Reserved Judgemen 2008

The Applicant appeared in person

Ms. F appeared for the First Respondent

Mr. F appeared for the Second Respondent

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RESERVED JUDGMENT

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1. This judgement relates to an application for contact made by the father in respect of his daughter H, made by a letter dated the 8th December 2006. It is confined to findings of fact sought by the parties and which may help to determine the application at a final hearing, presently listed for 15th to 17thDecember 2008. The findings sought are found in a schedule of findings appearing as a preliminary document in the bundle and annexed to this judgment. At two hearings on the 23rd May 2008[2] and the 29th September 2008[3] the scope and number of these findings have been pruned so that they are somewhat reduced from the original 67 findings sought. In this judgment I refer to the finding numbers as they appeared in the original schedule, a format that has been adopted by the parties throughout.

2. Before turning to the case I would like to thank the advocates, Ms F and Mr F, for the assistance they have given. As I will relate this is a case which has generated considerable passion and has been fuelled by the mutual antipathy of the parents, one to another. I am most grateful for their assistance. Without wishing to be patronising in any way, I would also like to congratulate Mr. M on the way in which he has represented himself. He has plainly found the case difficult, both in terms of the subject matter and in terms of procedure. His questioning and his conduct in court has far exceeded that which I could reasonably expect of a self representing party.

BACKGROUND

3. Both Mr and Mrs M have a military background. The Applicant is a former Royal Marine and Mrs. M was formerly in the Royal Navy and to this day remains on the reserve list. They met during training and married on 10th August 1988. It is plain that during the early years of the marriage they spent much of their time apart due to the demands of the military regime. The Applicant served in the Gulf War and the mother would say that this has had a long term effect on the father in terms of leaving him depressed, irritable, unstable, and given to mood swings and tempers among other symptoms. She says that he has been on Prozac and Seroxat for several years and has experienced a nervous breakdown.[4] Between 1991 and 1992 both parties left the armed services and began to pursue their careers, the Applicant in training and the First Respondent in marketing

4. H was born on the 3rd March 1996 and is thus aged 12. It is plain that both parents lived a busy life dictated by the demands of their employment. However there is no dispute that the mother was the principle carer and always has been. Indeed between 1998 and 2000 the father took a job with ICI and worked away from home in High Wycombe returning to County only at weekends. This has some significance because the First Respondent seeks a finding that the father played no significant role in H's life up to the point of separation. After 2000 the father returned to County and ultimately set up a company with one N called (Company) based in (Address). Of course this meant that he was no longer absent from the family home during the week.

5. It is plain that 2004 was a difficult year for Mr. M. In that year both his mother and stepmother died, which in turn led to a dispute over inheritance with his brother. I understand that the Applicant experienced a turbulent upbringing, hence the death of his mother and some of the items he discovered after her death caused him further grief. It is plain to me that this was a difficult period for the entire family and that Mrs. M was called upon to support a father who was in some turmoil and grieving not only for two close relatives but for a tumultuous upbringing and a relationship with his brother that had broken down amidst some considerable acrimony. The hope that 2005 would prove to be a turning point did not come to fruition. Indeed matters deteriorated until the parties separated on the 23rd January 2005.[5]

6. Initially all seemed set fair for a reasonable and sensible separation. The mother petitioned for divorce on the and in the Statement of Arrangements for H dated the 4th February 2005 she stated:

Details for contact with the children

(a) Do the children see your Husband?

At present at weekends and some evenings after school

(b) Do the children ever stay with your husband

Not yet. Domestic arrangements not finalised

(c) Will there be any change in these arrangements?

When domestic arrangements finalised, H will have the opportunity to stay with her father overnight.

A number of incidents then occurred which contributed to the unravelling of the relationship between the parents.

7. Soon after the filing of the petition, on or about the 7th February 2005, the parties had a meeting at Starbucks in the J. Sainsbury store in (Town). On any account it ended up with the father driving off in some anger. The First Respondent says that the father drove at her, while the Applicant says that she might have been holding on to the door of his car. This is one of the incidents I am called upon to decide and I will return to it. This was followed by an extraordinary event whereby the father told his nine year old daughter that one of the reasons that he had separated from her mother was because he had slept with a prostitute. This had a very unfortunate repercussion when H went into school and asked what a prostitute was and referred to the information that her father had given her. It is hard to imagine a more embarrassing event for both mother and daughter.

8. On the 23rd March 2005 there was a further incident where the mother and father met at the offices of (Company) with H present. An argument occurred which ended up with the parents involved in a physical exchange. Again this is a matter that appears in the schedule. On any account it seems that this incident has had a profound effect on H and on the way in which she views her father. It is plain that matters were now spiralling out of control and another incident occurred on the 25th May 2005 when the father would say that the mother frustrated contact and he broke back into the former matrimonial home at (Address)

9. By then the mother had made the first of the Children Act applications for residence which was filed on the 19th May 2005[6] and on the 28th June 2005 the father cross applied for contact.[7] On the 6th July 2005 a residence order was made in favour of the First Respondent and on the 18th August 2005 I made an order for contact, to be supervised by Mr or Mrs E or Ms K, an order which was extended on the 27th September 2005 with Mr D supervising contact.[8] The mother then applied for permission to remove H from the jurisdiction to Jersey where she had been offered employment and on the 10th October 2005 the father made cross applications for residence, prohibited steps and a specific issue order. On the 20th October 2005 (Judge) gave permission for the mother to remove H from the jurisdiction and for the father to withdraw the applications made on the 10th October 2005. On the 10th November 2005 I made a further order for supervised contact with the Maternal Uncle and Aunt, G and L, supervising contact in Jersey.[9] The events of that contact led to a cessation of contact as per my order of the 12th January 2006 and the father withdrew his application for contact on the 16th March 2006.

10. By now the mother was in Jersey, the father in UK and (Property) was lying empty. On or about the 1st December 2006 and in breach of an undertaking dated the 27th June 2005 the father re-entered (Property) and was the subject of committal proceedings for a second time. At this time he wrote a letter dated the 8th December 2006 concerning his entry into (Property) and also asking for contact with H.[10] I ordered that the letter stand as an application for contact. There were appalling delays in the preparation of a report by the probation service in Jersey and it was only on the 28th September 2007 that the report, ordered on the 6th February 2007, was filed. On the 26th November 2007 I appointed an officer of NYAS to be H’s guardian pursuant to rule 9.5. To complete the chronology of the proceedings I was faced with a schedule of findings containing some sixty seven items and potentially over ten witnesses. On the 23rd May 2008 I reduced this schedule compelling the mother to limit the allegations and to elect which of a limited number of allegations she sought findings on.[11] I reviewed the case and the witnesses on the 29th September 2008 and sought agreement on a number of allegations to limit the evidence in the case. I return to this when I consider allegation A2.

11. It will be appreciated that the above means that the father has not seen his daughter since Christmas 2005, save for one occasion when he attended a concert on the 8th May 2008 unannounced. For much of the time he has had indirect contact and the mother complains that some of the communications have been inappropriate. The mother also complains that the father continues to adopt a hostile, threatening and bullying attitude to her.

THE EVIDENCE

12. This fact finding hearing has been hotly contested. I have heard the evidence of both the parties, and for the Applicant father: SB and RR both of (company), MrE and Mrs W both of whom are family friends and his former business partner and friend Mr D. For the mother I have heard the evidence of a neighbour Mrs B and her aunt and uncle G and LL. It is appropriate that I make some preliminary comments on the quality of the evidence.

13. This trial has been remarkable for the degree of consensus that has prevailed. It is a testament to the parties and their witnesses that many aspects which may have been disputed by other people have been agreed upon. This reflects the approach of the parties who were not prepared to break their oath and lie to me. To this extent the trial has been a refreshing change. Mr M has approached his evidence with a robust, almost bullish honesty. He has not sought to shirk or hide from incidents which have occurred. His main approach has been to seek to set the incidents in context and to justify his conduct but not to deny the essential thrust of the allegations. He has admitted making mistakes but has directed many of the incidents back on the mother blaming her for the background. I found him to be an honest witness dealing with matters very close to his heart.

