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England and Wales Family Court Decisions (other Judges)
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Cite as:  EWFC B83
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HIS HONOUR JUDGE ATKINS
B E T W E E N:
LONDON BOROUGH OF SUTTON
CHILDREN – CF (3) JQ (4) TE (5)
THROUGH THEIR CHILDREN’S GUARDIAN
MS A BRIDGER (instructed by the London Borough of Sutton) appeared on behalf of the Applicant
MR S MCLLWAIN (instructed by Charmini Ravindran Law Ltd) appeared on behalf of the First Respondent
MS L TURNBULL (instructed by Wimbledon Solicitors) appeared on behalf of the Second Respondent
MR C BARNES (instructed by ITN Solicitors) appeared on behalf of the Third to Fifth Respondents (Children through the Guardian)
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court .
1. This case concerns three children. CF, a girl born October 2006, she is 11, coming up 12. JQ, a boy, born 30 October 2007, so he is 10, 11 in October. Another boy, TE, born 28 December 2008, so TE is nine.
2. The parties to the proceedings are as follows; - The applicant local authority is London Borough of Sutton, represented by Ms Bridger. The first respondent is NW, represented by Mr McIlwain, and NW is the mother of all of the children. The second respondent is VR, represented by Ms Turnbull, and VR is the father of all three children. The children through their Guardian, Mr Witchlow, are represented by Mr Barnes.
3. I would like to express my thanks and appreciation to all the lawyers, and indeed all the professionals in this case for their very considerable assistance to the court.
4. The application before the court is a local authority’s application for public law orders in respect of all three children. The application was made on 27 September 2017. This hearing has taken place over the course of seven days, commencing on 14 August, ending today, being 22 August 2018. For the purposes of this hearing I have had the benefit of all the bundles of documents, and on the whole they have been very well prepared. There have been no great issues about pagination, except for one or two documents where pagination was two or three pages out, for some people anyway.
5. I have had, in addition to those bundles, an opportunity, which I have taken, to read all the relevant statements, and I have heard live evidence from a number of witnesses. I have heard from three social workers in the case. I have heard from an independent social worker; I have heard from the head teacher at the school. I have heard from Dr Bourne and Dr Latif. I have heard from Mother, and the mother’s husband, BL, and the father, and also the Guardian.
6. Finally, I have had the privilege and pleasure of meeting the children on 13 August, just before the hearing commenced.
7. To identify the issues in the case, I mention first of all the threshold. The threshold under section 31(2) of the Children Act is in dispute, and I have helpfully a composite threshold document of page A120, dated 2 August of this year, and the position is that that is very largely in dispute.
8. I say very largely, because this composite document spells out the allegations and the responses. The contest comes from NW. She denies many of the allegations, albeit there is an element of some acceptance and explanation of some of the allegations, and I can give a flavour of that by reading out just a few of them.
‘Paragraph 3(a) alleges that the children have been repeatedly told by the mother that their father wants to kill them. Mother’s response ‘Mother does not accept she has said this to the children, although she accepts saying this to the social worker, the police [were not informed?]’.
(b) 19 June 2017, Mother told the social worker that ‘The father wanted to kill the children, in front of the children, and said the children needed to know’
Mother’s response is ‘She accepts she said this to a social worker, but she cannot recall whether the children were present at the time’.
(c) 10 February 2017, Mother attended the children’s school and disrupted Father’s collection of the children for contact. Response is ‘Mother accepts she went to the children’s school but denies that this was for the disruption of the father’s collection of the children’.
(d) Mother called the police to undertake numerous unnecessary welfare checks on the children, has no regard to the emotional impact on the children. Mother’s response ‘Mother accepts she has called the police, but states this was to safeguard from any harm’.
9. Just two more examples:
(e) The mother told JQ he was being poisoned by his father, causing him to be worried[?] for his own safety after he finished at school, 27 February 2017. Mother’s response is she does not accept she said this to JQ. The mother accepts referring to poison in food in emails, stating that she meant expired food.
10. The final example is:
7 July 2017, Mother forcefully reported to the police Father had taken the children in breach of the court order of 28 June. The response is that Mother accepts she called the police as the father was in breach of the order on the basis that he tried to collect the children from a different venue.
11. That gives a flavour of some of the allegations and some of the responses, and there are quite a few issues of fact that need to be decided.
12. In addition to that, then there is the question of what orders, if any, should be made, in respect of the welfare of the children, and there are issues there as well. The position about that is that the local authority’s case is that these children should be placed with their father under a Child Arrangements Order. They say there should be a supervision order for a period of six months, and they also say there should be a Section 91(14) order in relation to the mother for a period of two years. They say there should be no order for contact, but that their plan for contact should be approved, and that plan is for Mother not to have any direct contact for a month, but to have telephone contact and thereafter to have gradually increasing contact, depending on how matters develop and how Mother responds to the order that is made.
13. The mother’s position is that she opposes all of that. She says that the children should remain in her care and she says that the father’s contact with the children should be reduced effectively to two to four hours once a fortnight and that that should be supervised.
14. The father’s position is he agrees the children should be placed with him. He is content with a Child Arrangements Order to that effect. He says there should be a supervision order for 12 months and a Section 91(14) order for three years.
15. The Guardian’s position is that the Guardian says the children should be placed with the father under a Child Arrangements Order. There should be a supervision order for 12 months, and a Section 91(14) order for two years. I should explain, the mother opposes a Section 91(14) order being made.
16. So there are quite a number of issues in relation to the welfare of the children which will require to be considered and dealt with in this judgment. I am going to summarise the background, some of it anyway, and I hope that I will be told at the end of this judgment if any details are incorrect.
17. VR was born in India on 5 October 1961, so he is 56. NW was born, also in India, on 1 April 1982, so she is 36. The father has two older children who are E who was born 18 January 1990 so he is 28, and P was born 14 August 1991, so she is 27. They both live in England, E currently living with the father and P living independently and going to get married.
18. Mother has two older children as well, G, born 29 March 2000, so aged 18, and U, born 5 March 2001, so she is 17. Those two children are, and have been for a long time, living with their father in India. I think also with the maternal grandmother.
19. These parties, VR and NW, were married in India on 19 August 2005, and they have the three children that I have mentioned, the subject of these proceedings. CF, JQ and TE born respectively in ’06, ’07 and ’08.
20. The relationship between the parties ran into difficulties and there was a separation in January 2009. I have put it in that way because there were documents where NW says the final separation, as she puts it, did not take place until 2014. In any event, the parties were separated at the beginning of 2009 and there were proceedings between them in court, resulting in quite a number of court hearings and a number of judgments, of which I have copies of three.
21. I mention, first of all, the judgment of Her Honour Judge Knowles of 23 March 2011, and that is at I359, and the position is that on that occasion Judge Knowles was conducting effectively a fact finding hearing. There was an application by the father for contact, and the mother was alleging domestic violence, so there was a fact finding hearing. This was the judgment in relation to that, and in the course of that judgment the judge made a finding that none of the mother’s allegations against the father were proved.
22. She additionally made a number of comments during the course of that judgment, of which I mention some. There was an allegation, for example, that the father scalded JQ’s face with a hot substance and the judge said at I364, she said ‘In my view that is a lie and a lie of the worst possible kind’. She dealt with another allegation that the father held a knife to the mother’s throat and body, and threatened to kill her and the children. Put his hand around her throat, she said at I374 ‘This is another allegation made up in order to discredit the father’. She, the judge, said at I375 ‘The mother, I feel, will stoop to any allegation that she can in order to besmirch the character of the father’.
