Law - shared parenting judgement
IN THE HIGH COURT OF JUSTICE
 EWHC 142 (FAM)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday 4th February 2004
Before:THE HONOURABLE MR JUSTICE WALL
A FATHER (Mr. A)
A MOTHER (Mrs. A)
THEIR TWO CHILDREN (B and C)
(Represented by the National Youth Advocacy
(NYAS) and their Guardian Mrs. P)
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Mr. Peter Horrocks (instructed by Gordon Bancks & Co)
for the Applicant
Mr. Lee Arnot (instructed by Woodfine Batchelor)
for the First Respondent
Mr. Rex Howling (instructed by NYAS) for the
Hearing dates: 16 December 2003
I direct that pursuant to CPR PD 39A para 6.1 no official
shorthand note shall be taken of this Judgment and that copies
of this version as handed down may be treated as authentic.
Mr Justice Wall
This judgment is being handed down in private
on Wednesday 4th February 2004. It consists of 35 pages and
has been signed and dated by the judge. The judge hereby gives
leave for it to be reported.
The judgment is being distributed on the strict
understanding that in any report no person other than the
advocates or the solicitors instructing them (and other persons
identified by name in the judgment itself) may be identified
by name or location and that in particular the anonymity of
the children and the adult members of their family must be
Mr Justice Wall:
Introduction and overview
This case concerns two children, whom I will call B and C.
They are the children of Mr and Mrs A. B is a boy who was
11 in August 2003. C is a girl aged 9 and a half. Their parents
are both professional people. Mr A is a hospital consultant
now aged 55: Mrs. A is a teacher, now aged 50. They were married
in April 1992 and separated in October 1997. Their divorce
was made absolute in September 2001 By virtue of an order
made in the county court on 27 March 1998; Mrs. A obtained
a residence order in relation to both children.
Although I have not investigated the history,
my understanding is that there was litigation effectively
from the date of the parties’ separation in October
1997, when Mrs. A removed the children from the former matrimonial.
Although ultimately compromised, the divorce was, as I understand
it, initially defended. Given the subsequent hostility between
Mr. and Mrs A, it is unlikely that the period leading up to
their separation was entirely amicable.
Early in 2002, Mr A issued an application for
a joint residence order and a defined contact order. His complaint
was that Mrs A had been making unilateral decisions about
the children’s health and education and marginalising
him from those decisions. He had objected to a proposed change
of school for C, and asserted that as a consequence, Mrs A
had informed him that C was frightened of him. Contact between
Mr A and C stopped in March 2002.
It is not necessary for me to recite all the
interlocutory orders made in the county court. For my purposes,
the important order is that made on 11 July 2002, which invited
the National Youth Advisory Service (NYAS) to respond on the
two questions of contact between C and her father, and Mr.
A’s application for a variation of the order for residence
made by the district judge on 27 March 1998.
A consultant psychiatrist, Dr. L was instructed
to advise on the attitudes of the children to contact, C’s
wishes in regard to schooling, and to give an assessment of
what if any therapeutic input would assist the children regarding
contact. She reported on 3 July 2002. She described B as a
rather vulnerable, very sensitive child, who was "devastated
and distracted" by his parents’ disputes. C had
been very fond of her father but had now apparently turned
against him. She did not want contact. Dr. L was not sure
how she could be helped to see him again, but said that C
needed to make her peace with her father. She reported that
C wanted to move schools, and that B needed and would make
use of some therapeutic input. She was not sure if C would
make use of a similar therapeutic input, but that did not
mean she did not need it.
On 11 July 2002 she gave evidence to the district
judge. The result appears to have been a compromise of the
school question, but the dispute over shared residence and
contact was set down for a three-day hearing commencing on
20 November 2002 before the district judge.
NYAS’ response to the invitation contained in the order
of 11 July 2002 was a preliminary report from Mrs. P, an independent
social worker and the NYAS’ caseworker, dated 16 October
2002 and written for a directions appointment to be heard
on the following day. I shall return to the detail of this
report later. In summary, however, it recommended the making
of a defined interim contact order between C and her father
in the period leading up to the final hearing on 20 November
2002. The first period was to be at a family gathering due
to take place on 21 October 2002. There were then to be further
contacts observed by Mrs. P.
On 17 October 2002 the district judge joined
the children to the proceedings and appointed Mrs. P their
guardian. In accordance with Mrs. P’s advice, he made
a detailed order providing for the first period of contact
on 21 October and thereafter two periods of contact to be
observed by Mrs. P. The court recorded its understanding that
the contact visits were directed with the parties’ agreement
and expressed its expectation that Mrs. A would make C available
for all of them.
The contact fixed for 21 October 2002 did not
take place. On 18 November 2002, Mrs. P filed her second report.
It set out in considerable detail the work she had done since
16 October 2002. Her recommendations were dramatic. She proposed
an interim residence order for a period of three to four weeks
in Mr. A’s favour to allow the children what she described
as a "short respite break". Those arrangements should
be reviewed before the children broke up for Christmas. The
court should set down a finding of fact hearing to resolve
concerns expressed by Mrs. A that C was at risk from her father.
She suggested this be heard either by an experienced circuit
judge or transferred to the High Court. She also expressed
the view that the court might well wish to consider making
an order under section 37 of the Children Act 1989 inviting
the intervention of the local authority on the basis that
the children were suffering significant harm. She also invited
consideration of a psychiatric or psychological assessment
of both parents.
The district judge acted promptly on Mrs. P’s
recommendation that the case be transferred to the High Court.
On what was intended to be the first day or a two-day hearing,
he secured the immediate whereabouts of the children for the
day and transferred the case to the High Court forthwith.
Thus it was that Mr and Mrs. A, their legal
advisers, Mrs. P and counsel for NYAS all arrived unexpectedly
in my court during the afternoon of 20 November 2002. Mr.
A and NYAS were seeking the immediate removal of the children
from Mrs. A’s care in accordance with the latter’s
recommendation. Fortunately, I was sitting as applications
judge and was able to accommodate an immediate hearing, which
lasted into the following day. I decided not to follow Mrs.
P’s primary recommendation. I directed that there should
be contact between both B and C and their father as recommended
by Mrs. P, and that contact should take place in the presence
of C’s godmother, Mrs. H. I also directed a finding
of fact hearing to take place on 16 and 17 December 2002 to
deal with Mrs. A’s allegations that Mr. A represented
a threat to C.
Contact remained problematic, but the finding
of fact hearing took place. At the conclusion of it, I was
a certain as I could be that Mr. A was not a risk to C, and
that, in particular, there had been no sort of sexually inappropriate
behaviour by Mr. A towards C, and that there was no lack of
appropriate sexual boundaries between Mr. A and C as Mrs.
A had alleged. I concluded that C had a loving relationship
with her father, and that there was no reason why she should
not both see him and stay with him.
Mrs. A assured me that she would accept my judgment
and the findings of fact I had made. On this basis, although
I was invited to do so by Mr. A, I declined to make any change
in the residence order, but made it clear that in the light
of my findings, I expected contact between Mr A and C now
to be fully restored.
Most unfortunately, Mrs. A did not accept my
decision. She allowed a friend to interview C. The allegations
were repeated and elaborated through the friend. Mrs. A also
involved another friend and her local vicar. Contact between
Mr A and C was frustrated.
The result was a further hearing on 30 December
2002. Mrs. A had applied for a suspension of my order directing
contact, and directions as to whether C should be seen by
a member of the local police or social services child protections
team. I dismissed that application and ordered that the children
should live with their father.
The plan was that the questions of residence
and contact should be listed for a full hearing on the last
three days of the Summer term commencing on 28 July 2003.
In preparation for that hearing, I had ordered on 19 December
2002 that NYAS should obtain a report on Mr and Mrs A from
a psychologist, Mr. BC – that report to be available
by 30 April 2003. In the event, Mr BC’s report was delayed.
However, sufficient progress had been made by Mrs. P and Mr.
BC for them to be able to recommend that the July hearing
should be postponed for six months. I therefore listed the
case for further directions on 16 December 2003
On 16 December 2003, there were further reports
from Mrs. P and Mr. BC. Their joint view was that there was
no purpose in the case proceeding to a full hearing. The children
were now spending 50% of their time with each of their parents.
That was acceptable to the children and to both Mr. and Mrs.
A. The only issue was that Mr. A wanted the interim residence
order, which I had made, in his favour to be retained: Mrs.
A wanted there to be a shared or joint residence order. Although
it was recognised as being highly unusual, both parents and
NYAS wanted the joint residence orders to last until each
child was 18, and also sought an order under section 91(14)
of the Children Act 1989 preventing each of them making any
further application to the court without the court’s
permission. Details of the shared care arrangement, with careful
identification of what days in each week would be spent with
whom throughout 2004 were agreed, as was a schedule of items
in relation to the exercise of parental responsibility, identifying
those items which required mutual consultation and those which
could be exercised unilaterally. I regard this as an extremely
useful document, and attach a copy of it to this judgment.
In a nutshell, Mr. A’s argument was that
the current shared care arrangements had only come into being
after the interim residence order had been made in his favour.
The only way they could be guaranteed to continue was if he
retained the sole residence of the children. He was committed
to the shared care arrangements, and assured me through counsel
that he would honour them. But if, he said, Mrs. A obtained
a shared residence order, she would abuse it, and there would
be a return to the strife which had beset the family since
1998, when a sole residence order had been made in Mrs. A’s
Mrs A was not at court on 16 December 2003.