14. In addressing the mother’s evidence I do not resile from my above comments however it was plain that her evidence was less reliable. I have considered the way that she gave her evidence at some length and that she has admitted incidents that she might have contested, for instance that she aimed a kick at Mr. M on the 23rd March 2005. This is to her credit. Against this there were occasions when her evidence was plainly changing and on one occasion I had to remind her that she was under oath.On reflection I consider that this was unfair on her and that she would not tell a direct lie, however she was more than happy to tell half truths and to be economical with the truth with a view to creating a false impression. A couple of examples illustrate the point. She told me that she did not tell H that her father had been imprisoned for breach of his undertaking. Under further cross examination she indicated that she might have had a discussion which H overhead. The truth, when it finally emerged, was that H had noticed that she was sad and asked if Daddy had been sent to prison and that Mrs. M had confirmed this. In short she did not tell H, but confirmed it when H asked her. Thus her original denial of telling H that her father had been sent to prison might be technically correct in a purely semantic form but was designed to convey a completely false impression. In her C1A the mother related that “there was an incident on the 23rd March 2005. The Police were called and the First Respondent arrested.”[12] She then goes on “On the 23rd March 2005 the First Respondent assaulted the Applicant, H was present and witnessed the incident.”[13] As I will relate this is a completely misleading account of what happened. I thus conclude that I have to be wary of the evidence that the mother gave and always consider all the possible interpretations of the evidence. This was in marked contrast to the blunt honesty of the father. I also take into account the way in which she gave her evidence. She was confrontational and I had to warn her about her conduct early in the cross examination when she seemed to be losing her temper. On occasions she was only too happy to try to introduce irrelevant material such as the fact that the father had suggested that she did not work during the ancillary relief proceedings.

15. I can take the evidence of Mr Exall and Mrs W together. Mr. M took a risk that no solicitor would have done. Without knowing what these witnesses would say, he summoned them to give evidence when they had declined to come to court voluntarily. Both witnesses made it plain that they were uncomfortable in being caught between the two parties. Ms W in particular was a very close friend of the mother during 2005 and subsequently and did not want to be in court. I could not detect that they bore any ill will to the father for hauling them into court and once they were there they were determined to be honest. I found them both to be compelling and honest witnesses.

16. Mr M other witnesses were all former or present work colleagues and I had to take this into account in assessing their evidence. However it would be right to record that both Mr. D and Mr B no longer work with the father. It seems that Mr D and Mr. M parted company and divided (Company). At that time Mr B elected to follow Mr. D as opposed to the Applicant. It was thus the case that these witnesses had no current link with the Applicant and indeed had reasons not to get on with the father. As Mr. Dput it to me “We were best friends and then I stopped the business. We did not speak for a while, while we got used to this. It says a lot about the man that he did not write me off, in my view”. I thus concluded that these witnesses had no reason to be particularly well disposed to the father. Again I found them to be thoughtful and helpful witnesses. Both Mr D and Mr B were prepared to be critical of the father in their evidence saying that he lost focus at work and Mr. B explaining why he preferred to go with Mr. D following the division of (Company). While Ms R has a continuing relationship with Mr. M I again found her to be a helpful and honest witness trying to do her best to recall incidents over three years ago.

17. The same comments apply to the mother’s witnesses. I am sure that they sought to come to court to assist me. I found that GL’s recollection was hazy in places which is not surprising given that these events date back some time and given his age. Perhaps naturally they saw events through the prism of their niece’s eyes and were sympathetic to her, but I do not consider that they sought to be dishonest with the court.

THE FACTS

A.2 – The father’s involvement with H prior to 2005

18. In the schedule the mother proposes that she was the primary carer of H. At the hearing on the 29thSeptember 2008 I suggested that this was not a remarkable proposition and that it seemed to me that it may be capable of agreement. The father was prepared to agree this on the basis that it was agreed that he had played a significant part in H’s life prior to separation. On express instructions, the mother’s solicitor, Ms. A, could not accept this approach and confirmed that it was the mother’s case that Mr. M had not played a significant role in H’s life prior to the 2005 separation. To this extent the schedule is misleading, what the mother proposed was that the father played no significant role in H’s life.

19. The evidence in this respect begins with the mother’s statement of the 11th October 2005. The thrust of Mrs. M's case is contained in the following extracts:

“(Father) has enjoyed several holidays without H or me. Throughout H’s life, He has worked hard to provide materially for the family, and I remain grateful to him for that. However as a result of his prolonged absences, his relationship with H has been tenuous”[14]

And in her statement of the 21st December 2007

“By the time that H was four, she barely knew her father, I encouraged the Applicant to take H to ballet but this stopped in 2005 when H went to (School)

The Applicant describes how he took H swimming regularly. H was not allowed to swim because of a medical condition (glue ear) until she was six. By 2004 H had left (school) (which had a pool) and even the swimming trips stopped.

The Applicant left for work before H awoke and returned after she was asleep. One of the side effects of the Applicant’s condition and his medication was that he was left exhausted and would sleep, on Saturdays, beyond midday. Saturday afternoons were occupied by Hs gymnastics (something she was passionate about).

The people that witnessed us as a family were limited to those that we met on Saturdays or on holidays. H spent little time alone with her father.”[15]

Thus it is the case that the mother suggests that the father was a shadowy figure in H’s life. She confirmed this in her oral evidence.

20. Mr Mackenzie – Philps challenged this suggesting that he took H swimming regularly, that he would deliver and collect H from school and that he was the sole carer while Mrs. M was away on working trips. She denied that this was the case very often.

21. In respect of this allegation I prefer the evidence of the father. I have seen the mother’s passport. It shows that she entered Australia on the 2nd August 2002 and remained there on the 17th August 2002 when HMS Nottingham ran aground on Lord Howe Island. From the 2nd to 6th December 2002 she was in the Seychelles, between the 12th and 17th January 2003 she was in Lithuania. Thus it is plain that her work took her abroad on occasions, her recollection was that her mother helped to look after H. I prefer the father’s recollection that this was not the case. This was corroborated by Mrs W who taught at H’s then school, as well as being a close friend of Mrs. M. She told me that the father was the primary carer when the mother was away and she particularly recollected the HMS Nottingham incident. She told me that the father was a regular attender at school and that he regularly collected H from the school. She then went on to say that there were not many other fathers who did this. In other words not only did the Applicant play a significant role in Harriet’s life it was more than many other fathers. Completely the reverse of the picture that the mother sought to portray.

22. Mr E gave a graphic account of the parents living busy lives, of the Applicant running H around, taking her to gym and swimming for a couple of years. Overall he described Mr. M relationship with his daughter in the following terms, “I would say that you had a normal father daughter relationship, loving and that you played together, similar to the relationship I have with my daughter”. Ms R told me that she would say that the father’s interaction with H was normal when H was brought to the office. She described how the father would give H something to do and answer her questions. She confirmed that sometimes the father’s diary would be shifted to accommodate the collection of H or to drop Hoff at school. Mr B confirmed that H occasionally came into the office and painted the same picture as MsR. He also told me of the time when he painted the house and observed Mr. M playing ‘rolly polly’ with Ht. The neighbour, Mrs B told of a time when she saw the father teaching his daughter to ride her bike. Although she was critical of the way the father was behaving, the fact is that she observed that father was spending time with his daughter. Both Mr and Mrs L told me of a time when the Applicant failed to collect H from school. Again it was an indication that the family arrangements included the father collecting from school on occasions.

23. In short the evidence that the father played a full, diverse and significant role in H’s life was overwhelming. Indeed most of these witnesses indicated that they had observed nothing that would cause them to have concerns over contact. I am thus happy to record that the mother was the primary carer and always has been. I recognise that there were periods where Mr M was away from home and that this was a most important time in H’s development, however overall he played a full and significant role in his daughter’s life.

24. I am bound to say that the evidence in respect of this aspect of the case leaves me with a lurking concern. It seems to me that, either the mother truly believed her allegation, in which case she is at variance with all other observers and has seriously underestimated the importance of Mr. M to his daughter. Alternatively the mother did not believe the allegation but cynically sought to propagate a version of the past which she knew to be false. In this respect the comments in her witness statement on Mr B’s evidence are most misleading.[16] It may be that there is a third explanation that has eluded me and I confirm that this concern is only provisional at this stage but it is right that I should voice my thoughts in this respect.

I.67 - The incident at Starbucks on or about the 7th February 2005

25. The only evidence in this respect is that of the Applicant and the First Respondent. They are agreed that they met to discuss H using Starbucks as a neutral venue. The father says that the mother admitted that she had told H that Daddy would not live with them any more, that he did not love them and he wanted to spend more time with his girlfriends. The Applicant concedes that he became angry, described her behaviour as outrageous and that he left in a temper. He says that he got into his car and that the mother followed ranting at him about sleeping with prostitutes. He tells me that she had hold of the door and said that if he left now he would never see his daughter again. He concedes that he responded by saying, “Fuck you I will see you in court”. He tried to shut the door and says that she hung on. His account is that he said for her to let go of the door because he was driving off whether she liked it or not. She refused and the father said he would count to three and the mother was still holding on to the door it was her tough luck. He admits he counted to three and drove off and Mrs M stepped away from the door.

