Fact finding hearing in a case where M was seeking a residence order and to relocate the child from England to Poland; and where F was also seeking a residence order so that the child could continue living in England.
Case No. FD13P00797
Neutral Citation Number is  EWHC 2877 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Date: 26th JULY 2013
MR. JUSTICE BODEY
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B E T W E E N :
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MR. SAMUEL appeared on behalf of the Applicant (Mother).
MR. DEVEREUX appeared on behalf of the Respondent (Father).
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J U D G M E N T
MR. JUSTICE BODEY:
Nothing is to be published which may lead to the identification of the child or the parties as being the subject of these proceedings.
1. This is a 'fact-finding' hearing in Private Law proceedings relating to a young boy B who was born on 26th February 2009 and is therefore aged 4 yrs 4mths. His mother, who is nominally the Applicant, is WX who was born in Poland on the 13th November 1979 and is therefore aged 33. His father, who is nominally the Respondent, is YZ, who was born in Poland on 10th February 1975 and is therefore aged 38. For convenience, I shall refer to B's parents as "the mother" and "the father". B is currently in the care of the father, in circumstances which I will come to. He looks after him with the help of his own mother and of his partner Miss E. The substantive applications underlying this fact-finding hearing are: by the mother for a Residence Order regarding B and for permission to relocate with him from England to Poland; and, by the father, for a Residence Order so that he can continue to bring B up in this country.
2. At this hearing, the mother has been represented by Mr Samuel and the father by Mr Devereux. I am grateful to them for the calm and collaborative way in which they have conducted a case which, for reasons which will appear, is of very high emotion. I have read a substantial quantity of documentation, including a huge statement by the father filed and served just one week before the hearing. I have heard verbal evidence from the mother, from her father Mr C (whom, for convenience, I will call "the grandfather") and from the father. B has a Children's Guardian, Miss J, who was appointed by Order of Mrs Justice Parker of 24th April 2013. Miss J was, however, excused attendance at this fact-finding hearing and was not present until today for the delivery of this Judgment.
3. The issues which are agreed to be the subject of this fact-finding hearing appear under headings below and will make better sense when I have said something about the background. There are also some free-standing issues which I will deal with whilst in the process of recounting the background. In all respects, the burden of establishing any given disputed matter is on the person making the allegation; and the standard is the balance of probabilities. Many points have been made by both sides which I shall not be able to deal with in a Judgment which is of necessity already lengthy; but I shall deal with those which seem the most significant, and I have all the others in mind.
4. The mother and father met either in 2003 (per the father) or 2005 (per the mother) in the USA. They began a relationship although they were never to marry. In February 2005 (per the father) or 2007 (per the mother) they relocated to England. Nothing turns on the differences of recollection about these dates. They set-up home in rented accommodation in London and both worked. The father established his own business, JK Ltd and made the mother its Company Secretary. That continues to be his line of work. In January 2008, the mother undertook an accountancy course and is now working as an accountant.
5. On 26th February 2009, B was born in England. Although the parties disagree as to the degree of caring which they both did, it is clear that the father's business took up much of his time and that, as in any traditionally-organised family unit, the mother was mainly responsible for B's care. That was the finding of the Polish Court of 26th November 2012 in Hague Convention proceedings there (which I will come to), where that Court held "...that after the child's birth, the mother was the one who, for the most part, looked after the child, whereas the father was devoted to his work only and looked after the child only occasionally." The Court did not blame the father for that situation, since he was "the sole bread winner". In a statement to the Police in August 2012 about the mother's having abducted B to Poland, the father said that he "would generally be out at work 6 days a week". On the basis of everything I have heard and read, I have no hesitation in concluding, therefore, that the mother was B's primary carer from his birth and remained so throughout the period that the parties lived together. Thereafter, that is from June 2011, she became his sole carer up until she was required by the Polish Court to transfer his care to the father in April 2013 (as I shall explain) a period of just under 2 years. On many occasions, the mother received assistance from her own mother, who would come across from Poland, since she (the mother) was trying to combine her work to a greater or lesser extent with caring for B. The paternal grandmother would also come over from Poland to assist from time to time.
6. It is common ground that, unhappily, the relationship between the mother and father deteriorated. In or about February 2011, it effectively came to an end, although the parties remained in the home in difficult circumstances for a few more months. The mother, as had been the habit during happier times, would continue to take holidays with her parents in Poland; but by this time (not unreasonably) the father was insisting on a signed undertaking to return B to this Jurisdiction before agreeing to his going. I say "not unreasonably" not because anything which he knew at that time, but because of what was to come. On several occasions, he alleges that the mother broke her undertaking by bringing B back late; but on two such alleged occasions, in April 2011 and June 2011 respectively, she has produced B's boarding pass showing beyond doubt that he (B) was returned within the period of her undertaking. I therefore reject the father's allegations about those two occasions.
7. On the other hand, the mother does accept that on a couple of occasions, possibly three, she did return to England because of her work commitments leaving B for a short time with her parents in Poland and getting the maternal grandmother to bring him back to this country. On one particular such occasion in June 2011, she simply took him out to Poland, left him with her parents for his holiday and herself returned to England, which was done without the father's knowledge. Such occasions were wrong, as the father maintains, although they were for short periods and no harm befell B.
8. Throughout much of the period between February 2011 and June 2011, the mother was trying to get the father to find alternative accommodation for himself and move out of the home. I am satisfied that the conditions in the home were tense and difficult. It comprised a small flat, with two bedrooms: one being occupied by the mother, B and the maternal grandmother; the other being occupied by the father and the paternal grandmother. Things reached a stage where the parties communicated with each other by leaving notes because, as the mother told me in evidence, it was better than screaming at each other in front of B. At one point, the mother approached the parties' landlord and got him to write up a new Lease in her sole name, whereas the parties Lease was a joint one. The father complains about this, saying that it was done behind his back and that it shows the mother's devious and controlling nature. She, on the other hand, told me that, by the time she approached the Landlord, she believed that the father was making arrangements to leave, so that the question of 'going behind his back' did not arise. I am inclined to think that the mother did act precipitately in going to the Landlord without telling the father; but I do not regard it as particularly 'controlling', since she was motivated to bring an end to a situation which was not good for B, when she had no sufficient means to move out with him herself and when, as I find, life for everyone involved was becoming pretty miserable.
9. The father also complains about a hand written message left for him by the mother in or about April 2011, asking him to take his "guest" with him when he vacated, referring to the paternal grandmother. I agree with the father that this was not kindly or ideally phased; but it was entirely typical of what happens when emotions run high in a failed relationship and it is the sort of point which many individuals would regard as trivial in the grand scheme of things. It is hardly worse than calling the mother's parents "toxic", as the father does in his own written evidence.
10. In June 2011 the father managed to find alternative accommodation close by and he moved out. He seeks a finding that the mother did not thereafter facilitate contact in the 6 month period prior to her taking B to Poland in December 2011 (to which I am about to come). I shall deal with that below.
11. In October 2011, the parties exchanged terse e-mails concerning the Christmas holiday period 2011. The father complains that the mother's e-mail to him timed at 11.16am on 19.10.11 simply told him without any attempt at consultation the dates when she would be taking B to Poland for Christmas; but his own e-mail in response timed at 11.31 on the same day is in similar abrupt language the other way about. Needless to say each wanted the same dates to take B to Poland. Nearer Christmas, the mother's then solicitors wrote to the father's solicitors maintaining that she did not need the father's permission to take B to Poland over Christmas if it was for less then 28 days. The father's solicitors replied (correctly) (a) that this would only be so if there were a residence order in place, which there was not and (b) that, since the father had Parental Responsibility (which he has, his name being on the Birth Certificate) the mother could not leave this jurisdiction without his consent. Notwithstanding that, on 21st December 2011 the mother went ahead and took B for Christmas to her parents house in [town stated], Poland. The father was with justification particularly upset, because this made it impossible for him to give B his Christmas presents. The mother says, and I accept, that she had no intention at the time of leaving England to keep B in Poland. As things turned out, for reasons I will come to, he in fact remained in Poland until 2nd April 2013, a period of 15 months.