I was told that she had recently been diagnosed as suffering
from breast cancer. She would, however, abide by whatever
order I made.
After hearing submissions from counsel on behalf
of both parents and on behalf of the two children, I stated
that I intended to make shared residence and other consequential
orders designed to ensure; (a) that the children spend equal
periods of time with each of their parents; and (b) that the
proceedings should come to an end. I agreed that I would make
an order under section 91(14) of the Children Act 1989 barring
any application by either party without the permission of
the court, and I also agreed, again unusually, that the joint
residence order should last until each child was 18.
As the orders I was making were unusual, I stated
that I would put my reasons for making them into writing,
in an anonymised form, which could be published. This I now
I have described the parents as Mr and Mrs.
A, and I have called the children B and C. As will be apparent,
none of these initials represents the true names of either
the children or their parents. As will already be equally
apparent, however, this is a case in which identification
of the children and their parents would be seriously detrimental
to the welfare of the family, whose privacy must be fully
protected. At the same time, the case demonstrates points
of interest and importance in the ongoing debate about the
role of the courts in contact and residence disputes. It is,
therefore right, in my view, that my reasons for reaching
my decisions in the case should be made public. I am therefore
handing this judgment down in open court, but directing that
nothing should be published which would identify the children
or their parents.
The facts as summarised by NYAS
I have already summarised the history of the case from the
court’s perspective. In her final report for the court
dated 14 December 2003, the children’s guardian, Mrs.
P, summarises the case from the children’s perspective
in a manner, which I cannot better. I therefore propose to
set it out in full: -
1.2 When I first met B and C in October 2002, they appeared
troubled children. C had stopped seeing her father in March
2002, and was stating that she no longer loved him or wished
to see him. She gave me a very unconvincing list of her worries
and anxieties about seeing her father. B had stopped seeing
his father in March 2002, but at his own insistence he had
started seeing his father again in April 2002. B felt desperately
sad that C was no longer going for contact. He did not know,
as a 10 year old child, how to resolve the problems in his
family. B appeared an emotionally burdened child.
1.3 With respect to the parents, Mr. and Mrs.
A, a virtual state of war had been going on for over 5 years.
It appeared that the first response of both parents in the
event of even the most minor disagreement was to rush to solicitors
or to make applications to the court. The bundle of case papers
I was sent at the start of this case was so large it could
be measured with a ruler. I can confirm that I read the whole
bundle fully; this is a recent concern of Mr. A. In my opinion,
reading the bundle was a sad testimony that two intelligent
people had lost all perspective and common sense in their
hatred of each other and their need to battle and win over
their ex-partner. I was clear they had lost the focus on their
primary role, which was to raise their children to adulthood,
either separately or apart, as best they could.
1.4 The children told me that handovers or meetings
between the parents were difficult for them, as they would
always resort to shouting matches and conflict. The parents
could not communicate together or make decisions about the
children without solicitors being involved.
1.5 In November 2002, I re-introduced C to having
contact with her father. This went well; it was obvious that
C had a strong attachment and a loving relationship with her
father. Overnight stays were started and became successful.
Confusingly, C became more and more distressed to leave her
mother’s care when I collected her, but would settle
down quickly after the separation. I had no doubt that contact
was positive for C.
1.6 Mrs. A was convinced that C was at sexual
risk from Mr. A. In the early days of my involvement, the
more I tried to re-assure Mrs. A, as an experienced social
worker in child protection, the more this issue assumed credence
in Mrs. A’s eyes. A finding of fact hearing was held.
The court gave similar assurances to Mrs. A by finding that
her concerns were unwarranted. This did not stop Mrs. A. She
involved a friend in questioning C about these matters. On
30 December 2002 the court considered whether the children’s
residence should change. The court ordered Mr. A to become
the residential parent, and for the children’s contact
to their mother to be at my discretion. This order put me
in the driving seat. I had no doubt that the best way forward
for B and C was a shared care arrangement.
1.7 Slowly the children moved to spending equal
time in both their parents’ care. This arrangement,
which has been detailed in my earlier reports, has been running
successfully since April 2003. The one undisputed fact in
this case now is that the shared care arrangement suits both
children well. The children are happy and thriving. They are
making excellent progress at school, and in their social lives.
B and C both feel they can maintain a neutral stance, as they
spend equal time with each parent. I believe that the parents
have now leant not to involve the children in their adult
disputes to the same extent as before. B and C no longer see
the need for me to keep seeing them. To them, the problems
have been resolved.
The points which this case illustrates
This case highlights 9 particular points, which I identify
1. First and foremost, yet again, it demonstrates the difficulty
and complexity of cases of this nature. The dispute between
these children’s parents has lasted from the date of
their separation in October 1997, and was amongst the most
bitter and protracted of my experience. C was 3 when her parents
separated. Thus throughout her short life she had never consciously
experienced a time when her parents lived together in harmony.
2. It demonstrates the distress and the damage
caused to children by long-standing and continuous hostility
between their parents. The pressure on B and C has been enormous.
B at one point told NYAS that he could not bear it any longer.
It is, of course, too early to tell if the damage caused to
these two children will spill over into their adolescent and
adult lives. I hope, of course, that it will not. However,
there is nothing more that the court can do, and I am satisfied
that the litigation must come to an end with the making of
the shared residence order.
3. It demonstrates the manner in which parents
can impose their own wishes and feelings onto children and
thus frustrate the formation or maintenance of a proper and
loving relationship between the children and the other parent.
C had been persuaded by her mother that she did not love her
father and did not want to see him, when the opposite was
the truth. Fortunately, the work done by NYAS, in conjunction
with firm court orders, has restored the relationship between
C and her father, and she now lives with him for half of her
4. It demonstrates the value and importance
of the children having their own separate representation in
certain cases. The children in this case were separately represented
in the proceedings by the NYAS. The work done by NYAS was
invaluable, firstly in restoring contact between C and her
father and then in achieving a shared care arrangement. It
was a paradigm of what can be achieved by skilled and energetic
social work intervention by the children’s guardian.
It was also; it has to be said, exceptional in the amount
of time and effort Mrs. P put into the case;
5. It demonstrates what the court can and what
the court cannot achieve. On the positive side, the court
was able to engage NYAS, also by conducting a formal hearing
and making clear and specific findings of fact, I was able
to decide categorically that allegations made by Mrs. A that
Mr. A had been guilty of sexually inappropriate behaviour
with C were untrue. On the negative side, neither NYAS nor
I was able to improve the relationship between the parents
or convince them of the damage, which the unrelenting power
struggle between them was causing to their children.
6 It demonstrates the highly damaging and destructive
nature of false allegations of sexual misconduct and abuse,
and the caution, which is required when such allegations are
made for the first time in the middle of a bitterly contested
family dispute. In this case, the allegation did not come
spontaneously from C: it came from C’s mother reporting
something C had allegedly described. I was quite satisfied
that nothing untoward had occurred between C and her father,
but that because of the intensity of her feelings towards
her former husband, Mrs. A had distorted and misinterpreted
entirely innocent activities between Mr. A and C.
7 This is a case where a shared residence order
is appropriate. But it also demonstrates clearly that shared
residence orders are not a panacea. Shared residence and an
equal division of the children’s time between their
parents’ houses is possible in this case because the
parents live close to each other, and the children can go
to school from either home. The children welcome it because,
in C’s words, which I have already quoted, it gives
his parents nothing left to fight about. But it is a pragmatic
solution, which does nothing to address the underlying hostility
between the parents. Whether or not is succeeds; only time
8. The case demonstrates that intractable contact
and residence disputes cut across all class barriers. In this
case, the father of the children is a hospital consultant:
the mother is a teacher. In their different ways, and away
from each other, both are individually charming and attractive
people. Their hostility towards each other, however, was tangible
and frequently led to quite irrational behaviour. The Children
Act Sub-Committee of the Lord Chancellor’s Advisory
Board on Family Law commented in its consultation on contact
disputes that it was frequently the case that the more intelligent
the parents, the more intransigent and bitter the dispute.
This case is an example of that. Contact and residence disputes
are no respecters of class barriers.
9. Finally, the case demonstrates the benefits
of judicial continuity. From the time the case unexpectedly
into my list on 20 November 2002 to its final resolution on
16 December 2003, I heard every application in it. My familiarity
with the facts and with the parties meant that applications
could be made to me at short notice, and I could make decisions
swiftly. When a crisis occurred shortly before Christmas 2002,
I was able to arrange a hearing swiftly to deal with it. It
was not necessary for colleagues to read their way into a
case to which they would be coming for the first time.
The judgment, which follows, is very long. I propose to set
out the facts in detail in order to demonstrate the difficulty
and complexity of the case, and to illustrate and explain
the points I have identified in the previous paragraph. Before
setting out the facts, however, I wish to make it clear that
I am not seeking to demonise either parent. Although some
of Mrs. A’s actions were particularly inappropriate
and damaging to the children, I am satisfied that both parents
love their children deeply. However, both share the responsibility
for the impossible and damaging position in which they placed
The facts in detail
The difficulties, which Mrs. P encountered in restoring contact
between C and her father, are a clear demonstration of proposition
number 3 set out at paragraph 24 above. When Mrs P met C for
the first time on 10 October 2002, C told her that she did
not wish to see her father. Mrs. P explained carefully about
the court, and that the judge wanted Mrs. P to see C having
contact with her father. Mrs P and C spoke at length about
C’s worries and C agreed to write out a list of them.