26. Mrs M says that she had told H that her father was behaving in a way that was unacceptable. The Applicant’s response was that he was very indignant. He jumped up, his chair fell over and the drinks spilt. According to the First Respondent, the father raged that this was completely unacceptable. She did not understand why he took exception and was trying to get him to calm down. She told me that the Applicant sat in the driver’s seat of the car and she was in front of the car. In evidence she said she was trying to get him to calm down and he drove the car at her.

27. It seems clear to me that the Applicant took exception to what the mother said and it is immaterial whether his or her version is accurate. I accept that the father was angry and Mrs M account of the drinks being spilt and Mr M storming out of the café accord with this, thus I accept her version in this respect. There is agreement that Mr. M went to his car and that the mother continued to remonstrate with him. I prefer the Applicant’s recollection that the mother was at his door as opposed to being in front of the car. It seems to me that if, as she says, she was seeking to calm him that this would be more easily achieved by being at the side window as opposed to being positioned in front of the car. I also observed that the fact that Mr. M slept with a prostitute still rankles with the First Respondent. I noticed that it was introduced into the trial on a number of irrelevant occasions, for example when the mother was suggesting that the father was a shadowy person in H’s life, she suggested that he could sleep with prostitutes because he was so rarely at home. Taking into account that this was one of the principle triggers for the separation, I am sure it was mentioned in a heated exchange with the father. I also prefer the father’s account of giving the ultimatum of counting to three, which it seems to me is entirely in character with the person I have observed in court. I also find the mother’s account of being in front of the car and yet untouched as he drove away inherently improbable. If she was in front of the car then she would be bound to be touched by the car as it was driven away.

28. On either account this was a verbal altercation in a public place between two people who had very recently separated in very distressing circumstances. I am quite sure that passions were running high. I take into account that the incident was not long after Mr. M travails of 2004 and also that the mother had every reason to feel deeply hurt and aggrieved at the father, not only for his conduct in sleeping with prostitutes. Without doubt it was an unseemly incident but I cannot typify it as anything other than an exchange of angry words between two people hurting and coming to terms with the breakdown of their marriage. I specifically reject any suggestion that the father deliberately drove at Mrs. M Rather it seems to me that his principle motivation was to remove himself from the presence of the mother.

B.7 – The Incident at (Company) on the 23rd March 2005.

29. On any account this was a serious incident which has had a profound effect on H. It is plain that there had been an acrimonious conversation between the Applicant and the First Respondent. The mother’s account is that Mr. M had announced that he was going to buy a flat to live in. It was her view that this was not financially viable and would inevitably lead to the removal of H from School where she was privately educated and to the sale of (address), her home. In oral evidence she accepted that she went to the offices of (company) with H. She conceded in evidence that the purpose in going to the office was for the father to tell H to her face that she was going to have to lose her home and leave her school in contradiction to promises that had been made earlier. She tells me that she insisted that Mr. M should talk to them and they went into a small meeting room with H. Mrs. M concedes that she wanted the father to tell H the truth and that she was demanding this of the father. The suggestion is that Mr. M sent H out of the room and put his hand over Mrs M's mouth causing bruising to her eye and that he called her a crazy, mad bitch. She agrees that she called H back into the room, that she blocked the door, that the Applicant told her to get out of his way and that she refused. In evidence Mrs M said that she did not recall screaming and but did recall raising her voice. She did not deny that she can be quite forceful. She admits that she said that she would not go anywhere until he told his nine year old daughter the truth. Somewhere in all of this, the mother says that the Applicant decided to move her forcibly, grabbed her by the arms and threw her across the room during which she collided with a desk and was injured. She has a vivid memory of H witnessing the whole incident and saying for her to go. She agrees that Mr. M left the room and that she aimed a kick at him though she does not think that this connected.

30. Mr M's version is that the mother was exceedingly angry when she came into the office and that she was demanding that he tell H the truth. He says that he suggested that H should sit at a desk but that the mother said she had to come into the back office as “she needs to know what you have done”. He agrees that the parties went into the back office. He says that he was calm but that Mrs. M was ranting at him to tell H what he had done and to tell her the truth. He says that he was calm and was trying to protect H and sent her out of the room. He agrees that he said “You fucking sick bitch and “what the hell do you think that you are doing – you are terrorising our daughter”. He says that Mrs M called H into the room and continued shouting at him. He told me in evidence:

“I said that I was going to leave and call the police. She [Mrs M] blocked doorway and I asked her to move and she refused and put a stupid face on and folded her arms and leaned against the door. I said I am going to ask you to move from the doorway or I am going to have to move you. I said please move away from the door. I repeated that twice more and then I turned to H. I said I have asked Mummy to move away from the door three times, now I am going to have to ask her to move. I apologise for this. I turned to grab her, she kicked me on my right knee, I gripped her with both hands on the upper arm and removed her from the door. I gripped her firmly. I did use minimal force.

He agrees that Mrs. M fell over the table and that H witnessed the whole incident. He then left the room and, as he was doing so, the First Respondent kicked him. Later he went to (Location) police station but no criminal proceedings followed.

31. Mr B gave graphic evidence of Mrs. M dragging H into the office, of the mother demanding that the father tell H the truth. He talks of Mr. M trying to calm the situation and saying that it was inappropriate for this to happen in front of the staff and that they should go into the back room. He commented on how calm the father was. He told me that he heard the mother’s raised voice coming from the back room demanding that Mr. M tell H the truth and calling the father a lying cheating bastard.[17] He heard Mr. M say that he did not want to do this in front of H. Significantly he told me that he heard H say “Mummy, Daddy stop it.” After the incident the Applicant asked all his staff to write down what they had seen, leading to several contemporaneous accounts.

32. Ms R gave an account of the incident in her statement.[18] She describes the mother ‘screeching into the car park’. She recalls that both parties raised their voices and that Mr M was asking the mother to stop. Even Mr D, who was in Manchester at the time, could hear the First Respondent when he telephoned the office.

33. I am satisfied that Mrs. M was extremely angry when she went to the office. In evidence she sought to say that she was an employee and it was not unusual for her to be there. That was an ill advised attempt by her to explain away her presence. Her sole motivation in going to the office was to confront the father in the presence of her daughter and for the father to tell H that she was going to lose her school and home. I accept MsR’s unchallenged description of her screeching into the car park. I also accept MrB’s description of the mother dragging a reluctant H into the room. The independent evidence is quite clear that Mrs. M was on the offensive demanding that the father tell his daughter about the home. I am quite satisfied that, at this point, Mr. M was seeking to contain an ugly and potentially embarrassing incident taking place in front of his employees. The suggestion that the parties should go into the small meeting room was to try to prevent a public confrontation. I accept the evidence that the father was showing a proper concern that this incident was taking place in front of his daughter, both when he suggested that she sit at a desk and when he sent her out of the small interview room. I accept the evidence of Mr. B that the father was expressing concern that this incident was happening in front of H. I find that the mother was shouting at Mr. M demanding that he tell Harriet the truth. I prefer the evidence of the independent witness who heard the mother call the father a ‘lying cheating bastard’. It seems to me that the witnesses describe a marked difference between the demeanour of the parties. Mrs M was angry and seeking confrontation. The father was temporising and seeking to avoid confrontation. I find it significant that immediately before the act of physical violence on the mother, the Applicant was seeking to remove himself from the incident and she was preventing this. I accept that the father appeared calm, for example in asking the staff to write down what they had witnessed. I specifically reject the mother’s assertion that he had lost control and was like a pig. This is wholly contrary to the account of the independent witnesses and would be inconsistent with the attempts of the father to remove himself from the scene.

34. In terms of the physical violence I accept the mother’s evidence that the father put his hand over her mouth and in doing so bruised her eye. The contemporaneous accounts all testify to this injury[19] and the Applicant agrees he did this. Again it is common part between the parties that Mr. M grabbed the mother by the upper arms and forcibly removed her from the door causing her to fall and collide with the desk. Again it was agreed that the mother aimed a kick at the father and I am satisfied that this did land on the father’s back side.

