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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> X, Y and Z (Children : Agreed Transfer of Residence) [2021] EWFC 18 (26 February 2021) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/18.html Cite as: [2021] EWFC 18 |
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B e f o r e :
SITTING AS A DEPUTY HIGH COURT JUDGE
____________________
F |
Applicant |
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- and |
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M |
1st Respondent |
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- and |
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X, Y and Z (by their guardian, Mr T) |
2nd-4th Respondents |
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(CHILDREN) (AGREED TRANSFER OF RESIDENCE) |
____________________
Ms Dorothea Gartland, counsel (via Direct Access) for the 1st Respondent
Mr Nick Jack, counsel for the Children's Guardian
Hearing dates: 15-18 February 2021
____________________
Crown Copyright ©
Elizabeth Isaacs QC :
INTRODUCTION
RELEVANT BACKGROUND HISTORY
The first legal proceedings
The second legal proceedings
The third legal proceedings
F is intent on destroying her and has done hitherto all in his power to achieve that by way of his constant complaints to outside agencies.
Her case is he has lost her clients, reported two of her staff to the police, reported her and her family numerous times to the police, Children's Services, the HMRC and more. Whether that is true or not in some ways doesn't matter as I am left in now doubt from listening to her, not just what she said but the manner in which she said it, and watching her physical reactions, that she absolutely believes it to be true.
is a man determined to remain in litigation with the Wife at all costs and he tries to make her life as difficult as possible. I have formed the impression his actions are all consuming for him but also that he has lost sight of the bigger picture. Whatever the rights and wrongs of the computer charge, and I have no idea of what evidence there is to support it, and whilst not condoning criminal activity should it be proved, the net effect of being charged I am told will be her professional suspension and if convicted, it is in all likelihood going to result in a permanent bar on work in the insurance field I am quite satisfied the various investigations by outside agencies have had a profound effect on the Wife and the impending prosecution is likely to have a significant impact on her earning capacity in the short and the long term
In my view this is actually a very straightforward case if one leaves aside the complexities the Husband has sought to bring into it, either deliberately, or in my view more likely, because he is unable to bring himself to accept the reality of the situation.
The difficulty for the Husband is he is simply unable to accept any responsibility for the situation the family found itself in. He is completely blinkered as to his role in this and seeks to put the blame entirely on the Wife. His case has always been that I am to look at what he has put into the family in isolation, but not whether that was enough in light of their outgoings, or indeed what he has taken out. His sense of injustice in what has happened is entirely dependent on that scenario in his own mind. The sad reality is these parties played an equal part in their financial downfall
The fact-finding hearing
331. Ultimately it is for parents to make decisions about their children acting in their best interests, at least for children of this age. It was for F, as a father, to have promoted, encouraged and ultimately facilitated the children's contact with their mother.
332. I accept that F may feel that he has done his best, and I appreciate that the Cornwall incident must have had a devastating effect on not just the children, but also on F himself. However, it is now two years later and it has been F's responsibility throughout that time to provide a secure, firm set of boundaries around the children. Ultimately he has failed to do that. His failings have resulted, or at least significantly contributed, to the current parlous state of the children's relationship with M. In his written submissions F states that the foremost reason for contact not happening is the clearly voiced and consistent wishes of the children, and he says that had the children been willing to go to contact then there would be no issue. I do not accept that submission because an important decision about contact with their mother was not and is not a decision for the children; it was and is a decision for him. I also do not accept that he gave the children too much power simply in good faith; he is too intelligent a man for that who should and ought have realised the devastating effect on his children of the loss of their mother in their lives.
333. As the parent with whom the children were living, it was his responsibility to take control and to fix the problem. Instead he has undoubtedly allowed his deep seated hostility towards M to affect his decision making to the detriment of the children and to the detriment of M. In his recent statement he still can go no further than to say he now accepts that he needs to convey something much stronger to the children than a sense that he will support them in placement if they wish it.
