IMPORTANT NOTICE
This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved.   All persons, including representatives of the media,  must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Case No: CM12P5015
And CM14P00122
IN THE FAMILY COURT SITTING AT CHELMSFORD
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF F CHILDREN

28 July 2014

Before HHJ Lynn Roberts sitting as a Circuit Judge)
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Between :

	CD	Applicant	
	- and -		
	EF

F children	1st Respondent

 2nd -4th Respondents by their Guardian 

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Digital Transcription of Marten Walsh Cherer Ltd.,
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 Mr Graham Richardson for the Applicant
Mr  John Tughan for the First Respondent
Mr Gary Stafford for the Second to Fourth Respondents

Hearing date: 28th July 2014
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JUDGMENT
HER HONOUR JUDGE ROBERTS: 
1.	I remain concerned with the three EF children: J, a girl, who is now 10; K, a girl who is now 8; and G, a boy who is now 7.  The short judgment I am giving now needs to be read with the earlier judgment which I gave on 7th June last year.
2.	The representation today has been Mr. Richardson for the children’s mother, Jayne Adele EF now CD; Mr. Tughan for Mr. Mehmet Ali EF, the children’s father; and Mr. Stafford for the children by their Guardian, Sue Hayward.
3.	Last summer I gave a detailed judgment in the case.  There have been proceedings ongoing since 2009 and the application I was dealing with then was Mr. EF’s application to vary a contact order.  After a great deal of evidence had been heard last summer Mr. EF changed his position and consented to more or less all that was being sought on behalf of the children and by the children’s mother.  I remind myself that he was represented on that occasion as he has been today by excellent counsel.   I was left only to determine the length of an order under section 91.14 – which was agreed – against the father but I did give a detailed judgment as I feared that otherwise there would be no record of the view that the court had taken of the witnesses and the evidence and indeed the issues.   I am not going to repeat all that is in that judgment.
4.	I decided last year to keep some contact between Mr. EF and his children going and said,
“I am satisfied that to remove Mr. EF from their lives is likely to cause them a different sort of anxiety and it seems to me, on balance, to be right to see if it is possible to keep Mr. EF in their lives, but in a different way until now.”
Sadly for these children, it has transpired that it is not possible.
5.	After that hearing contact continued heavily supervised.   It was so poor and so harmful that on 12th January this year the contact supervisor, Mr. Weatherly, wrote to the Guardian and said, amongst other things,
“J, K and G are often reluctant to attend contact but then G, in particular, is reluctant to leave contact as well.   He still clings to his Dad at times.  Certainly the children often express a lot of unhappiness during the contact and feel let down by what they do during their time with their Dad.  As stated above, Mr. EF does not make the children’s welfare and happiness his priority.  It seems his one aim is to battle against Mrs. EF at the cost of the children’s emotions.  Mr. EF has said some very inappropriate things to the children at times.  All the children have suffered, especially G.  
It is my opinion that the children are being emotionally damaged by the continuing conflict between the parents and the comments made to them by their father.  Every effort is made to supervise Mr. EF closely during contacts, but he still makes inappropriate statements to the children and refuses to listen when corrected.   He continues to be a very angry man.
In my view something has to change for the sake of the children’s emotional welfare.  The EF children are in need of a lot of professional support.” [Quote unchecked]
6.	The Guardian informed the mother and Mrs. CD applied to vary or discharge the contact order.   At the first directions hearing, or indeed the second (I cannot remember now) the Guardian wanted the father assessed by a psychologist so that an understanding could be reached as to why Mr. EF behaves as he does and for any way forward to be identified.  Mr. EF made it clear – and did again today – that he would not see such a person.   Mr. EF applied through counsel but had not issued an application for a formal expert to be appointed but he applied for a family assessment by Dr. Asen.   This was opposed by Mrs. CD and the Guardian and I refused the application despite the fact that I hold Dr. Asen in the highest regard as it did not seem to me that the problem had changed from that identified last summer; in other words, it was the father’s behaviour and attitude to Mrs. CD and the children which was the problem.   I did not think it was in the children’s interests to involve them in an assessment.
7.	Mr. EF has not had contact since December.  Contact was arranged and ordered for the Guardian to attend but he did not take it up for wholly spurious reasons.  Since these current proceedings began, Mr. EF has filed two unsigned statements.   In his most recent statement he concentrates on an attack on the Guardian and repeats much of what I had already dismissed last year.  
8.	In June this year the court received a communication from the police, from memory, to suggest they wanted to see a transcript of last June’s hearing.   I have not found another copy of that letter.  I was not sitting in this court but I listed the presumed application for a hearing.  I understand the hearing did not take place as the police withdrew.  Today, at the start of the proceedings, Mr. Tughan told me that his client wanted to have the police listen to the tape and look at the transcript of the judgment because he believed that someone had interfered with the tape.  I explained for Mr. EF’s benefit that as I type my notes and my judgments and the transcript accorded with my note of what my judgment said, it was pointless to assert that the tape had been interfered with.   Mr. Tughan then said he was instructed to ask for the tape of the whole hearing to go to the police because Mr. EF believed it had been interfered with.  I refused this application.   I considered the application to be without merit and irrelevant and I thought it would be best for the court to spend its time on the application to vary or discharge contact.
9.	Mr. Tughan asked for various pauses in the proceedings so that he could discuss with his client and finally at 12:15 he said, 
“I have treble checked this wording with Mr. EF.  He intends to appeal the June 2013 order.   He is still concerned about the tapes and he has doubts about the process last summer.   The same people are involved now so he has lost confidence in this process and he will take the June 2013 decision to the Court of Appeal.   In relation to any decision that the court might make this week he has lost confidence and will appeal so he does not wish to have a trial this week and wants to go to London to appeal.”