12. On 8th January 2012, the mother returned to England for reasons connected with her work, leaving B with her parents. She had booked tickets for the maternal grandmother to come over with him on 25th January 2012. However on 17th January 2012, B became really quite ill (having had diarrhoea with some blood and mucus for a few days beforehand) and the maternal grandmother took him to hospital in [town in Poland stated]. Subsequently, on 21st January 2012, by which time the mother had returned from England to Poland, he was moved to two hospitals with greater expertise, firstly at Zielova Gova and then at Poznan. In the process, he was diagnosed as having contracted Haemolytic Uremic Syndrome. It was a life threatening condition and the situation was very worrying indeed until certain procedures were performed on 21st January 2012, including a blood transfusion. It was not until just before B was due to undergo that blood transfusion that the mother rang the father (who was in England) from Poland and told him that B was in hospital.
13. Happily, the treatment administered to B in hospital was successful and he was discharged on 30th January 2012. The father seeks a number of findings critical of the mother about this episode of B's ill health, including how it came about and how it was handled by the maternal family.
14. It is common ground that the father did not visit B in Poland from the date of B's discharge from hospital (30th January 2012) to a date in November 2012, when the Polish Court undertook a hearing, which I will come to and at which the father attended. In fact, he only visited B in Poland twice, or possibly three times, between January 2012 and April 2013, when B was returned to England. The mother says that he could and should have visited B more; and that his failure to do so shows his lack of any real insight into B's needs. I will also deal with that below.
15. On 5th March 2012, the mother made an application to the Polish Court to 'settle the issue of parental responsibility for B ... by awarding the said parental responsibility to [her] and limiting the rights of the father to issues related to the way the child is being brought up, the choice of education and future profession of him, granting her residence of him and giving her the right to exercise parental responsibility as regards questions of his medical treatment in case of illness'. She settled the Application herself acting in person and it is not entirely clear whether she was trying to remove the father's parental responsibility altogether. I am inclined to think not, merely to restrict it; but in any event, the move was inflammatory, since the father was unaware that she going to court in Poland until he was served with the papers. Further, it is his case that around about this time the mother was deliberately 'stringing him along' by telling him that she would be coming back to England with B when B had sufficiently convalesced, whilst not in fact intending to do so. The Polish Court, at its hearing on 26th November 2011 made just such a finding in the father's favour, holding that the mother "...deliberately misled the father into believing that she planned to return to Great Britain". That Court also did not find 'reliable' the statements of the mother and the maternal grandmother regarding the father's failure to meet his parental responsibilities, nor regarding his having consented to the removal of B from England and to his stay in Poland. The mother's e-mails refer to an appointment with the Nephrologist in April 2012, implying that she would review the situation thereafter. But, whilst knowing that she had applied to the Polish Court for orders which would enable her to keep B in Poland, she was not forthcoming about giving the father a fixed date for return. I cannot in fact see that the e-mail traffic supports any firm representation made by her that she would come back to England by any particular date. But be that as it may, there was I am sure some 'stringing along' of the father and I find: (a) that he understood that the mother was considering and contemplating a return to England with B in or about April or May 2012, when she was not, and (b) that he therefore held off taking Hague Convention proceedings in Poland for longer than he might otherwise have done. Once the father was served in about June 2012 with the mother's Application of 5th March 2012 to the Polish Court, the 'stringing along' obviously came to an end, as the father then knew that the mother was seeking to keep B with her in Poland.
16. In June 2012, being unprepared to wait any longer for the mother to bring B back to England, the father issued Hague Convention proceedings in Poland. The hearing was on 12th and 26th November 2012 (as already mentioned) and the Polish Court ordered the mother "...to return B promptly to the father". That was, if I may say so, with respect, an unusual Hague order (or would be so regarded in this jurisdiction) since it had the effect, not just of returning the child to the country of his habitual residence (England) from where he had been wrongly removed; but also of taking a 'welfare' decision changing his care, ie from his mother, his primary carer all his life and sole carer since June 2011, to the father whom he had only seen two or three times in the last 15 months. [Added later: I was told after delivering this Judgment that the Polish court made that Order because the mother was saying at the time that she would not return with B to England. That point was not raised or investigated at the hearing; but if it is factually correct, then (contrary to what I have just said) I fully understand why the Polish court worded its Order in the way it did]. The mother appealed that order; but on 28th March 2013, her appeal was dismissed by the Polish appeal Court.
17. On 2nd April 2013 the parties arranged for the father to collect B from the mother at the maternal grandparent's house in Poland. It sounds as though it was an event full of difficulty and anxiety for everyone. The father says the mother lied to him about the existence of B's passport. I am not sure that this was gone into with her in her evidence, but I will accept that she was probably at least evasive. When the handover had taken place, the mother was so concerned about what she saw as B's evident anxiety that she telephoned the father to ask him to wait for her so that she could travel back to England with B too. She says, and I accept, that the father said that he was driving, and would ring her back; but that he never did so. Thereafter she was unable to get hold of him. She decided that she must come to England anyway and got a ticket, via Berlin, being the first available flight. On arrival in England on the evening on the 2nd April 2013, she was unable at first to find the father's address and she got the Police to help her. She also arranged for her sister to try to contact the father to say that she (the mother) was coming.
18. The following morning, 3rd April 2013, the mother attended at the father's property. There was something of a confrontation (which I will come to in more detail below) and the Police were called. It was determined, partly because she had no accommodation here, that B should reside with the father and so the incident resolved itself. There was then a period from 3rd April 2013 until the 1st May 2013 when no contact happened between the mother and B. In the meantime, between the 3rd April 2013 and the 29th April 2013, the father took B for nine medical/psychological appointments. The mother complains this was unnecessary, excessive and not in B's best interests. The father does not agree.
19. On 5th April 2013, it is the father's case that B made disclosures to his [the father's] mother and to his partner Miss E, to the effect that he, B, had been sexually abused in Poland by the maternal grandfather Mr C. Further alleged disclosures by B about the allegedly abusive conduct of the grandfather are said to have come out subsequently.
20. On 15th April 2013, Counsel for the mother applied ex parte to Mrs Justice Hogg seeking the return of B to her care, with a priority that the father should be required to facilitate contact. The mother also sought an order that the father (and she herself) should be prohibited from taking him from this jurisdiction. The Judge declined to deal with the matter ex parte but set up an urgent directions hearing before Mrs Justice Parker on 24th April 2013. On that date supervised contact was ordered, commencing on 1st May 2013 and thereafter twice a week for six hours each time. Contact in those terms has been continuing since, although by an order of Miss Russell QC dated 4th June 2013, it was directed to become unsupervised. Subsequently, a directions order was made setting up this hearing for the purpose of fact-finding.
C. A PEN PICTURE OF THE PARTIES.
21. There is no doubt that each party loves B very much and wants the best for him. They differ as to how that can best be achieved. Any objective observer of this hearing would also conclude that there are respects in which each party has behaved reprehensibly in his or her role as parent of B and put his/her needs above those of B. This, unfortunately, is so often the way when relationships break down and when the hurt and anger of the parents overtakes their ability see or act upon the best interest of the child.