This is a very sad document for an eight-year-old child to
produce, particularly when nearly all of it turned out to
C wrote: -
1. I don’t want him to go all smoochy over me.
2. I keep having bad dreams about him.
3. I don’t want to go on Sunday!!!
4. He always smacks me!!
5. I don’t love him!!!!!!
6. I don’t like him sending cards or presents
7. I don’t like him coming to my school.
8. I don’t like his voice on the phone.
9. He never laughs!!!!
10. I don’t like falling asleep at the
11. I don’t like eating late!!!!!
12. I don’t love M (Mrs. H, her godmother)
13. I don’t like his big house it is creepy!!!!
14. I’m always late for school!! And horserides!
Mrs P observed that C’s body language
was quite incongruent with her verbal statements. She tried
to reassure C that she would speak to her father before the
first contact and gave her a guarantee that her worries would
not come true on the first contact. She helped C plan how
she might greet her father. She also arranged for Mrs. A to
come to the meeting place, and that when she left, Mrs. P
would remain close by C’s side. They would have a mobile
phone number, and therefore would be able to summon her mother
at any time.
Mrs. P says, and I accept, that when she left
after the meting on 10 October 2002, C appeared to her to
be happy to agree to go for the contact which, it was agreed
with Mrs A, was to take place at 5.00pm on Sunday 13 October
2002 at the local MacDonalds. Mrs. P also says that B was
delighted that contact between his father and his sister was
I am satisfied that Mrs. P prepared C carefully
and sensitively for the contact due to take place on 13 October
2002. However, when she arrived to collect C for the contact,
she was told by Mrs. A, in C’s absence, that C had decided
she did not want to see her father, and would not come for
the contact. Mrs. A also showed Mrs. P a Women’s Aid
Information Pack, which she had obtained after listening to
a programme on Radio 4 on the previous day. As it happened,
Mrs. P had listened to the same programme, which was about
children forced to continue to have contact against their
will and when the children had disclosed previous serious
sexual or physical abuse against their father. Mrs. A made
a comparison between C’s situation and the situation
of the children discussed in the programme, and told Mrs.
P that having read the Pack, she was reluctant to push C to
go for contact against her wishes. She said she needed to
get to the truth about why C was reluctant to see her father.
Mrs. P saw C who told her several times that
she did not want to see her father and that Mrs. P could not
make her go. Mrs. A said that C did not trust Mrs. P as she
was going to force C to go to the contact. Mrs. P did not
force the issue. She said she hoped C would come, and that
she intended to wait outside until 5.00pm so that C could
talk to her mother. She would then drive off and go and meet
her father as planned. Mrs. A came out to the car at about
4.55 to speak to Mrs. P, but C did not emerge.
Mrs. C met Mr A and B at MacDonalds. Mrs. P
then drove B in her car to Mr. A’s home. In the car,
they were able to have a long discussion B talked at length
about how upsetting he found the conflict between his parents.
B also said he could not understand why C was expressing concerns
about her father smacking her. He had hardly ever done so
- at most four or five times ever. She had also been smacked
by her mother.
B also agreed to write down his wishes and feelings.
This is a document entitled: "Most Important Things",
1. Equal time with my mum and dad
2. To be able to have an Australian passport
and to be able to see my relatives in Australia
3. To (sometimes) be able to choose when I go
to see my mum and dad.
4. To be able to go on business trips with my
Mrs. P was able to observe the interaction between B and Mr.
A. She thought they had a warm, loving and entirely appropriate
father son relationship. Mrs. P returned home at about 9.00pm
to find a telephone message from Mrs. A, to whom she then
spoke. Mrs. A told her that the more she had read the Women’s
Aid literature, she more concerned she was about C having
contact with her father. She related a number of incidents,
with which I will deal later. She also told Mrs P that C had
asked her to tell Mrs. P that she wished to see Mrs P as she
had something to tell her.
Mrs. P discussed the matter with NYAS and they
agreed that as C had made no disclosure of sexual abuse, the
case should not be referred to social services and the police,
but that Mrs P should see C as a priority. Thus on 14 October
2002, Mrs P saw C at her school, in the company of her head-teacher.
Mrs P asked C why she wanted to see her. C replied that she
wanted to tell Mrs. P about her father not wearing underwear
in bed when she woke up in the middle of the night and climbed
into his bed. She also said that she had seen him getting
dressed and undressed and described a particular way he took
off his underpants.
Mrs. P and C discussed a number of her anxieties.
Mrs P was concerned about C’s demeanour. For the most
part, she was happy, smiling and enjoying the attention of
Mrs. P and her headteacher. Her body language and non-verbal
communication were incongruent with the things she was saying.
Mrs. P’s interim conclusions, after what
was on any view a very intensive piece of work, of which I
have described only a small part, was that both B and C appeared
to be children who were traumatised by the conflict between
their parents. She was a satisfied as she could be that C
was not at risk from her father, that there was no need for
her contact with her father to be supervised, and that her
worries and concerns about seeing her father could be sorted
out, with the right support from Mrs. A and herself.
Mrs. P accordingly made the recommendation that
contact should be re-started at a family gathering on 21 October
when C’s paternal aunt and her cousins as well as other
relatives would be visiting her paternal grandmother. That,
accordingly, was the order made by the district judge. C’s
paternal aunt was to collect her from her mother’s house,
and her mother was to collect her after the contact from the
home of her paternal grandmother. The district judge also
ordered two other contact periods on Saturday 9 November and
Saturday 16 November 2002. On each occasion Mrs. P was to
collect C from her mother’s home and return her. The
contact was to last for a minimum of two hours.
Mrs P was on leave on 21 October 2002. The contact,
which had been ordered, did not take place. C’s aunt
arrived to collect her with her two cousins. Mrs. A answered
the door with C. C said she did not want to go. She had prepared
a card for her grandmother, which was handed over. Nobody
was invited into house. The entire conversation took place
on the doorstep.
On Saturday 9 November 2002, Mrs. P arrived
to take C to contact. She says C looked extremely frightened
and was shaking. Mrs. P held her hand and said she would look
after her. The contact was due to take place at Megabowl.
They arrived at the same time as Mr. A and B. C was shaking
and clung on to Mrs. P. On the way across the car park, B
told his father that C was feeling very frightened and nervous.
Mr. A said he felt the same. This made C laugh. Mrs. P says
she felt the tension disappear, and C stopped clinging to
her and just held her hand.
Mrs P reports that within minutes of arriving
C relaxed and responded well to Mr. A. When she scored a goal
against B, she leapt naturally into her father’s arm
for a celebratory hug. There was a lot of natural physical
touching between C and Mr. A. After about 30 minutes, C told
Mrs. P and her father that she was enjoying seeing him and
that she wished to start seeing him again, but not to stay
overnight. Mr. A said he was delighted to see her again, as
he had missed her terribly. However, she would not be pushed
to stay overnight until she was ready.
When Mr A, the children and Mrs. P went to the
park prior to going to MacDonalds, C appeared so content,
relaxed and happy in her father’s company that Mrs.
P withdrew and observed from a distance. She says that over
a 15-minute period she noted that C sought out her father
to give him a hug or a kiss on six different occasions.
The party then repaired to MacDonalds. The next
week’s contact was discussed and C said she wanted to
go swimming. It was arranged that Mrs. C would collect her
and take her to her father’s home. She wanted to show
Mrs P her bedroom there. Mrs. P had a commitment, which meant
she had to leave at 5.30pm, but if all was going well, her
father would take her home.
Mrs. A’s response to Mrs P’s description
of the contact on 9 November 2002 was to say that she had
concerns about Mrs. P’s professional practice. She said
she did not feel Mrs. P had spent enough time with C prior
to suggesting contact, and that she had failed to listen to
Between the contact on 9 November and that on
16 November, Mrs. P set up a meeting between Mr and Mrs A.
This, however, proved to be a disaster, firstly because of
arguments between the parents about what Mrs. P considered
minor matters, but also because Mrs. A began to talk about
her concerns about the lack of sexual boundaries between Mr.
A and C. As it happened, Mrs. P had only that morning received
a letter from Mrs. A’s solicitors in which those concerns
were particularised. Mr. A read the letter and became extremely
angry and distressed. He accused Mrs. A of trying to ruin
his reputation. He shouted abuse at Mrs. A. Mrs. P said the
meeting was over and decided to take Mr. A outside. He continued
to shout abuse at Mrs. A, who turned to Mrs. P and said: "I
told you he was like this". Once outside, Mr. A broke
Despite the events of 15 November, contact took
place on Saturday 16 November as arranged. This was, in my
judgment, a particularly significant contact. Mrs. A told
Mrs P that C had said she did not wish to remain with her
father after Mrs. P had left and that C wished to return with
Mrs. P. Mrs. A said that after yesterday’s outburst
there was no way she would allow Mr. A to bring C home. Mrs.
P said she would prefer to be guided by C’s wishes at
the time and if need be C’s godfather, who was staying
with Mr. A could bring C home.
During the journey to contact, C expressed the
wish that her parents got on better, and talked about how
difficult it was for her that they did not. She was glad she
was seeing her father again, and revisiting her old home.
She wanted the presents that were there for her. She hoped
very much that there would be reconciliation between her mother
and her godmother Mrs. H, whom she missed a great deal.
When they went swimming, C chose to get ready
with her father. In the light of the allegations made against
him by Mrs. A, Mr. A was nervous about this. Mrs. P advised
him that if C wanted him to help her get ready, he should
When the time came for Mrs. P to leave, C said
that she would like to stay on with her father and go out
for a Chinese meal. Mrs. P telephoned Mrs. A to tell her what
C had decided and to give details of the arrangements for
returning her. C wanted to tell her mother her plans herself.
