A father found to have sexually abused his daughter has failed in a bid for contact.
In SMD v LMD, the couple had separated in July 2007, little more than a year after their marriage, while both were living in Spain. They shared care until the mother took the girl, born in 2005, back to the UK without the father’s consent. He launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.
Following mediation, the mother took the daughter, called ‘A’, back to Spain in 2008 and the parents began sharing care again. But the following year, the Spanish courts gave the mother permission to relocate back to England and she left in November.
The father saw his daughter in February 2010 but the following month she reported sexual abuse and he has not seen her since. The mother was granted a non-molestation order in May 2011 and the father applied for contact the following year, under section 8 of the Children Act 1989.
In January 2013, an “extensive” fact finding case was conducted by Mrs Jennifer Roberts QC. At the conclusion of this father was found to have sexually abused the girl “on at least one, and probably more than one occasion” during the year to November 2009.
At the High Court, Mr Justice Keehan noted:
“The father does not accept that finding nor any of the other findings made against him.”
The judge also noted that the during the third day of his application of his application for contact hearing, the father, referred to as ‘SMD’, suffered a stress-related collapse in court and was treated by paramedics.
The judge said:
“When I came into court it was clear the father was not well. He told me he was suffering a migraine but, nevertheless, he wished the case to proceed. I was clearly of the view that it would not be fair or appropriate to do so. Accordingly I adjourned the matter for six days to 6 February to enable the father to recover fully from his collapse.”
Mr Justice Keehan went on to order that the father have no contact with the girl, whether direct or indirect. He declared:
“On the basis of the findings made by Mrs Roberts QC in her judgment of 16 January 2013, the father plainly represents a real risk of further sexual abuse of A. There is, however, in my judgment an even greater risk that if permitted to have contact with A he would cause her serious emotional and psychological harm. I so find for the following nine reasons:
d) he resolutely refuses to accept any of the findings of fact made against him;
e) he has a strong sense that he is the victim of a grave injustice;
f) he is highly critical of the mother and accuses her and her partner of coaching A to make false allegations against him and of alienating the child against him;
g) he has nothing good to say about the mother whatsoever;
h) by his own admission, his anger and frustration overwhelm him to the extent that acts or takes steps which are not in A’s best interest;
i) he has repeatedly asserted that A must and will be told his version of the truth;
j) he is incapable of adhering to any set boundaries of what is or is not appropriate material to be seen by A or for her to be told about;
k) I am satisfied, so that I am sure, that if permitted to have contact the father would feel compelled to discuss wholly inappropriate matters with A;
l) I am satisfied so that I am sure that if permitted to have contact with A the father would:
i) seek to undermine her placement with her mother;
ii) seek her return to live with him in Spain; and
iii) tell her his version of the truth.”
The judge continued:
“I recognise an order for no direct contact is a Draconian step for any court to take. Sadly I am wholly satisfied that it is the only order I can make in A’s welfare best interests. To do otherwise would imperil her future welfare. I consider it to be a proportionate step to take in this matter.”
The father is his own worst enemy.
I have considered whether, despite the final oral recommendation of the guardian, I should permit the father to send Christmas and birthday cards to A I have found this to be a most difficult decision. The advantages would be that:
m) A has some communication from her father;
n) It would help with some greater sense of her identity; and
o) It may help A have some happier and positive views of her father.
Balanced against that are the nine matters I set out…above.
I have no confidence at all that the father would abide by any terms and conditions set out by the court in relation to such indirect contact. I regret that I have come to the reluctant conclusion that indirect contact by means of cards would not be in A’s best interests. Whilst the father might – I stress might- be able to contain himself for the first few cards, I find he would not do so in the medium and longer term.”
The judge concluded:
“In order for the father to succeed in an application for permission to apply for a [section] 8 order he must:
p) accept the findings of fact made against him;
q) successfully undertake the psychotherapeutic intervention recommended by Dr Derry; and
r) demonstrate that he is consistently able to put A’s welfare best interest to the fore and to recognise the beneficial role of the mother in A’s life.
Very sadly I doubt the father will be able to achieve any of the above.”
The judge also made the father subject to a section 91(14) order until 2021, when A will be 16. Also issued under the Children Act 1989, these prohibit applications regarding children without prior court permission for the defined period.