22. As regards the mother, her initial removal of B from the jurisdiction for a holiday with her parents in Poland at Christmas 2011 without the father's agreement was wrong. It was, however, a holiday which she would on balance probably have been permitted to take if the matter had come to court. She clearly did not intend at the time to keep B out of this jurisdiction and it was only his illness which led her later to reach the conclusion, as I find she did, that it would be better for him to be brought up in Poland (where, as she saw it, she had better and more reliable support from her family than she would have in London). I bear in mind the fact that, according to the Polish court's Judgment, she was maintaining in that court that the father had consented to the removal to Poland, an argument which that court rejected. That fact (that she argued "consent") does the mother no credit; but that said, she has very clearly accepted at this hearing that her retention of B in Poland as from the time when he had convalesced after his medical treatment in January 2012, was wrong. She has admitted to this court that the prolonged period for B from (say) March 2012 to April 2013 without the society of his father should not have happened and was detrimental for B. From the witness box (prompted by me) she apologised to the father. He does not accept that this apology was genuine, but I find it to have been so. The mother came over in her evidence as a capable and articulate person with a degree of warmth and empathy, particularly when she was talking about B. I assess that, whether through these proceedings or otherwise, she has come to realise with some sadness just how much damage her actions have caused (a) to the relationship between herself and the father and (b) to B, in his having been removed precipitately from her care on 2nd April 2013 followed by the distressing events of the following day. In my view, she is finding the current separation of herself from B extremely hard; but nevertheless, she gave her evidence calmly, descriptively and with confidence.
23. As for the father, he comes over very differently. He is, like the mother, very well spoken, capable and articulate. He is, as Mr Devereux put it, 'a details person' and he had a truly remarkable mastery of all the paperwork. He is very precise on points of detail and has a tendency to want things to be legally and technically correct. Mr Samuel described him as appearing 'robotic' and it is right to say that he came over as a less spontaneous sort of person than the mother. There are respects in which he has expressed himself overdramatically, for example in saying that he has feared for his and B's life from the mother's family (which I find to be a quite unwarranted fear); also in saying that, when B crossed the border out of Poland on 2nd April 2013 he, B was 'like a newborn' with happiness 'after such an ordeal resulting from the mother's activities'. He sometimes gave long answers, with a tendency to sound dogmatic, straying from the question to make sure that he dealt with other points which he wanted me to consider.
24. There was, I am afraid, a definite sense in listening to the father that he sees himself as being the person in the right in almost everything, and the mother as being in the wrong. It was as if he could only see ulterior and self-serving motives in everything she and her parents did. In his expressed view, her 'numerous false statements' are a way of 'punishing B and himself' and he describes her as 'a great actress' giving 'an outstanding performance'. He regards it as 'plain that she uses B as an instrument in her premeditated actions'. This is to some extent understandable in view of the mother's long retention of B in Poland; but the father's perception of the parties' respective roles in the situation which has now been reached regarding B, goes further than that. He is unwilling really to recognise or accept that B enjoys his contact with the mother, which from the contact notes B clearly does; or to contemplate that B's reluctance to move across to the mother on some contact handovers is likely to be just the product of his being a very confused and conflicted little boy, who probably perceives the mother to have let him down when she allowed him to be removed from her care on 2nd April 2013.
25. The father was not open to giving mediation another try, saying that this would be like 'collaborating' with the mother, at least until the fact finding hearing has been resolved. He did not come over as someone with a spontaneous or very child-focused response to questions; but spoke rather rigidly in terms of his duty, as a caring father, to ensure B's safety, protection and welfare, even where a more moderate or proportionate response, perhaps involving a little measured risk, would or might have been in B's better interests. In other words, the father's thinking came over as rather formal and correct, without much apparent ability to make concessions; whereas the mother seemed more flexible in attitude and (leaving aside her failed attempt to retain B in Poland) more able to see both sides of things.
26. These impressions of the father come from how he struck me from the witness box, both in the manner of giving his evidence and in its substance. Anyone, who did not have this advantage will nevertheless get a similar impression by reading his very long statement dated 8th July 2013, comprising 58 pages and 414 paragraphs, with exhibits filling a lever arch file. To digress, that statement should have been filed by 21st June 2013 to support his Schedule of Allegations. It was not served by then and time was extended until 8th July 2013. It was eventually served on that day, with the exhibits being served two days later, only two working days before this hearing started. It ranges far wider than was ever intended of it; far wider than his Schedule of Allegations which it was intended to support. I stress that I have put entirely out of mind the inconvenience and burden which such a substantial volume of last minute information created for those who have had to read it; but it is indicative of an intense concentration on detail and on a fixed determination to dot every 'i' and cross every 't' in supporting his own merits and diminishing the mother's. It is tendentious and relentlessly negative about the mother (and also her parents) and about what motivates her. It is repetitive, opinionated, judgmental and descends in places to old and/or trivial detail. It has to be read in full for how it comes across. I take from it, and from hearing the father give evidence, that he must on occasions have been pretty difficult for this mother to deal with once their relationship had gone sour and practical arrangements for B had to be sorted out.
27. Further, it has to be said that the father's presentation of things in evidence is not always accurate. I will give four examples (a) He said in one of his statements that Miss R had said that in her opinion B had been abused in Poland [2.B.298]. That was incorrect. She said it was a possibility. (b) He said that the mother had been bombarding B at contact with reference to poos and blood [2.B.296]; whereas I cannot see references to blood in the supervisor's notes. (c) He asserts that the mother admitted on Skype to having got "high" on Modafen; whereas it was actually the maternal grandmother who used that word. (d) He alleged in terms (as already mentioned) that the mother broke her undertakings in April 2011 and June 2011 to return B to the jurisdiction by specified dates; whereas she has proved by the production of his boarding passes that she did comply with her undertakings. So the father's evidence does have to be viewed with some caution (partly I think, to be fair, because he has become so involved in trying 'to protect' B); as indeed does the mother's, since for example her case to the Polish Court about the father's having consented to B's removal to Poland was rejected by that Court, and is not borne out by the evidence examined at this hearing.
28. I now turn to the specific issues on this fact finding hearing. I shall take this exercise more or less in chronological order, but obviously my conclusions about the points in issue have not been reached on the basis of water-tight compartments, but rather on reflecting on the entirety of what I have seen, heard and read.
D. IS OR WAS THE MOTHER 'ADDICTED' TO MODAFEN AND/OR ALCOHOL?
29. These allegations do not appear in the father's first statement of 23rd April 2013, which was prepared under some pressure of time; but they emerge in his big statement of 8th July 2013. Clarified at my request by Mr Devereux, the allegation is that the mother has regularly used Modafen to get 'high' since B was born. She adamantly denies this and says that she has used and uses it for headaches. The father relies in particular on a written Skype conversation (which I have already mentioned) between the mother and the maternal grandmother, dated 17th February 2011, when the parties' relationship was failing. The mother told the grandmother there that she had a cold and a headache but had Modafen, at which the grandmother wrote "I might bring a supply of Modafen... we will be getting high." Other than that, the issue about the reason for the mother's use of Modafen is one word against another. Mr Samuel points out that in the father's affidavit of 23rd April 2013, he said in terms that '... our relationship went well until around December 2010', that is to say nearly two years after B's birth. I also bear in mind, that in June 2011, the father voluntarily vacated the home, leaving B in the mother's care. Neither of these facts sits easily with the father's case about the mother drinking to excess and being accustomed to getting 'high' on Modafen. The grandmother's comment is explicable as being ironically intended. All in all, I accept the mother's denial of taking excessive alcohol or of using Modafen to get 'high' and I find that the father has not made out his case in these respects.
