generally worth reading. And it has an unusual wrinkle. Stick with it.

The argument in the case was whether a 15 year old and 13 year old should go and live with their father in Switzerland, or stay with mother in England. The parties clearly have money – whether they have more money than sense is a matter for readers to draw their own conclusions about.

S v S (Relocation) 2017

35.I record that the legal costs globally in this case are outrageously high. The estimates that I have been given concern only these proceedings relating to the boys. They do not concern the other costs that the parties are responsible for in relation to the divorce and any financial aspects. The father estimates his costs of this application at £493,000. He has also paid or taken responsibility for costs of £174,000 in relation to the children’s costs, so taken together with the mother’s costs, the total comes to some £938,000 of which the father is already responsible for two thirds of a million.

2.What does have to be remembered is that the court can only work with the material with which it is provided. Often, as here, it is not possible to produce a truly good outcome but only to choose the one which is least bad. In a case of this kind, where a family has every conceivable material advantage, it is easy to forget the old truth that money cannot buy you happiness. It certainly has not done for this family. Instead, the pursuit and accumulation of wealth that has created conditions that have left everyone spoilt for choice and thoroughly miserable. The fact that the family has spent just shy of £1 million on these proceedings, proceedings of no particular complexity that only began in April, is fairly typical. This is not empty moralising. If the parents and children cannot return to a more considerate, a more normal way of behaving, the future is bleak whatever the court may decide. In saying this, I am not only speaking to the parents but also to the three children who are old enough in their own ways to do their bit to repair the damage that has been caused.

That led me to do a google search for ‘costs to hire a private jet’ by way of comparison, which if nothing else, should get me more glamorous pop up ads. You can hire a private jet to take you to Nice for £10,000. So let’s say Switzerland is about the same. The father could have flown the children to Switzerland by private jet every weekend (and back) 32 times for what he’s paid lawyers to argue about the case. As the youngest child has 250 weekends left of his childhood, that does leave a bit of a shortfall, but (whisper it) there are cheaper methods of transporting children to Switzerland.

You can buy a 4.5kg bar of Toblerone for £75. So dad could have bought 8893 huge bars of Toblerone. THAT’S FORTY TONS of Toblerone, people.

(If anyone wants to pay me for my legal advice in Toblerone, I am willing to negotiate. I would give a discount for Terry’s Chocolate Orange…)

Anyway, the real purpose of the blog post is the bit that sneaks into that paragraph on costs

He has also paid or taken responsibility for costs of £174,000 in relation to the children’s costs

The children, if they are of sufficient age and understanding, are entitled to seek their own legal advice, and they can, if they make an application be represented in the proceedings. The solicitors have to get paid, and there would be no legal aid for children in private law proceedings who instruct their own solicitor (i.e there’s not a court-appointed Guardian) so someone has to pay it.

The Judge is not critical of the solicitors involved (who are very experienced and expert in these international cases) but it is an unusual circumstance for one party to litigation funding the children’s own lawyers. More so when you learn that the mother says that she didn’t know that the children were having consultations with their own lawyers and did not know that they were going off to meet with them. Nobody has done anything WRONG here, but it being an issue that I’ve not encountered before, it does throw up some interesting questions.

It feels a bit weird that one parent pays the legal costs of the child. That feels a bit conflict-y, no matter how much effort everyone puts in to ensure that there is no conflict between independence of the advice and the person who is paying for that advice. It feels a bit Sussex Justices – there may be nothing wrong whatsoever happening, but if you were on the other side of that equation, would you feel that this is entirely fair?

28.I now add a coda concerning the impact of the legal representation of these children upon their welfare. The sequence of events concerning the children’s lawyers is this; in February 2016 the father’s Russian lawyer, prompted by his English solicitor, contacted Ms Hutchinson who happened to be in Russia at the time. In March 2016, on her return Ms Hutchinson met the boys in a café close to their school, unknown to the mother. Dawson Cornwell’s fees were paid by the father and nothing happened until a year later. In March and April 2017 when the father’s first application was issued, the boys communicated a number of times with Ms Hutchinson and her colleague, Ms Fleetwood, by social media. In April Ms Fleetwood met D at the school without the mother’s knowledge. She wrote to the mother’s solicitors subsequently that D had made her aware of the relocation application that the father had now issued; in fact Dawson Cornwell had learned about this from the father’s solicitors a fortnight earlier.