334. Only time will tell if he is truly able to demonstrate a change in that attitude and behaviour.
The final hearing
ISSUES IN DISPUTE AND POSITIONS OF THE PARTIES
M's position
F's position
made significant changes, worked really hard and moved contact forward as much as I have been able to. The children are now in a significantly better position than they were a few months ago.
The guardian's position
LEGAL FRAMEWORK
'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.'
72. However, and I wish to emphasise this, parental responsibility is more, much more than a mere lawyer's concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outsider and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.
74. In relation to contact, McFarlane LJ said this (paras 77-78):
"77 Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent the only interests that either parent should have in mind [are] those of each of their two children.
[78] Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard."
Nor, I should add, is it acceptable for a parent to shirk their responsibility by sheltering behind the assertion that the child will not do, or even that the child is adamantly opposed to doing, something and this, I emphasise, is so whatever the age of the child.
75. As McFarlane LJ observed (para 75), the responsibility of being a parent can be tough, it may be 'a very big ask'. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some 'boring' elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent's job, exercising all their parental skills, techniques and stratagems which may include use of both the carrot and the stick and, in the case of the older child, reason and argument , is to get the child to do what it does not want to do. That the child's refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.
7. At the outset, it must be acknowledged that, whether a family is united or divided, it is not uncommon for there to be difficulties in a parent-child relationship that cannot fairly be laid at the door of the other parent. Children have their own feelings and needs and where their parents are polarised they are bound to feel the effects. Situations of this kind, where the concerned parent is being no more than properly supportive, must obviously be distinguished from those where an emotionally abusive process is taking place. For that reason, the value of early fact-finding has repeatedly been emphasised.
8. As to alienation, we do not intend to add to the issue about labels. We agree with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. It is nevertheless necessary to identify in broad terms what we are speaking about. For working purposes, the CAFCASS definition of alienation is sufficient:
"When a child's resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent."
To that may be added that the manipulation of the child by the other child need not be malicious or even deliberate. It is the process that matters, not the motive.
9. Where a child's relationship with one parent is not working for no apparent good reason, signs of alienation may be found on the part of the other parent. These may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.
10. Where a process of alienation is found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child's welfare, and not merely those that concern the relationship that may be under threat. The court's first inclination will be to reason with parents and see to persuade them to take the right course for their child's sake, and it will only make orders when it is better than not to do so. Once orders are required, the court's powers include those provided by sections 11A to 11O of the Children Act 1989, and extend to consideration of a more fundamental revision of the arrangements for the child. We agree that whilst a change in the child's main home is a highly significant alteration in that child's circumstances, such a change is not regarded as "a last resort"" Re L (A Child) [2019] EWHC 867 (Fam) at [53] to [59] per Sir Andrew McFarlane P. The judge must consider all the circumstances and choose the best welfare solution.
11. Cases at the upper end of the spectrum of alienation place exceptional demands on the court. It will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become. It must take a medium to long term view and not afford excessive weight to short-term problems: Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 per Sir Thomas Bingham MR at 129. It must, in short, take action when and where it can do so to the child's advantage. As McFarlane LJ said in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; [2014] 1 FLR 1185 at 53:
"53. The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court's powers, which is likely to be effective as opposed to ineffective."
and
13. In summary, in a situation ofparental alienation
the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent's right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.
1. Recognition, and at least internal acknowledgement, that he has failed his children.
2. Recognition, and at least internal acknowledgment, that the children have already suffered significant harm and, unless something is done, are likely to continue to suffer significant harm for the remainder of their childhood and into adulthood.
