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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> GO v EN & Ors  EWHC 3622 (Fam) (17 October 2014)
Cite as:  EWHC 3622 (Fam)
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B e f o r e :
(Sitting as a Judge of the High Court)
|- and -|
MISS F. WILEY (instructed by TV Edwards LLP) appeared on behalf of the Applicant.
MR. R. ALOMO (instructed by Hudgell and Partners) appeared on behalf of the First Respondent.
MISS S. ANCLIFFE (instructed by Creighton & Partners) appeared on behalf of the Guardian.
MR. N. PURSS (instructed by the Legal Department) appeared on behalf of Lambeth Borough Council.
THE SECOND RESPONDENT appeared In Person.
Crown Copyright ©
THE DISTRICT JUDGE:
"She originates from the Cameroon. From her earliest years there her life was miserable. She was subject to violence, including sexual violence; her financial circumstances were those of great hardship; and her first born child died of malnutrition. She came to this country on a false Nigerian passport in 2006."
In 2006 the mother arrived in England and the mother and the father, then aged 22 and 64 respectively, formed a relationship which eventually moved to cohabitation in London. In earlier stages of this litigation there has been a substantial dispute about how this came about, and I have read District Judge Walker's conclusions about this. She said:
"I decline to make a finding about how the mother came to the UK as it was not in my view central to the case, but it was not disputed that she entered the country illegally. She subsequently claimed asylum when she attempted to enter the Irish Republic which was refused, although she appealed against the refusal. She did not attend the appeal hearing which was dismissed. I was, and remain, satisfied that both parents were aware that the mother had entered the country illegally and that there was collusion between them from the time that she arrived."
I have no reason to reach any different conclusion from that, and my overall view is that how it happened is helpful background information, but does not make a great deal of difference to the decisions I have to make now.
"I am satisfied that [the father] was violent towards the Mother and that he did at times hit her."
"The father I do find to be a bully, who ultimately decided that the Mother was not fit to care for B."
At para. 326:
"I do not make a finding, as the Father seeks me to, that the fact that he met her on the street … shows that she was acting as a prostitute."
At para. 335:
"It is alleged that the Mother is only pursuing this application because it will enhance her case to remain in the country and enable her to obtain settled immigration status here.
The mother does come across, I find, genuinely committed to B.
I am satisfied that her motivation is out of genuine love for her son and her fear that she may lose him altogether.
At para. 338:
"I cannot find that this indicates that B has been exposed to inappropriate sexual behaviour by his mother."
At para. 343:
"In terms of [the Mother's] mothering of B and actual care of him I do not make any negative findings."
Further in that paragraph:
"The hostility between the Mother on the one hand and the Father and MN on the other is of an extreme nature."
"[MN] is loyal to her father ... I fear she may not be prepared to face up to the possibility that he has not presented a true picture of [the Mother] to her and I am troubled that she is not prepared to accept the Mother's positive attributes or perhaps to recognise her importance to B."
- that is p.A125 of the later Judgment.
"The father demonstrates extreme toxic hostility towards the mother, which is shared by MN."
"What is not in doubt is that both the father and MN do not accept the findings of the court, set down in a magisterial judgment of the District Judge of 8th November 2013 … There was, of course, no appeal launched by either of them in respect of any of those findings. It provides a perfect illustration of the forensic 'reality' and the parallel 'reality' adhered to, for whatever reason, by the litigants."
"I do not find that MN was involved in any plot with her Father to take B away from the care of his Mother. I do not believe that she has colluded with Father to try and ensure that the Mother does not have her child back again. However, she is hostile to the Mother, and some of that I find is misplaced and not ultimately helpful to B."
And at para. 320 she said this:
"… it suited the mother during this period to have B cared for elsewhere other than with her. It may be due to very difficult circumstances."
The reality is that what happened was probably an unfortunate mixture of circumstances, but my overall view is that the events of 2009 are, in the context of my decisions now, a relatively long time ago, that things have moved on since then and that exactly what happened in 2009 does not make as much difference to the decisions I now have to make as MN believes. I have to approach this case from the point of view of B's best interests assessing the present and the foreseeable future, not from the position of punishing the mother for what may have been unwise decisions made in possibly difficult circumstances in 2009.
"B was granted indefinite leave to remain in the United Kingdom on 5th July 2011. The fact that B is settled here and is also entitled to be registered as a British Citizen is likely to have a significant effect on the likelihood of the applicant being granted leave to remain here in the future. The applicant has a strong bond with B and therefore her removal from the United Kingdom, after a residence or a contact order has been made, is likely to be a breach of Article 8 of the European Convention on Human Rights. If B is registered as a British citizen the applicant will be entitled to leave to remain under para.EX 1 of Annex FM to the Immigration Rules."