23. There was a further hearing, with the same judge, Judge Knowles, on 14 June 2011. This hearing came about because NW was refusing contact for VR. The judge on that occasion made a finding that there was no reason for a refusal for contact, and she said at I397 ‘I am afraid I am driven to the view the mother’s recent actions, are borne again out of her continued desire that the father was deprived of the company of his children’.
24. The final judgment that I am going to refer to, which I have in the bundle is the judgment of His Honour Judge Welchman, which was 14 February 2013. This was because of an application by NW to vary the arrangements for the children. This application was on the basis of further allegations brought by NW, and the application was dismissed. Amongst other things, Judge Welchman saying at I462 ‘There are matters of very real concern as to the reliability of the mother’s testimony and I am afraid her motivation’.
25. There were, it appears, continuing proceedings between the parties and I have been shown a copy of an order made on 8 December 2014, which provided for a Section 91(14) order for a period of three years. That order on my recollection was made by consent.
26. I come now to more recent matters, in 2017, because there were difficulties in the early part of 2017, and I simply, for the moment, recite a number of allegations, and I will make it plain that these are allegations, which form part of the dispute. For example, it is alleged on 10 February 2017, the mother attended the school and disrupted Father’s collection of the children for contact. 11 February 2017, we have a call to the police to check on the children without any good reason to do so. 27 February 2017, Mother tells JQ that he has been poisoned by his father. 19 June 2017, Mother tells the social worker, in the presence of the children, that the father wishes to kill the children. 7 July 2017, Mother made an unjustifiable report of the father to the police that he was in breach of the court order. 23 September 2017, Mother told the police the father wanted to kill the children. 24 September 2017, Mother told the hospital that JQ had an injury playing football, she said this was caused by the father.
27. The local authority’s application was then brought on 27 September 2017, and I mention that thereafter on 6 December 2017, there was an order for an interim supervision order and also a prohibited steps order preventing the removal of the children from the jurisdiction until the conclusion of the proceedings.
28. The position, I confirm therefore, is that the children have been in the primary care of the mother since the separation, and during the continuation of these proceedings. They have been having regular contact with their father, for alternative weekends and half the holidays.
29. That has continued until very recently, and I say until very recently, because the arrangement was, and the order was, for the children to spend half the holidays with each parent, and I made an order that the children should spend half the summer holidays with the father. The order was to the effect that the children should transfer to the father to spend time with him, shortly before the commencement of this hearing. In fact, they did not do so, and some part of this hearing was taken up in trying to arrange for the children to spend time with their father, as had been previously ordered. I simply say that those efforts were in vain and the mother is saying that it was not the children’s wish to see the father, and she was saying that she could not force them to do so. The local authority and others say that the difficulties were really because of the behaviour of the mother saying that what the children should say and causing the order not to be complied with.
30. I turn to the adults in the case, and first of all I start with NW. I mentioned, I think, that she is 36. She was born and brought up in X, one of six children. Sadly, her father died in 2005. She is of the Muslim faith and she came to this country in January 2006. She is described in the papers, I think correctly, as intelligent and articulate. What is said in the papers again, and I think it is right, that she speaks good English. I should explain a little further that NW has had the assistance of an interpreter throughout this hearing including the giving of evidence, and what has happened, I think sensibly, is that almost all the time she has been able to understand and respond to questions, but just on occasions, when there has been some doubt in her mind, she has had available to her an interpreter to assist, and on occasions she has made use of that facility.
31. I should, I think, also mention that NW has, on my understanding, been married three times. She was initially married I think in 1998 or 9, there were two children that I have mentioned, G and U. She was divorced from her first husband in 2004 and I have noted that those two children have been with their father from the ages of about four and five.
32. The second marriage was to the father in this case, VR. They were married in August 2005. He, as I have mentioned, had two children already, and they have the three children that I am dealing with, and they were divorced in October 2017.
33. The third marriage is to BL, and my understanding is that she went through an Islamic marriage with him on 14 November 2017, with a civil marriage performed on 1 August 2018. It is right to say that between those two dates, the evidence is that there were difficulties in that relationship. NW was, as I understand it, pregnant by BL, but that pregnancy was terminated and she told him to leave the property earlier this year, but thereafter they became reconciled and the civil marriage was on 1 August and my understanding of her evidence is that she says she is now once again pregnant by BL.
34. VR, the father of the children, is 56. My understanding is he is one of five children. Again, sadly, his father died a long time ago. My understanding is that his mother lives in the same street as him in South West London. He, VR, worked for 15 years as a teacher at South Thames College, and now works for a property company owned by his brother. He has a three-bedroom flat in Putney which he currently shares with his eldest son. It is owned by his mother.
35. I should mention BL, he, on my understanding, is 27, he was born on 5 June 1991. He comes from A. He was in this country under a student visa, but that expired a considerable time ago. He has made further application for naturalisation to this country which was refused and he appealed and that was dismissed. He then, it appears from the papers, made a further application which was not on the proper form, he had not paid the right fee, but he told me in evidence that he had made a further application to which he had not yet had a response. It would appear that as matters stand he has no status in this country but has an application pending for his residence here to be approved.
36. As for the children. CF is 11, I read that she is quiet and reserved, not particularly spontaneous. JQ is 10, there have been some concerns that he is a bit withdrawn. He is described as being the most loyal to his mother. TE is nine, and is described as being more confident, seemingly, than JQ, although he is at times rather demanding. All the children have, on my understanding, a good attendance at school and some concerns have been raised in relation to both boys because at a tendency has been noticed for both boys to be dishonest and having been caught behaving inappropriately, then having a habit of trying to lie to get out of trouble.
37. I am going to deal first of all with threshold and findings of fact. In doing that I will be turning to looking at the evidence and assess it, but before I do that, I mention the legal position in relation to the threshold. What I have got primarily is a schedule produced by the local authority; it is a composite threshold. The burden of proving these allegations rests on the local authority and the standard of proof is on the balance of probabilities.
38. What I have not yet mentioned is that I also have a short schedule of allegations made by the mother. It is at A113 in my bundle. As I say, happily it is short, and it is also expressed concisely and the allegations are; - (1) The father does not feed the children, (2) Father hits the children, (3) Father locks the children in the car and in the house, and (4) Father shouts at the children. These are in dispute, so I need to deal with those as well, but the legal principle underlying these allegations is that the burden of proof rests on the party asserting them, and the standard of proof is on the balance of probabilities.
39. What about the evidence I have got? The first thing to say, I think, is that it is clearly very extensive. There are four large lever‑arch files, with an awful lot of information, and statements in there. As I have already said I have read all those and I do not think it is of assistance to anybody if I repeat any of the detail of what is there. It would take a long time and if anybody wants to read those documents, they can refer to them. Nevertheless, I have heard a lot of live evidence, and I think it is right that I summarise some of the things that I have heard.
40. I should also refer to the position in respect of the children, because, understandably, nobody sought for the children to give evidence, and I think that was quite right. However, I have quite a lot of reports from different witnesses about what the children have said to them, and, as I have mentioned, I have had the benefit of meeting the children on 13 August, and the Guardian helped and provided a note of that meeting, in the course of which, amongst other things, the children said they wanted to stay with Mum, not Dad.
41. I should also mention, as is apparent from documents and other evidence, that the children have, at times, said they have been hit by their father, but they have also on occasions said that they have been told what to say by their mother.
42. In terms of the social workers first, I heard evidence from a lady called Ms D, she was the allocated social worker from June to October last year. She was responsible for a number of the documents in the bundle. She gave evidence about a number of matters, and I mention in particular that on 19 June, this is at C19 in the bundle,
‘During an introductory visit on 19 June 2017, NW refused to allow me talk to the children on their own. As I was talking to the children, NW stated the children’s father wants to kill them, and she was the only one could protect them. I advised NW not to say such things in the presence of the children, however she persisted and stated that he children needed to know. None of the three children appeared comfortable to talk to me after that, and kept glancing at their mother who spoke to them in Bengali’.