E. DID THE MOTHER IMPEDE THE FATHER'S CONTACT IN ENGLAND FROM FEBRUARY 2011 TO DECEMBER 2011?
30. The father says that the mother was niggardly and difficult over his seeing B both (a) in the period from February 2011 to June 2011, when the relationship had failed but they were still in the same flat; and (b) from June 2011 to December 2011, when they were living separately in London, about 5 minutes apart. He points to some letters that he wrote expressing his wish to have more contact. The mother responds as follows. In the first period up to June 2011, she says that the question of contact did not really arise at all: they were all in the same flat and she almost never objected to the father taking B out as and when his work commitments made this possible. The only time she did object was when he brought B back home at 10pm, with a full nappy and smelling of smoke, which I find happened. On that occasion she told me that she had been (justifiably) very worried about B, who she said should have been in bed hours earlier. Therefore, on the next occasion, she asked the father to play with B at home; but thereafter she says that the previous ad-hoc arrangements continued. I accept the mother's evidence about these arrangements. They are just what is likely to have happened, and I do not consider that the father's seeing B was a serious issue at that time.
31. As to the latter period from June 2011 to December 2011, the father himself says at paragraph 8 of his first statement that "...[after June 2011] B remained with [the mother] and I had contact as often as allowed by her, despite numerous requests via e mail/text messages and via my solicitors. I spent a great deal of time with B, picking him up regularly from the nursery, taking him to my home in the afternoon, going to the park, attending doctor's appointments and visiting B's friends." He said much the same at page 37 of his long affidavit, in which he referred to the nursery giving him the opportunity for 'close contact with B'. The mother's response to this issue is that she did her best to facilitate contact as and when the father requested it, but that he would give her little notice. Her wish (as is strongly born out by her e-mails) was for the parties to enter into a regular contact regime, so that she could plan her work around it; but one way or the other (she would say because the father did not engage in this respect) no set regime was ever put into effect. She said, and I can well envisage the situation, that she found it difficult to discuss contact arrangements with the father on an ad-hoc basis.
32. My finding is that the mother did not impede contact over this period under review. She was not in my view deliberately and unreasonably obstructive. It is clear from the father's own evidence that he had what most would describe as 'reasonable contact'. Insofar as he may have wanted more, I am satisfied that the mother would have been quite willing to facilitate such arrangements if they had been made part and parcel of a regularised contact regime; but for whatever reason that did not happen.
F. DID THE MOTHER CARE NEGLIGENTLY FOR B IN POLAND, WHETHER OR NOT CAUSING OR CONTRIBUTING TO HIS ILLNESS?
33. Sub-questions here are as to whether B was malnourished in Poland and whether the mother fed him 'substances'. There is precious little evidence in support of these allegations. There is on the contrary a note by Detective Constable G recording a response from the Polish police concerning their visit to the maternal grandparents' home after the father's first allegation of B's abduction. It records "...nothing alarming in the visit. Child was seen along with grandparents and mother. The family were living in harmony. No signs of abuse." Further, "...neighbours advised officers that all seemed well with the family". Detective Constable G recorded that there did not appear to have been any further visit undertaken by the Polish authorities to the maternal grandparents home.
34. Then on 6th September 2012, many months later, the equivalent of the CAFCASS officer in Poland, Miss S, made a report to the Polish court. She took her information only from the mother, but saw B with the maternal family. Her report described the housing and financial condition of the maternal family as very good, living in a detached house where the mother had two rooms and a bathroom at her disposal, all being clean and tidy. B had his own room, a separate bed with a place for playing and colourful toys. Miss S went on "...the mother of the child is focused on satisfying the needs of her son.... He is a cheerful child. He is provided with a comfortable standard of living, which guarantees normal physical and mental development. .....his mother fulfils her parental responsibility in an adequate and correct way." Since all the information for that report came from the mother, I have restricted my citation from it to what would appear to be based on observation; but in any event and on any view, the report contains no expression of any concerns about the household at that time (September 2012).
35. As to the point about B's weight demonstrating under-nourishment, paragraph 103 of the father's long statement sets out a sequence of B's weights from February 2009 (birth) to May 2013. In effect his weight climbs gradually to 13 grams on 19th October 2011, but then falls such that he only weighs 12 grams on 17th January 2012 on admission to hospital in [town stated]. By that stage, however, B was not well. He had had diarrhoea and was dehydrated. Whilst there is no expert medical evidence before me, it is not counter-intuitive that B could well have lost weight for these reasons; quite apart from the fact that there can never be certainty as to a child's weight sequence when different scales are used.
36. It is significant that, when B was admitted to [town in Poland stated] Hospital on 17th January 2012, the following was recorded by Dr B: "General health condition: average. Substantial reduction in strength. No structural abnormalities. Good nutrition. Clean skin with substantial reduction in elasticity ..." (and so on). By two days later, his general condition was "fairly good". That report certainly does not support the father's case of poor nutrition in the maternal grandparents' home; nor does the subsequent report from B's Polish GP, Dr K, dated 26th March 2013, to which I refer at part 'P' below.
37. One particular point which troubles the father is that there is a reference in the medical notes to B having eaten a Polish dessert called "kogel-mogel" at Christmas (presumably 2011). This is described in the medical notes as a popular dessert in Eastern Europe, made from egg yolks, sugar and flavourings such as honey cocoa or rum. It is the father's case that this caused, or may have caused (he has said both in different places) B's stomach problems. He says in his statement, "...raw eggs should not be given to children, as there is a risk of them contracting Salmonella and the grandparents, as ex teachers, should have been aware of this and not put B at risk in this way". However, no medical report makes any causal connection between the raw egg desert and B's illness and I cannot, as a layman, just assume that necessary plank in the father's case, particularly not in the light of Dr B's later report referred to in a moment.
38. So, on the question of malnourishment in Poland, there is no evidence to support the allegation. If anything the evidence is the other way, with the Hospital's report above referring to 'good nutrition'. Nothing in the medical notes criticises in any way the care which B had received from the mother or the maternal grandparents (the mother, it will be remembered, having returned to England on the 8th of January 2012 and not being present in Poland when B went into hospital). He had, it is true, had diarrhoea for several days before being taken into hospital, which most (not all) the medical records refer to as containing blood and mucus; but the mother says she understood that her mother had consulted with a private doctor and was giving him Nifuroxazyd, an antibiotic, which had appeared to be working. The medical notes make it clear that by the 18th January 2012 (the day after his admission) B was feeling and getting better, which continued through to the 21st January 2012. At that point, however, his condition much deteriorated. That was when he was referred from [town in Poland stated] to Zielona Gora Hospital, with a provisional diagnosis of Haemolytic Uremic Syndrome.
39. It is not realistic from this reported sequence of events to cast the blame for what happened on the maternal family, still less on the mother who was not there and who had left B in good faith with her parents whom she trusted. Perhaps, with hindsight, B should have been taken sooner to hospital by the grandmother; but that is with hindsight. It does look in any event from the medical records as though the sudden deterioration was from a discrete syndrome to which B succumbed. Dr B, Head of the Paediatric Ward at [town in Poland stated] Hospital says specifically in a report of 26th April 2013, [sic] that "... the outpatient treatment prior to the admission of B to the hospital had no impact on the complications that appeared in the form of Haemolytic-Uraemic Syndrome". In all the circumstances I do not uphold the father's complaints about the way in which B was being treated and cared for by the maternal family in Poland, as they have not been established on the balance of probabilities.