35. What am I to make of this incident? The mother has sought to suggest that if I do not roundly condemn the assault on her, then I am condoning domestic abuse. I am not as I will indicate. However domestic abuse can take many forms and cannot be divorced from the context in which it occurs. In this case the force used by the father was directed to one end, silencing the mother when he put his hand over her mouth and escaping the incident and terminating it when he removed the mother from the door. It is significant that, unlike the mother, the father’s violence is focussed and directed to the end of escaping the mother’s conduct. In no sense could it be described as gratuitous. It was interesting that I asked the mother what Mr. M could have done to escape the room other than move her. Her suggestion was that he could have climbed out of the window. Given her kick at his departing body, I doubt very much that that would have prevented violence. It is possible that there was a telephone in the room, certainly Ms R thought so. If so then the father could have called the staff to release him. Of course this calls on him to think logically in a highly charged situation and might be a counsel of perfection. He could have simply remained in the room and let the mother’s anger blow itself out, but this would have been to prolong the agony for Harriet who was asking her Mummy and Daddy to stop. I have concluded that the father was left with little option but to move Mrs M as he did. I am sure that he used more force than was necessary and to this extent his conduct was abusive and it certainly caused injury to the mother. However I have to remind myself that, in the heat of the moment, a person cannot weigh to a nicety the precise amount of force required to achieve his ends.

36. This is not an end to this incident. I was concerned that the mother did not seem to understand the potential abuse by her of H. There is no hint of apology or acceptance of fault in the written evidence. The mother’s description of the incident in her first statement is positively misleading. She said:

“On 23 March this year, (father) lost his temper with me, and assaulted me in front of H. I sustained bruises on my upper arms, a black eye and back pain. I sought medical treatment, and my injuries are detailed in my medical records. Although the CPS did not prosecute (apparently because H was the only witness), they did not say that the incident had not taken place. (Father) denies the assault. H was very frightened and distressed when she witnessed (Father) throw me across an office desk”[20]

The statement of the 21st December 2007 is written in the same vein.[21] It is remarkable that her written evidence contains not a hint of acceptance that she did anything wrong. This was mirrored in her evidence in chief. I have to conclude that the most significant domestic abuse perpetrated that day was by the mother on her daughter. She is the person who should have protected her nine year old daughter, especially at a time when the parents were divorcing and thus Harriet was all the more vulnerable because her little world was being shattered by the divorce of her parents. Rather than protect her daughter, Mrs M took her to a public place with the express intention of exposing her to information that would create further worry and uncertainty to H. She wanted Mr M to tell his daughter that she was going to lose her home and her school. Two of the most important pillars sustaining ’s construct of her reality were to be fractured and broken. In doing this the mother exposed H to the probability that she would witness her parents arguing. This was an act of significant abuse which has had a lasting effect on her daughter.

37. I appreciate the fear and concern that the mother was experiencing. She concluded that she was to lose her home, she had little recent working history and was very reliant on Mr M financially. There were significant disputes about finances and the mother must have felt very vulnerable to the proposal that the father was going to buy his accommodation. I have no doubt that she was tired and exhausted by the vicissitudes of the previous year. She felt disempowered and frightened by an uncertain future. While this places her actions on the 23rd March in context, it cannot excuse them. Perhaps the supreme irony came with the first few words of evidence given to the court; she gave her address as (home address).

B.11 – Incident at (Home address) on 25th May 2005

38. The allegation is that Mr Ms broke into (address) while H and her mother were waiting for supervised contact at the home of Mr D. It is further alleged that the father damaged the front door and removed items of significant value. The allegation is admitted but the father seeks to put he incident in context and thus to excuse it. It is plain that the 25th May 2005 was a charged day. The plan was that the father and Mr El would attend home with a removal truck to take items to his new home. The move would be followed by supervised contact at the house of Mr. D. On any view this was an ambitious timetable. It is plain that it ran into problems early on when it took the father and Mr. E longer to move the items than was anticipated. It is also plain that Mr. M was not happy to find that some items from the home had been secreted elsewhere. By the time that he had completed the move he was running late for the contact session.

39. It is agreed that Mrs. M was slightly late for the contact through no fault of her own, however that meant that she was less inconvenienced then she would otherwise have been. There is then a conflict in the evidence. Mr D told me that he received a call from the father saying he was running late. The First Respondent was frustrated and said that this demonstrated a lack of care on Mr M’ part. Mr D thought that H may well have been present at the time that this was said. Mr D remonstrated with the mother and said that this was a big day and that the Applicant was on the way. The mother responded by saying that if the father was not there then she wanted to leave. Mr D agreed that this was fine and that H could join Mr. M when he arrived. It seems that the mother responded that if she was leaving she was going to take H with her if the father could not be bothered to turn up on time. In evidence Mr. D told me that he said that was not necessary, as the father was on his way and would be there shortly. He phoned Mr. M who was fifteen minutes away. However the mother said she had had enough and left with H.

40. The mother contests this version. She says that she had a dinner appointment to go to and to prolong the contact by an hour or hour and half was not feasible. She says that she could not face an altercation, she was irritated and she felt disregarded. She says that she waited an hour and at that time Mr. M was not fifteen minutes away but over half an hour away. She also says that the call was taken not by Mr. D as he told me, but by his wife. I recall the comments that I have made about the quality of the evidence above. I also note that none of the disagreement on who took the call or the timing was put to Mr. Din cross examination. Therefore, on balance, I consider that Mr. D recollection is to be preferred and I accept it.

41. To a certain extent this has only marginal significance because it is accepted that the father did not see H that day. Again it is agreed that he returned to (address). He agrees that he did expect the mother and H to arrive. He told me that he probably wanted to give the mother a piece of his mind and that she had deliberately frustrated contact He agrees that the First Respondent would have known very well what he would have done and that he would have got upset and shouted. Mr D told me that Mr. M was seeing red. It was a mark of his honesty that Mr. D told me that he had questioned whether it was wise for the Applicant to return to the house and the father ignored this. In the event the mother did not return to the Oast. It seems that Mr. M telephoned a friend who was a solicitor who advised that as the house was in joint names, he could go back into the property. This he did by forcing an entry and removed other items.

42. It was plain to me that the father has never really appreciated the corrosive effect of this incident. It was only when I questioned him that he seemed to agree that there was a distinction between a ‘house’ and a ‘home’. While this may have been a property in joint names, it was Mrs. M and H’s home. That home was invaded by means of a forced entry and another aspect of H’s fragile security was shattered by one of her parents. The father does not seem to have appreciated how important it is to a young person to feel secure and that their home should be an inviolate place where they can retreat and feel secure. Similar considerations apply to Mrs. M. She was going through a divorce that was rapidly unravelling into a damaging and aggressive affair. I have already referred to how vulnerable she must have felt at the time. She too was entitled to the security of a home, to a place where she could feel safe and could relax as far as circumstances permitted this. To find that a person who was ill disposed to her had been through her private space was calculated to destroy that sense of security. Indeed the law now appreciates that psychological violence can be every bit as damaging as a physical blow if not more so. A bruise may take a couple of weeks to heal, a damaged mind can take much longer to mend and can have a much more extensive effect on a person’s health and welfare. In my judgment this was a more pronounced incident of domestic violence by the father than the incident of the 23rd March 2005.

B.20 – The return of the Applicant to (Home address) on 27th September 2005.

B.27 – The forced entry of the Applicant into (empty property) on the 1st December 2006.

43. It is convenient for me to now turn to two similar incidents. Both of them involve further invasions of the mother’s security by returns to Bullion Oast. By way of background the father gave an undertaking to the court on 27th June 2005:

Not to intimidate, harass or pester the Applicant and not to instruct encourage or in any way suggest any other person should do so.

Not to return not the former matrimonial home known as (address) or to enter or attempt to enter the said property.[22]

This undertaking was given to protect the security of the mother for the reasons that I have just alluded to. It is accepted that on the 27th September 2005 at about 10.30 in the evening Mr. M came to (address) and delivered a letter, on the envelope o which was written ‘By hand, by me breaking all the rules’. It happened that Mrs W was visiting her friend at the time and she gave evidence that the mother became agitated and was genuinely scared of the Applicant. I accept this evidence which reflects the matters that I referred to above and the corrosive effect that such behaviour can have.

44. The second incident has already been proved to the criminal standard. After the First Respondent had gone to live in Jersey the Applicant corresponded with (the wife’s solicitors) indicating an intention to return to the Oast as it was lying dormant and was falling into disrepair. Eventually on or about the 1st December 2006 he made good on his promise and broke back into the property causing damage to the property. That was the subject of committal proceedings and on the 12th December 2006 I sentenced Mr. M to seven days imprisonment for the breach and a further seven days for breach of an earlier sentence imposed for an earlier breach on the 27th October 2006.[23]

45. Of the two incidents, the former is the more serious, it being a further intrusion into the mother’s home. I will not repeat the comments that I made in relation to the incident of the 25th May 2005 but they hold equally in relation to this incident. In particular I bear in mind that the mother was in the property on this occasion, that it was late at night and the effect that Mrs W witnessed. The latter incident was a break into a home that was going to be rented in any event and, while it was an irritation to the mother it did not represent the same immediate intrusion into her security bearing in mind that she was by that time living outside the jurisdiction.