43. She, Ms D, said that she was concerned the children were constantly being told what to say by mother, and were learning to make false allegations as a means to deal with conflict, at C12. She expressed the view that CF was more affected by her parent’s relationship than the boys. She appeared to be torn between her parents, at C13. JQ, she said, was the most loyal to the mother, and she, Ms D said that JQ really echoes what Mother, herself says.
44. She said that TE, she thought was the most resilient, and she made the comment at C14, that
‘Although TE has stated he does not want to see his father, like his siblings, he has been observed to seem happy to see VR when he collects them from school and they have gone with him willingly. All the children are extremely loyal to their mother, but I am worried about her being, due to being informed that her father wants to kill her’.
She said that she ‘Was concerned the children would usually seek the mother’s approval before answering any questions. That the children were completely different when they are with their father. They are polite and engaged with me, and although the children said they did not want to see him, they would run to him when he came to the gate to collect them’.
45. Ms D said that in her view, ‘NW was unable to meet the children’s emotional needs as a result of a pre-occupation with her overwhelming desire to punish VR, for whatever reason’, at C18. At C19 she says ‘In my view NW has no respect or regard for the court or the local authority. She refers to what she considers to be others flagrant disregard and in breach of the orders’, C23. In contrast she says that Father showed insight and engaged well and she had no concerns in relation to his care of the children.
46. Mr K, who is the current allocated social worker, has been allocated since 20 October 2017. He has produced the care plans and other documents and statements. He says that the plan of the local authority is that the children should transfer to the care of their father and there should not be an order for contact, but there should be a period of time, a month, when the children should not contact Mum. Thereafter, there should be gradual contact depending on how matters progress, but there should not be any order to give appropriate flexibility. He said that a supervision order only needed to be approved for six months, and 12 months was not justified or needed.
47. He said in relation to NW, that her basic care of the children is fine, the home is very clean and tidy, and the children have good school attendance, approximately 95%, but he referred to what he described as implacable hostility to VR and he was of the view that this causes significant harm to the children. At C82 he says ‘I believe that if the children continue to reside with the mother there is a significant likelihood she will continue to abuse them emotionally. I believe there is no other option but to consider a change of residence to the father’.
48. As to the mother’s care of the children, see at C87, he considers the children have been subjected to ongoing emotional abuse from their mother, so that, for example, ‘TE has shared with me his mother tells him to say things to me about his father that are untrue, such that their father doesn’t feed them properly. CF shared with me their mother talks about her father in a negative light to her both directly and indirectly’. He said, also that NW has repeated allegations that have been quashed by the court in previous proceedings and within 2017 alone NW has called the police on seven occasions. On all occasions the police have found no evidence of any crime, or evidence of inadequate parenting. He makes reference to NW telling an independent social worker ‘I will not accept any judgment other than a decision in my favour which the children will remain in my care. He said ‘I am concerned that NW shows no respect for the local authority other than her own, and this mentality will in turn affect the children’s mentality and cause them serious behavioural and emotional problems in the future’.
49. As to the father, Mr K says he considers the father’s care as fine. He says the father is focussed on the children’s needs and that he has shown that he will work with the local authority and is described as being cooperative and helpful.
50. As for the children, Mr K says that ‘The children say that they are telling me what Mother has told them to say’, and he gives a number of examples, at C52 and C87 there are examples. He expresses concern that the children, or the boys rather, are dishonest when caught playing inappropriately and he says that may be in part due to the role set by the mother, C88. He says, in his view the children are happy with the mother and with the father, and they enjoy being with the father. Mr K gave evidence about what happened on Monday and Tuesday of last week, when efforts were made to ensure that the order for the children to spend time with their father was complied with. He said that on the Monday, that when he spoke to the children the children said they did not want to go to or see the father, and NW said that unless the children say they want to go I will not tell them to go. TE and JQ said they wanted Mother to decide and the mother said that she would not. CF said she did not want to go. The social worker said ‘I felt as if the mother had tried to persuade them they probably would have gone, but she decided not to do that and she did not tell the children that they should go’.
51. On the Tuesday, further efforts were made, and on that occasion there was a telephone call by arrangement, during the course of which, the social worker accepts that the mother did say to the children you have to go. The children said no, but there was no additional persuasion from the mother and he, the social work, considered that the mother did the bare minimum to be seen to try to comply with the court orders. The social worker went to the children’s home. BL came back, he spoke to the children and the social worker, and they started packing their bags. Then CF and said no, mum does not want us to go, CF influenced the others. The children began getting a bit silly, said they would like to speak to their father through the door, to get their father, but BL shut the door and would not open it.
52. I heard, also, from the initial social worker, Ms M. She had only a short involvement in the case prior to Ms D. She was responsible for some of the documents in the case, to which she was referred, but she really had very little recollection of the case and little independent memory to assist any further when asked, and that is perhaps understandable given that matters took place a considerable time ago.
53. I heard from a lady called Ms H. She is the head teacher of Y Junior School, where the boys have been ever since January 2017. She said the school were aware there was an acrimonious relationship between the parents, but that was not an uncommon situation for the school to deal with, sadly. She was asked and she confirmed that [inaudible] made by the school on 24 March 2017, and this was really because of what JQ had said, a note that JQ was being poisoned by the father. She, the teacher Ms H, said that the mother NW had made numerous complaints to the school, and the school had endeavoured to assist and arranged a lot of support, and had arranged a number of meetings. The school considered that there were some difficulties, and that, for example, the mother was keeping the children off from school to avoid the father collecting them. That is referred to at G96. She confirmed, about the boys, that they were meeting expectations at school, but they were known for not telling the truth. She did, however, explain that things recently had improved from the school’s point of view.
54. I have extensive evidence from an independent social worker called Mr S. He has provided an assessment of both parents, and the assessments are included in the bundles. It is somewhat unusual the way it is presented, I think because there was a hearing in April, but he provides first of all a summary in relation to both parents, and then a full report in relation to each parent, and the summary is really repeated in the report. I make reference to the reports rather than the summaries. At E185 is his assessment of the father, this is dated 1 May 2018, and he provides a helpful summary at E190, he says ‘The father was trying to be open and honest, agreed to work with the professionals, allowing the children a respectful relationship with their mother. The children observed in contact to be relaxed in his company’, and he says that he ‘recommends that the children should be placed with their father’.
55. He says, amongst other things in his report, 216, ‘Both parents have shown emotional warmth for the children, caring and loving towards them’ but he says at 221 ‘I think the children will experience more stability in the father’s care than the mother’s care. VR is fully committed to the children’s welfare and able to prioritise their long term needs for stability and consistent care until they have reached maturity’. He says that he is satisfied that VR would actively support a positive relationship between the children and their mother, that is at 231. He, therefore makes a positive recommendation that the children should be with their father.
56. There is his assessment of the mother, which is at B238 onwards; it is 10 May 2018. It provides again a summary at the beginning, it says at 243, ‘She clearly loves her children very much, and they love her too, but she lacks the insight, she does not have the depth of understanding to be able be a good enough parent, and her behaviour is emotionally abusive and psychologically damaging’. On the same page, ‘she does not accept any responsibility for her actions. She could not find anything positive to say about the children’s father’. ‘She does not respect professionals if they disagree with her and she made this clear, and when I asked her whether she would accept whatever the judge decides she said “I will not accept any judgment other than a decision in my favour. The children remain in my care”’. In the sentence at 243 ‘It is my professional opinion that if the children remain in the same arrangements as is, with the mother extremely harmful and damaging for them both short term and long term’.