29.In May 2017, the boys came to court and later that month they were joined as parties by Pauffley J. In June 2017, the boys met their solicitors at Dawson Cornwell’s offices twice with the knowledge of the parents, and in July 2017 they met the solicitors and counsel locally to their home with the knowledge of both parents.

30.The mother understandably complains that, entirely without her knowledge and at a time when she was having difficulty parenting the children, the father was funding a legal team for the boys, now to the tune of £174,000. She says that this just added to the other ways in which the father was undermining her authority.

31. At my request, Mr Vine QC has addressed the duties of solicitors in these circumstances in a short position statement. That reads as follows:

“In so far as there is further clarification on the obligations of a child’s solicitor in this difficult area:

(1) The Solicitor’s Regulatory Authority (SRA) Code of Conduct secures the obligations to act with integrity (Mandatory Principle 2), not to allow the solicitor’s independence to be compromised (Mandatory Principle 3), and to protect the client’s interests (Mandatory Principle 4 and Chapter 1.1);

(2) The Solicitor’s Regulatory Authority (SRA) Code of Conduct further requires the solicitor to keep the client’s affairs confidential unless disclosure is required or permitted by law or the client consents (Chapter 4.1);

(3) The SRA Practice Note Acting in the absence of a children’s guardian suggests the solicitor is mindful of a guardian’s PD16A duties;

(4) As a matter of general principle, parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 11, Lord Scarman at 186;

(5) On familiar principles, a child has an Article 8 right to respect for their privacy in the setting of client/professional information;

(6) Again on familiar principles, a child has a right to confidentiality in the same setting;

(7) The entire area of a child’s Article 12 UNCRC right to participation in proceedings concerning them is one that continues to evolve, Re W (A Child) [2016] EWCA Civ 1051, Black LJ §26 and Re F (Children) [2016] EWCA Civ 546, Sir James Munby P §41.

There would appear to be no direct guidance on the obligations in question, and the answer must be that the obligations will depend upon the nature of the information presented and the instructions given to the solicitor by the child, and their judgment as to their child client’s best interests. Information relating to child protection or the safety of others will generate a more obvious response than information relating to a private dispute.

The child’s solicitor is in a delicate position, calling for sensitivity to the competing interests of the child and parent.”

32.I agree with all of that and I particularly wish to record that the lawyers acting for these two children are among the leading experts in representing children, particularly in international cases. However, I am left with a sense of unease. I am not sure that Mr Vine’s analysis, correct as far as it goes, is the whole picture. There is a tension between the right of children to receive legal advice and the need for parents to know what is happening in children’s lives so that they can look after them properly. For the lawyers to be having secret meetings with children in cafés and at school without the knowledge of their primary carer inevitably leaves a sour taste. How, for example, is the school to react? Is it right that one parent should know what is happening and pay for it while the other is left in the dark? These are also child welfare issues that need further thought but, having identified them, I say no more about it on this occasion.

The boys are actually moving to Switzerland as a result of the case, so in so far as spending two thirds of a million pounds on lawyers could ever be said to be money well spent, perhaps this was. Come to think of it, where would you even KEEP forty tons of Toblerone?

“The father is to have no contact while the investigation is ongoing”


This is an interesting case, decided by Recorder Baker.  It was a private law case, which had considerable Local Authority involvement.  Many of the issues may seem familiar to practitioners, but the Recorder has grabbed the facts and issues and put them together in a very pleasing and digestible way.  And produced some useful guidance for other similar cases.


Re V (A child) 2016


The facts are painfully familiar.  [Not how ALL cases go, by any stretch of the imagination, but we’ve all seen ones pretty much like this before.]

Man and woman meet each other. Love each other very much. When a man and a woman love each other very much they have a special cuddle, and lo a baby is born. Man and woman fall out of love.  Man and woman stop living together.  Quarrels ensue. Woman makes allegation about man. Man’s contact with child stops.

Here the allegation was that the man had been ‘massaging’ the child, who was about six.  Eueeww, creepy, you’re all thinking. Massaging a child. Creepy.