3. Recognition that everything must be done to restore his children's relationship with their mother.
4. Recognition that, at least initially, the entire responsibility for trying to achieve that rests with him.
Transfer of residence
54. Whilst having the greatest respect for the two judges who gave judgments in Re A, I would wish to distance myself from the language used insofar as it refers to a decision to change the residence of a child as being 'a weapon' or 'a tool'. Whilst such language may be apt in discussion between one lawyer and another in the context of consideration of the forensic options available to a judge who is seeking to move a case on, such language, in my view, risks moving the focus of the decision-making away from the welfare of the child which must be the court's paramount consideration.
and
59. there is, in my view, a danger in placing too much emphasis on the phrase 'last resort' used by Thorpe LJ and Coleridge J in Re A. It is well established that the court cannot put a gloss on to the paramountcy principle in CA 1989 s1. I do not read the judgments in Re A as purporting to do that. The test is, and must always be, based on a comprehensive analysis of the child's welfare and a determination of where the welfare balance points in terms of outcome. It is important to note that the welfare provisions in CA 1989 s1 are precisely the same as those applying in public law children cases where a local authority may seek the court's authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as 'last resort' or 'draconian' cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s1(3) welfare checklist which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child's welfare needs.
28. The re-crafting of section 8 orders from residence and contact into child arrangements orders has inter alia the benefit of emphasising, absent adverse circumstances and welfare conclusions, the equality of parental responsibility that each parent has. Parents are to be expected to exercise their autonomy and to respect the autonomy of their children by entering into arrangements that plan for their children's long term welfare by providing for a meaningful relationship between each adult and each child. Where they cannot agree there is likely to be more than one proposal for the court to consider.
29. In Re W (Care Plans) [2013] EWCA Civ 1227, [2014] 2 FLR 431 at [76 - 78] I held that in relation to public law children proceedings the welfare analysis of realistic options that is required would be facilitated by a balancing exercise first recommended by Thorpe LJ in the different context of a medical treatment case in Re A (Male Sterilisation) [2000] 1 FLR 549 at 560. That approach had been identified by my Lord, McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]:
"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
It was subsequently approved by Sir James Munby P in this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1935 at [36] and at [46] where the approach was described by him in these terms:
"We emphasise the words 'global, holistic evaluation'. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and ... multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option".
30. That approach is no more than a reiteration of good practice. Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child's upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or 'left behind' parent) from being side-lined in a linear analysis. Not only is it necessary to consider both parents' proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse.
THE EVIDENCE
Events since the fact-finding hearing
Dear Mr T
I am emailing to update you on contact which went really well considering all of the barriers put up initially, including F being late. I cannot put it into words what it was like being with the children again other than I felt complete, something I have not felt in two years. I know the children felt like this, only because I know them and I recognise the look of relief they gave me especially Z. They could see I was not a monster but Mummy and it was as if they suddenly remembered this, it was like we had not been apart. Z in particular was so present, I wanted to hug and kiss all three but I was very aware that I did not want to overwhelm them.
The independent social worker
She said that she had done a bad thing, and explained that during the visit, she and her siblings were watching TV. She said that she had got bored and wandered to the kitchen (I think it was the kitchen, but certainly another room) and as she approached, she could hear her mother talking to the social worker. She said that the bad thing was that as she over-heard her mother say that her father had controlled her in relation to seeing her mother, she had felt angry and decided to continue to listen. X was saying that she knew it was bad to listen outside doors to people talking but that she couldn't help herself X said that what made her so angry, was that her mother continued to lie. X became animated in both manner and volume, saying it makes her feel so angry inside that her mother tells other people this lie. She said that her father has always tried to encourage her and her siblings to see or have contact with her mother even more so recently. She explained that she is a girl who has made up her own mind about her mother. She said that she is old enough to know and notice things that make her have her own opinion
33. M has however developed a narrative that in itself makes sense.
She feels that F is actively abusing and alienating them from her. She therefore in seeking to 'rescue' them from the abusive situation they are in, is doing the opposite of harming them and is in fact acting to ameliorate their situation and to protect them. If seen through this lens, her actions are rational and protection. This narrative is one that the whole maternal family holds to and thus we are once again faced with a schism, where the children are caught between their parents who hold to completely opposing views of what is in their best interests.
35. She is applying to have the children in her sole care, with some time spent with their father. She feels that this is the best thing for the children as in her view as they are being actively alienated from her so in effect she is seeking a transfer of residence.