57. He provides a lot more information in the body of the report thereafter, so as at 268 for example ‘All the children are at risk of emotional harm. The mother continues to be critical of the father and this is causing the children distress’. 273 ‘She lacks insight as to what constitutes emotional abuse, the matter at the heart of these proceedings, continues to speak ill of the children’s father. There is no doubt these messages transmit to the children through her anger, rage and frustration. She refers to the father as the devil. Openly critical of the father’. At 283 ‘She does not trust the professionals, and she blames them’. At 286-7 ‘She is so obsessed with undermining her ex-husband she is causing the children emotional and psychological harm’.
58. 291, ‘Mother is unable to prioritise the needs of her children over her own needs’. 294, ‘Mother is most unprepared for the decision against the children being in her care. She is likely to find such a decision most unsettling. I suspect she will do what she can to subvert the plan’. 297 is ‘The Recommendations’ and he recommends the transfer of the children to the care of the father and a supervision order. He gave evidence, as an independent social worker, and in the course of his evidence he said that the mother could not think of a single good thing to say about the father, and in his view, if the children remained in Mother’s care, the prospect of positive contact with the father will continue to diminish. The children will hear nothing positive about their father. He says he thinks the mother is putting her needs above the needs of the children. He says ‘I asked about Mother accepting any feedback from the school, he said well part of my observations when I was at a meeting with the school, the mother was very confrontational, she was not willing to accept any feedback or advice. She was blaming of the school, she always blames others and this is not good for the children’. ‘The mother is determined not to cooperate with the father’ he said that ‘In the mother’s care the children are suffering harm there, and that is likely to continue. There is little or no prospect of change’. He said that the mother had said to him, ‘I will do whatever it takes to disrupt any decision to remove the children from my care’.
59. As for the father, he said ‘I observed the children with their father once. There they were very settled, and comfortable with him’, and he says that in the longer term once they are in their father’s care they will settle down there. He says he thinks that the father is mature, experienced, calm and sensible, and he says he feels the father will manage what is a difficult situation. Of the father he said he never speaks ill of the children and he said that he observed on one occasion during contact with the children that the father encouraged the children to make a cake for the mother’s birthday, and he said that was positive and helpful but that there was no way that something similar could be expected from the mother. His view was to place the children with the father was, as he put it, a far better option for the children. He said that he accepted that in the short term the impact on the children being told they must move, the children are likely not to be happy. They may try to push boundaries but he said this will depend very much on how it is managed and he was of the view that in due course the outcome for the children would be entirely positive.
60. Dr Bourne is a child psychiatrist, he provided a report and gave evidence. His report is 27 December 2017. This is one of those documents where the page numbers have been changed, but in my bundle anyway, it is at E86:
‘I [inaudible] CF as being quiet and reserved, JQ as being slightly anxious, TE as being mostly[?] demanding’ but he said at E87 ‘For three children generally have a good relationship with each parent, their experience of being with their father was generally positive however they are being told, or made to believe, that their father is either likely to harm them or, and most probably, is harming or threatening to harm their mother. So I think she is frankly lying to them about certain things and made them up. She is also lying to professionals and this situation is harmful to the children. It means they are confronted with a lived in experience of their father which is broadly positive and normal, and their mother’s descriptions and instructions, which we believe are palpably and deliberately false’.
61. He refers to the difficulty of the children having to [inaudible] the two truths, that is at E89. At E91 he says:
‘The children’s difficulties are caused by the exposure to the acrimony between their parents and explicitly because the mother is on an ongoing campaign against the father, which has meant she is being emotionally abusive to the children. The have detrimental longer term effects on the emotional development of the children. As they become adolescents the two boys are at high risk of becoming oppositional, achieving less well at school. CF has a high risk of developing depression, self-harm, and [inaudible] mental[?] health problems of her own’.
He says at E97, ‘There is no evidence I have read that she[?] is not meeting the children’s wider needs, but there is evidence mother’s not meeting the children’s needs, she just continues to damage them emotionally. She is clearly putting her own needs ahead of those of her children, and I believe this is by choice’.
At E101 he says, in his view ‘the overwhelming evidence is that she’s doing her best to sabotage the children’s relationship with their father’. He says ‘I believe that what’s right is to consider a change of residence in order that the primary care is with their father’.
62. He gave his evidence and he said that of course he accepted that his views would be different if the court’s views about the evidence were different from his. He said in relation to Mother, that ‘If the mother has told the children things for the purpose of interfering with the children’s relationship with the father, then there is a pattern of trying to undermine what professionals say. In my opinion Mother is trying to disrupt the relationship between the children and their father, and has been doing so for many years’. She is drawing the children into what he described as ‘her false self‑belief system’. He said she puts her needs ahead of the children; she does what suits her and does not think about the impact of the children.
63. As for the father, he said the professionals have observed the children with the father, and they have had a good time, and we also observed the children with the father and there was no cause for concern, and the children were clearly having a good time. He said he particularly remembered observing that shortly after the boys joined the father, the boys started teasing the father, and he said that helped to tell the story of the relationship with the father, because if they were really scared of him they would not be teasing him. They were pretending to sneak up on him, and doing things like that, as a tease. He said that it was clear to him that the relationship of all three children with their father is a good one.
64. He says that he is concerned that the children are clearly caught up in the mother’s false belief system. He was asked about the children’s wishes and he said ‘Well the children’s opinions have been malignly influenced by their mother’. He said he is aware of the children’s wishes as expressed but they do not weigh particularly heavily, and that [most children want?] the status quo in any event and in this case the children have been malignly influenced by their mother.
65. I asked about the impact of transition and the initial move, and he said well that is going to be difficult. They have always been with their mother but he said that the lived in experience of the children with their father has been good and he said that on balancing the risks of harm, the potential harm in their move and the long term harm, he said that he really did not consider that to be the right way of looking at it. He said what he was recommending the children being removed from a harmful environment into a non-harmful environment.
66. He was asked about the children seeing the mother, and contact with the mother, and he said well the need depends upon the mother’s response and her behaviour, that the children were a priority as being close and secure with the father. Any contact arrangements run the risk of mother continuing to cause damage to the children. He said I would start with supervised contact because of the level of risk, which he thought was quite high.
67. I heard from a lady called Dr Latif, and I should mention that Dr Latif, for personal reasons, was unable to attend court as planned and cross‑examination therefore had to be rearranged and took place over the telephone. Dr Latif is a psychologist and provided a report, which is at A151, again I think this is the number, dated 26 March 2018. This is a report in relation to NW. It says in a summary at E155;
‘NW has limited insight into the local authority’s concern and it is possible that she has a personality disorder, such as emotionally unstable personality disorder, but it cannot be said that she has one, because many features are not present. There seems to be aspects of her personality which are overly intrusive, rigid, inflexible and controlling, particularly to the children. She has little insight and understanding’.
68. It says at E166 ‘She blames her ex-husband, VR and his family for all of that, of course’. At E167 ‘She is driven by her own views and she places these above the needs of others such as her children’. 168;
‘She has a need for dominance and control, she is preoccupied with punishing her ex-husband by presenting him in a negative light. This has left her children in the middle of a tug-of-war between the parents. NW has poor insight into her own behaviour and the long lasting effects of the consequences of this behaviour means that unfortunately, though she is attempting to protect [inaudible] she is emotionally damaging her children’.
169; ‘The loss of her older two children’, she says ‘I would just like you to know, would have caused her significant distress and grief, and a consequence of this is she has tried to be manipulative to stop this being repeated. She is most likely angered, resentful and bitter and blames her second husband for the loss of her two older children’.
69. 171; she says she recommends NW engage with a parenting course, such as PPP, and would also benefit from a healthy relationships programme, but her ability to engage is likely to be poor[?]. She provided an addendum with some medical reports. When she gave her evidence she added that she felt that this mother had not got over her when she lost her two older children.