Well not so much when you know that the child has a medical condition that requires massage as a treatment and the dad is a physician. Not quite so creepy.


Let’s make it very plain at the start that the Judge in this case did not find that the father had done ANYTHING wrong to the child. Nor did he find that the mother had made up the allegations or been malicious or deliberate in any way.  It is just a series of events that got out of control, and a series of failings from professionals to look at the evidence for the mother’s suspicions and tell her frankly and plainly that there was nothing in them.  As a result of which, a father lost contact with his son for 42 weeks.



  • On a day in January 2016 the mother and V were at home with a family friend who was visiting. The family friend heard V make some comments about the time he lived with his father including comments about massages that he and his father had given each other. The family friend, who asserts experience in child protection matters, spoke to the mother on the telephone after her visit and informed the mother that she was going to make enquiries with respect to “intervention” with V on the basis that she was concerned by what she had heard. On the same day she telephoned the child’s school and told them about her concerns.
  • The school initiated safeguarding procedures and 6 days later V was seen in school by the Investigating Police Officer and a Social Worker. Prior to speaking to V they spoke to V’s school teacher. Amongst other things the teacher told them the school did not have any particular concern about V, that they had witnessed a good relationship between V and his father and that they had observed him to look forward to his father picking him up from school. The school were aware that V was awaiting a corrective medical procedure and that they were aware that V’s father, a medical professional, did massage V in connection with this condition. They confirmed that V had made no allegations of sexually inappropriate behaviour to them.
  • When the Investigating Police Officer and the Social Worker spoke to V, he made no allegations against his father and told them that there were no bad things about living with his dad or mum. When asked if his father ever did anything that makes him feel confused, upset or angry, he said that his father did not.
  • The Social Worker and the Investigating Police Officer communicated the contents of their conversation with V. It is recorded that the mother was not happy and was asking about stopping “contact” between V and his father. V was due to return to live with his father in the next few days. At that time it is recorded that she was advised that she would “struggle” to justify preventing V seeing his father and would be in breach of the extant court order. It is recorded that the mother was advised that she should not question V further.
  • The following day the mother attended at the local police station with a relative. She was initially spoken to by a police officer who was staffing the front desk. That police officer made a record of her attendance and sent a note to the Investigating Police Officer relating the encounter. It records that the mother was asking V to tell the police officer what he had told her. It records that the mother was asking V leading questions to elicit answers from V. She was asked to return later in the day when the Investigating Police Officer (who had attended the school the day before) would be on duty.
  • When the relative, mother and V returned to the police station the same day the Investigating Police Officer spoke to them. The Investigating Police Officer’s note records that during discussions with the mother, she reported that she had been undertaking research on the internet about how to speak to a child and that she had been asking V questions about what his dad had done. It is noted that it appeared to the Investigating Police Officer that the mother had been asking leading questions of V but when this was raised with the mother the relative became angry and aggressive and was asked to leave.
  • V was then video interviewed. I will return to the contents of that interview below.
  • After the interview the Investigating Police Officer noted that the mother “was keen to contact her solicitor and appeared to be checking that [V] had stated everything he needed to”. Thereafter the Investigating Police Officer advised the mother that the matter would be passed to a different police station for further investigation.
  • The transcript of the video interview of V makes for interesting reading. It can be asserted that he makes a number of allegations about his father massaging him, possibly involving the child and the father’s private parts. However, in a letter from a Detective Inspector written to the father’s solicitors 6 months later the contents of the interview are described thus:


“[V] did provide an account on video interview, and it was noted by officers that he did present in a very different manner compared to the previous [the school visit]. His account changed numerous times and he failed to make any clear or concise disclosures.”


  • That brief description is accurate and encapsulates the fact that the interview of V, even taking into account his age, is muddled and inconsistent. It does not provide a strong foundation for assertions of sexually inappropriate behaviour by the father. In the end it was the only evidence that could possibly have been taken as any evidence of inappropriate behaviour by the father.
  • On the same day (i.e. the day that the mother attended the police station in the morning and those events summarised at paragraphs 13 and 14 above occurred) the mother applied to court for a prohibited steps order preventing the father from removing V from her care. That application was made without notice to the father and was granted.