36. My issue with this is that M is clear with me that she feels F is abusing the children, that he is 'poisoning their minds', 'brainwashing them' and her husband is if anything even more vehement in his views of the harm being occasioned to the children whilst in their father's care. He used very strong terms in his discussion with me and was condemning of both him and his parenting. Both M and her husband feel him to be mendacious and manipulative, and M has the analysis that what X is 'going through' now is what she herself was put through, that is a form of brainwashing. She said to me when discussing X's not wishing to see her at the moment and her protectiveness of her father "I know what it's like to be everything to him, to be that important. That's where X is now". [emphasis provided]
37. My difficulty is that if she and the maternal family do indeed feel this strongly about F as a person and his parenting then what incentive is there for them to encourage the relationship with F? How can you promote someone you genuinely believe to be harming your children?
50. F told me he felt that M was still - despite therapy and several assessments detailing the harm the children had come to in her care tending to minimise her part in both the breakdown of the marriage and the trauma the children had been through and that he really wasn't and isn't the abusive manipulative character portrayed by the maternal family. He said he felt that that he had just fallen out of favour with them and they had all then just closed ranks against him.
and
57. I gave him some coaching- style advice about how to speak to them at handovers, how to be brisk and business like and upbeat, how not to drag out goodbyes etc and I advised that he needed to have 'a busy day' planned so that the children don't think he's sitting at home missing them, as there is some evidence that Z holds to this view currently.
58. On an intellectual level F comprehended this, on an emotional one he struggled and may well continue to struggle, he has a very real fear, quite palpable to this assessor, of the children coming to further harm in M's care.
69. These parents both love their children, the children love both their parents but they are also acutely aware of the levels of distrust and disharmony between them. There is although no evidence of overt alienation that I have as assessor have seen, there is evidence that the children feel torn between their parents. And that F struggles at times to feel confident that the children are safe. As an example, Z's body language at a recent handover changes from the lively child leaving Mum to putting his head down when walking towards dad, as if to present as sad and as not having had a good time.
and
77. I fear that as much as they might wish to be open to working on issues, both parents are still holding onto a very negative view of the character and motivations of the other and this is equally risky to the development and maintenance of a healthy co-parenting alliance. They will need continued assistance with this due to the longevity of the conflict.
60. F presents as very clear sighted about the history for the children, he spoke openly and with much emotion about the harm he feels they have been subjected to both by turbulence in the couple relationship for which he bears some responsibility (he told me he attempted to protect them but it wasn't always possible to 'scoop them up and take them to the beach') and by the actions and inactions of M. I would concur with both Dr Berelowitz and Dr Martinez when they speak about his attunement to the children and this was very obvious when we discussed the timeline for them in terms of care arrangements and changes to those arrangements. This clear sightedness and empathy can and does spill over into overprotectiveness at times but this is something that he acknowledges and about which he has taken specific advice.
88. I am currently of the view that the children need to retain their home base with the father in the light of the long and troubled history and the many disruptions they have faced. It would in my professional opinion be contrary to their best interests to have to be uprooted from this secure base. The task in my view is to mend the damaged attachment with the maternal family and that is I feel possible without causing them yet again to move their main home base.
X OVERHEARING INTERVIEW
I would like to state that it was not in fact my plan to see M with the children in the house and suggested to her in a phone call on 28th October that I would bring ASW so that she could take the children out while we spoke.
She told me very clearly not to worry about that, that the house was 'huge' and there was no possibility of our being overheard. I still took ASW so that she could be an additional precaution and also to meet the children.
ASW joined the children variously in the sitting room and upstairs, staying with them the whole time I was speaking to M in the kitchen. ASW told me X went off to the loo and it was clearly at this point that by her own admission she deliberately listened at the door.
With the greatest respect we were not supervising to the extent that ASW was required to follow a child of this age to the toilet. I would also add that this was our first visit to the home, we had no idea of the layout of the house or where the loo was in relation to the kitchen etc, M however was aware and it might be expected that she would be mindful of this when choosing to permit the children to remain in the house.
Please also see the contact notes from that day where the FSW refers to X's mood, jumpy and anxious. 'Tightly wound' was the phrase used which in a subsequent email was described as accurate by M.