70. I heard evidence and of course read statements from NW herself. She gave evidence, in the way I have described, she had an interpreter with her, and he was there to assist, and she turned to him for assistance from time to time. Primarily she answered questions directly.
71. She explained the position about BL, that they got married, an Islamic marriage then they were separated, and they then had the civil ceremony, and she explained about being pregnant again.
72. She said the children are happy with her, and that they are well cared for and should be with her. She said in her evidence and her written evidence ‘I do not say negative things to the children about their father, that the father does this about me’. She says ‘I have called the police on occasions but that was because I wanted them to investigate him’. One example of that was at C105, she says ‘I received text messages from CF that she was hungry, and she was with her father, I called the father and he would not answer so I called the police’.
73. She, NW, said that she considered that VR was very controlling. She said in her evidence, she said ‘I think the father wants to kill the children, and I also think VR used black magic to kill my father’, that is NW’s own father. She made reference to a number of incidents in the past, one at Camber Sands in July 2016, when she says that the father put the children at risk, she said ‘He pushed JQ from a huge big sand heap and left the children [seeing the tide will come quickly?]’, matters of that kind[?]. She said that he does not feed them and he shouts at them and he hits them. She says that this is what the children are saying and she thinks it is true.
74. She explained what the position was about the recent difficulty with the children, spending time with their father as so ordered. She said the children were due to go on the Sunday but they refused to go, she said he is your father and you should go but they said they would not. Then she said on the Tuesday of last week ‘I told the children they should go to their father, they said they did not want to’. She said ‘I cannot force them to go to their father’.
75. She explained that her own mother, in India, is unwell, and she would like to take the children to visit her mother. She was asked about, for example, black magic, and them being scared, TE has said that she told them their father has done black magic and she said ‘Well it is not right, the children have watched programmes on YouTube about black magic, and they had seen [me throwing?] a tube with some brown coloured substance which I found in my home, and TE must have got this confused with what he watched on YouTube’, that is at C108.
76. In regard to allegations, for example, about poison, she is saying that father was threatening to use poison. She said ‘Well yes she did actually use the word poison’, and it is in a message from her, but she said ‘When she used the word, what she meant to say was do not use expired food’, that was a mistake by her.
77. She said she called the police a number of times when the children were with their father. There was an occasion when she said that there was a breach of the order because the father was collecting the children from the wrong place, it was CF at one school, and it was a different school. Another occasion I mentioned when CF was said to be hungry. Also when JQ suffered an injury to his wrist playing football, and father had taken JQ to the hospital, and Mother then took him to hospital again, but also called the police saying that this injury had been caused by the father ensuring the football was kicked hard at JQ and it was all deliberate.
78. The mother said she would cooperate with professionals and she said ‘I respect court orders’.
79. BL gave evidence; he had an interpreter. He said ‘I support the mother with the care of the home and the children’. He said he had not been married before, but he is now married. He explained about his immigration status, his student visa had expired some time ago, and he had made a further application and was still waiting to hear. He said he had not met the father VR, but he had been at the property during the last week but he had been told by Mother not to let the father in to the home.
80. He was asked about the allegation at E287. E287 is an entry where it was reported by the independent social worker that BL said ‘VR has blackmailed Dr Bourne to write the report in his favour’. He, when he was asked about that said ‘I do not think I said that’. He was asked whether he thought Mother needed to make any changes in relation to the care of her children, and he said no, he thought she was taking care of the children very well.
81. I heard from Father, VR. He says he considers he could care for the children well. He has got a lot of family support, family living particularly near-by. He brought up his previous older two children from a young age. He explained about his accommodation, he has got this three-bedroom flat, ‘If the court decides the children are with me, the two boys can share, CF can have a room, I would have a room and E would move out’.
82. In relation to the school, ‘I do not want the children to change school’, and the fact that it was not a bad journey, it was about 25 minutes from P to the school in S. He said he was not violent and he had no wish to harm either the mother or the children in their house. He says he tries to minimise the conflict and he does not denigrate or speak negatively about the mother at all. He says the welfare of the children is his primary concern. He accepts the children are close to their mother and he thinks it is important that the children should have a relationship with their mother. He says he is lucky to have a good relationship with all three children and none of them are scared of him.
83. He said that, in his view, the mother is bitter and upset about the separation. He feels that she has tried to undermine contact and brainwash the children. He said, when asked about the effect of the repeated allegations made against him, his response was ‘Well, I am an adult and I can take it, the allegations to the children is what I find the most disturbing’.
84. I heard from the Guardian, Mr Witchlow, who provided a number of reports including a final report and recommendation. That is 26 June 2018, at E315, and he says in one of these, at E317, ‘I have seen the children enjoy their time with their father. Extended family have been positively assessed’. NW has not yet shown any insight into the local authority assessment recommendations in her discussions with me, and BL has supported her in discussions’. He says at E324 ‘I would express my own doubts as to NW’s willingness and ability to comply with any arrangement with which she does not agree’. As far as the children are concerned he says ‘During all my meetings with the children, I believe all their wishes and feelings of the children are difficult for them to say. One of the issues is whether and how much the children have been influenced. I believe the children have expressed their views and they probably do want to stay with Mother’. He says ‘The children are likely to experience initial harm on their removal, they are going to worry about her because they love her’, he said ‘My recommendation is for removal because the long term prospects of being with the mother is continuing emotional harm to the children’. He says in his view, the value is for long and much more significant than the short term distress caused by the move.
85. When reviewing the issues of fact in this case, I need to make my assessment of the witnesses, and some of the witnesses are very important in relation to issues of fact and some much less so. I am going to explain my approach to the various witnesses that I have heard.
86. I would say in relation to Miss D first of all, she seemed to me to be both honest and helpful. Mr K seemed to be balanced and thoughtful, I also thought he was insightful and he impressed me by the amount of work he had clearly given to this case. As I say I find him quite an impressive witness, and I have no doubts about his honesty as well. The initial social worker had really had very little recollection of events, and her evidence was not of any great assistance to the court. As far as the head teacher, she was again clearly very honest, she was an experienced teacher and struck me as somebody who was entirely fair and also very thoughtful.
87. The independent social worker, Mr Ahmed, he again impressed me as a witness. He was experienced, I thought he was thorough, I thought he showed considerable insight, and again I have no reason at all to doubt his honesty, it seemed to me to be clearly an honest witness.
88. Dr Bourne, the child and adolescent psychiatrist I assess as very professional, very experienced, and also very careful in what he said, he gave a lot of thought to the answers he gave and they were carefully thought out and precise. It seemed to me that he once again showed considerable insight into the case, and I find him to be an impressive witness.
89. Dr Latif was more difficult to assess because her evidence was given by telephone, but I have no reason to doubt both her professionalism and her honesty.
90. Turning to the Guardian. Again the Guardian seemed to me to have given a lot of thought to this case. He is an experienced Guardian, and it seemed to me that he was being entirely fair and expressing independently an opinion which was based upon a considerable amount of work and experience. I have no doubt about his honesty and I therefore place considerable reliance on his evidence.
91. As to the family, first of all I look at Mother’s evidence and this is a question of reliability and honesty and whether what she says is true or not. Assessing her as a witness, I make a number of preliminary points. One is that I think it is right to make some allowance for her difficulties of language. I have mentioned this already more than once. Her English is pretty good, it seemed to me she understood clearly the questions that were asked of her, and I am satisfied that she is an intelligent woman and she had the good sense, on occasions, when she had some doubt in her mind, to have the assistance of her interpreter. Although language potentially a problem, it seemed to me it is not a significant problem because of the points I have mentioned. The second point I think I should bear in mind is the very difficult situation she finds herself in. Court proceedings are very stressful, I think it is right to say that it is particularly stressful for parents and a mother who finds herself criticised by professionals and so on, is inevitably going be finding herself in a very difficult situation and I think it is only right to say that. I bear that in mind.