40. Whether the mother should have telephoned the father sooner to tell him that B was ill, is a different question. She told me and I accept that after B had gone into hospital in Poland on 17th January 2012, she telephoned the doctor from London and that he told her 'not to worry, that it was a virus and that plenty of children had it'. The doctor told her that they were rehydrating B and that he should be fine within a couple of days (as indeed he was). When she spoke to her mother, her mother advised her not to come out to Poland, as it was thought B would be out of hospital quite soon. This put the mother's mind at rest until B suffered the rapid deterioration, at which time she herself went back to Poland and subsequently telephoned the father. She accepted quite readily in cross examination that she should have told the father sooner about B's going into hospital (on the 17th) and that she was wrong not to do so. That must be a concession properly made, although it is very likely that the father's mind would have been put at rest just as her own mind was put at rest in the way I have described. It was unfortunate and upsetting for the father that he only learnt about B's condition shortly before B had his vital blood transfusion and he puts the worst complexion on it. There was however considerable 'mitigation'. As to a further complaint of the father's about the mother's conduct whilst B was in hospital, I will accept that the mother texted the father, when B was very ill, with some words about B's 'dying like a dog'. She does not recall the actual words; but accepts she sent him an angry text because she felt he was delaying B's urgent treatment by questioning the doctors unnecessarily. It was obviously not a good phrase to use and the mother would not defend it. But it was written at a time of great fear and stress in view of the seriousness of B's condition, and I do not consider it makes any worthwhile or revealing point about the mother in the father's favour. It is a great pity that these sort of things happen in the way that they do, because (as here) they cause anger and resentment out of proportion to the culpability of the other party.
41. Lastly on the issue of the care of B in Poland, there is the question as to whether the mother was giving B 'substances'. She strongly denies this and there is no evidence of it that I have been able to find, whether in medical records or reports or elsewhere. I reject that suggestion by the father.
G. WAS THE MOTHER JUSTIFIED IN RETAINING B IN POLAND AFTER HE HAD CONVALESCED FOLLOWING HIS DISCHARGE FROM HOSPITAL IN JANUARY 2012?
42. I have already dealt with this. The answer is no; she was not justified. She had taken B there without the father's consent. He (B) had to stay there, when it had been intended that he would come back to England, because he was unwell. But when he had sufficiently recovered, he should have been returned, as the father was pressing the mother to arrange. She on the other hand, had come to consider that the support infrastructure for her and B was better in Poland and decided she would stay there, as is born out by her application to the Polish Court on 5th March 2012. Her defences to the father's Hague Convention failed; but the time taken by the legal process in Poland worked unkindly against him. He was denied the 'every day' sort of contact which would have taken place if B had been living just round the corner from him in London. This was upsetting for the father and detrimental for B. The mother is to be strongly criticised (even if she was right about the better support structure in Poland) for not returning B and for the consequential 'hotting-up' of the emotional temperature of the relationship between the parties and subsequently of the case generally.
H. DID THE FATHER UNREASONABLY FAIL TO VISIT B IN POLAND BETWEEN (SAY) FEBRUARY 2012 AND APRIL 2013?
43. Whatever the rights and wrongs of the mother's retaining B in Poland after about March 2012 (and I have found that it was wrong) it is likely that B was missing his dad, whom he had used to see up to and until December 2011. It is the received wisdom and plain common sense, that children generally grow up happier and more rounded if they can enjoy the society of both parents. It is clear from e-mails which the mother sent the father during 2012 that she was offering him contact and stating strongly that he should come over to Poland to see B. He replied rather limply requesting details, but he was not proactive. He gave the Polish Court his reason for not visiting B as being that he did not wish to compromise his position by being seen to 'acquiesce' in B's remaining in Poland (an example of his struggling to see beyond the letter of the law towards B's real best interests). He told me, on the other hand, that he did not take up the mother's offers of contact because he considered they were dishonestly made; and because he had '...many concerns about B's and his own health well-being and safety'. When he tried to telephone, he said the maternal family would not answer. He also said he felt that the mother might 'punish' B if he visited. I am afraid I cannot accept these explanations, which are in my judgement retrospectively self-serving. One would have thought that the father would have been rushing to take up the mother's suggestions of contact and it remains a mystery why, 'as a concerned father', he was not doing so for such a long time. This is particularly so in view of his now stated anxieties about the inadequate way in which he considered the mother and her family had been caring for B health-wise.
I. DID THE MATERNAL GRANDFATHER SEXUALLY OR OTHERWISE ABUSE B IN POLAND BETWEEN DECEMBER 2011 AND APRIL 2013?
44. I have already mentioned the derivation of this allegation of sexual abuse, namely an alleged disclosure by B to the father's mother and the father's partner, Miss E, on the afternoon of 5th April 2013, three days after he (B) had been brought from Poland and his care had changed from the mother to the father. That evening (5th April 2013) the father went online to the NSPCC help line. The quote from the NSPCC records is that the grandfather "...took him [B] to the bathroom and was 'pressing his belly'. He [B] said that it was hurting him and that he was afraid. He then said that he was 'making a poo' onto the grandfather and that 'something white was coming out of granddad' ". Other concerns were expressed, which I do not need to deal with here, except to say that one of them is that "B has not allowed any of his relatives to assist him in washing his private areas since he returned". That I would not find particularly surprising, nor sinister (as I expect it was seen) given the upheaval and upset which B had undergone.
45. The paternal grandmother's note of the 5th April 2013 is that B had told her and Miss E that he would "...not poo as Mr C [the maternal grandfather] would hit him in the bathroom; kicked him in the leg and disturbed him [when pooing]". B is said to have gone on "...later on [Mr C] was naked and I pooed on [Mr C]. Then pink bees (butterflies) shot up". Later again, B said that he and Mr C would be locked in the bathroom while the mother and grandmother were out and that he would be crying loudly as 'it' hurt him and he wanted to run away. He said this was a secret. The grandmother described these disclosures as 'ambiguous, weird and shocking'. Following the grandmother and Miss E telling the father (on the 5th) what B had said, or was understood to have said, the father spoke to B too, 'to confirm it'.
46. Earlier that same day, in the morning of the 5th April 2013, the father and his mother and partner Miss E had taken B to a child psychologist, Miss R, who was presented to B as an Aunt and whose hand written notes are before me. Unsurprisingly she found B to be apprehensive and mistrustful. She recorded even by that morning that the grandmother was expressing concern that 'something untoward had happened to him'. The grandmother said B was repeatedly saying he would not see his maternal grandfather.
47. On 10th April 2013, the father and his mother and Miss E took B again to Miss R. Miss R described B as very apprehensive and withdrawn. The father told her that, overall, B was OK and that "...B [had] started telling him about some of his [B's] experiences with his grandfather". There is no specificity noted there, which is surprising given the father's knowledge of the graphic detail already given to the NSPCC, about 'something white coming out of granddad'; just as it is surprising that there is no mention in the report to the NSPCC of B's having disclosed to the father's mother and partner on the 5th April 2013 that the grandfather had hit and kicked him. Nor was there anything in the report to the NSPCC of the 'pink bees (butterflies) shooting up', referred to by the maternal grandmother in her note.
48. On 17th April 2013, B was again taken to see Miss R (his third visit). It was reported by either the father or the paternal grandmother that B had by now told the paternal grandmother and Miss E that the grandfather had "...put a stick in his anus and that he bled". These quotation marks are not intended to show B's words, but rather the quote in Miss R's notes.
49. On the 24th April 2013, the father filed his first statement in these proceedings. It does not refer to any of the specific language which I have just been mentioning as allegedly used by B, although it does refer to the fact of a disclosure on 5th April 2013 that he had been allegedly sexually abused. There is nothing about the very graphic "stick in the anus which made him bleed". In the father's big statement at paragraph 335, he dates the alleged 'stick in the anus' disclosure to the 20th April 2013, but I will treat that as an error (since that particular disclosure had already been reported to Miss R on the 17th).