This will not happen again as I am not planning further face to face interviews with the parents.
I am very concerned that I am expected to 'rectify the matter' and yet not advised what I am being asked to do.
I am frankly am unsure what is expected of me. I cannot return to a time when X didn't hear her mother describing her father as 'gaslighting ' her.
What specifically am I explaining to her?
I wonder if you as Children's solicitor can assist me here as I assume you or counsel will be able to elucidate on this point having been at the hearing?
Hi
I have been thinking since the recent correspondence in this matter and am worried in particular about the disparity between my analysis of the children's behaviour, my considering it as likely to be a demonstration of loyalty conflict (most extreme in X and exacerbated by her more vivid memories of maternal neglect) and this conflicting with the judge's 'finding' of alienation.
First of all, I would appreciate you passing on to the judge that I mean no disrespect to the court and the judge herself by my not having following my assessment completely concurred with this view.
I realise I think why we are some way apart on this, it's in fact a question of definition.
I think we hold to completely different notions of what alienation is and I think this is possibly behind much of the perennial academic argument of which I am sure you are aware.
There is not as yet an accepted definition of alienation.
I suppose given my decade of experience specialising in this area I have developed my own definition
The development of the contact with M
The Town B Centre incident on 19 December 2020
'Mr E became very aggressive with me. He stated that he had taken 'legal advice' and that he could 'use all means necessary including physical force' 'to make sure the order happened.' I said we all wanted the order to happen and I would get the children out of the car. Within 15 minutes of us being there he threatened to phone the police as he said I was breaching a court order and his 'legal adviser' had told him to do this. He then changed this to say he would phone the police as I had two children in a locked car. These threats to call the police were made in front of the children (including Y who had by this point returned). Given the history of police involvement with the children I found this disappointing and incredibly stressful for all and made the handover far more difficult than it could have been. He made 7 such threats to have me arrested, all bar one of these was in front of our children.'
F walked away from the car at this point and tried to cause a scene in front of other parents in the front carpark, walking around the centre to the car park, speaking in a very loud voice that could be overheard by others close by, holding his phone up as if recording and asking the workers what they want him to do. He was asked by Mr E to stop recording and asked again to encourage children to get out of his car and give them appropriate parental boundaries.
As M got into the back of the car Z started to kick out at M and X started to swing punches at M across from the front seat. Mr E was standing by the car door and always had sight of M and Z at no time did Mr E enter the car or touch the children, also at no point was Mr E punched or kicked by the children. The children only assaulted M. F does not intervene when the children punch and kick him and stands by watching. X was screaming get off him, when M had to hold Z by the ankle and by the shoe to stop him kicking out and assaulting her. M then moved out of the vehicle. Z very quickly shut the car door and locked it. During this situation M received a hard-fisted punch to the side of her face from X and a number of hard kicks by Z (with shoes on).
Both children were told that this was not acceptable behaviour by Mr E who witnessed the situation from outside of the car. F says nothing to the children but gets into the back of the car with Z, who was now looking out of the window and sticking his tongue out at M and Mr E.
At no point during the whole situation does Mr E get into the car or have any physical contact with the children. Mr E observes the whole situation from outside of the car and for most of the time at a distance.
It was observed that X was very much in control of the situation at times and given various choices from F, rather than being given clear expectations or any guidance.
I said hello to X and asked her to please come out of the car. She stated the following whilst crying.
- She hated me, that she did not want to see me. That daddy said it was her choice to see me or not. It was not for the judge to make the decision.
- She did not want me in her life, Daddy had other women who could do the jobs a mummy did, like his friends and granny. She did not need me.
- She wanted nothing to do with me, I was to leave her alone forever.
- I had thrown her father out of the house and told her he had gone to Australia. That I had tried to replace him.
- I was an evil witch and should not be around children.
- I had hit Z a lot around the head with a bed post.
- I had not seen them for four years and that she had brought Z up. She knew Z better than me, that I did not know any of them.
- The judge did not know what she was talking about, she was being bribed.
- She did not need her maternal family, she had all the family she needed.