92. Having said that, it seems to me there are a number of reasons for considerable concern, in relation to her reliability and her honesty when dealing with the facts of the case. The first concern is this, that it is apparent that the children have expressed views which are remarkably similar to those expressed by the mother, in relation to quite a number of potentially important matters, such as black magic, poisoning, and the alleged involvement of VR in NW’s father’s death. These are matters raised by the mother and also the children, so there is a remarkable similarity between what the children have said and the views of the mother.
93. Point two is this, on a number of occasions that the children have expressly said that they are being told by the mother what to say, and G17 and C52 are examples of that.
94. My third concern is this, that there is clear evidence that the mother has said these things openly in front of the children. The social worker said, at C19, 19 June 2016, that NW said that the children’s father wants to kill them. The social worker advised NW not to say things in front of the children she persisted and said the children needed to know. That was clear evidence from the social worker, and Mother’s response at A115, is that she cannot remember if the children were there.
95. A fourth concern is this, that it is clear that this mother has used the word poison, and she accepts that herself, and it is apparent because, amongst other things, I have got a printout of an email from Mother which was sent by Mother to the teacher at the school saying ‘I believe Dad made them eat something that was poisonous’. She now says well actually that was a mistake and what she meant to refer to was that it was date expired. I simply say that given a mother who is intelligent and has a good use of English, I find that explanation less than satisfactory.
96. A fifth point is this, that there are a number of occasions where the mother’s evidence is contradicted by evidence, not just from the father, but by social workers and others such as police and experts. The mother’s recourse is to say, ‘Well actually the social workers are lying to the court. The father’s lying; others are lying’. It may be said that the father has a motive to lie, but the social workers have absolutely no reason to do so, nor do other professionals.
97. The sixth point I make is, that although it is important not to prejudge this mother, and any person can take note of the history, and change their ways as a result, I think it is right that I should bear in mind what has been said on previous occasions by previous judges, and the findings that have been made. There have been findings that this is a mother who will, for example, stoop to any allegation in order to besmirch the father’s character. That is a finding that has been made some time ago, of course the mother may have changed since then, and reformed her character, that is entirely possible. What is also possible is that she has not. Therefore, I have quite a number of quite serious concerns about the mother’s evidence.
98. What about BL. His evidence was of some assistance but of limited assistance, and of course I must make allowance for his language, he does not speak English really very much at all, but he had an interpreter. What I say about his evidence is that I did not find him a particularly impressive witness. He struck me as somebody who was somewhat reluctant to answer questions directly. He struck me as somebody who was under the mother’s influence to a considerable extent, and I did not form the impression that he was a particularly reliable witness.
99. What about the father. In terms of the father’s evidence, I simply say this, that he came across to me as clearly intelligent, but also a thoughtful man who was insightful and very aware of his children, and the effect on the children of difficulties and concerns raised in this case. He was able to stay calm throughout his evidence and cross-examination, and I formed the impression, quite simply, that he was an honest witness, giving honest evidence to the court.
100. Therefore, in the light of that assessment of the witnesses I must make findings of fact, because that is an important part of the function of this judgment and this hearing. My findings of fact of course depend to quite an extent on my assessment of the witnesses, and in particular in relation to the social workers, as I have already said, I am satisfied that they, and indeed all of them, were honest and doing their best to assist the court. In relation to the father, I find that he was reliable and giving honest evidence, but in relation to the mother I have a number of very serious concerns about her evidence. As a result of that, where the evidence conflicts with that of the social workers or the father, for example, I prefer the evidence of the social workers and the father to that of the mother.
101. In the circumstances, given particularly the stark nature of the conflict on the evidence, there is not really room to say, well somebody was just mistaken about this or that, I am afraid, and the very clear conclusion that I come to is that this mother is, on quite a number of occasions, deliberately not telling the truth to the court.
102. In the result, therefore, that makes my conclusions as to the threshold documents something which is not particularly complicated. I consider that the local authority allegations as set out in the composite threshold are, I think with one exception, all established on a balance of probabilities. In terms of that, the evidence is sufficient to establish each of the allegations as set out, and I do not propose to go through them one by one in detail.
103. The only one on which I have some reservations about making a finding is allegation (3f). Allegation (3f) says this ‘On 7 July 2017, the mother falsely reported to the police that the father had taken the children in breach of the court order of 28 June 2017’. What actually happened here is that the order was for the collection of the children at one school, and the father collected, I think, one or more of the children from a different school. A word for word for compliance with the court order was not something which had taken place, so on one view you could say this was in breach of the court order, but it was not in breach of the spirit of the order, and it is certainly no reason to call the police. I am not of the view, as matters stand, that it is an appropriate find to say that mother falsely reported to the police that father had taken the children in breach of the court order, I think the matter is covered already by paragraph (3d), which says ‘The mother called the police to undertake unnecessary welfare checks on all the children during contact’. It seems to me that that covers matters perfectly properly and nothing is added by this further allegation which I do not think is expressed in a way which I find satisfactory. Therefore, for those reasons, I propose not to make a finding on (3f) and simply to delete it, I think that is the simplest way of dealing with it.
104. Apart from that I make it plain that I intend to make all the findings, including perhaps I should say, expressly and particularly importantly, the findings about the mother repeatedly telling the children inappropriate things about the father. As I said, in allegation (k), ‘The mother is deliberately conditioning the children to be scared of their father, and the children are starting to believe what she says to them’, I think that is right. I think that spells out exactly a very important part of the difficulties of this case.
105. It says at the bottom of A123, ‘The mother is causing emotional harm to the children by involving them in false allegations against the father, and there is a likelihood of her continuing with this behaviour in the future’. I am entirely satisfied that that is true; I think that is entirely right.
106. Therefore, for those reasons, I propose to make all the findings in the composite threshold, apart from finding (3f). I would just say this, that at the end of this judgment, I would be content if anyone would wish to make any further submissions about precise findings or any particular paragraph that they think they may need to be amended in some way. My initial view is that there are no amendments required, the document sets out matters entirely accurately apart from finding 3f.
107. It also follows, I am afraid, that I can deal quickly with the schedule of allegations made by the mother, father hitting the children, not feeding the children and so forth. I am entirely satisfied that those allegations are untrue, and I do not propose to make any of those findings.
108. On that basis, it is perfectly plain to me, that Section 31(2) of the Children Act is satisfied. These children have suffered significant harm due to the conduct of their mother, and they are at continuing risk of so suffering. That is the findings of fact under Section 31(2).
109. I turn then to the question of welfare and what orders, if any, should be made in respect of the children. The first point perhaps is to look at the local authority’s plan, I have mentioned it I think briefly. I have got final care plans and I have got additional evidence about that. The plan is a reasonably straightforward one and is set out at D62 onwards in relation to each of the children, dated 4 May. The plan is for the children to reside with their father under a child arrangements order, the local authority say there should be a six-month supervision order, and they have put forward a plan for transitional contact arrangements.
110. These say what should happen is that, the children should have for the first month or four weeks, no face to face contact. There should be telephone contact with Mum twice a week, supervised by Dad. After that, providing there are no significant issues, face to face contact should resume, alternative Saturdays, six hours on a supervised basis. Then if that proves positive, then that should progress to alternative staying contact. That is the local authority’s plan.
111. What is the right order to make in respect of these children? In looking at that, what I have to do, of course, is to bear in mind is Section 1, of the Children Act. The welfare of the children has to be my paramount consideration and I have to bear in mind the checklist in Section 1(4) of that Act, and I propose to go through the various subsections in that checklist.