50. This, then, is the evidential base for the case against the maternal grandfather. It has to be seen in its context. The case was one, as I have said, of high emotion, culminating in a difficult handover in Poland on 2nd April 2013 and a scene in front of B on the 3rd April 2013. He had suddenly been swapped from the mother who had cared for him all his life, to the father, whom he had barely seen for 15 months and Miss E (whom he can hardly ever had met, if at all) and the paternal grandmother. Everything was tense. No doubt B was confused and apprehensive, having lost the security he had known and having been brought to a different country. He had been taken off for various tests in England on the morning of the 3rd April 2013 by a paediatrician JC and then to an appointment with GP Dr G on the 4th April 2013; next to the above meeting with Miss R an the 5th April 2013. We have no idea what questions and answers took place on any occasion when he is said to have made disclosures, many of which disclosures are reported by the father second hand. There are surprising inconsistencies in the reporting, as I have indicated. Further, in his statement of 23rd April 2013, the father stated his belief that it was important for the alleged disclosures to be reported to the Local Authority in Poland "...for investigation to protect any further children from suffering harm, in the event that the maternal grandfather is coming into contact with other children". Notwithstanding that, the English Police (Detective Constable C) reported on 20th June 2013 that "...despite many requests from Detective Constable W, he [the father] has not provided a statement to the Police. He has also been advised to attend the Polish Embassy to make a formal statement to them about the allegation against the grandfather in Poland. He has also failed to do this." The father told me that he did try to get in touch with the Polish Embassy, but only got an answer phone. He says he has very recently sent the Embassy a letter and an e-mail. He has since the hearing produced an undated unheaded document, which has the look of a draft. Mr Samuel makes the point that, if B had really said these things and if the father had really believed them to be true, then he would not have been so slow to make a statement to the English Police and to convey his concerns to the authorities in Poland.
51. That being the state of the evidence against the maternal grandfather, what about the other side of it? I have heard and seen him (the grandfather) give evidence. He came over from Poland and appeared voluntarily at the Royal Courts of Justice to be cross examined on his statement dated the 12th July 2013. He is a former teacher who now runs his own furniture manufacture business. He is aged 55 and lives in [town in Poland stated] with his wife, who is a retired early years teacher. He says that most of the time both he and the mother used to be out at work and that it was his wife, the maternal grandmother, who would be at home caring for B. He told me he used to take B out to football and play other games with him; and that there were a few occasions when he was alone with B, but not many. He very strongly denied any abusive behaviour as regards B, whether physical or sexual. As regards 'secrets' he did tell me of a game which he and B used to play, I noted 'Ninjago', which did involve secrets, but not with any sinister connotations. When it was put to him in cross examination that the father believes that he (the grandfather) in fact sexually abused B, the grandfather dealt with the question calmly, firmly and decisively, repeating his denial. He expressed the personal view that the father was using B as an object of control and he expressed his own opinion that the father tends to embrace 'conspiracy theories'. He told me of how he and the grandmother and the mother had been trying to prepare B for the transfer to the father at the beginning of April 2013, saying 'how nice it would be at dad's' and so on; but that it all went ahead too quickly causing B (in his opinion) a lot of harm.
52. Seen in context, the evidence against the grandfather is not robust and is potentially corrupted by concerned adult questioning. As I have said, it contains significant inconsistencies. Whilst I accept it as a 'given' that many paedophiles are hugely persuasive in their denials (of which I have seen numerous examples over the years) the plain fact is that the grandfather was unshaken and entirely convincing. There would have to be much stronger, more reliable and more consistent evidence against him to find on the balance of probabilities that he committed the acts of which B is said to have spoken.
J. DID THE FATHER AND/OR HIS FAMILY MAKE UP B'S ALLEGED DISCLOSURES OF ALLEGED SEXUAL AND OTHER ABUSE?
53. Mr Samuel, for the mother, goes on to seek a finding that the father has in fact fabricated these allegations, with or without the connivance of his mother and Miss E, in order to bolster his case to retain B. Logically, it may appear that either B said things, or he did not: either they were factually true, or they were not. However, there is a middle ground. It comprises a very anxious child struggling to come to terms with a new environment, new carers and new professionals, speaking with anxious adults, who were fearing the worst and listening out (although perhaps without realising it) for anything which the child might say about his negative experiences in the 'other camp'. In such a situation, as soon as anything is said, however innocent or child-like, or the product of the child's anxieties or imagination, it becomes seized on and built on as it is passed from adult to adult, growing a little with each telling, until the allegation comes to have an apparent validity all of its own as being a disclosure of the most serious child abuse. (A good little example of how children can say things which are not factually accurate, but which give adults anxieties, occurred at the contact session on 8.5.13. The father asked B, on collecting him afterwards, whether he had been to the park and whether he had had anything to eat. B replied 'No' to both. In fact, the supervisor's notes show that the mother had taken him through the park and had given him two meals). On balance, I consider that this dynamic of high emotion and anxiety is a more likely explanation here for how these 'disclosures' have come about, rather than either of the alternatives (namely (a) that B himself fabricated allegations or (b) that the paternal family have deliberately made up what they say B said).
K. TWO LAST POINTS ABOUT THE ALLEGED SEXUAL ABUSE.
54. The next issue under this general heading of alleged sexual abuse is the father's assertion that the mother 'failed to protect' B against the maternal grandfather. Since I have held the claims of sexual abuse against the grandfather not to be established, this point clearly goes. However, I add for completeness that there is not a scintilla of evidence that the mother would have had any knowledge of anything amiss in her parents' household, even if there had been. So the 'failure to protect B' assertion against her fails either way.
55. Last, and for completeness, I also reject the father's allegation, made by him for the first time (as far as I can see) in cross examination, that the mother was herself 'involved in' the alleged sexual abuse of B.
L. DID THE MOTHER TRY TO ABDUCT V ON THE 3RD APRIL 2013?
56. The father's case is that, as he and his mother and Miss E were leaving the house that morning on the way to the Doctor's, the mother grabbed B from the paternal grandmother and "took him away". At paragraph 263 of his big statement, he refers to the mother "trying to run away". He rang the Police and told them that an abduction was in progress, and they quickly arrived. At that point he says that B had to witness "an unpleasant exchange" between the Police and the mother.
57. The mother gives a completely different version. She explains how concerned she was for B's welfare and that she therefore travelled to the father's home that morning. When she saw B coming out holding the hand of the paternal grandmother and Miss E, she just knew she had to go over to B to see that he was alright and to comfort him. She picked him up and held him close to her, at which point the paternal grandmother held his hand tightly saying words to the effect 'we're not giving him to anybody'. The mother says she replied politely but firmly '...no one's taking him anywhere'.
58. The Police have reported briefly on this incident. One of the officers in attendance, Police Constable S, informed Detective Constable M (the author of the report) that "...the mother was very upset, however fully cooperating with the Police. B would not let go of her, even when she tried to give him back to [the father]. The father was not being cooperative and was rude and confrontational". This is in stark contrast to the assertion made to the mother in cross examination on behalf of the father that it was she who had engaged in "a terrible argument with the Police, shouting at them".