She started talking excitedly to her mother. Mrs. P describes
what happened next: -
Suddenly C’s demeanour changed. She said to me that
she wanted to go straight home. C looked crestfallen and extremely
distressed. I took the telephone off her and spoke to Mrs.
A. W (a cousin) who was nearby leapt forward and cuddled C
who was sobbing. Mrs. A demanded in an extremely aggressive
way that C be returned (home) immediately by myself. I told
Mrs. A that it was now too late for this as I needed to be
(elsewhere) by 7.00pm. I told her that I wanted to speak to
C who was most distressed, to see why she had changed her
mind about the plans so abruptly and that I would telephone
Mrs. A back.
C was sobbing inconsolably, even though she
was being cuddled by B, her father and W, who were all most
concerned about C’s distress. B asked to speak to me
on his own. He told me that C would be frightened about his
mother being angry because she wanted to stay on. I went back
to speak to C. She told me that she would like to go out for
dinner and to Toys R Us but she felt that she needed to go
home. C was terribly distressed. When I asked her if B was
right that she was scared of her mother being angry for wanting
to stay, C confirmed that this was the case. I asked her what
she wanted to do. C told me that she wanted to go to Toys
R Us as planned. but that she no longer wanted to go out for
dinner and could she be taken straight home. I telephoned
Mrs. A to tell her this was what was happening. Mrs. A made
it clear that she was angry about this to me.
In my judgment, this incident speaks volumes.
Before they went swimming on 16 October, B
spoke to Mrs. P and told her his wishes and feelings. He described
how difficult he found the situation. He made five points,
all of which seem to me to be remarkably percipient for a
child of his age. They were: -
1. He would like to be able to telephone his father or his
mother when he is in the other’s home without any comment
or him having to ask.
2. He would like his father to promise that
no telephone calls would ever be tape-recorded;
3. He would like both of his parents to promise
not to talk to him about the other parent or the court case.
4. He felt it may be better if his parents never
met. He suggested that Mrs. H may be the best person to do
5. He suggested that if there were decisions
that needed to be taken about him and C perhaps both his parents
could talk to Mrs. P to make the decision.
It was following these events, that Mrs. P made her recommendation
in her report of 18 November 2002 that there should be an
interim residence order in favour of Mr. A; and it was that
recommendation which caused the case to be transferred to
the High Court and to come into my list on 20 and 21 November.
The finding of fact hearing on 16 and 17 December 2002
In the event there were 7 areas of concern
raised by Mrs. A. These were:
(1). Disclosures from C to her mother that her father had
said C had "fluff" in her "minnie" (vaginal
area) and that she had to rub at it to remove it.
(2) C’s disclosure to her mother that
when her father cleaned her bottom after C had been to the
toilet, he sometimes hurt her.
(3) That B had defecated whilst squatting on
the toilet rim and that he had defecated in the bathroom whilst
C was taking a bath.
(4) That C had seen Mr A flick off his underpants
whilst he was naked in bed.
(5) That Mr. A had used the toilet in front
of C whilst she was in the bath.
(6) C’s worry list about her father (set
out at paragraph 28 above) and
(7) C’s disclosure to her mother that
her father used to pull her down on top of him; that she did
not like it; that it was like people having sex and that Mr.
A was naked at the time.
As to (1) there was really no dispute. Mrs.
A did not suggest that there was anything sexual in this.
Mr. A agreed he had used the word fluff" and I was satisfied
that this was simply Mr. A, quite appropriately, telling his
daughter to clean herself properly.
As to (2) assuming, as I was prepared to, that
C had said this, I was quite satisfied this was, once again,
quite innocent. Mr A had wiped C’s bottom when she was
younger. I accepted his evidence that he had not done it at
any stage inappropriately or when C was too old for him to
be doing it.
As to (3) this seemed to me a point, which demonstrated
how the parents’ inability to communicate with each
other made for difficulties. B had developed the habit of
defecating in what he described as "oriental style"
by squatting on the rim of the toilet bowl. Apparently in
so doing he had caused a mess at home in his mother’s
house. His father allowed him to defecate in this manner in
his house, and no doubt B told his mother so. My own view
was that this was something, which was not socially acceptable
in middle class England, and that B should have been so told
by his father. I did not, however, regard it as in any way
relevant to the question of C’s contact with her father.
As to the manner in which Mr. A removed his
underpants, I commented that no doubt people do remove their
underpants in different ways. The only relevance would be
if Mr. A was in some way exposing himself to C. That was not
alleged, nor had it happened.
As to (5) I was quite satisfied that Mr. A at
no point had gone to the lavatory whilst C was in the bath,
and I accepted his evidence that he had not done so.
As to (6) I regarded the "worry list"
as a very sad document. Much of it was simply untrue, including
the assertions that she does not love her father and that
she did not like him sending cards or presents. Both had been
disproved by the contact, which Mrs. P arranged.
That left the final allegation (7). This, on
any view, was the most significant allegation. If true, the
clear implication is that Mr. A had used what would otherwise
be the entirely innocent activity of C sitting on top of him
in bed for his own sexual gratification. The incident, accordingly,
deserved careful examination.
The first point which had to be made was that
the incident arose in the context of what can only be described
as a more than usually acrimonious separation and divorce
between C’s parents, and bitterly contested proceedings
between them relating to residence and contact. Any allegation
of sexual impropriety arising in these circumstances has,
in my judgment, to be approached with great caution.
This need for caution was, in my judgment, reinforced
where, as here;
(a) the parties have been separated for some 5 years before
the allegations was made,
(b) the immediate issue before the court at
the time was Mr. A’s contact with C which Mrs. A had
stopped in March 2002;
(c) the parties were preparing for what they
understood at the time to be a final hearing, fixed by the
district judge in July 2002 for 20 November 2002;
(d) on any view, Mrs. A was highly anxious about
(e) on 16 October 2002 Mrs. P had produced her
first report, which, after recording a failed attempt at contact
made a specific recommendation for the reintroduction of contact,
which was carefully crafted to meet C’s needs and assuage
any anxieties she might have;
(f) that recommendation had been specifically
endorsed by the district judge on 17 October;
(g) according to Mrs. P in her first report,
Mrs. A had listened to a Radio 4 Woman’s Hour programme
about children who were allegedly
forced to continue to have contact with an abusive
(h) finally, the contact arranged for 21 October
2002 had, in Mrs. P’s absence on holiday, not taken
There were several other factors, which, in
my judgment, are of significance in making an assessment of
this allegation. They were the following: -
(1) This allegation is not on C’s list of worries dated
10 October 2002, which she gave to Mrs. P;
(2) C has not repeated it to Mrs. P, although
given appropriate opportunities to do so;
(3) Mrs. A’s own conduct in relation to
it. Although alerted to sexual abuse by the Women’s
Hour programme, she did not alert Mrs. P to it, even though
she wrote to her the next day asking her for a copy of her
CV. At that time, Mrs. A was acting in person, and there is
correspondence from her to Mr. A’s solicitors after
21 October dealing with other issues, including the allegation
that Mr. A inappropriately wiped C’s bottom. Her solicitors
did not come on the record until 14 November, although Mrs.
A had plainly instructed them by 7 November, which is the
date they wrote to NYAS setting out the allegation against
Mr. A. In my view, Mrs. A’s failure to tell Mrs. P about
the incident herself is surprising – particularly in
the light of the fact that her solicitors’ letter to
NYAS says in terms that Mrs. A looked to NYAS for advice on
(4) Finally, on this head, it appears that Mrs.
A had spoken to the NSPCC after 21 October 2002, but did not
mention this incident to them.
Having heard Mrs. A’s evidence, I concluded
that there were several possible explanations for an allegation
of this kind in the context I had already described. The first,
of course, was that it is an accurate reflection of what the
child said, and that the child was speaking the truth. At
the other extreme was the proposition that the allegation
was not only untrue, but had been fabricated by the parent
to whom it is alleged the child spoke. Between the two were
a variety of possibilities.
Sometimes, in my experience, the anxiety about
contact or residence demonstrated by the resident parent is
so great that he or she simply misinterprets an innocent remark
made by the child. That is what I have found may well have
happened in the other incidents with which I have dealt. Sometimes,
the anxiety displayed by the parent is so great that it induces
the adult to lead the child into a description of an event,
which has not occurred, but which the adult believes may have
occurred. Sometimes the child, anxious to please the residential
parent, and acutely aware of that parent’s heightened
anxiety, is led by the parent into an allegation which, once
again, simply has not occurred, but which both the adult and
the child, in due course, come to believe. Sometimes, an innocent
event is misinterpreted, either deliberately or through parental
anxiety, and wrongly translated into an allegation of abuse.
In attempting to decide what had happened in
this case, and applying the principles relating to the standard
and burden of proof set out by Lord Nicholls in Re H (minors)
(sexual abuse: standard of proof)  AC 563, I was not
impressed by Mrs. A’s oral evidence, or her demeanour
in giving it. There were serious inconsistencies between her
evidence in the witness box and the version on paper. I did
not think she was an accurate historian. Her explanations
for the inconsistencies lacked all conviction. An incident
like this, which she clearly believes to be very serious,
would, I think, have been clearer were it an accurate account
of what happened. Whilst I was quite sure that she has good
qualities as a mother, I was equally sure that her level of
anxiety over contact was so great that not only had it badly
affected C, but that it had also been responsible for this
allegation being made.