112. Subsection (a) refers to the ‘Ascertainable wishes and feelings of the child concerned, considering in light of the child’s age and understanding’. Well, the children’s wishes and feelings, I have made mention, already, of the fact that the children came to see me, and what they said to me briefly was that they wanted to be with their mother. It is right, I think, just to add, that the meeting was, in my judgment, slightly unusual, in that there was quite a lot of whispering among the children and the children did not seem to be particularly serious. It seemed to be something which they were, I will not say were treating as a game or a joke, but it had slightly that feeling about it to me. It is right however, also the children have said the same thing to others, that it is the children’s expressed wishes that they wish to be with their mother.
113. Beyond that, however, what I must do, it is clear to me, is bear in mind the findings of fact that I have made. In particular, this is a mother who has regularly coached the children to say negative things about the father. She has been deliberately conditioning the children to be scared of their father, and it is as a consequence of the mother’s influence, which makes it likely the children will say they do not want contact with their father. Actually they do say they enjoy it, and they have been seen to enjoy it. Therefore, what I have is the expressed wishes of the children, which I have to bear in mind, and do bear in mind, but given the additional factors that I have mentioned, it seems to me clear that their true feelings are not as straight forward as their expressed wishes. I think these are children who are suffering divided loyalties, and I bear in mind that they have a good relationship with the father, and I am satisfied that they know, from their own experience, that they are safe with him.
114. Subsection (b) refers to the child’s physical and emotional needs. Well these children have all the normal needs of children of their respective ages, and as for any child they need to be in a safe, stable, loving and supportive home.
115. Subsection (c) refers to the likely effect on a child in respect of any change of circumstances. Potentially this is an important aspect of this case because it is said, and said with some justification, that any move to the care of their father would be difficult for them, and it is right to say that they have always been in the care of their mother, they have always had their mother as their primary carer.
116. The evidence, I am satisfied, establishes that these children have a good relationship with their father, they are not actually scared of him because they know him. However, it is clear to me that a move to the care of their father is likely to be difficult in the short term. How difficult it is going to be, it seems to me, to depend almost entirely on the behaviour of the mother.
117. It is plainly in the power of the mother to make the move straightforward, were she able to do so, but I do not think she will be able to do so. I think she is likely to endeavour to make matters worse, and indeed, effectively she has said so to the independent social worker when, as I mentioned, she said ‘I will do whatever it takes to disrupt any decisions removing the children from my care’. Therefore, it has to be anticipated that she will not cooperate and will try and make things difficult.
118. The prospects are that the children would be upset on any proposed move, and they are likely to be concerned about their mother, but that has to be balanced against what I am satisfied is their experience of their father which is good, and very different from the mother’s version of the father as expressed to the professionals and indeed to the children. I do not think these children are afraid of their father in any genuine sense and it seems to me that although a move is likely to be difficult, I think it is also likely to be manageable as the Guardian has said. It is clearly an important factor to bear in mind.
119. Subsection (d) refers to the child’s age, sex, background, and any relevant characteristics. Well, in this respect I think it is right for me to make reference to the right to family life of the children and the parents. In many public law cases, this is an absolutely vital factor because the court is being asked to remove the children from the care of the family and placed with strangers, or something of that kind. In this case I am not being asked to do so, I am basically considering whether the children should stay with their mother or move to their father, and the children’s right to family life and the right to relationship with their parents, and the parent’s respective reciprocal rights, are rights that I bear in mind very much.
120. Subsection (e) refers to any harm the child has suffered or is at risk of suffering. This is clearly an important factor in this case. I have already expressed the findings that I have made. I do not propose to spell them out in detail again, but I simply reiterate that I am satisfied, on the evidence, that this mother is causing emotional harm to the children by involving them in false allegations against their father, and there is a likelihood of her continuing with this behaviour in the future.
121. Subsection (f) refers to how capable each of the child’s parents, and any other relevant person, in meeting the child’s needs. I first mention any other person, I have some evidence of viable alternative carers, an uncle and aunt for example have a positive assessment, but no party is proposing the uncle or aunt. The realistic alternatives here are a placement with Mother or with Father. Those are the two, therefore, that I am going to consider in some detail.
122. What about the children staying with their mother? There are some obvious points in favour of that, as a potential course of action. I mention the following in particular;
Firstly, she is their mother, a closer relationship with children cannot be devised by nature. She loves the children and she wants the best for them and there is no question about that.
Secondly, she meets their day to day needs, basic care is well provided for, their bed, their dress, and their needs are met, and have been met by this mother. A further point is that there is good emotional warmth between this mother and the children. The children are very close to the mother, and she shows very good emotional warmth to them.
123. There are, against that, a number of concerns, and I spell them out in this way. Firstly, I am afraid I am satisfied, and for whatever reason, NW is very hostile and bitter towards VR, the father of the children, and she makes this plain, even in front of the children. She has nothing positive to say about him and many negative things.
124. Secondly, I am satisfied that she does try to undermine his relationship with the children. She repeats false allegations to the children and those allegations are of a serious nature, such as wishing to poison them. She regularly coaches the children to say negative things about the father without any justification.
125. Thirdly, I am satisfied that this mother, I am afraid, is not able to put the needs of the children first. Her needs take priority and there is extensive evidence of that. E291 is an example, and I accept that.
126. Fourthly, I am afraid I consider this is a mother who lacks insight and understanding, that her behaviour is emotionally abusive of the children and physically damaging to them. E183 is a reference.
127. Fifthly, I think it is right to bear in mind that this is a mother who has limited support available to her. I do not forget BL, who is there, but this is a recent relationship which is, it is clear to me on the evidence, neither established nor as yet stable[?]; there have been problems in that relationship, even during this year, resulting in him being thrown out of the house.
128. Sixthly, I am afraid the evidence is clear that this is a mother who is unable to work with professionals, and indeed, unfortunately, part of her method of dealing with difficulties is to blame the professionals and to accept no responsibility for the difficulties herself.
129. That leads me to the final concern, which is that I am afraid, it seems to me, there is no real prospect of change in relation to any of these matters.
130. What about the father? Well, there are a number of positives to be said about this father. First of all, he is their father, he is genuinely loving and caring towards these children, I am satisfied of that. I am satisfied also that he is open and honest, and that clearly is important, not only in terms of findings of fact, but in terms of setting an example with the children, enabling them to have, if I put it this way, one set of truths instead of two sets of truths to try and deal with. I am satisfied he has good insight into the needs of the children and he is mindful of the harm that can be caused if a parent is criticised or undermined. It is often the courts see that a parent who is undermined by one parent retaliating in a like way, doing the same sort of thing, thinking, ‘Well I can play that sort of game’, but happily in this case BL has the good sense and maturity not to do that, to see the importance of the children having a relationship with the mother, and I am satisfied that he would not seek to undermine that, and indeed would endeavour to promote physical contact with their mother. He has got emotional warmth, is quite close to the children, and has a positive relationship with them. I am satisfied that he is willing to accept advice and would work well with professionals, and has good support, he has got a lot of family around, and also has a wide friendship group. Therefore, there are many factors in his favour.
131. The concerns, it seems to me, really are two that I mention, one is the difficulty of the initial move of the children from the care of the mother [inaudible] and the change of arrangements which they know. Secondly, the expressed wishes and feelings of the children which I mentioned.
132. What I have to do is to come to a conclusion, and when I do I bear in mind Section 1 of the Children Act. The welfare of the children is my paramount consideration. I have to adopt what the court of appeal describes as a holistic approach, which, from my understanding, means bearing in mind, not only all of the points I have made in this judgment, but all the points made by the professionals, made by the witnesses, and the arguments by the parties.