46. Next I turn to a number of allegations that the father made threats to the mother.

B14 – The letter of the 21st August 2005.

B17 – The threat made at court on the 1st September 2005.

B21 – The threat made at court on the 13th October 2005.

B23 – The letter of the 20th December 2005.

B26 – The telephone call of the 31st March 2006.

47. These five allegations all comprise various threats made by the Applicant to the First Respondent. The first is that the Applicant wrote to the First Respondent’s solicitor saying “Do please pass to your client. I will see her in hell before I give the parasite another penny”.[24] This is admitted. In the same tenor is the letter of 20th December 2005.[25] In the letter the father says that the mother is no better than the guards at Dachau, Belsen or Auschwitz and that “I am beyond being patient, reasonable or expecting the law to do the right thing”. In fact is the latter comment that is complained of in the schedule. Again the authorship of the letter is admitted. In respect of the latter. Mrs. M says that she found this particularly hurtful as she was educated in the Jewish religion and that she is particularly sensitive to the holocaust. I accept this.

48. Two of the allegations refer to incidents at court. Both are admitted. On the 1st September 2005 the Applicant pursued the mother into an ante room and said words to the effect that if she opened any more of his post he would kill her. On the second occasion the Applicant threatened to ‘unleash hell’ on the mother. In respect of the latter, the mother agreed in evidence that this occurred during a without prejudice meeting while both parties were behaving childishly and in my judgement the conversation has to be seen in the context of a heated conversation where both parties were falling short of the sort of behaviour they would expect.

49. The final allegation here is that the father said, “M, you are not afraid of me at all, which is shame because you really should be. There we go. Nothing is going to happen to you whilst H is growing up.” There is no dispute that this was said and indeed I have had the advantage of listening to a recording of the call. At the time the mother was working for a bank in Jersey who routinely record all the calls made to the bank. Thus a transcript of the call is found in the bundle.[26]

50. I confess that, save for the last allegation, I am somewhat surprised that, given the First Respondent had only a limited number of allegations to rely upon she chose to rely on these. They are not particularly pleasant, but I am not sure how relevant one party saying “I am beyond being patient, reasonable or expecting the law to do the right thing” is in relation to contact with a child. These are really no more than outbursts of frustration of the Applicant in a particularly acrimonious divorce where his mother was seeking to severely limit his contact with his daughter. I place the reference to the concentration camps guards and the telephone call in a slightly different category. There is no doubt that the former was designed to hurt the First Respondent and to touch a raw nerve. It is plain that it succeeded in that and that the mother was upset by it.

51. The phone call is interesting in that I have had an opportunity to hear the tone of the voices and not just the words. It is plain that during the call the Applicant is becoming heated because he is not seeing his daughter. However it is quite clear that the mother is prepared to continue the conversation and attack the father. He says that he will talk to her later and she takes up the mantle telling him how sick she is of hearing his ‘poor me’ stuff. This really is a most insensitive line to take with a man who was having no meaningful contact with his daughter. I do not seek to criticise the mother but I do think that she has to understand that her actions have to be judged by the same yardstick as the Applicants’. Neither has been behaving particularly well to each other and it might be unrealistic to expect two people who clearly have strong feelings to behave more decorously. . The difficulty I have with this is that it is clear that the phone call ends abruptly. It is said by the mother that father terminated the call, but this does not account for the sudden and complete silence at the end of the recording, compared with the sound of the ringing tone at the start of the call. I am thus reluctant to say that I have got the bottom of this call. If it ends as it does on the recording then the threat is unacceptable, but I am not satisfied on a balance of probabilities that this is the case. I have no evidence as to how the recording was taken and the father contests that this is the full call. I am with him on that point.

B.12 – false allegations that the mother has been reported to social services.

52. The allegation the First Respondent seeks to prove is that that the father has made false allegations to third parties that the mother has been reported to social services by the police with regard to her treatment of Harriet and has requested police to involve the suitability of the mother to care for Harriet. I have been referred to a letter written on the 18th April 2005 by the Applicant to the First Respondent[27] in which he says

“My biggest concern in all of this has been H’s welfare. It was a shock to hear that DC T has referred H to social services based on her concerns over your behaviour not mine”

This is a reference to the consequences of the incident 23rd March 2005 to which I have already referred. It is said that Mr M could not have believed this because DS M of (X) Police Station wrote to the mother’s solicitors on the 8th September 2005:

I spoke to your client on the 29th April and advised her that I would not be making a referral to social services at that stage, provided both parents dealt with their marriage breakdown in a more clam and mature way and showed a degree of responsibility to their daughter. M assured me that she would do everything in her power to achieve this and hoped her father would do the same.

At no time have I referred this matter to social services and there has been nothing since that has changed my mind on the matter”.[28]

Next the mother relies on a letter written by the Applicant to the First Respondent on the 20th December 2005 which contains the following lines:

“I will no longer stand by and not act, H needs me, her father more than I knew and, she needs some balance and sanity in her life after a year when anything and everything she has known has been turned upside down by YOUR actions not mine. H needs you too. The old you! The you that wasn’t bent on extermination. She needs us both. THINK what do you want the future of our daughter to be? A child who has two parents who love her equally and although apart are there for her who care for her and act as good role models? A future in care without either parent to fall back on? Your actions now dictate the future. Seeds and Fruits REMEMBER! Remember Mockerkin RED BLUE exercise.”[29]

By way of explanation Mr. M told the Guardian’s counsel, “an objective person might have made a reference to social services, because I think both of our behaviour felt short of what might be expected. We mentally abused the child and I am not proud of that.”

53. In terms of the allegation the mother sought to prove, she has failed. The communications are all between the father and the mother and not to third parties. However it is true that the father did ask the police to investigate the mother’s care of Harriet following the incident of the 23rd March 2005. I am not surprised, and had I been aware of the full facts when this case first came before me, I would have given active consideration to referring the matter to social services myself under s.37 of Children Act. I do not propose to repeat the comments that I have already made in relation to that incident. Suffice it to say that, given the current guidelines on the reference of domestic abuse to social services, I am surprised that the police did not refer. The father is quite right when he says that an objective person might have referred to social services. I note that those who did witness the incident were so concerned about H that they were considering involving the police which can frequently lead to a referral to social services. It was suggested in cross examination that the father knew that there had not been a reference to social services when he wrote the letter of the 18th April 2005 and that DS M letter went to prove that. However I note that the conversation referred to in the letter post dated the letter written by the father and, unless the mother could satisfy me that Mr. M was privy to the information vouchsafed on the 29th April when he wrote the letter of the 18th then there is nothing in that point. I am not so satisfied as there is no evidence on the point. I find nothing objectionable in either of the letters written given the context of what had happened and was happening at the time.

54. The next allegations all relate to the father’s behaviour towards H, alleging that he physically chastised her and that he was insensitive and inappropriate in relation to his parenting.

C35 – Prior to the separation the neighbour witnessed the father shouting at H.

C43 – on 7th January 2006 the father behaved in a bullying way to H

55. The sole witness called by the mother in relation to the first allegation was the neighbour Mrs B. I listened carefully to her evidence and I have read her statement.[30] She is the neighbour of the parties and has a close relationship with H. In her statement she relates two incidents of shouting. On the first occasion Ms. B witnessed the father shouting for H to get into the car and calling her ‘a big girls blouse’. The second occasion was when she saw Mr. M teaching his daughter to ride her bike in the lane. She tells me that the Applicant was shouting at H who was unhappy. In her oral evidence her main concern over Mr. M shouting at H in relation to the car was that he was showing a lack of patience with her. Mr M has no specific recall of the incident but accepted in evidence that he probably did shout at H and was impatient. I thus find that this incident is proved.

56. In relation to the bike incident, the father does remember this. He told me that he was teaching H to ride and that he tended to do the more robust things with H, because Mrs. M has a bad back. On this occasion H had fallen off her bike into a patch of stinging nettles, he was concerned that she might be put off riding and thus forced her back on the bike and was shouting encouragement. He is perfectly prepared to accept that H was crying.

57. There are marked similarities between this incident and that witnessed by Mr and Mrs L on the 7th January 2007. GL told me that the father was goading H to go on a ride which he felt was inappropriate. Mr M was asking whether H wanted some excitement in her life. LL felt that the Applicant was insisting that H should go on the rides as he had bought the tokens. The father accepts that he was encouraging H to go on rides.