I was entirely satisfied that C, who is a tactile
child, and who loves kisses and cuddles from her parents,
enjoyed, in an entirely innocent way, getting into her father’s
bed, kissing and cuddling her father, and as well as sitting
on top of her father when he was in bed, no doubt sometimes
straddling him. I was entirely satisfied that all of that
activity was innocent, and a normal part of family life. There
is absolutely nothing wrong with children seeing their parents
naked – as Mrs. A herself agreed. Nakedness is only
abusive when, in the adult mind, an adult sexual motivation
is introduced, and the adult’s or child’s nakedness
is used for adult gratification. Having heard and watched
both Mr and Mrs. A in the witness box, I was as satisfied
that I can be that Mr. A’s contact with his daughter
had been entirely innocent at all times. I accepted his denial
of any form of sexual impropriety.
How then did this allegation emerge? I must
avoid any temptation to engage in amateur psychiatry or psychology.
But, on the balance of probabilities what I find has happened
is that following the unfortunate failure of the contact on
21 October, Mrs. A spoke to C about her father. I cannot believe
that C instigated the conversation. Questioned by Mrs. A,
C may well have told her mother about getting into her father’s
bed, and sitting on top of him when he was in bed. That innocent
activity has been transmuted by Mrs. A into an allegation
of sexual misbehaviour. That had happened, because, despite
her protestations to the contrary, Mrs. A remains profoundly
angry with Mr. A, and profoundly anxious that C and B may
be removed from her care.
The alternative, of course, is that Mrs. A had
fabricated the whole incident. That may be the case, but on
balance I think it unlikely. I think it more likely that in
an unwholesome and inappropriate conversation following the
failure of contact on 21 October, Mrs. A spoke to C, and distorted
something C said
I am anxious not to demonise Mrs. A, and I hope
I am not doing so. The evidence in this case – the medical
bundle in particular, cries out with the message that these
two children were suffering because of their parents’
mutual hostility. That is a message, which I endorse. Each
of the parents dealt with their anger in different ways, but
that each was very angry I had no doubt. I think Mr A is sometimes
able to disguise his anger under a professional veneer, but
equally, I think he underestimates the effect of his anger
about Mrs. A on the children. They are well able to appreciate
how angry he is. Children should not either be exposed to,
or to be expected to cope with such a complex emotional dynamic.
Mrs. A had assured me that she would accept
my findings and work with them. In my judgment on 18 December
2002, I said that the next few weeks and months would be crucial.
I made it quite clear that there was absolutely no reason
why C and B should not see their father and stay in his household.
They were not at risk of any form of physical or sexual abuse.
The only risk was emotional abuse caused by difficulties over
contact. There was no reason why, with Mrs. P’s help,
extensive contact over Christmas should not be agreed. I looked
to both parties, but Mrs. A in particular, to work with Mrs.
P to facilitate contact. I told Mrs. A that I would not be
impressed, if this case came back to me for a further contested
hearing, if I was told by her that C did not want to go to
contact. If C continued to say she did not want to go to contact
that could only mean that Mrs. A did not want her to go to
contact. She had assured me this is not the case. The proof
of the pudding, in the trite phrase, would be in the eating.
Events after the finding of fact hearing
Most unfortunately, Mrs. A proved unable to
accept my findings. Worse than that, she attempted to revive
and expand the allegations. As related by Mrs. P, who in my
judgment is a reliable historian, the sequence of events was
At around 11.45am on 21 December 2002. Mrs.
A telephoned Mrs P and told her that during the car journey
home, C had made a further serious disclosure to her. Mrs.
A told her that C was now saying she would tell Mrs. P her
secret, and Mrs A requested Mrs. P to visit C to talk to her.
Mrs. P asked Mrs. A seriously to consider the implications
of her not accepting the court’s judgment, given on
18 December, and the finding that Mr. A was not a risk to
Around 12.30pm the same day, Mrs. P telephoned
Mrs. A who told her that C had recounted the same allegations
which she had first disclosed on 21 December, but this time
Mrs A said that C had mentioned that her father had underpants
on, and his ‘willy’ had got hard and then gone
Mrs. A asked Mrs. P’s advice about what
to do. Mrs. P stressed the importance of her accepting the
judgment of the court, and keeping to contact arrangements.
She suggested she could report C’s recent statement
to the Police and Social Services for further investigation,
if she felt this was warranted. Mrs. P said that she was not
available to interview C due to family commitments until the
New Year, and that she would need to seek legal advice, given
the judgment of the court, prior to doing so in any event.
She suggested that Mrs. A carefully thought through the full
implications of any decision she made.
Around 5.00pm on the same day, Mrs. A telephoned
Mrs. P. She told her she had had further discussions with
C and told me that she now "had concerns about C’s
demeanour." She said that C was now willing to go to
her father’s for staying contact. She asked Mrs. P to
telephone Mr. A to inform him she was bringing C. Mrs P suggested
that Mrs A should drop C off and knock on the door, and ensure
that there was not a further dispute between the adults in
front of the children. She then telephoned Mr. A to inform
him of C’s imminent arrival. C was then taken to Mr.
A’s home and Mrs P was told by Mr. A that she arrived
smiling, and was settled and relaxed all evening, although
she wanted to sleep with B.
Sadly, that was not the end of the pre-Christmas
difficulties. Having previously, as she thought, clarified
the arrangements for all the pre-Christmas handovers, Mrs.
P arrived home on 23 December around 5.15pm, to find that
C had left her 3 telephone messages to say she did not want
to go back to her father’s as he was having an adult
party that night. At 5.20pm, C telephoned Mrs. P to say she
did not want to go to her father. Mrs. P told her that the
adults all wanted her to go, and reminded her it was Christmas
and she would have a nice time. Mrs. A came onto the telephone,
and was angry that Mrs. P had not been available earlier.
Mrs. P emphasised to Mrs. A the need for her to promote positive
contact between C and Mr. A, and she should be helping C to
attend as arranged. This prompted an angry tirade from Mrs.
A. Mrs. P reminded her of the time and that it was not convenient
for her to have any further discussions with her as she needed
to go out, and she hoped that Mrs. A would take C and B to
meet Mr. A as arranged.
Mrs. P’s report then continues: -
I returned home at 6pm to messages from Mrs. A saying that
they could not get C to go. Mr. A had also left me a message
asking me to telephone him to find out if I knew were the
children were. I telephoned Mr. A and explained my earlier
telephone conversations with C and Mrs. A. It was agreed that
I would telephone Mrs. A and ask her to bring the children
to meet Mr. A by 6.15pm or she would have to take them to
Mr. A’s home herself. Mr. A had arranged for several
work colleagues to come to his home, and needed to get back
to meet them. Mr. A told me that C and B that morning were
looking forward to having a small party that night, and had
helped plan it. Mrs. P telephoned Mrs. A and asked her to
deliver the children to McDonalds by 6.15pm at the latest,
and stressed the need for her to demonstrate that she could
promote C going for contact with Mr A, as she had done on
Saturday 21 December 2002.
I then received a flurry of telephone messages
from Mrs. A and also her friend, SM, saying they could not
get C to go. Mr. A telephoned me to say that Mrs. A had brought
B at 6.15pm, but C refused to get out of the car. There had
been an argument as Mrs. A was requesting that he take the
responsibility to drag C out of the car. Mr. A told me he
was distressed when SM mentioned to him Mrs. A had told her
that the judge had made findings against him that he was emotionally
and psychologically abusing the children. This was said in
front of B and C.
B had also telephoned me and left me a rather
sad message saying he could not stand any more of this. I
telephoned him back at Mr. A’s home. B asked me to explain
why SM had talked about his father psychologically abusing
him. B said about 15 times, in a very distressed way, he needed
a break from all the pressure. (my emphasis) I carefully explained
to B, that just like C, his mother had her own worry list,
and she was concerned about C staying with Mr. A, as his mother
believed C to be at risk of harm from Mr. A. I told B that
the judge had carefully listened to everything his mother
and father had to say, and then decided that his mother did
not need to worry about the things on her worry list. I told
B that the judge now wanted C to stay with Mr. A. I said that
C may need time to understand that she was safe to stay with
her father, and that Mummy supported C staying. B and I discussed
that when C was at her father’s home she was happy.
He agreed with this, but he was struggling to understand why
C gets so upset.
Around 7.30pm, Mrs. A telephoned me. She told
me that C had talked to her mother about her "secret’.
Mrs. A told me she had telephoned the local Social Services
Emergency Duty Team and the NSPCC who had all advised her
that C should not go for contact. Mrs. A told me her vicar
was present as well. I advised her to seriously consider her
position if she could not accept the findings of the court
and advised her that the contact arrangements agreed at court
should continue. I suggested to Mrs. A that her current stance
may mean that a change of residence for the children would
have to be considered.
Around 8.45pm, I was telephoned by a JJ, She
told me she was a friend of Mrs. A and she had just been talking
to C in her bedroom and C had made disclosures to her. I asked
that she let me take a careful note of what she wanted to
tell me. I firstly asked her address and telephone number.
JJ told me she worked for a Welfare Rights Team doing administration
and filing. She told me she was not one of the front line
staff and had no experience of child sexual abuse.
JJ told me that she talked to C in her bedroom
and explained to C it was serious, if she did not go to her
father’s tonight. J said C told her she had a secret,
she had not told (me), but would tell JJ. I shall write up
my notes of the conversation I had with JJ
Mrs. P then records in meticulous detail everything
JJ told her C had said. JJ had not taken notes of her conversation
with C, but when Mrs. P read her back my completed notes,
JJ agreed that she had recorded their conversation truthfully.