59. The father's evidence on this point was brief, merely alleging baldly that the mother "took B away". The mother's evidence on the other hand was detailed and told with obvious recall. It came across as though she was reliving the event. It is completely supported by the Police report, including that, whilst B was clinging to her, she was actually doing her best to pass him back to the father. I have no hesitation in preferring the mother's evidence on this point and I reject the father's case that this was an attempted abduction by her. Even allowing for the fact that there may be an element of his negative mindset against the mother blurring his recall, it is difficult to see how the father can be doing anything other than embellishing his case as to how the mother conducted herself.
M. WERE THE 9 PROFESSIONAL APPOINTMENTS BETWEEN THE 3RD APRIL 2013 AND THE 29TH APRIL 2013 TO WHICH THE FATHER TOOK B, APPROPRIATE?
60. It is understandable how so many appointments came about: a combination of an over anxiety about B's health and a worry about what the paternal family were interpreting as serious disclosures of sexual and physical abuse. The father was concerned that B had been sick on 2nd April 2013, seeing it as in some way 'not coincidental'; but in my judgement, it is not altogether surprising B was sick given the upheaval which was confronting him and which he would not have been able to comprehend. I am afraid that all this intense focus may well have (unintentionally) encouraged B to continue to 'disclose' things. The plain fact is that such a bombardment of professional interest in B is likely to have been bewildering for him. It may have been understandable, but it was not propionate to the inherent risks or needs and was not in my judgement in B's best interests. This is particularly so since I accept the mother's evidence that on 2nd April 2013, she gave the father the recent medical reports from Poland which, with the exception of a reference to a slight tendency to knock-knees (see Part P below) showed no ground for concern regarding B's health. Unfortunately the father was and is suspicious about the objectivity of these Polish medical reports, finding in them fault and inconsistencies (for example, that in one report Dr K refers to having had B as a patient on her register since January 2012 and in another report, since February 2012 - surely a difference of no consequence). Hence B had to undergo several physical tests and examinations, quite apart from the psychologist's visits, within just a few days of his being transferred from the mother's care to the father's, a degree of professional involvement which he is (as I say) likely to have found bewildering.
N. DID THE FATHER UNREASONABLY DENY THE MOTHER CONTACT FROM THE 3RD APRIL 2013 TO 1ST MAY 2013?
61. This comprises the month between B's coming back to England and the first contact session. Both side's solicitors were expressing the need for the mother to see him; but there was a justified delay until 16th April 2013 for B's passport to be sent over from the mother's sister in Berlin where she had left it. She had left it there, as I find, because she did not want to have to give it up to the father, fearing that he might abduct B away from the EU, for which he would need the child's passport, as distinct from using B's ID card which would cover travel within the EU. I do not incidentally regard the mother's expressed fears about child abduction by the father as having been justified. But be that as it may, the father knew that the mother's solicitors had received B's passport and were holding it by the 16th April 2013. Even so, no contact was volunteered and it took the hearing before Mrs Justice Parker on the 24th April 2013 before unsupervised contact was ordered. I can see no justification for the mother not having been able to see B as from the 16th April 2013. It could readily have been supervised informally and any 'flight-risk' was utterly negligible. It was a shame for both the mother and B that they were not able to see each other sooner then they did.
O. THE DYNAMICS BETWEEN THE PARTIES, THEIR ATTITUDES TOWARDS ISSUES AND EVENTS CONCERNING B AND THEIR INSIGHT AS TO HIS BEST INTERESTS.
62. I have sufficiently covered these points generally as I have been going along and do not need to consider them further under this separate heading.
63. Before concluding this Judgment, there are however a couple of other issues which have arisen during the hearing although not identified as such at the outset.
P. URINE SAMPLES FOLLOWING B'S ILLNESS.
64. Following B's discharge from hospital in Poland in January 2012, the mother was given a list of recommendations as to his aftercare. This included in particular two to four weekly urine tests. The father complains that these tests (and one or two other recommendations) were not faithfully carried out by the mother. In particular, at paragraph 151 of his long affidavit, he states that he has located in the Polish GP's records only five urine test results noted between January 2012 and October 2012. Therefore, he says the mother failed to follow the hospital's recommendations. The mother told me, however, that the way the tests were done was as follows. She would get them performed at the local hospital in [town in Poland stated]: the hospital would ring the results to her and she would then ring them on to the clinic in Poznan. If the results were alright, then the specialist there would tell her not to bother to do another test for a little while. When she went to the GP, she would only take with her the results of the most recent test and so, for these two reasons, the GP's records appear to show less testing than was actually taking place. Since the hearing, she has supplied a test result for 29th June 2012, filling the 'gap' between 7th June 2012 and 31st July 2012, although there still seems to be a 'gap' (ie no documentary evidence) in May 2012.
65. The mother is supported about the tests by B's GP in [town in Poland stated], Dr K, whom I have already mentioned. She (Dr K) says in a report prepared for this court dated 26th March 2013 that B "...was given good care by [the mother] and all medical recommendations were fulfilled". She referred to his 'Routine Health Check For Four Year Olds' and said that this check confirmed "normal development". The father, as I have already said, mistrusts and takes issue with Dr K's reports. He did not think that 'normal development' (per Dr K) was shown by the 'Routine Health Check For Four Year Olds', since it identified 'slight tendencies of knock-knee', which he told me is a sign of a deficiency of Vitamin D and Calcium. He saw what he thought was a significant inconsistency between Dr K's report saying that B was calm and balanced and the report of psychologist BC saying that he has symptoms of sensory dysfunction and is afraid of noise; whereas most would see this difference as being likely to be explained by the differing disciplines being deployed. The father considers in short that Dr K has been willing to give reports which are not objective and which are simply to serve the mother's interests in these proceedings. It is quite impossible for me to make such a serious finding, at least not without having heard Dr K cross-examined; and none of the reasons given by the father for doubting her bona fides struck me as a persuasive. On its face, Dr K's report of 26th March 2013 not only supports the mother's case that the discharge recommendations were followed by her, but also that the care which B received in Poland had been good or, even if the father wants to challenge the word 'good', then at least perfectly adequate.
Q. WHETHER THE MOTHER'S CONDUCT DURING SUPERVISED CONTACT BETWEEN 1ST MAY 2013 AND EARLY JUNE 2013 (WHEN IT BECAME UNSUPERVISED) WAS INAPPROPRIATE AND CONCERNING, AS THE FATHER SAYS?
66. The father remained very anxious about the mother having contact with B even once the mother's passport had been secured with her solicitors. He told Miss M, Social Worker of the London Borough concerned (who carried out a Core Assessment dated 15th May 2013) that he had concerns about contact, '... expressing that he has felt that both B's and his lives were possibly in danger'. She says it was clear from speaking to him, that he did not believe that contact with the mother was in B's best interests and that (by implication) he believed B needed to be protected from the mother. She recorded his alleging that B was at great and imminent risk of actually suffering significant harm when confronted with the mother.
67. In fact, Miss M observed the mother's contact on two occasions, in order to determine whether there were any concerns about its becoming unsupervised. She noted as follows: '...observations appear to suggest that B is happy with his mother, is full of smiles, laughter and lots of conversation, with no indication of distress in his body language, facial expression and vocal tones. Mother was observed getting down to his level during conversations and playtime in a manner that appeared natural, while also allowing him to lead most of the play, which was noted to be creative. He was seen exploring his surroundings freely and approaching his mother without reservation'. It is the father's stated view that the reports of Miss M are biased, discriminate against him and breach his parental and human rights. Now is not the time to go into that; but suffice it to say for today that it would be rare indeed for observations by a social worker of contact to be utterly wrong, or worse still made up. It can I think be safely accepted for now that contact by the mother to B is enjoyed by him and not harmful, in spite of the father's anxieties for B's welfare.