58. Taking this evidence together I am satisfied that Mr. M can on occasions lose patience with H. In this respect he is no different from any other parent. It is easy for a court to become censorious and apply a counsel of perfection, losing sight of the fact that parents operate in the real world and they are not all saints all of the time. However it has to be recognised that each parent has their own parenting style and some children will respond better to quiet encouragement than more robust criticism. I fear that there is something of the parade ground in the images that are painted by Ms. Band Mr and Mrs. L. While that may work well and be essential for a company of Royal Marines in the Gulf, it may be less successful with a young girl. I accept the accounts of Ms. B and Mr and Mrs L and hope that Mr. M will reflect on whether his style with Harriet should be more sensitive if he is to have contact with her.

C36 – on 12th February 2005 the father told H that he had slept with a prostitute

59. This incident is accepted. I have already alluded to it above and explained the unfortunate consequences of feeding this information to a child who could plainly not understand it let alone deal with the ramifications. There is no avoiding the conclusion that this was a serious error of judgment on Mr. M part. I appreciate that his own life experience had led him to conclude that one should always be honest with a child where the parents are separating. However that approach has to be tempered with an appreciation of the knowledge that a child can cope with and the sensitivity with which it is delivered. It is abundantly clear that it was wrong to disclose this information to H at her age and maturity. The Applicant now accepts this. However I am bound to say that this must raise issues about whether his approach to H has been age appropriate and whether contact in the future would expose her to further distress.

C33 – In 2000 the father smacked H and threatened to lock her in her room.

C34 – In 2005 the father pinned H against the wall in the family home.

C39 – On 25th September 2005 the father inappropriately physically restrained H.

60. These three allegations bring together suggestions of excessive chastisement and have to be seen in the context of the findings I have just made.

61. I can deal with the incident on the 25th September 2005 relatively briefly. It is alleged that the father held H’s wrist above her head and that this was inappropriate physical restraint. This occurred on a supervised visit at the home of Mr and Mrs E. The father accepts that H was behaving badly and was hitting him. He felt that he was in a cleft stick. If he sought to do anything about this he ran the risk that this would be used against him in this case, but if he did nothing then he was failing in his duty to draw the appropriate boundaries for H, especially as she was at the home of another. His version is that he did not put H’s hand above her head, rather that he squatted down and held her wrists telling her that she would sit on the kitchen step until she apologised. This she did.

62. Of course Mrs. M was not present during this incident but I heard from Mr E who was present. He told me that the father behaved entirely appropriately and told H off, as any father would have done. He also went on to say that he had never seen Mr. M excessively violent to his daughter. He described both the mother and father as appropriate in setting boundaries and firm but fair. I accept the evidence of Mr. E who was very honest and balanced in his testimony and accordingly the First Respondent has failed to prove this incident.

63. Turning to the incident in 2000. The parties are agreed that H went from a cot to a bed at an early stage and, like many children, was inquisitive and did not like being sent to bed when adults were still up. They are agreed that they both had to firmly return H to bed to discourage this behaviour. The mother says that the father went beyond this and she told me that she had a vivid recollection of H standing at the top of the stairs. Her bed was on the top floor of a three storey house and H was on the first stairs. She was standing with her back to the wall and the father was between H and her. She says that he was shouting words to the effect of, “I will have some fucking respect in the house if it is the last thing I do.” He had smacked H and marked her skin. Mrs M was remonstrating with the father and trying to get to H. She told me that she said to the father that all he was doing was frightening H and this would not be successful in achieving his aims. In support of the allegation she has produced an attendance note of her solicitor dated the 17th August 2000.[31]

64. Mr M accepts that there was such an incident and that he did smack H. He says that this was not hard and more in the nature of a tap on the bottom. He does not accept that H had a urinary tract infection. He agrees that he held H’s door shut and says that the mother did the same. He is not surprised that the mother went to see solicitors. He says that, at the time, he was in High Wycombe and living away from home during the week. The relationship with the mother was not going very well and thus the mother might go to a solicitor. The implication is that the mother might have been laying the ground for future proceedings. It is plain from the attendance note that the mother is not happy with the marriage and that divorce was discussed. Solicitor’s impression being that the mother would stick with the marriage but for the child. The implication being that she will not stick with the marriage.

65. There is a plain discrepancy between the mother’s account and that of the father. I accept that their relationship was plainly going through a difficult period, that much is clear from both accounts. It is also clear that H was getting up in the night. The question is whether I can say on a balance of probabilities that the mother’s account is correct. I am not so satisfied. I take into account the comments that I have already made about the respective accuracy of the accounts of the mother and father. I also take into account that I have witnessed at first hand, in relation to the incident of the 23rdMarch 2005, the gulf between the mother’s written accounts and the reality. I also find myself wondering whether this is not ancient history with no direct relevance to the issue of whether H should see her father. It was after this period that the mother went abroad on a number of occasions and was content for the father to be the primary carer, for example when she went to Lord Howe Island. I also take into account the matters that the mother entered at question 8 in the Statement of Arrangements filed with the divorce. At that time she was proposing that that H would be staying with her father overnight.[32] Thus one must conclude that the matters that predate February 2005 had resolved themselves in the mother’s mind to the extent that she felt that they no longer impacted on contact.

66. The final allegation in this sequence relates to a suggestion that the father pinned H against the wall at the family home by holding her wrists together and would not release her until she apologised for being rude. The mother has no direct evidence of this and is only re-iterating that which H had told to her.[33] The father told me that he did not recall this incident. It is quite possible that he has held H’s hands together but not above her head, only by her side and he would sit her on the step. He felt that this was acceptable chastisement and that the mother would do the same. I am struck by the similarity between this account and that of the 25th September 2005, which I have already addressed. There was no evidence to support the allegation on that occasion and then there was an independent witness. On this occasion there is no direct evidence and I am not satisfied that the mother has proved her case.

C38 – The supervised contact in 2005 and 2006 was not a positive experience

C40 - On the 3rd December 2005 the father says to Harriet that she is cruel.

C41 – On the 21st December 2005 the father compares the mother the white witch of

Nania

67. These three allegations all concern the quality of contact and the appropriateness of Mr. M conversations with H. It is suggested that the father used the contact to denigrate the mother.

68. I start by considering the overall evidence in relation to contact and the quality of contact. Of course Mrs. M was not present during the contact visits and I am more likely to obtain an objective view from the independent witnesses, namely Mr E, Mrs W, G&L L. It was striking that the evidence and experience of Mr E and Mrs W mirrored each other. I remind myself that these witnesses were friends of the mother and had been compelled to come to court as a consequence of a witness summons. They had no reason to thank the father for putting them in this position.

69. MrE told me of two visits that he supervised. On the first H was moody and petulant and showed signs of being upset at the start of contact. He commented that this was unlike her. She was so badly behaved that he had to tell H off. He said in cross examination that Mr. M disciplined her appropriately and the petulance wore off during the visit. On the second occasion H was more herself. Mrs W gave a similar picture of the H misbehaving at the start of contact and being petulant at the table, spilling her drink. She said that Mr. M dealt with the matter entirely appropriately. Of some significance were her observations of contact on the following day. Again H was negative at the start of contact but improved during the visit to a point where all were enjoying the contact so much that they stayed for one more ride and were late for Mrs M.

70. If I confine my consideration to those who are unconnected with the Respondent’s family it is plain that H found the initial move from her mother to her father, unsettling and that she exhibited bad behaviour, petulance and anger at the start of the contact. However as each contact progressed, the father overcame this to a point where the contact was a positive experience nurtured by the good sense and appropriate discipline of the father. Far from this being a negative experience for H it seems to me that this was a positive interaction between her and her father and that the father’s behaviour not only assisted but enriched the experience for H. Again I must express my concerns that the mother seems to have painted the father as a person who is incapable of having a positive relationship with his daughter. She has latched on to any negatives that she could find and does not seem to have taken the time to consider the broader picture painted by those outside the swirling currents of the mutual acrimony of father and mother. How far H has appreciated the mother’s antipathy to her father really belongs to the future hearing, but just as I expressed concern that the mother has sought to minimise the father’s role in H’s life. I have similar concerns that in this trial, the mother has painted positive interaction as negative and prayed it in aid of an attempt to prevent any contact.

71. The above is predicated on the assumption that the evidence was limited to that of Mr. E and Ms. W which is not the case. I cannot properly consider this aspect of the case without considering the evidence of Mr. and Mrs L[34] LL gave me evidence of the harrowing condition that H was in prior to the contact on the 8th January 2006, that she was in floods of tears and begging not to go and needed considerable reassurance. She told me:

“She was beside herself and in desperation, she knew I would be involved in the visitation the following day. I went to H’s room to find her in bed and crying her heart out. It was clear she had been crying for a few hours and all H could say was’ please do not make me go’. M was in the room and M was not talking and leaving it to me to reassure H. I said that there was a court order requiring visits. I felt it was my role to ensure it did not fall through. I said that I would be with her every minute. She quietened down a bit but said that she still did not want to go. She was very quiet, subdued the following morning. She said nothing about the contact and knew she was going on visit.”