- Nobody understood her like daddy. All she needed was her daddy.
if the children reside with F and contact with M and her family is thought to be desirable, F will need to convey something much stronger to the children than a sense that he will support them in relation to contact if they wish for it.
That is the sort of incident that is profoundly undermining of trust, and which also exposed the children to discord. If for example, F believes that M or a contact manager would be willing to damage a child's skin in order to get him out of the car and into contact, and if M believes that F will miss no opportunity to undermine contact, then the situation is very unpromising.
F was observed through the window to be in the front car park with X who had attempted to walk off from the centre. X looked tearful and F was observed to give her a cuddle.
I went around to open the door so that X could then come into the building. F was talking with X. 'I don't want to listen to the lies' said X, to which F replied 'she can't take your memories away, it is what has happened in your life'. [emphasis provided]. F is heard telling X that he will come into the centre with her.
I then went to the door again, where F asks if there was another worker. F was advised that I was currently only one available.
F tells X 'I cannot do anything about this, there is a judge who has made a decision and I need you to do this for me.' [emphasis provided]
As I stood speaking with M, X did come out of the toilet and said 'I don't want to be anywhere near her, she is just going to lie. I wish I didn't have a mother. I just want to be with my dad, and just my dad.'
'You do not even have the correct medical scissors to treat Z, X said I asked X how she knew about the scissors, as she was locked in the car. 'Dad told me' was X's reply.
and
'You stole all dad's money and left him with nothing, and he had to go to live somewhere else.'
I wish he would not reciprocate as it does not allow X to settle. It also brings us into conflict as parents because we have some rules at home about phones etc at mealtimes. If I ask her not to do this, she says that she must reply to Dad and I am denying her human rights. He sends her messages (I know as she showed me) saying how proud he is of her, how brave she is being, how much he misses her, and it is only one sleep until she is back. I found X taking pictures of the house again and sending them back to her dad. Mr M caught Z doing the same and he said brashly to Mr M that he was 'snooping' for Dad.
I asked Y if she got sad when X is not here and she said she did not, she said X made it hard work for her and she bullies her The next morning, Y was insistent that she came with me to pick up X. Whilst in the car she was texting her. We got to the car park and Y did not want to get out of the car. X stood with F whilst he hugged and kept telling her he loved her. It seemed very dramatic for an overnight stay and eventually he let her go. He continued to text her in the car. She was not happy to see me at all. [emphasis provided]
Unfortunately on the way back [from a bike ride] Y fell off and grazed her knee I bathed and bandaged Y's knee. She said she never cried but then broke down into hysterical sobs whilst hugging me tightly. She was crying over much more than hurting her knee and I just let her get it all out for about half an hour. She kept telling me she loved me and had missed me so much. I said I had not gone anywhere, but she said I had gone for two years, that I had got on with my life without her. I explained that I had tried so hard to see her all this time, had she got all my letters, she said she had got one or two. She thought I had forgotten her. It was utterly and absolutely heart-breaking. I promised her I had and never would leave her or forget her as long as I lived. She slowly seemed to be soothed and calmed down.
As VM rode off and I was trying to get his helmet done up securely he had a huge temper tantrum. Stating he hated VM, he wanted his helmet back; the problem was they had gone off into the distance and he was refusing to cycle. He was upset with me saying he did not think I loved him and he did not matter to me and where had I gone for 2 years. This was very similar to what Y was saying a few weeks ago. I told him how much I loved him and I had not ever stopped thinking about him, that every day I prayed I would see him again soon. He was my special little boy and my absolute world. I said I had a picture next to my sink in the bathroom which he is aware of which he drew me in 2016. It is in a frame, is a picture of me that he drew me. I said I had it there so he and X and Y were the first things I thought of when I woke up and the last thing when I went to sleep. This seemed to cheer him up.
237. Similarly, in the matrimonial finance judgment dated 25 May 2018 the judge found that
'Y and Z suffer from a lifelong skin condition. This requires daily treatment F and the paternal grandfather also suffer from the condition, and both are highly expert in the treatment of the condition. I also find M is also confident in the care and treatment of this condition.'