10.	Mr. Tughan had his attention then drawn back to his client and then he turned and said to me that, “Mr. EF is now telling me he wants to see his children”.  Mr. Tughan said he had explained the process and thought that Mr. EF was declining to engage in the process.  Mr. Tughan then said he was concerned as to whether Mr. EF understands the process.   He was in difficulties because he was being asked to consider contact with the court but at the same time Mr. EF was saying he was not prepared to take part in the trial.   He felt that his instructions were ambiguous.
11.	Mr. Tughan – who, I must say, has behaved professionally throughout – was then instructed that Mr. EF was going to leave the court and wanted Mr. Tughan to leave as well.  Before he left he clarified that Mr. EF would not see a psychologist when I asked and he confirmed that Mr. EF’s first statement in these proceedings had been signed at court in front of him (Mr. Tughan) with one amendment but he did not know if his second statement had been.   I subsequently ascertained that no signed statement has been received by the court from Mr. EF this year.  That was the end of the involvement of Mr. EF and Mr. Tughan.
12.	The Guardian and the mother have had a meeting and discussed whether there should be indirect contact and, if so, how it should be managed.  They have reached an agreement.  A year ago I was of the view that the father’s direct contact with the children should proceed but it was a very finely balance decision and was influenced by the view of Mrs. CD at that time that it should continue.  Since then, after one or two successful contacts straight after the hearing, the harmful conduct of Mr. EF (which I identified last year) has gone on repeatedly until the cessation of contact at the end of last year.   I am quite satisfied that the children were all being harmed by their father’s behaviour.   Mrs. CD has had to arrange for G to have therapeutic intervention to deal with his behaviour to give one example.
13.	The mother and the Guardian have produced evidence and indeed Mr. Weatherly’s letter and reports are all to evidence of the emotional damage to the children, each of them, caused by the contact.  None of this evidence has been challenged and it is similar behaviour to Mr. EF’s behaviour leading up to the hearing last year.   It is disheartening in the extreme to read that Mr. EF learned nothing from the hearing last year despite saying through counsel that he had reached an understanding of what the Guardian and the mother were concerned about having heard the evidence last year.  I now have evidence that the children are each doing much better without contact.  G has stopped soiling, for example, and his behaviour has improved.  The school confirms the change in behaviour of the children since there has been no contact.   J and G have told the Guardian that they were fine without seeing their father and with the prospect of not seeing him.  K was more torn.  She was distressed by the prospect of contact and also showed distress at the prospect of no contact.  But the Guardian considers that she is the child who tended to be left out by her father and was consequently most anxious about her relationship with her father.
14.	The mother and the Guardian are sure now that direct contact should not be reintroduced as it would, if it happened, cause yet more emotional harm to these children.  The Guardian says in her final report:
“The refusal of Mr. EF to accept responsibility and thereby make changes in his behaviour to promote safe contact results in the emotional risk to the children from contact remaining unacceptably high.”
15.	I agree.  I should add that the Guardian has behaved professionally and expertly throughout these proceedings and indeed in the last proceedings and the criticisms and allegations made by Mr. EF are a complete nonsense.
16.	Indirect contact therefore: at first there was an issue.   Mrs. CD thought there should be none and the Guardian wanted four to six times a year.   The Guardian changed her view and has reduced the amount she thinks there should be having witnessed Mr. EF’s bizarre applications to the court today and his approach and indeed his own counsel’s doubts as to whether Mr. EF really understood the process.  It has been agreed that there should be contact with each child on his or her birthday and with the children at Christmas.  There has been agreement as to how they should initially be monitored by the Guardian and then by the mother.  I agree with that.  It is also agreed, and I order, that if anything sent is inappropriate then there is no obligation on the mother to hand it to the child.   It is also important to emphasise that any such communication should be by post.  There should be nothing hand delivered either to the mother or indeed the children directly or to the Guardian.
17.	I agree that there should be this limited form of indirect contact.  These children need to know from their father that he is all right and ideally that he is thinking and cares about them.   In all these decisions I am, of course, applying section 1 of the Children Act because it is the children’s welfare which is my paramount concern and I consider that maintaining this minimal level of contact will be of benefit to the children provided Mr. EF provides simple and loving cards and presents and does not include anything emotionally abusive. I am in no doubt that the children have suffered further harm over the last year because of Mr. EF’s behaviour towards them and Mr. EF’s attitude to the proceedings means that there is no avenue open to the court to explore.  
18.	For all these reasons I make an order that there should be no direct contact between the children and their father and the indirect contact which has been agreed and the terms are set out in the agreed order.
Gentlemen, anything I have left out?
MR. RICHARDSON:  I do not know whether your Honour wishes to say anything in the judgment concerning the amendment of the Family Law Act order?
JUDGE ROBERTS:  I see; yes, that is sensible.
JUDGE ROBERTS:
19.	Last summer I also made an order under the Family Law Act to protect Mrs. CD from some abusive behaviour that had taken place at the hands of Mr. EF and to ensure that Mr. EF did not try to see the children by going to their schools.   It will be necessary to make a small amendment to paragraph 3 of that order of 7th June.  
20.	Mr. EF had been forbidden to communicate with Mrs. EF except to an agreed e-mail address in an emergency or no more than once a month in relation to the children.   Mr. EF will be able to send the cards and presents (which I have just referred to) directly to Mrs. EF after G’s birthday next March and that will not constitute a breach of the Family Law Act order.  
21.	 Therefore the order will be amended to show that.
                       (For continuation of proceedings: please see separate transcript)