I will not burden the already overlong judgment
with the detail of JJ’s conversation with C. I did not
hear oral evidence from JJ, and therefore do not want to be
too critical of her, but what she did was plainly extremely
unwise and altogether unacceptable. She had no experience
in interviewing children. The interview took place through
a fantasy, with C allegedly describing what happened to a
boy called Calvin who had the same birthday as C. There are
leading and suggestive questions, and dolls are used to demonstrate
what allegedly happened. As a piece of evidence it is worthless,
and, sensibly, no attempt was subsequently made to rely upon
it by Mrs. A’s counsel at the subsequent hearing.
Statements were made by Mrs. A, JJ, SM and Mrs.
A’s vicar Mr. H. These were sent to me. I also received
an Email from Mrs. P advising me that in her view the situation
for the children had become intolerable. Mrs. A’s solicitors
had drafted an application seeking a variation of the order
I had made on 18 December and directions that C be seen by
the local police child protection team or social services.
I sent a FAX to counsel on 24 December stating
that I was not prepared to make any order on a without notice
basis. I stated, however, that I would hear Mrs. A’s
application on 30 December 2002. I was not, in the meantime,
prepared to make any order suspending or varying contact unless
NYAS advised that contact to C should be informally suspended
until 30 December because of the distress currently caused
On 29 December 2002, the indefatigable Mrs.
P produced her third report. She expressed her surprise that
the issue of C being at risk of sexual abuse had been raised
again by Mrs. A, and that she had involved her vicar and two
friends. The consequence had been that, for the first time,
B and C had spent Christmas apart, and Mr. A’s Christmas
arrangements for himself and his extended family had been
Mrs P had conducted a number of visits and interviews
on 29 December, the date of her report. In particular she
had a long conversation with C. She also had a significant
conversation with B. She also spoke to both Mr and Mrs A.
The outcome of her long and careful discussion
with C is best described in Mrs. P’s own words: -
NYAS and I decided that prior to the hearing on 30 December
2002, I should see both B and C to carry out the most up-to-date
assessment of the children as possible. From my interviews
today with C, it is clear that she is rather fed up with talking
about an incident, which she herself does not describe as
a serious event, when she was playing with her father in his
bedroom, some time ago. During the play, her father lifted
C on top of him. C did not like this. C says that they continued
playing afterwards. She did not exhibit any undue stress on
talking about this; apart from when she was asked by myself
to clarify why she had said it was like sex.
It is apparent that C is still rather innocent
about sexual matters, and thinks sex is like kissing and lying
on top of each other, as she had seen in a James Bond movie.
I am of the view that C’s rather innocent statements
about this event have been distorted and exaggerated out of
all proportion by her mother and her friends. I believe that
C’s understanding about what constitutes sex has been
misinterpreted. SM and JJ have not explored with C the context
that this event took place. I accept that C, with prompting
from her mother, now says she did not like this, but to me
she put it clearly in the context of having taken place during
a play session with her father, rather than being in a context
where Mr. A gained sexual pleasure out of it…
I am most concerned that C talked to me today
about never seeing her father again, and not until she is
at least 21 years old. This is a new development. C admitted
to me she had been happy seeing her father, but now says it
was only because someone from the court was present. She says
she does not love her father and does not want to see him.
She says this repetitively, without emotion and rather as
if this is a learnt mantra. I am now concerned that C’s
own reality has been taken away from her. She can only see
what her mother wants her to see….
… C now believes that she will not see
her father again until her majority. At the age of only 8,
C cannot understand the full implications of that decision.
I no longer believe C is stating her own views, but is now
only reciting, parrot fashion, the views of her mother (my
Equally worrying, in my view, was Mrs. P’s
conversation with B. B had been instructed by his mother to
tell Mrs. P about Mr. A telling C off and smacking her several
years ago. This was why she did not want to see him. Mrs.
P later asked B about this incident. B said it was nothing.
He had told Mrs. P because his mother had told him to. He
said he was a bit frightened of his mother, if he did not
do as she said. He said that his mother wanted to know every
detail of what he did with his father, in order to pick fault.
B said he was "fed up" with what he
described as "the war". He needed a break. Perhaps
he could live with Mrs H, C’s godmother. He would like
to live with his father, but his mother would never agree.
Mrs. P was particularly concerned that despite
seeking her advice, Mrs. A nonetheless permitted JJ to interview
C. Mrs. P had explained to Mrs. A the need not to contaminate
evidence by questioning C, and the importance of only properly
trained and experienced professionals speaking to children
about potential sexual abuse. Mrs. P’s assessment was
that Mrs. A appeared to be stuck in battling for power and
control of the children with Mr A and incapable of seeing
the emotional damage she was causing them.
Mrs. P was in no doubt that the children should
be removed from their mother’s care. There were various
options. There was that which I had adopted in Re M (Intractable
Contact Dispute: Interim Care Order)  2 FLR 636, namely
the making of an order under section 37 of the Children Act
1989 inviting the local authority to investigate and report
with a view to applying for an interim care order. However,
I took the view that this course was not appropriate on the
facts of the instant case. There would be a substantial delay,
and the children were in urgent need of respite. Foster care
was inappropriate. Although Mr. A had been as engaged in the
battle as Mrs. A it was more likely that, at least in the
interim, the children would be under less pressure living
with him than with Mrs. A. Equally, a removal into Mr A’s
care was the only means of ensuring that C would maintain
her loving relationship with her father.
I duly heard Mrs. A’s application on 30
December 2002. The evidence was limited to that of Mrs. P,
who was extensively cross-examined by counsel for Mrs. A.
At the conclusion of the evidence and submissions I was in
no doubt that the best course, in the interests of both children
was to make a residence order in favour of Mr. A and to dismiss
Mrs. A’s application that C be interviewed by social
services or the police. I was entirely satisfied that Mrs.
P’s analysis was correct, and that the extended disclosures
made by C were the result of additional pressures placed on
C by her mother.
Events after 30 December 2002
It was quite clear that my decision on 30 December
2002 was in no way the end of the case. A great deal of work
remained to be done with both Mr and Mrs A, and I accepted
Mrs. P’s advice that there should be a psychological
assessment by a psychologist, BC, and that the position should
be reviewed in three months. I also agreed with the introduction
of a careful pattern of contact between the children and their
mother, and ordered that the case should be listed for directions
on 24 February 2003.
After an initial period of distress, both children
settled down with their father. Contact with their mother
was introduced in accordance with the proposals made on 30
December 2002. Both children appeared happy at school. Work
began with the psychologist designed to establish how best
Mr. and Mrs. A could exercise their shared parental responsibility.
In her report for the directions hearing dated 24 February
2003 Mrs. P identified NYAS’ goal as moving towards
shared residence. Contained within the report was a proposal
for the equal division of the children’s time over a
given fortnight. Annexed to the report was a more ambitious
schedule setting out the proposed division of time up until
24 April 2003. Shared residence accorded with what the children
wanted. NYAS recommended that Mr. BC have permission to see
the children and observe their relationship with both parents
as part of his assessment, and that the case be listed for
The final hearing had been fixed for 28 July,
but the timetable slipped and on that date I relisted it for
further directions on 16 December 2003. I did this because
I was advised by NYAS that considerable progress had been
made in the case and that the children were now happily dividing
their time equally between their parents. There was also a
suggestion that, following meetings between Mr and Mrs A with
Mr. BC and Mrs. P, Mr and Mrs A were beginning to be able
to reach amicable agreements about how they were going to
communicate and make decisions about the children in the future.
Mr. BC’s opinion was that this work should continue
for another six months, as there were still many issues unresolved.
The way the system operated in term time was
that over a given fortnight, the children spent the first
Monday and Tuesday with their mother; Wednesday and Thursday
with their father; Friday to the following Tuesday with their
mother and Wednesday to Sunday with their father. The cycle
would then recommence. The advantage of the scheme was that
in term time the children were delivered to and collected
from school, thus avoiding parental contact at handovers.
Mrs. P reported that both children felt relaxed
about the 50-50 split and both felt equally at home in either
household. C echoed her brother in telling Mrs. P that 50-50
was best because her parents had nothing to argue about. Mr
and Mrs. A had begun to communicate by Email. Further areas
of work were identified, notably agreeing how decisions in
the future were to be made. A detailed calendar dealing with
the arrangements from July through to December was annexed
to Mrs. P’s report.
For the directions appointment on 16 December
2003, I had further reports from Mr. BC and Mrs. P. Although
they were agreed on the way forward, the reports did not make
altogether happy reading. There was plainly an unbridgeable
divergence of view between Mr A and Mr. BC and Mrs. P as to
the nature of the work, which still required to be done.
Mr BC had recorded the belief expressed in his
earlier report that if there was going to be meaningful progress
in the lives of the children, both parents would need to take
responsibility for attempting to create a healthy emotional
climate, rather than put their energies into locating responsibility
onto the other. That required both parents to engage actively
together in the process, for which they would need professional
intervention. Mr. BC therefore recommended further joint sessions
of the type, which had preceded his earlier report.
It became quite clear, however, that Mr. A had
a different agenda. This emerged in the two sessions organised
by Mr. BC and Mrs. P and attended by Mr and Mrs A. I am conscious
that I have not heard oral evidence about these meetings,
and am reliant for their content on the reports of Mr. BC
and Mrs. P. I am reasonably confident, however, that what
they report is accurate.