238. It is all the more concerning therefore to read in the transcript of the 3 January 2020 conversation that F is still asserting that
'M doesn't need to be drunk to hit people' and 'M's skin care regime is not good, and we know that.'
It is not a question of M not caring for it (although I understand there may be an issue with Z at times not letting M do his skin routine which since being made aware of, I am working on). It is simply that the children will benefit from having regular access to someone who has been dealing with it for years and years to assist them with it and how it can occasionally manifest itself in different ways. There was a deterioration in the children's skin during the extended stay of 6 nights. This could have been caused by many factors (such as Z's refusal to allow his mother to help him). I simply state the fact.
4. X is significantly more complex currently and I am working really hard with her on several fronts. She is worried by her perception of her mother's behaviour at the Town B Centre on the 19th December. I wish it to be noted that I did get her to go for overnight stays following that on the 24th Dec and 31st Dec and 9th Jan. X felt that the things that happened on those stays justified her in stepping back from further stays. She was uneasy about staying and having done it, she became more so. Her worries appear well known. One issue that particularly unnerved her was being cut off from any ability to contact anyone while at her mother's. She also did not enjoy not being allowed out into the garden except under supervision. She found Mr M made her uneasy and uncomfortable and was worried about getting undressed there. She seemed to find the entire experience very stressful, she stated due to her mother's behaviour. I tried to find things that had happened that might be considered fun her time with K the dog for example and focus her on the positives. The 6 night stay that began on the 19th Jan was too much for X and confirmed her often stated view that if she says yes to seeing her mother for one night it always turns into more which she does not want. It is difficult for me to know exactly what to do to help her in the best way because on the one hand I know she would benefit from seeing her mother more but on the other hand she gets incredibly upset at the prospect of this and it is hard to know how to manage this. The guardian gave her an assurance that contact would not go against her own wishes but she stated that many previous social workers have said this and they've all been wrong. The 6 night stay on the 19th confirmed her view that the goalposts keep moving. I continue to work on this but there have been issues between X and the Guardian at several points previously and this has not helped. I have explained that situations change and the Guardian is doing a difficult job.
She rounded on me, allegations of hurting Z and the Town B Centre and how she hated me, did not want to be there, she would not care if she never saw me again. I then talked to her a little about where this anger was coming from. She said I had tried to beat Z with a piece of wood, that my family were liars, that I was a liar. That I had drunk alcohol and I was violent and a horrible person like her Great Grandfather. The bizarre thing about this was that she showed no visible distress, no fear and was almost robotic in repeating it, it was as if what she was saying she had heard and was repeating it. When I tried to dig down into the detail, she is unable to give detail Then the next sentence she was talking about her friends at school, this swift move to a totally different subject is worrying, her ability to be so switched off to the emotional content of what she is saying deeply concerns me. It is astonishing that a child of her age can say such awful things emotionless and I am aware that this is not really her. X then unpacked her bag with the pyjamas I had got her on Christmas Eve, she said she had not washed them since then but had worn them every night, please could I wash them for her
U's note relating to 29/10/20 is a powerful and disconcerting example of the impact ofparental alienation,
not only on the child but also on the well-intentioned professional network. The court was clear that F has alienated the children and F has been clear that he did not do nearly enough to promote their relationship with their mother. But here we have a record of X disagreeing not only with the court but also with her father, so powerfully that a professional agency wishes for her to have independent representation on a point that, on the face of it, puts her at odds not only with her mother but also with her father. To put it differently, U wishes for her to be better heard on a set of thoughts and feelings that are consequent upon the alienation, rather than getting help with the consequences of the alienation. I make absolutely no criticism of U this is what happens in these situations.
The related point is that I wonder why, in such a complicated case, X is being supported by a volunteer, to what end, and what the boundaries are. Any person in whom X confides and who is not aware of the detail of the case is vulnerable to reinforcing the alienation.
