K v K [2022] EWCA Civ 468

Court of Appeal, 8 April 2022, Sir Geoffrey Vos MR, Sir Andrew McFarlane P, and King LJ

The father in person; Jessica Lee and Lucy Maxwell for the mother

The parents married in 2005 and separated in August 2017; they had three children together, a girl born on 31 May 2009 and (twins, a boy and a girl) on 29 March 2013. Following the separation the father had regular unsupervised contact with the children.

By early 2018, the elder girl was refusing to see the father, although the twins continued to do so. In May 2018, the father moved about 130 miles away. By June 2019, the father had sold his car, because he was short of funds. He could only pick up the twins using his new partner’s vehicle, which wasn’t always available. The father therefore asked the mother to swap the contact weekends. The mother was unable to do so in the short-term, having booked to work on the father’s contact weekends and being unable to change the work rota straight away. In June 2019, there was an exchange of WhatsApp messages, in which the father expressed increasing frustration and the mother said that she would swap weekends within a few months and also that “I have never denied access to the children”. The twins subsequently spent 10 days with the father in the summer. However, thereafter, save for one weekend visit, the mother (possibly on the advice of social workers) revised the arrangement to restrict the father’s contact with the twins to a fortnightly daytime visit in their home town.

In December 2019, the father issued a court application in Form C100, complaining of parental alienation and seeking to formalise his contact time (alternate weekends and a 50/50 split of the holidays). Because Christmas was approaching, he claimed that the application was too urgent to require a MIAM. His C1A form made allegations of emotional, psychological and financial abuse by the mother. The mother’s C1A form, completed by her solicitor on her behalf, made a number of relatively minor allegations against the father and did not object to the father spending unsupervised time with the children. However, a subsequent safeguarding letter from Cafcass, produced just before the February FHDRA referred to allegations against the father that the mother had made in 2018, including rape, financial, physical, mental and controlling behaviours during the marriage; the letter advised the court to consider a fact-finding hearing. The letter also referred to a number of referrals to local social services in 2018/19, although no specific social work intervention had followed, and to an allegation that the eldest child had observed incidents of domestic abuse.

At the FHDRA in February 2020, no reference was apparently made to the claimed MIAM exemption, or to the requirement on the court to consider non-court dispute resolution at every stage. The mother’s counsel raised allegations concerning what the boy had said had school and in relation to the father’s sexual boundaries and inappropriate behaviour, suggesting that the court obtain disclosure from the family’s GP before making a decision about a fact-finding hearing. The father was acting in person. The judge himself asked whether the allegations to be resolved would include the alleged rape mentioned in the Cafcass letter. Ultimately, the judge directed a 2 day fact-finding hearing, to consider allegations of rape during the marriage, verbal abuse and bullying (in the June 2019 WhatsApp exchange), controlling behaviour, an incident in January 2018 in which the father had allegedly upset the elder child by asking questions about what the mother had said about him; an allegation that the father had encouraged the children to get into his bed whilst he and his partner were naked; physical abuse of the children (by flicking the boy’s ear and slapping his leg once); and financial control. The judge made directions for the filing of a schedule and statements and for disclosure of relevant material from the police and social services. Having heard from both parties and the Cafcass officer, the judge directed that, in the interim, the father should have supported contact during the day, once per fortnight, either with an agreed third party or at a contact centre. However, in the event, Covid 19 intervened and no direct contact took place, save between January and April 2021 at a contact centre.

At the conclusion of the fact-finding hearing, despite having identified some significant inconsistencies in her account, the judge found each of the mother’s allegations proven, except for financial control and the incident concerning the children getting into bed. He did not consider that the father’s physical chastisement of the boy amounted to physical abuse, but did consider that it had caused the boy distress.

The Cafcass case analysis of 24 November 2020, prepared under s 7 of the CA 1989 recorded the judge’s findings in the case analysis as:

“[F]indings were made against [the father] in respect of allegations of:
1. Rape – proven on balance of probabilities
2. Verbal Abuse/Bullying – proven
3. Control – proven
4. Anger/manipulation towards the children – proven on balance of probabilities

5. Physical abuse towards the children – proven.”

The case analysis continued under the heading “any harm the children have suffered or may be at risk of suffering” by saying:

“Given the findings made, [B, C and A] have suffered harm and are at risk of suffering harm due to witnessing domestic abuse against their mother. [the father’s] behaviour as described by [the mother] would have been very frightening for the children …

B has suffered physical harm although [the father] does not accept that this was abuse.”

It concluded with a recommendation that there should be no further direct contact between the children and the father, contact to be limited to one telephone call per week, together with cards and presents on birthdays, Christmas and Easter.

The father appealed. In November 2021, the judge made a final order, limiting the father to indirect contact once per month. The children had not seen the father for over 2 years.

The father argued that the judge ought to have considered his case that the mother had alienated the children, and that the factual findings that the judge had reached as to rape, coercive and controlling behaviour, and physical abuse of the children were unsound and failed to take into account the bigger picture, including significant inconsistencies in the mother’s account.