In the first session, Mr. A made it clear that
in his view the meetings would get nowhere unless the important
underlying issues to do with Mrs. A’s problems were
resolved. He stated that he and his family had suffered and
that the children did not know where they were over the current
arrangements. He felt Mrs. A had not changed an inch. Understandably,
as Mr. BC felt, he wanted an apology from Mrs. A over the
allegations of sexual impropriety. Mr. BC describes Mr. A’s
statement as "an emotionally charged tirade" to
which Mrs. A listened patiently. She then apologised, saying
she was deeply sorry for what had happened and that she could
not say how sorry she was. She also indicated that she wanted
to move on.
Mr. BC reports Mr A scoffing at her apologies,
which he did not accept. The word "sorry", he said,
trips off the tongue very easily. It had to be supported by
action and he would not accept Mrs. A was sorry unless she
did something to demonstrate contrition – something
which caused her some discomfort. When Mrs. P intervened to
say that Mrs. A was clearly asking him to forgive her, Mr.
A’s response was that the allegations were part of a
wider problem with Mrs. A which was such that he felt things
could not be resolved.
When Mr. A was asked what Mrs. A could do to
show contrition, he suggested sorting out the mess over the
children’s passports. Mrs. A agreed that he could have
the passports. It was apparent, however, that Mr. A wanted
there to be an acceptance that Mrs. A had significant psychological
problems, which were the primary causal, factors in the family’s
Mr. BC and Mrs. P hoped that, since Mr. A had
expressed himself so vigorously in the first session, it might
be possible in the second to shift the focus from the past
to the present more practical matters relating to the children.
Unfortunately, however, Mr. A continued his heated criticisms
of Mrs. A. He accused her of telling a pack of lies; that
everything she said was distorted; that it was a pathological
problem and that the problems of her fantasy had to be addressed.
Mr BC reports Mr A saying that he wanted the
"fundamental issues" dealt with and that this was
what he had been promised. In an increasingly intemperate
fashion he said he did not want to sit in the same room as
Mrs. A; that he found her "revolting" and "flesh-creeping".
After a brief discussion about taking responsibility for the
allegations of sexual impropriety, Mr. A exclaimed loudly:
"this woman is a monster", and left the room.
In these circumstances, Mr. BC understandably
concluded that the prospects of any further useful work being
successful were minimal. Mr. BC expressed his understanding
of the depth of Mr A’s feelings, and that a man in Mr.
A’s professional position would inevitably feel intensely
bruised and battered by the allegations of sexual impropriety.
That said, Mr. BC
… would have hoped that Mr. A might have been able now
to put this matter on one side, and focus primarily on the
needs of the children, and on developing means of working
with and communicating with Mrs. A.
It seems that he is not yet able to do so. It
appears that Mr. A wishes to have others accept what he feels
are the fundamental issues in this case: by which he means
accepting that Mrs. A has serious psychological problems…
Mr BC’s report concludes:
Neither Mrs P nor myself shared Mr. A’s view that such
an approach of examining the fundamentals of the case, to
support the view that Mrs. A was psychologically disturbed,
would be either helpful or productive.
Given the stance adopted by Mr. A, and the fact
that further professional intervention would appear to be
contra-indicated in the short to medium term future at least,
I believe that Mr and Mrs A will have to find a way of communicating
and dealing with one another in matters relating to the children.
It is my opinion that given the volatile family
dynamic it would not be prudent to allocate residence to either
of the parents, which would be likely to leave one parent
feeling disadvantaged, and which could then fuel further difficulties.
It seems that B and C have benefited from shared
care, and they have both made it clear that they wish the
current arrangements to continue.
Therefore I am of the opinion that Mr and Mrs
A should have equal shared residence of their children for
the rest of their minorities.
In more moderate terms, Mr. A’s solicitor,
in a long and carefully drafted letter to NYAS dated 2 December
2003 states Mr. A’s belief that if Mrs. P is to recommend
a shared residence order she would be failing in her duty
to NYAS if she did not confirm that she had read and digested
the three lever arch files of material placed before the court.
He also records Mr A’s belief that both parties should
be seen by an adult psychiatrist / psychologist. If no experts
specialising in adult psychology / psychiatry were engaged,
it was argued, the family would never be able to deal with
the "adult issues".
Mrs. P, in her report, dated 14 December 2003,
does not agree with this approach. She summarises her position
as follows: -
In June 2003 I did not feel that Mr. A could be trusted with
being the parent with a residence order. I felt if he was
given the power to do so, he would disrupt the children’s
shared contact schedule to meet his own needs rather than
the children’s. I predicted that it would only be a
matter of weeks before conflict would arise and the parents
would be back fighting again. Mr. A has not been able to see
for himself that the current shared care and contact arrangements
allow the children to feel safe and that they can maintain
a neutral stance. I am afraid as Mr. A withdrew from the joint
work with Mrs. A and has adopted a rather hostile stance to
NYAS, that I trust him now even less than I did in June, to
promote the children’s best interests, if a residence
order were made in his favour…
Given Mrs. A’s current situation, I would
suggest that any change in the shared care / contact arrangements
at the current time would be detrimental to B and C. They
are aware that their mother has cancer and will need to spend
the usual amount of time with her. If not, they will have
increased anxiety and stress.
In her conclusion Mrs. P made it clear that
in her opinion the time was right for a final order to be
made. She regretted the lack of progress made since June 2003.
She did not think that a psychological / psychiatric report
on Mr and Mrs A would assist the court. She did not think
that any further intervention could be offered to Mr and Mrs
A to help them resolve their difficulties.
Her primary recommendation was that since both
parents share parental responsibility, and the children’s
time was to be equally divided, no residence order is necessary.
However, if the court thought an order necessary, it should
be a joint residence order. There should be a defined contact
order stating that B and C have an equal amount of contact
with each parent, continuing the pattern of the current shared
care arrangements during term time and the school holidays
being divided equally. Unusually, those orders should be expressed
to last until the children are 18, and there should be an
order under section 91(14) of the Children Act 1989.
I read the latest reports of Mr BC and Mrs.
P and the letter from Mr. A’s solicitor with dismay.
Mr. A’s conviction that all the family’s difficulties
were attributable to Mrs. A, and that she suffered from some
defect of personality which made it impossible for her to
change made me think that, despite his understandable sense
of outrage at the allegations of misbehaviour made against
him, he had really learnt nothing from the whole process.
The damage caused to these children flows directly from the
mutual antipathy of their parents. That is simply not the
responsibility of one or the other: it is the responsibility
of both. Mr. A demonstrated that antipathy in the meetings
with Mrs. A, Mr. BC and Mrs. P. He does not appear to be able
to see that this is an antipathy, which his children do not
share, nor should they. That, after all, was his complaint
against Mrs. A – that she was alienating C in particular
Mrs. A’s illness will be a time of considerable
anxiety for the children. I do not know the stage or extent
of her cancer. But the children will need sympathetic handling
during her illness, and it will not help them if their father
is demonstrably indifferent to their mother’s condition.
If Mr. A’s attitude cannot soften in any way towards
Mrs. A, I see real tensions ahead between the children and
himself, and further harm caused to the children arising from
At the same time, despite his intransigence,
I believe that Mr A is a man of integrity and was acting in
good faith when he instructed his counsel at the hearing to
assure me that, if I made a sole residence order in his favour,
he would continue to honour the shared care arrangements,
which he accepted were in the best interests of the children.
Very few family cases have neat endings. This
one has reached the end of the court process, but clearly
the implications of any order I make for the children will
reverberate into their adult lives. Mr. BC already thinks
B a damaged child, further strife will only serve to damage
him further. What order, therefore should I make before parting
from the case?
There are three recent decisions of the Court
of Appeal dealing with the question of shared residence orders.
They are, in chronological order, D v D (Shared Residence
Order)  1 FLR 495 (D v D); Re A (Children) (Shared Residence)
 1 FCR 177 (Re A); and Re F (Shared Residence Order)
 2 FLR 397(Re F).
The most important of these, in my judgment,
is D v D. In that case there were three children who, following
their parents’ separation, spent substantial amounts
of time with each, despite the fact that there was a high
level of acrimony between their parents and frequent applications
to the court to sort out the detail of the arrangements. The
father argued that without a shared residence order he was
treated as a second-class parent by authorities with whom
he had to deal over matters relating to the children. The
judge made a shared residence order, and the mother appealed.
The judgment of Hale LJ (as she then was) is
valuable both for its statement as to the current law and
for its historical analysis. Hale LJ cites a passage (at 
1 FLR 499) from the Law Commission’s Report (Law Com
No 172 published in 1988) on which the Children Act 1989 is
based, and which bears repetition.
Apart from the effect on the other parent, which has already
been mentioned, the main difference between a residence order
and a custody order is that the new order should be flexible
enough to accommodate a much wider range of situations. In
some cases, the child may live with both parents even though
they do not share the same household. It was never our intention
to suggest that children should share their time more or less
equally between their parents. Such arrangements will rarely
be practicable, let alone for the children’s benefit.
However, the evidence from the United States is that where
they are practicable they can work well and we see no reason
why they should be actively discouraged. None of our respondents
shared the view expressed in a recent case [Riley’s
case] that such an arrangement, which had been working well
for some years, should never have been made. More commonly,
however, the child will live with both parents but spend more
time with one than the other. Examples might be where he spends
term time with one and holidays with the other, or two out
of three holidays from boarding school with one and the third
with the other. It is a far more realistic description of
the responsibilities involved in that sort of arrangement
to make a residence order covering both parents rather than
a residence order for one and a contact order for the other.