I was left in no doubt that both Mr &Mrs L witnessed a girl who was deeply distressed at the thought of seeing her father. I accept this evidence and that the above is an accurate account of the contact.

72. Matters got worse on the 8th January 2007 when it was clear that H was hardly talking to her father over lunch. It seems that he asked for time alone with H at the end of which he left the restaurant saying that they had won and he would not be back. By this he meant that the family had turned H against him. I accept that evidence of Mr & Mrs L in this respect. I cannot see that Mr. M conduct in leaving H as he did was conducive to their relationship. It seems that this was another example of his giving into emotions without considering where the best interests of his daughter lay. This was not a positive last image to leave her with.

73. However this is not really core of this issue. What am I to make of the different observations of the Ls as opposed to Mr. E and Ms W? My first reaction was that, as H and the mother moved away from the father and into the orbit of Mr. and Mrs. L who were neighbours in Jersey, that H became more opposed to her father. However it is clear that this hypothesis is not consistent with the evidence of Mrs W. She supervised contact shortly earlier in December in Jersey and experienced a similar reaction to Mr. E in England. I consider that it is premature to say other than that it is clear that the evidence points to H becoming more upset and insecure when supervision was taking place in the mother’s family. An investigation of the mechanics of this belongs to the next trial.

74. The allegation of the 3rd December 2005 that the father said to H, “You are just like you mother you are cruel and enjoy hurting me” is found in the mother’s affidavit of the 21st December 2007.[35] The sole source for this allegation is H. She has shown herself to be unreliable in her reports to her mother in relation to discipline as I have found earlier in this judgment. I cannot accept the accuracy of the report on this occasion. It is not proved.

75. The final incident in this group relates to the 21st December 2005, when it is said that the father said to H “Don’t you think your mother is like the White Witch of Narnia?” and when she spilt her drink, he said “Frankly H you deserve that”. The former comment is denied and the latter is accepted.

76. Mrs W told me in evidence that she heard no comment about the White Witch of Narnia. Mr L refers to the incident in passing in his witness statement.[36] On balance I am prepared to accept that this comment was made and that Mrs W simply did not hear it. I have been told that the Respondent would on occasions refer to herself as a white witch in a jovial way. So there is a context for such a comment. The difficulty I have is that the evidence of this matter is very sparse and confined to the assertion that it was made. It is also juxtaposed with the incident of the spilt drink which I turn to in a minute. In summary I find that the father behaved entirely appropriately towards H and that the criticism in Mr. L's evidence is unfounded. I thus conclude that Mr. L was naturally being supportive of his niece and has a tendency to find fault where none exists. In these circumstances I can draw no real conclusions from the fact that this statement was made.

77. Thus I turn to the incident of the spilt drink It seems that the father tried to kiss his daughter at a restaurant and she shied away and in doing so spilt her drink. To which the father said “Frankly H you deserve that”. As I have indicated, the incident is accepted. The father said that the comment was made in a light humorous way. Again the incident is contained in the witness statement of Mr L.[37] However Mrs W also gave evidence in relation to the incident. She told me:

“During lunch everything was alright and all was going fine until H started to behave in a negative way. She spilt a drink which caused a furore and she was hitting you [the father] from a chair. It was not good behaviour. I think that you were quite calm and tried to calm things as did M’s uncle. At all times there were adults present.”

Thus there is no hint of criticism in Mrs W’s observations, quite the contrary she talks of how calm the father was and how he tried to calm things. I thus conclude that the incident happened as Mrs W has described and that Mr. M was entirely appropriate in his parenting.

78. The mother then goes on to criticise the father for the manner of the indirect contact.

D.45 – The father continues to write to H in inappropriate terms and send

inappropriate items.

D.46 – Examples of the items in question

79. It is convenient to deal with these two items together as the second allegation is really particularisation of the first allegation. The items complained of are a box containing a 2” square of wood with the message ”If I never see you again, remember this is all I will ever give you. If we see each other again, it will be much more”, letters of 4th December 2005, 14th May 2006 and the 21st May 2006, Harry Potter postcards, a video entitled ‘Liar, Liar’ and another video, ‘Click’ with a 13 classification. It is admitted that all the items were sent.

80. The father had seen the classification 13 video and felt that it might amuse H. He did not notice the warnings on the box and accepts that it was inappropriate to send this to H.

81. In relation to the box, I have seen the card that was sent with this. Mr M says that the present was not meant to be opened and that it was just a ‘stocking filler’. I have to ask myself how a young girl would interpret the message aside from any adult subtleties. Bearing in mind the wording and the time at which it was sent I am sure that H would have interpreted this as an inducement for her to see her and in these circumstances it was not the most sensitive gift to send.

82. In relation to the letter of the 4th December 2005[38]. This is addressed to H and her mother and contains the lines:

“I am no longer willing to beg demand or fight through the courts to see you H. Your mother has done everything it is possible to do within the law to stop us having any sort of relationship. I have jumped through every hoop your mother and the courts have asked me to jump through. In spite of all this I am still treated like scum. Enough is Enough”

In evidence the father said that he did not intend for H to see this. I cannot accept that this is accurate. He might have expected that the mother would, quite properly, have vetted the letter and protect H from a wholly inappropriate letter of this nature. However there is no escaping the fact that these comments are addressed to Harriet as is the letter. The father went so far as to say in evidence that he did not feel that it was inappropriate for H to see this letter.

83. Turning to the letter of the 14th May 2006.[39] This is a letter written from New York to H. It contains the lines:

“I could make no sense of why I had not seen you in 4 months 6 days. There is no real reason other than we have failed you as parents . We have failed to help you understand that life is not a fairy story with ‘they lived happily ever after’. We failed to protect you from our pain and hurt which so often comes out as anger and fighting in grown ups……

I believe that the only reason why I am not seeing you is because you feel that is what Mummy wants and to punish me for breaking up the family. Or Mummy is stopping you in order to hurt me. I hope that is not the case.

I think H I have been punished enough now. I have given you and Mummy the house, the flat and all the money form grandma plus all the furniture and things in the house. That’s everything but it still appears not to be enough. Mummy has you, a new job, a new start and enough money to keep you and her comfortably off for the rest of your lives. I have nothing left to give other than my love and have to start again. I think that is punishment enough for asking for a divorce!”

In evidence the father again felt that this was an appropriate communication for a ten year old. I do not. It is a plain attack on H’s mother, it involves H in financial matters, it is a very hurt and accusatory letter. It is calculated to expose H to matters that were bound to cause her concern and upset. Mr. M said that H had all the Harry Potter books and he wanted to expose her to a different reality where it did not all end happily. Of course, in doing so, the father was robbing his daughter of her innocence and her childhood. This was an inappropriate communication to send to any child of her age.

84. I heard no real evidence in relation to the letter of the 21st May[40] I have read the letter, while it is appropriate in places, it does contain lines concerning the pain that he is feeling and how broken his heart is. While this letter is in a different league from the previous letter, it is still exposing H to information and emotions that will not help her to thrive.

85. Overall these letters cause me some concern. I have already commented on the inability of the father to temper his actions to meet the age and maturity of his daughter. He seems to spend no time in considering the effect of the letter on his daughter, of thinking through the ramifications for her young life. In truth these letters are the self indulgent outpourings of a man who is very hurt and upset and cannot control his emotions to an appropriate level. Now I appreciate that this belongs to a very turbulent passage of Mr. M’ life and that a lot more water has flowed under the bridge since then. However these concerns inevitably mean that I will have to consider whether it is safe to let the father have contact with his daughter if this is going to lead to her being exposed to inappropriate and harmful information. I know that he has strong views concerning dealing honestly with children in divorce. I appreciate that these views are rooted in his own childhood experiences. However there is a danger that one can go to far the other way and gratuitously expose a child to psychological harm. One of the aspects of loving a child is putting them first and tempering ones impulses to ensure that their lives and happiness are not destroyed on the alter of brutal honesty. There are ways of imparting the truth which are consistent with a child’s development and needs. These letters suggest that this is a message the father has yet to learn. The fact that he told me in evidence that these were appropriate communications suggests that the passage of time has done nothing to foster an insight in the father.

86. The Harry Potter postcards are found in the bundle.[41] The mother claims that these are ill disguised attacks on her and calculated to place H in the conflict between her parents. Both cards are short and I will quote then in full.