THE CHILDREN'S WISHES AND FEELINGS
I respect and acknowledge the views expressed by the children, but these views must be seen in the context of their previous experiences and the fact that they have been significantly alienated against their mother.
X
Y
Z
THE CHILDREN'S NEEDS
THE RISK OF HARM
F sometimes struggled to keep his descriptions of affection and pleasure of his children moderate; for example, he said of X, " it's like watching a tiny saint or something, she's lovely." And " she's incredible. I'm so lucky to be associated with her. She's amazing. Just amazing.". This hyperbole sometimes had the effect of making the interview seem quite intense. However, F's descriptions and understandings of his children tempered this intensity. There were some moments in which F displayed some indications of enmeshment with his children, in particular with X, such as saying, " we'll say the same thing. We'll finish each other's sentences. We'll have the same emotion." This indicates an aligning of the child with his own character, rather than allowing her agency of her own. He was, however, able to give examples of behaviour he does not like in the children, including X, such as "I don't like it when she is sharp with her sister," which indicates that he is able to be balanced in his descriptions of her.
Alienation of a child can be compared to a non-accidental injury of the mind and it raises significant concern about risk of harm. Alienation causes psychological harm to a child, which although may not be too obvious compared to physical abuse, should still be treated as an abusive behaviour. It violates a child's sense of self, their right to choose, their identity and relationships with significant others. While I do not seek to minimise the harm caused to the children by their mother, I also do not seek to minimise the harm caused by their father either.
THE CAPACITY OF THE PARENTS
While there has undoubtedly been a degree of progress that exceeded expectations, there are also still reasons for concern, especially in regard to X. Furthermore, most of us, including M in this situation, tend to conduct our lives on the basis of the famous forensic aphorism that the best predictor of future behaviour is past behaviour. It would be way too soon for M to be expected to conclude that there is now sufficient new (positive) past behaviour to outweigh the previous past behaviour.
I would suggest that it is F's desire to protect Z, Y and X that led to F unhelpfully placing too many of the 'decision-making powers' about contact with their mother on their shoulders. Importantly, he now acknowledges that he should have done this differently by doing more to promote and rebuild the children's relationship with her by taking a kind but firm role in relation to her, rather than a passive one.
The absence of a rich and full relationship with their mother increases the long-term risk of psychological problems, as does the exposure to discord.
The more complicated worry is in relation to M's arguments, namely that F has amplified any anxiety that the children might have about M, to suit his own ends. If this were to be true, then the children will end up with an entrenched negative view of M and also a set of false memories about M's behaviour, combined with an idealisation of F.
ANALYSIS OF THE REALISTIC OPTIONS FOR THE CHILDREN
Option 1
All the children continuing to live with F.
Option 2
A shared care arrangement for all three children (both parents ultimately agreeing to an equal 50:50 sharing of residence and contact arrangements).
Option 3
All the children transferring to live with M
Option 4
Splitting the children so that Y and Z transfer to live with M, and X remains living with F.
Whilst I would ideally like for X to move to the care of her mother with her two younger siblings and whilst I believe that doing so would ultimately give her the best chance of having a meaningful relationship with both parents, I have to take into account the very real risk of X undermining that placement for Y and Z, particularly in the early days, and the fact that trying to force her to live with her mother will cause a huge amount of distress and upset to her.
It has always been the guardian's preference that all 3 children remain living together. The guardian has had to consider this in the context of X's entrenched negative views of her mother and the impact this may have on the other children. further the guardian has to consider the very limited contact X has had with her mother, in contrast to her younger siblings. A significant consideration had been F's opposition to X living with her mother and the impact this would have on her.
Whilst these concerns have not evaporated the guardian believes that the potential opportunity for X to join her siblings in M's care should be explored. The significance of F's support of this plan is a critical development which leads the guardian to favour the revised approach, albeit cautiously so.
Option 1 all the children continue to live with F
Option 2 a shared care arrangement for all three children
Option 3 all the children transferring to live with M
Option 4 splitting the children so that Y and Z transfer to live with M, and X remains living with F
THE TRANSFER OF RESIDENCE
DECISION