Despite there being not a grain of truth in the allegations, and pretty much every professional who looked at the evidence reaching that conclusion, it still took 43 weeks for this father, who had been having shared care of this child, to have any contact with his son again.


Here is the bit that is troubling, yet still sadly familiar


  • At some time after Day 6 and before the completion of the section 47 investigation the local authority had presented the mother with a written agreement. That was not in the Court Bundle so when I invited the local authority to attend the final hearing I also asked them to bring a copy of the written agreement. It is undated so it is only possible to estimate when it was signed by the mother. It asks the mother to ensure that:


“[The Father] is to have no contact with [V] whilst the investigation is ongoing.”


The Judge notes that of course the mother placed reliance on that written agreement – even if I WANTED to allow contact, I can’t, because the social workers have made me sign a written agreement not to allow any contact.


Even after both the Local Authority AND the police had closed their case, nobody tore up that Written Agreement, so it was being relied upon by mother months after any investigation was done and dusted. There being no evidence whatsoever of abuse, of course the investigation was going to fizzle out. Nobody took steps to revoke it though.  (And cynically, one might say that its existence rather suited the mother)



  • The decision to have an Initial Child Protection Case Conference having been rescinded, the local authority continued a ‘Child and Families Single Continuous Assessment’ as it is referred to in the document. The use of the word ‘continuous’ is ironic in the circumstances, because it turned out to be anything but. The assessment document itself makes it difficult to determine when it actually concluded, however I suspect it was within 3 ½ weeks of the initial phone call to the school. The decision to close the case was reviewed and ratified by a social worker manager one month after its’ conclusion.
  • The assessment recounts a number of things. It repeats the account of V’s video interview in the same terms as identified at paragraph 25 above. It notes however that when V is seen by the social worker 2 ½ weeks after his video interview, he again expresses no concern about being in the care of either parent. It records some of the things I have related above that might have at least alerted the writer or the manager to the possibility that this was not simply a case of child sexual abuse and that there were other risk factors to consider. However, it recommends no further action is taken by the local authority. When that decision is ratified by the Social Work Manager it is recorded in the following terms:


“I agree with the social workers (sic) recommendations to close this case… From the information collated during the assessment process, it is considered that the likelihood of significant harm posed to [V] is considerably reduced given that [the mother] has obtained a Prohibited Steps Order as well as agreed via a working agreement to ensure that he does not maintain contact with his father… if [the mother] were to breach this agreement such would undoubtedly increase the risk posed to [V] and, in turn, impact upon his developmental needs.”


  • It is difficult to read that paragraph as anything other than a conclusion that (i) in the view of the local authority V had been sexually abused by his father and (ii) that if he were to have contact with his father he would be at risk.


The Judge is quite right – of course you can’t read that as being anything other than a professional assessment that this child was safe because mum had agreed to stop contact and would be at risk if contact resumed.  Which would be a solid assessment IF it were based on an analysis that was supported by the actual evidence in the case. But it wasn’t.



  • The local authority did not become involved with V again until the Court made a section 37 direction, some 7 months later. That section 37 report, which was completed by a social worker who had not previously been involved, concluded that there was little or no evidence to substantiate any allegations of sexual abuse. The writer also observed that there was considerable evidence of a hardening of V’s views against the father, contrary to the situation that existed when he was living with the father and mother jointly and indeed contrary to the situation when his relationship with his father had only been interrupted for a few weeks. The writer concludes that V has suffered significant harm but that harm emanates from the acrimonious dispute between the parents rather than any form of direct sexual or physical abuse. The analysis of the factual matrix is compelling and thorough. Whilst neither I nor the parties entirely accepted all of the recommendations made within the report, that does not detract from the value of the work undertaken. It is right that I acknowledge that the author was employed by the same local authority that this judgment criticises.


The Judge goes on to discuss the role of Local Authorities in private law proceedings.  And it is right that when I receive notification that I myself am dragged (as an LA lawyer) into private law proceedings my reaction is much like THIS


Why God, why? Why have you forsaken me?

Why God, why? Why have you forsaken me?