The first card is of Draco Malvoy who represents dark forces in the Harry Potter books. The text says:

“Exposed to the Dark Side? Don’t listen to Harry. Not too late to join this house H! I hear there are certain bits of you that make sense here!

Draco”

The second card says:

“Hope you are looking forward to the Easter Hols.

Wondered if a quick quote quill might help recovery from the ‘nowriting’ curse that has been placed on you by Voldemort.

Harry”

The father denied that there was anything sinister in these cards and that the first quote was a reflection of a dilemma that Harry faces in the books and that the reference to Voldemort (an evil character) is not to the mother. At one level the father’s explanation is not relevant. Of more importance is the way in which the cards are received, not in the way they are sent. I take into account that the father was quite prepared to expose H to naked criticism of her mother (see for example the letter of the 14th May 2006). I take into account that Mr. M blamed the mother for his daughter’s lack of communication. Against this background it would be entirely sensible to place on the cards the interpretation that the mother does. Equally I am sure that there is a substantial risk that H would interpret them in the same way.

87. At another level it is important to consider the father’s motivation in sending these cards. I have to decide whether these are the actions of an insensitive person, unable to understand that his communications may be open to some other interpretation or a person who knew full well what the interpretation was and was happy to proceed on that basis. I find that the latter is the correct interpretation. The reference to Voldemort in the second card is entirely consistent with the comments that the father had made in earlier letters. These cards were an ill disguised attack on the mother and another example of one of these parents elevating their mutual antipathy over the needs of their daughter.

88. In relation to the video ‘Liar, Liar’, this is about a father who is a workaholic and gets a second chance with his family. It forms part of a pattern of the father sending presents with a subliminal message but is no more than that and in a wholly different league from the letters and suggests that Mrs. M may be slightly oversensitive about this.

F53 – The mother has sent appropriate informative letters to the father

89. The mother asserts that she has sent appropriate letters. Examples of these are found in the bundle.[42] In preparing this judgment I have re-read all those letters, they helpful and informative letters and I agree that the mother has sent regular and appropriate communications. The father complains that he did not know where his daughter lived and that he had not received photos of H. With regard the latter the mother explained that she had concerns about her personal safety and that she did not want the father to have photos which might reveal where she was living with H. She also told me that her camera was broken, though conceded that Mr. M had sent H a digital one. She then told me

“I am not prepared for the next six years to be dogged by accusation that H is, not properly clothed or not properly fed. I am not prepared to put up with the vicious allegations. If I send things to him there is a snotty comment back I do not want him following me or opportunities to find me.”

It seemed to me that this gave an important insight into the mother’s view of contact. Of course it was wholly irrelevant to the issue of why the father got no photographs but permitted me to realise that the mother was expressing a view that contact with H would lead to criticism of her and that she was not prepared to put up with that. In truth the mother’s explanations for the failure to produce photographs were paper thin. She could have used H’s camera to take photos. She could have taken those photos away from the home if she was truly concerned that Mr. M would have found her. She could have sent recent Jersey photos after her move back to the UK. I doubt that she does have concerns about Mr. M finding her as she happily volunteered that she back living in (Home address) at the start of her evidence. At best this failure to produce up to date images of H was insensitive of the mother, at worst it was a mean minded and spiteful action. In my judgment it lies between the two. The extract I have quoted from suggests that she was prepared to put her own interests before those of H and Mr. M and was somewhat indifferent to his position.

F54 – Whether H has received the communications sent by the father.

90. The father alleges that H was not given her birthday and Christmas presents and that he has come by this information via a childminder. I have heard the evidence of the mother, her Aunt and her Uncle. All agree that, save for some inappropriate items such as the letters and the ‘Click’ video the items have been given. I accept this evidence and find that a majority of the items have been received by H.

G58 – The warning to the father concerning his behaviour to his brother.

G59 – the incident in the Halifax Building Society.

91. The mother then embarks on a number of incidents where she says that the father was rude to third parties which she connects with his mental health.

92. There is no doubt that the father received a first warning for a conduct of harassment.[43] I have no real evidence about this matter beyond that. There has been no direct evidence of what happened and thus it seems to me that there is little I can say of this incident other than there is this record, which may or may not accord to reality and in circumstances of which I am unaware.

93. In relation to the Halifax there is a letter from the Halifax plc recording their view that Mr. M behaved in a threatening and aggressive behaviour.[44] Mr M concedes that he was angry and denies that he was aggressive. I have no other evidence than that. The mother seems to wish me to adopt wholesale the interpretation of the Halifax. I am not prepared to do this in absence of evidence. The incident is not proved in the terms sought.

G60 – On the 12th December 2005, the father was rude to Mr L

G62 – On the 6th April 2007 the father was angry and aggressive to Mrs L

94. Mr. L states that Mr. M arrived late for the contact on the 12th December 2005 and was rude and aggressive including saying that he was “not playing his mother’s fucking silly games any more.“. The father admits the conversation and, that while he has no specific recall of the line quoted, that he may have said it. He explained that he was tired of having his contact dictated to by the whim of the mother and that he had asked for contact to be put back because of difficulties in getting back to the airport. I accept that the incident happened. As to whether H was present, the father says not and I am not satisfied on a balance of probabilities that she was. I am bound to say that this is another episode of the father showing his anger and frustration over the contact arrangements when it was not appropriate that he should.

95. In relation to the second incident this is found at the last paragraph of Mrs L’s statement.[45] It seems that the Ls had moved and that their address was being used as a post box for the communications with Harriet. It is said that Mr. M rang and demanded to know what was going on and whether he could continue corresponding through their address. Mrs. L's oral evidence added nothing to this. There is no dispute that the call took place and that the basic thrust of the conversation is correctly recorded. Mrs Lsays the father was aggressive. He says not. There is such sparse evidence on the point and such lack of particularity that I cannot say that the father acted in a way that would objectively be seen as aggressive and angry.

C44 – The father’s failure to maintain

96. This allegation was abandoned before the trial commenced. Because it was a provable lie!

CONCLUSION

97. It will be apparent that I have had to consider a mass of evidence spanning over a wide range of issues. Neither parent has emerged from this process unscathed, there have been occasions when they have promoted their own feelings and the antipathy to their former spouse over the needs of H. It is abundantly clear that I am deeply concerned over the mother’s conduct on the 23rd March 2008 and I have considerable doubts about whether she has been able to see the father in any positive terms and been able to promote a positive image of the father to H.

98. Conversely I consider that the father’s conduct on the 25th May 2005 was enormously destructive of H’s security. I have concerns about whether the father is able to properly protect his daughter from the feelings that the parents display one to another. In truth these are two people who have been dragged down into the morass of mutual hatred where their ability to see a positive in the other is masked by the shutters of mutual recrimination. And standing between them is a young girl trying to make sense of her life. A girl who, all else being equal, would benefit from having a full relationship with both her parents.

99. It seems to me that parents blithely assume that their battles will not harm their child, they assume that a lack of knowledge of the other parent and the demonisation of the other parent will not harm their child. It happens to other children not their own. That is wrong. All the evidence indicates that a child who grows up in absence of knowledge of both parents can have difficulties in forming their own relationships in the future (divorce breeds divorce). Children in H’s position can suffer self doubt and rejection. Why did their father not want to see them? What is wrong with them that caused this? Why did they fail to keep Mum and Dad together? This may not happen this year, perhaps it will be at puberty, perhaps as they try to form their own relationships in their 20s, perhaps it will lie dormant until menopause or until there is a cataclysmic event such as the death of a mother and step mother. There is also a huge risk of damaging reverse rejection. The child suddenly discovers that the absent parent is not the devil incarnate and in fact a decent human being with the talents and failings that we all have. In this sudden knowledge they feel betrayed by the parent who withheld this knowledge from them. They feel that they have been lied to and the important years of growing with both parents have been robbed from them. In the swirling and strong emotions they reject the parent who brought them up. Parents who countenance an absence of contact without very good reason are exposing their children to huge risk of life changing emotions.

100. I want both parents to consider the foregoing. Does H deserve to be exposed to such risk? They have to consider not the actions of their opponent but how far they have contributed to this situation. I say this because

I have heard nothing in the four days of this trial that, of itself, would act as a barrier to contact.

I do not want the parties to think that I have decided that there will be contact, that will be a matter for me to decide when I have considered all the factors found in s1(3) Children Act.

101. On that note I would like to thank the parties and the lawyers for their assistance in this matter.

102. I have canvassed directions with the parties at the end of the trial and attach a proposed order. If any party ahs concerns about this order or any other comments I would wish to receive a letter (copied to all the other parties) by 4.00 p.m. on the 31st October 2008.

District Judge.

Dated :