68. Be that as it may, before contact started (and in accordance with the contact order of 24 April 2013) the father arranged for there to be supervision of the mother's contact, commencing 1st May 2013. I have read all the supervisor's summaries in full. B demonstrates all the traits of a child who is confused and conflicted, and well he might have been in view of the history. The father's particular concerns arising from the contact records are twofold: (i) that the mother has shown an excessive interest in 'pooping' or 'poohing', raising this topic excessively with B and getting him to accompany her into the bathroom for prolonged periods; and (ii) that she has administered him a suppository and forced him to take pills [2B289] whilst in the bathroom with him.
69. The mother accepts that she raised with B the topic of his 'pooping' or 'poohing' on many occasions during the supervised contacts and did get him to go with her to the bathroom. She says that he has always had a tendency to suffer constipation and that, as his mother and carer, she can tell when he is uncomfortable and holding back. That would be when, she says, she would try to encourage him to try to 'go' and would go into the bathroom with him, telling him stories until (as she would hope) he would open his bowels. She understood the Nephrologist in Poland to have said that being constipated is not good for B; and she points out that in April 2013 (as the documents show) the father himself got B a prescription from Dr G for Lactulose. I note also that he (the father) told Miss R at the consultation on 10th April 2013 that B has bowel problems. The maternal grandfather said so too in his evidence. The mother firmly denies giving B any pills.
70. As to the suppository, the contact records refer to the supervisor hearing the mother telling B in the toilet "we will put in a suppository" and B saying "no". This is translated in the father's long affidavit [paragraph 295] to: "...even during supervised contact, the mother would insert a suppository, breaching the terms of the supervised contact and B would scream "no!". The father repeated this in cross examination. The mother accepts she spoke to B of using a suppository, but says she never actually did so.
71. It is to be noted that before these contact supervisions took place, the father sent various longish emails to the supervisors effectively setting out in strong terms his instructions so as 'to protect B from the mother'. The exchanges concerned have to be read in full to get the feel of them. On 3rd May 2013, he told them that B was not willing to attend contact and was "frantically scared" of seeing the mother, or anyone in the maternal family. In fact B was clearly keen during contact to speak to his maternal grandmother and asked about her. The instructions from the father to the supervisors were very precise and forceful, some of them of a 'leading nature', for example: "Was B not frantically afraid of the appointment with his mother en route?"; "Did the supervisor not try to reassure the minor on numerous occasions ...that B would be safe with the mother?"; "Did the supervisor not state that B was scared when being carried by the mother to the mother's flat?" - and so on. Some of these sort of questions were answered by the supervisor 'favourably' to the father and many 'favourably' to the mother (rebutting the negative implications and anxieties about the contact which underlay the father's questions). The supervisor perceived B to be equally relaxed and happy with either parent. The point is that the supervisors were alert to any question of the mother going into the bathroom with the child and had been asked to record it, such that it plays quite a significant role in their notes.
72. I was myself initially concerned about this large number of references in the contact notes (which I had not originally been asked to read) to "poohing" and going to the lavatory. I therefore asked for the mother to be recalled to give further evidence. When she was asked to deal with this late issue in cross examination, and it was put to her that she has an 'obsession about poohing', her explanations (as above) came over quite reasonably enough. How one handles a constipated four year old is not necessarily easy (for fear of adult anxiety making things worse) and the mother may not necessarily have acted precisely as a paediatrician might recommend. But I am not seeing her actions as in some way sinister, or damagingly obsessive. There is no evidence that she inserted a suppository and I find the father's allegation in that respect to be overdramatic and a significant exaggeration. There is no evidence either about the mother giving B pills, still less 'forcing him' to take them as alleged: and it would be surprising, if the father thought she had done so, that he would not have arranged for some sort of medical test of B to check that he was alright. He was initially evasive when asked if he had spoken to any doctor about the alleged giving of pills, and his answer that he had telephoned one unnamed doctor about it did not come over very convincingly. So I am not persuaded that the mother has given B pills at contact.
73. For convenience, I will briefly summarise my findings and conclusions. These must obviously not be read in isolation, but in the context of the full explanations for them appearing at parts B to Q above.
(i) The father has not made out his case, and I am not satisfied, that the mother is or has been addicted to Modafen or alcohol.
(ii) I am not satisfied that the mother impeded or obstructed the father's having reasonable contact to B between February 2011 (when the parties' relationship failed) and December 2011 (when the mother took B to Poland, originally for Christmas).
(iii) I do not consider that the mother and her family cared negligently for B in Poland between December 2011 (when the mother took him there) and April 2013 (when he was returned to the father's care in England). I reject the allegation that the mother was giving B 'substances'.
(iv) I find that the mother was not justified in retaining B in Poland following his convalescence (say February/March 2012) to April 2013. She should have brought him home to his country of habitual residence, England. For a couple of months or so around April/May 2012, I find that she was 'stringing the father along' about returning B, when she had made up her mind to stay with him in Poland.
(v) I find that the father could have visited B in Poland between (say) February/March 2012 and April 2013. His explanations for not having done so are not persuasive. It is difficult to understand why he failed to have any contact with B for so long, when the mother was encouraging him to do so and when he says he had real anxieties about B's health and nutritional needs not having been met by the maternal family in Poland.
(vi) The father has failed to make out his case that the maternal grandfather sexually or otherwise abused B in Poland between December 2011 and April 2013. He has failed in his late allegation that the mother was herself 'involved in' sexual abuse of B and he has failed in showing that she in any way failed to protect him in Poland.
(vii) I do not consider that the father or his family have deliberately fabricated the things which they understood B to have been saying. This is more likely to have had its origin in a context and dynamic of high emotion and anxiety, arising out of which some things said by B were innocently misconstrued and given sinister interpretations, until the adults' anxieties became self-fulfilling as they talked with B and as between themselves.
(viii) I reject the claim that the mother abducted or tried to abduct B on 3rd April 2013. The incident was unfortunate and upsetting for B (and everyone) but it is understandable how it came about.
(ix) ... The numerous professional appointments to which the father took B between the 3rd April 2013 and the 29th April 2013 were not proportionate to the inherent risks; nor was there a need for him to be seen, or seen so often, by professionals focusing on his health and on the things he was understood to have been saying.
(x) I find that the father was unreasonably over-anxious and restrictive in denying the mother contact to B between the 16th April 2013 (when her solicitors secured B's passport) and the first supervised contact session on 1st May 2013.
(xi) I find that the mother sufficiently complied with the recommendations of the Polish hospital at the time of B's discharge on 30th January 2012 regarding his aftercare.
(xii) I find that the mother's conduct during supervised contact sessions (whilst perhaps focusing on 'pooping' more than might have been ideal) was based on good intention and not based on some lavatorial obsession of her own. I reject the father's assertion that she inserted a suppository; or that she forced B or otherwise got him to take pills. The father's whole attitude to the supervision of the mother's contact is shown by his exchanges with the supervisors (and by the need, as he genuinely perceives it, to 'protect' B) to smack of a disproportionate measure of control by him.
(xiii) Both parties have, in different ways, failed to put B's interests above their own. The combined totality is likely to have caused him some emotional harm. This is likely to continue, unless the parents can with a huge effort draw some kind of a line and look to the future, rather than the past. The father's attitude to the mother is concerning. He tends to look for an ulterior motive in everything which she says, does, or has dealings with. In my judgement, whilst to some extent understandable, this has got out of proportion in the way he approaches things and in his attitude to the mother's relationship with B. There is a risk of its further damaging the parental relationship, which would itself be to the continued detriment of B.
74. Those are my various factual and other findings. It will now be necessary to discuss the necessary Directions for the progress of these cross Applications towards the final hearing.