  • I have every sympathy for and understand only too well the limited resources available to local authorities. Some local authorities, in my experience, display considerable reluctance to become involved in private law disputes and it is possible that there is an instinctive wish to withdraw from meaningful involvement as soon as possible, believing that private law disputes will ultimately be resolved by the courts. Local authorities do, after all, have many children whose welfare they are charged with protecting. However, local authorities have statutory duties and the way in which those duties are carried out have significant and lasting ramifications even if they do not become directly involved in any court proceedings that follow.


The Judge then goes on to give some very careful, thoughtful, measured and helpful guidance for Local Authorities in this situation, and decries the approach of “Allegation against dad >  get mum to stop contact > so no risk = close the case”  without a proper consideration of the allegation.



  • In any dispute between two parents where an allegation of abuse of any nature is made, instigated or supported by one parent against the other it is, in my view, incumbent upon a local authority receiving a referral to have in mind all the possible risks that may be inherent in any such allegation.
  • There is of course the risk that the allegation, whatever its nature, is true. There is the risk that that the allegation is not true. There are also the risks that the allegation is in some way mistaken, mistakenly encouraged or deliberately fabricated.
  • There are of course very serious welfare consequences for a child if allegations of, for example, sexual abuse are true. However, there are also serious welfare consequences if the allegations are not true. Those consequences include the possible temporary or permanent cessation of a relationship between a child and a parent. They include the inculcation of false events within a child’s memory and belief system. They include one parent portraying a negative and inaccurate view of another parent, with possible long term consequential psychological damage to a child who is led to believe that part of his or her genetic make-up is in some way ‘bad’ or unworthy.
  • It strikes me that in circumstances where the backdrop is a dispute between parents, the words of Baroness Hale in Re B [2008] UKHL 35 at [29] should be at the forefront not only of the Court’s mind but also of any investigative authority:


“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”


  • It is notable that Baroness Hale refers to the local authority as being “neutral and expert”. In my view and with respect, in this context it seems to me that ‘neutral and expert’ implies a professional detachment that is alive to all the risks and weighs all the evidence in a balanced way bearing in mind all the reasonable possibilities. It does not imply an abandonment of a precautionary approach to child protection but acknowledges that ‘child protection’ encompasses protection for children from mistaken and false allegations as well as those that may be true.
  • It also occurs to me that where local authorities act in a way that purports to restrict the relationship between a parent and a child, under pain of legal action (as in this case, condensed into the written agreement) they must bear in mind that they may be interfering as a public body in a relationship that has, for want of a better term, special status. That ‘special status’ is reflected in the following observations about this case, which I doubt are exhaustive:


a. This father had parental responsibility for V;

b. This father had a court order that ensured that V lived with him and the mother;

c. This father had an ongoing relationship with his son about which there was ample evidence of a positive nature;

d. V had an Article 8 right to family life with his father that should only be interfered with if justified and proportionate; and

e. The father had an Article 8 right to family life with his son that should only be interfered with if justified and proportionate.


  • When interfering with such powerful imperatives it, in my view, behoves the local authority to record the situation carefully and accurately, formulating an assessment of the risks on all the evidence reasonably available, even if that assessment still concludes that for the time being the child should not see the accused parent. Simply to say ‘the child will not see the alleged perpetrating parent and is therefore safe’ and thereafter close the case, is an abrogation of the responsibility placed on local authorities by Parliament.
  • Failure to assess the circumstances properly has far reaching effects, even if the local authority do not themselves initiate protective court proceedings. In this case alone there are two obvious examples. First, when a private law case comes before the court Cafcass complete a ‘Safeguarding’ letter, a process that involves a Family Court Reporter quite literally telephoning the local authority to find out if they have had any involvement with the child or their family. Someone at the local authority looks on the computer and relates the contents of the information contained therein. The conclusions and nuance of that information informs the contents of the Safeguarding Letter which then informs the judge at a First Hearing Dispute Resolution Appointment. Decisions taken at the early stages of a case are of vital importance and can determine the direction of travel for the court process. Re-visiting the conclusion of the local authority assessment set out at paragraphs 33 and 34 above, it is not difficult to imagine the message that would be conveyed to the court by such a conclusion. Neither is it difficult to imagine the different approach that might have been taken by a court had that conclusion recorded a more balanced examination of the risks in this case.
  • Secondly, I have already alluded to the possible effect of the Written Agreement entered into between the mother and the local authority (paragraph 31). Again it is not difficult to imagine how a court, bereft of the complete picture, would approach a situation where it is informed that the local authority have told the mother that she must not allow the child to see his father. The impact was doubtless magnified by the lack of an end or review date in the agreement, allowing it to be said quite accurately that the agreement apparently still applied.
  • In addition, an approach that lacks balance and objectivity allows a parent who is more than willing to believe, subjectively and possibly inappropriately, that the other parent has sexually abused their child, to invest in that belief. It prevents them coming to terms with the possibility that the other parent may not have sexually abused their child. It reinforces both parents’ negative belief about the other parent which in turn is likely to impact adversely upon the child. Ultimately it increases the difficulty of putting the situation right and allows parents to get ‘stuck’ in a conflict that could have been defused much earlier.