Hence we recommend that where the child is to live with two
(or more) people who do not live together, the order may specify
the periods during which the child is to live in each household.
The specification may be general rather than detailed and
in some cases may not be necessary at all.
It is for those reasons, Hale LJ comments,
that section 8(1) of the Children Act 1989 defines a residence
order as an order "settling the arrangements to be made
as to the person with whom a child is to live.
In her judgment in the case, Dame Elizabeth
Butler-Sloss P helpfully cites a passage from the guidance
contained in the Children Act 1989 Guidance and Regulations,
Volume 1, Court Orders published by the Stationery Office
in 1991 paragraph 2.2(8) at page 10: -
it is not expected that it would become a common form of order,
partly because most children will still need the stability
of a single home, and partly because in the cases where shared
care is appropriate there is less likely to be a need for
the court to make any order at all. However, a shared care
order has the advantage of being more realistic in those cases
where the child is to spend considerable amount of time with
both parents, brings with it certain other benefits (including
the right to remove the child from accommodation provided
by a local authority under s.20), and removes any impression
that one parent is good and responsible whereas the other
parent is not.’
The essence of the decision in D v D seems
to me to be as follows. It is a basic principle that, post
separation, each parent with parental responsibility retains
an equal and independent right and responsibility to be informed
and make appropriate decisions about their children. However,
where children are being looked after by one parent, that
parent needs to be in a position to take the day-to-day decisions
that have to be taken while that parent is caring for the
children. Parents should not be seeking to interfere with
one another in matters, which are taking place while they
do not have the care of their children. Subject to any questions
which are regulated by court order, the object of the exercise
should be to maintain flexible and practical arrangements
D v D makes it clear that a shared residence
order is an order that children live with both parents. It
must, therefore, reflect the reality of the children’s
lives. Where children are living with one parent and are either
not seeing the other parents or the amount of time to be spent
with the other parent is limited or undecided, there cannot
be a shared residence order. However, where children are spending
a substantial amount of time with both their parents, a shared
residence order reflects the reality of the children’s
lives. It is not necessarily to be considered an exceptional
order and should be made if it is in the best interests of
the children concerned
These themes are reflected in to other two decisions.
In Re A, there were three children, a boy and two girls. The
girls lived with their mother and the boy lived with his father.
The boy was unwilling to see his mother, and was not doing
so. A Recorder made a shared residence order. The father applied
for permission to appeal. Granting permission to appeal and
allowing the appeal in part, the Court of Appeal set aside
the shared residence orders. In so doing, Hale LJ said (at
 1 FCR 177 at 181: -
17] I completely appreciate why the recorder wished to make
a shared residence order in this case. He wanted to recognise
the equal status of each parent in relation to all three of
these children. He may, although he does not say so, have
been afraid that the father would not recognise this if he
did not make a shared residence order in relation to all three
children. But the law is that the parents already have shared
parental responsibility for their children. They have equal
and independent power to exercise that parental responsibility.
A residence order is about where a child is to live. It is
very difficult to make such an order about a child who is
not only not living with one of the parents but is, for the
foreseeable future, unlikely even to visit with that parent.
Notwithstanding, therefore, that that parent does not wish
there to be any distinction between the children, because
she does not wish M to feel rejected by her, the court’s
order has to be designed to reflect the real position on the
ground. That being the case, in my view the shared residence
order in relation to M was inappropriate. For that order there
should be substituted an order that M is to live with his
father and to have contact with his mother in the same terms
as the order laid down by the learned recorder.
In Re F a judge made a shared residence order in relation
to two small children, notwithstanding the fact that the mother
lived in Edinburgh, a considerable distance from the father’s
home in England. The Court of Appeal, upholding her decision,
said that such a distance did not preclude the possibility
that the children’s year could be divided between the
homes of two separated parents in such a way as to validate
the making of a shared residence order. A shared residence
order had to reflect the underlying reality of where the children
lived their lives, and was not made to deal with parental
status. Any lingering idea that a shared residence order was
apt only where the children alternated between the two homes
evenly was erroneous. If the home offered by each parent was
of equal status and importance to the children an order for
shared residence would be valuable.
Applying these cases to the instant case, it
is plain that in terms of time spent in each home and the
importance of each home to the children, this is a prime case
for a shared residence order. Such an order directly reflects
the situation on the ground.
I appreciate, of course, that a residence order
in Mr. A’s favour would not, as a matter of law, diminish
Mrs. A’s status as a parent, or remove her equal parental
responsibility for the children. But it would, in my judgment,
nonetheless be making a statement that although the children
shared residence with her and their father equally, that fact
was nonetheless not to be recognised in the court order.
If these parents were capable of working in
harmony, and there were no difficulties about the exercise
of shared parental responsibility, I would have followed Mrs.
P’s advice and made no order as to residence. Section
1(5) of the Children Act 1989 requires the court to make no
order unless making an order is better for the children concerned
than making no order at all. Here, the parents are not, alas,
capable of working in harmony. There must, accordingly, be
an order. That order, in my judgment, requires the court not
only to reflect the reality that the children are dividing
their lives equally between their parents, but also to reflect
the fact that the parents are equal in the eyes of the law,
and have equal duties and responsibilities towards their children.
In addition, there is the risk, in my judgment,
that a sole residence order in Mr. A’s favour is likely
to be misinterpreted. Mr. A has already given a strong indication
that this is the case. Whilst, as I have already indicated,
I regard him as an honourable man, and one who will implement
the 50-50 living arrangement, I have no doubt at all that
he wishes to be in control, and believes that the arrangements
between 30 December 2002 and now have only worked because
he has had a sole residence order. That, he believes, is the
reason why Mrs. A had not made any trouble.
I disagree with that analysis. This case has
been about control throughout. Mrs. A sought to control the
children, with seriously adverse consequence for the family.
She failed. Control is not what this family needs. What it
needs is co-operation. By making a shared residence order
the court is making that point. These parents have joint and
equal parental responsibility. The residence of the children
is shared between them. These facts need to be recognised
by an order for shared residence.
Section 91(14) of the Children Act 1989 and orders to last
until the children are 18
Section 91(14), which I do not need to set out, is a very
flexible tool. The scope of the circumstances in which it
can be used is extremely wide. I do not intend to add to the
jurisprudence on it. The leading case is the decision of the
Court of Appeal in Re P (Section 91(14) Guidelines)
In the instant case, an order under section
91(14) is sought by consent as a recognition of, and to underline
the fact that this family has spent some six years in litigation
and does not wish to litigate any more. An extremely clear,
sensible, equal division of the children’s time between
the homes of their mother and their father has been agreed.
It is a regime with which the children are content and which
meets their needs. It is the regime, which is to operate for
the remainder of the children’s minorities providing
there is no overwhelming supervening event, which renders
it impossible to maintain.
The court has intervened. It has succeeded,
latterly, to the extent of dispelling the allegations of impropriety
against Mr. A. It has also, through the work undertaken by
NYAS, achieved a shared care arrangement, which meets the
children’s needs. The court has no further role to play,
and the order reflects the fact that neither the parties nor
the court believes that the parties should resort to it for
the resolution of any further difficulties.
In my judgment, section 91(14) is broad enough
to encompass these objectives. section 9(6) of the Children
Act 1989 requires the court to be satisfied that the circumstances
are exceptional before it makes an order for residence extending
beyond a child’s 16th birthday. Exceptional is, of course,
an elastic word, but I do not think I am stretching it too
far in making the order sought in this case. Once again, it
is part of the same message. This is the regime which is to
last until the children attain their respective majorities.
It is now up to Mr and Mrs A to exercise their parental responsibility
I cannot leave this case without expressing
my gratitude and admiration for the work done by NYAS and
by Mrs. P in particular. As the narrative of events shows,
she not only worked many unsocial hours and at weekends, but
also produced reports of high quality with enormous speed.
She was available to the children whenever she was needed,
irrespective of the time of day or night. Hers was a paradigm
of how a guardian should act.
This case demonstrates what can be achieved
by intelligent and purposeful social work intervention. The
courts cannot expect in every case a service of the quality
given to it by NYAS in this case. CAFCASS Reporting Officers
in any event have a much more limited role. CAFCASS guardians,
no doubt, are more tightly restrained by budgets and workloads.
But there is no doubt that the excellent service provided
by NYAS in this case was crucial to its successful determination.
It is very often the case that contact has to
be organised for weekends when no social worker or CAFCASS
officer is available to supervise or oversee it. One particular
point which could not fail to strike me in this case was that
Mrs. P, by organising and attending contact at weekends, was
able to play a role in re-starting contact between C and her
father which simply could not have been achieved otherwise.
Decisions that could be taken independently and without any
consultation or notification to the other parent.
How the children are to spend their time during
Personal care for the children
Religious and spiritual pursuits
Continuance of medicine treatment prescribed
Decisions where one parent would always need
to inform the other parent of the decision, but did not need
to consult or take the other parent’s views into account.
Medical Treatment in an emergency
Booking holidays or to take the children abroad
in contact time
Planned visits to the GP and the reasons for
Decisions that you would need to both inform
and consult the other parent prior to making the decision.
Schools the children are to attend, including
admissions applications. With reference to which senior school
C should attend this is to be decided taking into account
C’s own views and in consultation and with advice from
Contact rotas in school holidays
Planned medical and dental treatment
Stopping medication prescribed for the children
Attendance at school functions so they can be
planned to avoid meetings wherever possible
Age that children should be able to watch
videos. ie videos recommended for children over 12 and 18.