133. Looking at all the different aspects of this case, and putting everything together to consider what is best for the children, and carrying out that exercise in that way, I have come to the conclusion that it is in the best interests of the children for them to be transferred to the care of their father, as soon as possible. I think that is very clearly in their best interests, and I say that for reasons already expressed, but in particular because 1) I am satisfied that this is a mother that has caused, and is like to continue to cause, significant harm to the children, including by actually trying to undermine their relationship with the father. I think her behaviour is emotionally abusive of them and psychologically damaging to them, as said by the independent social worker at E183.
134. Secondly I am satisfied this mother is not able to put the needs of her children first, whereas I think the father is able to do so.
135. Thirdly, I am satisfied that this father can be trusted not to speak negatively to the children about their mother, in stark contrast to the behaviour of the mother in this case, and what she has said about the father.
136. Fourthly, although I am satisfied that it is likely that the initial move is going to be difficult, I think such difficulty is clearly caused by the behaviour of the mother and is, in my judgment, far outweighed by the long-term harm already caused to them, and likely to continue to be caused if they remain in their care.
137. Therefore, in the event, I agree with the views expressed by the local authority, by the Guardian, by Dr Bourne and by the independent social worker, for the reasons given and the reasons expressed by them. I have borne in mind the right to family life of Mother, Father and indeed of the children, but I am satisfied for those reasons, it is right to make an order that these children should be in the care of their father as soon as possible.
138. In terms of the form of the order I have made, I am afraid I think this requires some care, because there is clear evidence, which I accept, that this mother is very unlikely to accept the judgment of the court, and indeed will try to subvert it as she has said. She said ‘I will do whatever it takes to disrupt any decision to remove the children from my care’. In the event therefore, I think it right that the order should be, that the mother should give up the children to the father at a particular time and place, and that that should take place extremely soon.
139. I consider, that in the circumstances of this case, the finding that I make, the mother has stated expressly to the social worker, ‘I will do whatever it takes to disrupt the decision to remove the children from my care’ is something which should be recorded on the face of this order. It is unusual, I think it is relevant, and I think it is important that any party looking at the court order is aware of this express statement of the mother.
140. In the event, therefore, I am satisfied an order should be made that the mother should give up the children to the care of the father extremely soon. The precise arrangements I am going to look at in a moment.
141. What about other orders? The supervision order. It is very plain to me that a supervision order is going to be required in this case. This is a case with considerable difficulty, it is of course possible that this mother will cooperate with a court order, she says she will, and if she does then the difficulties are likely to be minimal. The reality, I am afraid is likely to be different, I think, looking ahead, there are likely to be very significant difficulties, and I simply say I agree with the Guardian, that there should be a supervision order for a period of a year. I think six months is very unlikely to be sufficient, I think a year is an appropriate period of time.
142. What about contact? It is possible for me to make a contact order, I am asked by the local authorities, supported by the Guardian, not to do so, and I think in the circumstances of this case, that is right. I think the plan as put forward is an appropriate plan, I think this father can be trusted to try to encourage a relationship between the children and their mother. It is very important for them. She is the only mother they have, she is the only mother they will ever have, and if they can have a good relationship with her that is vitally important, but I am satisfied that this father knows that. I think he will do his best to try to ensure that that will happen. Therefore, I do not think a contact order is appropriate and I do not propose to make one.
143. What about Section 91(14)? I am asked to make an order preventing applications to the court by the mother under Section 91(14). This is something sought by all parties except for the mother. The position is that I have got the power to make such an order, that provides that on disposing of any application, the court can make such an order. Helpfully the courts have considered this power on many occasions, The Family Court Practice 2018, page 638, spells out there, all the factors I should consider when looking at a Section 91(14) order, and I do not propose to repeat them all, they are set out there very helpfully, very clearly and in considerable detail. There is no specific application for that but it is something which has been flagged up for a considerable time, so there is no unfairness to the mother in my considering it in substance.
144. However, is it the right order to make? I bear in mind the children’s welfare is paramount when looking at this. I bear in mind that I have got a discretion as to whether to grant such an order. I have got to balance all the relevant circumstances. I have got to bear in mind it is a statutory intrusion into the right of a party to bring proceedings before the court. It ‘should be exercised with great care and sparingly, the exception and not the rule. Generally, to be seen as a weapon of last resort in cases of repeated and unreasonable applications’.
145. In this case there has been a previous Section 91(14) order made a considerable time ago, and that indicates that there were unreasonable applications at that time, but that is in 2014. In recent times it is not right to say that there have been repeated and unreasonable applications, and I think it is right, therefore, to look at it, as I do, under paragraphs 6) and 7) of the guidance. 6) says that, ‘In suitable cases (on clear evidence) a court may impose the legal restriction in cases where the welfare of the children requires it even though there is not a history of unreasonable applications’. 7) says:
‘The court has to be satisfied first the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all-too-common situation where there is animosity between the adults[?]. Secondly, there is a serious risk that without the imposition of the restriction, the child or the carer will be subject to unacceptable strain’.
146. My conclusion on the Section 91(14) is that I think I have got the power to make this order, and I think I would be justified in so doing because although I do not think it can be properly regarded as a case of repeated or unreasonable applications, but I do think the facts go beyond the commonly encountered need for the time to settle, and I do think there is a serious risk that the child will suffer unacceptable strain. It does not, in my judgment, follow from that that I should make the order. I think, on balance, that I should not make this order, and I say that for these reasons.
147. This is, on the order that I am going to make, a very significant change in the arrangements for the children. Nobody knows how those arrangements are going to work out. This mother is going to be very unhappy indeed with the order that I have made, there is no doubt about that. The mother’s relationship with the children is very important. It is going to be difficult to deal with. I think it is wrong to prevent this mother coming back to court, should she need to do so in the next six months or so. I think there are a number of steps that can be properly taken to try to protect the children, but I do not think that Section 91(14) is the appropriate order to make.
148. I think the proper steps that should be taken include the following. Firstly, this, I think there should be a transcript of this judgment and I think the order itself should record, on its face, what I have already said about the mother’s intentions and cooperation.
149. If there are any further applications I think it would be right to record that such applications should be made to me, if I am available, because I am aware fully of the current situation. That should be the case, at least for the time being. I think it would be right to record that if any further applications are made, it may well be that the court on that occasion will give further consideration to Section 91(14). It may be appropriate, at that time, to make an order on such an occasion. I do not think it is appropriate to make such an order today, I think it would be unfair on this mother, and I do not think it would be in the interests of the children. It might be appropriate to do so in the future, if unreasonable applications are made.
150. The final point, that I think I need to deal with, is the question of the proposed trip to India. The mother is saying that her mother is unwell. She would like to take the children to see her mother. Of course I have some sympathy with that, but is it an application made simply in the course of the evidence. I have no evidence about enforceability. The timing really could not be worse in terms of the children. What needs to happen as a matter of priority is that the order that I have made needs to be put into effect. The children need to settle; they need to start school. The mother needs to show, if she can, that she is going to cooperate with these arrangements, and I am afraid, I think as matters stand, that has to take priority, because if the mother takes these children out of this jurisdiction, she may not return. Therefore, I am not going to grant the application for her to take the children from the jurisdiction. Indeed, I am afraid, what I need to do is to continue the prohibited steps order for a period of a year, and that is what I propose to do.
151. I hope that what I have said is clear, and the nature of the findings that I propose to make, and the order that I propose to make is clear. As to the precise wording and the time of the handover, I am going to invite submissions in a moment, but I would propose to conclude this judgment at this stage by saying, that if any party wishes to correct any errors, or ask for any clarification, they can do so. If they do not wish to do so, I am going to go on to consider the precise wording of the order, and importantly, the time and place of the handover.
End of Judgment
This transcript has been approved by the judge.