You know that bit in figure skating competitions where bouquets of flowers get thrown onto the ice?  The extract above is deserving of similar treatment. It is important, fair and easy to follow.  If someone had given this passage to me and said “Which Judge wrote that?”  I’d have said unhesitatingly Mr Justice Peter Jackson. This Recorder is one to watch.


If you work in a social work team, particularly a duty team or one that does section 7 or 37 investigations, please share this judgment. If you represent parents, print it out and put a big post it note on it that says  “Helpful stuff”


Don't skate over them!

Don’t skate over them!






Back off War child. Seriously

Yet another alleged radicalisation case, this time private law.

Amongst the many allegations, that the father had wanted to give the child a name which in Arabic meant “War”


And if you think that a Point Break reference is beneath this blog, then you haven't been paying attention

And if you think that a Point Break reference is beneath this blog, then you haven’t been paying attention


Re A and B (Children : Restrictions on Parental Responsibility : Extremism and Radicalisation in private law) 2016


There were two children, aged 3 1/2 and 2. The parents are separated. The mother alleged in private law proceedings that the father was showing signs of extremist behaviour and that he presented a risk to the children as a result.


Outwith the extremism allegations, there were some very serious domestic violence episodes, and as a result the father was imprisoned and there was an order for his deportation



  • On the 13th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.
  • Following the June incident on 14th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14th October 2016. On 15th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.
  • F’s criminal trial took place at Bristol Crown Court on 26th February 2015 and 2nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.


In case you want to know what the ‘various other items’ were:-



  • On 13th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.




In the criminal trial, father denied everything



  • F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.
  • In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”
  • His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”
  • F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.
  • The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”
  • This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.



The radicalisation evidence begins here


M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.



  • It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.
  • It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.


There was also evidence presented to the Court about father’s controlling behaviour towards mother



  • It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.
  • To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.
  • F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.
  • It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.
  • It is M’s case that the action taken by F on 13th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.
  • As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23rd October 2013.




The father did not redeem himself in the evidence he gave before the Family Court, deploying as his defence that his wife’s behaviour following pregnancy was so hormonal that it had led her to behave badly towards him but that he now forgave her.  You will not be amazed that Ms Justice Russell was not persuaded by this novel defence.



  • F has filed two statements in these proceedings, dated 23rd February and 23rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic“, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”
  • If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.


The Judge made some powerful findings of fact


Findings of Fact


  • I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.
  • These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.
  • F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.
  • F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.
  • In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”
  • Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.
  • It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.
  • The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.



Changing a child’s surname is not an easy thing to do, where one parent objects, but I am sure that most readers would be 100% satisfied that it was justified in this case, and so was the Judge.


The extremeism elements were more difficult – the police disclosure had not provided any evidence, and as a reader, I was left with the impression that this man was violent, controlling, manipulative and probably a fantasist who enjoyed leading his wife to be fearful of him. In terms of hard evidence that he was connected to Daesh or radicalised, the absence of any police or Counter Terrorism investigation into him made that difficult to prove.

Given the very strong evidence against him in almost every other regard, it wasn’t really necessary to prove those matters. Ms Justice Russell was critical of the attempt to include such matters in the schedule of findings sought.



  • In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
  • The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.
  • In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
  • I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.
  • F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.




The father wanted the children to be brought to see him in prison, but the Judge rejected that and made the unusual (but completely warranted) order that father should have no contact.



  • There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.
  • The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.
  • F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.