Notwithstanding that opinion, District Judge Walker found the question mark over the mother's immigration status to be a significant negative against the mother. So at para. A121, para. 36 of her Judgment she said this:
"Although in addition to applying for discretionary leave the mother has applied for Indefinite Leave to Remain(ILR), the letter states quite clearly that the solicitor does not believe that the Home Office will make a decision on the mother's application for ILR until they know the outcome of these proceedings. They refer to the 'Catch 22' that the mother is in as having seen the position statements from the Guardian the family courts are reluctant to make any final decision while immigration matters are outstanding. It was said by counsel on behalf of the father that it is not only the uncertainty caused by mother's immigration status that causes difficulties, but problems of her current status.
Miss Hoyal, on behalf of the mother submitted that the court could and should find on the balance of probabilities that the mother was likely to be granted leave to remain on the basis of the opinion of Nadine Finch. I do not accept that is the right approach. Ms. Finch's opinion is just that, it is an opinion and however learned an expert there can be no certainty that is what the outcome will be. The law, both Statute and case law may change and it would be in my view quite wrong for the court to make a finding that it is likely that mother will be able to stay. There is a risk that she will not ultimately secure settled status and even if that risk is low the consequences for B if the mother were to be removed and he had to go with her would be damaging. I would not expect mother to want to leave without him, although that is possible but given B's own secure immigration status the father and MN might launch proceedings to prevent him from going thereby creating a further period of uncertainty."
"His basic physical needs are being met in the care of MN. I am satisfied that would be so if he lived with his mother . . . His educational needs are met by his attendance at school and the school refer to MN as being conscientious about his schoolwork and attendance, but I have no reason to believe that mother would not do the same."
Thirdly, she found that MN's view on overnight contact, and I propose to refer to it in this Judgment as her 'ultimatum', whilst it was not rational nor helpful it was sincerely held, and to challenge it by ordering staying contact would risk the stability of B's placement, so she would not order staying contact. In her words:
"It is the Guardian's view that B would benefit from staying contact with his mother and that MN should not be able to hold the court to ransom by saying that she will not care for B if staying contact is ordered. Her rationale for that is that if the court thinks that mother should have staying contact then she would accept that he can be looked after by her. I do not accept that that is a wholly rational position, but believe it is sincerely held.
I accept that B would enjoy more time with his mother and I have no reason to believe that he would come to harm in her care
overnight . . . Staying contact, if ordered, and even if agreed to, given MN's strongly held view is likely to undermine the stability of the placement and B's welfare would be compromised. So, although I do not consider MN's position helpful, in making his welfare my paramount consideration I shall not order staying contact."
"Whatever might be the genuine or duplicitous views of MN and/or the father, in relation to them, as I understand it, the facts before District Judge Walker supported the following findings:
(i) The mother's observed care, i.e. observed by the professional staff at NRS and by Lambeth Social Services, and by the two guardians of B, was of an entirely appropriate nature.
(ii) The quality of her contact was good.
(iii) She had a loving and affectionate relationship with B and was genuinely committed to him.
(iv) B clearly enjoyed time with his mother and she with him.
(v) He was at ease with her and there was clearly mutual affection between them.
(vi) Whatever the past position she now had appropriate accommodation for him to stay, even though it could not be described as luxurious.
(vii) The father and MN rejected the judicial findings as to the father's domestic violence of any kind, emotional, physical and/or sexual, and as to whether or not the mother had sexually abused B, and that the mother was using B cynically solely to help in her claims for permanent permission to remain.
(viii) The father demonstrates extreme toxic hostility towards the mother, the District Judge's words not mine.
(ix) The court could have far more confidence in the mother promoting contact with MN and with the father than MN promoting contact with the mother. In that context, I note that teething troubles would appear to have settled down on one version of events and that contact is taking place comparatively smoothly, and yet there are traces, even in the guardian's latest report for that hearing, which suggest there might still be continuing problems. I am not in a position, nor need I for the purposes of this appeal, to come to any conclusions about those contradictory statements in the evidence.
(x) Although MN was found to be genuinely committed to B understanding the nature of his relationship to the other adults and to the guardian she proposed . . . that further attempts should be significantly delayed until at the least he was in his teens.
(xi) The threat of MN to surrender the care of B to his mother if the court extended contact to include staying contact was, since it was found that MN's views were genuinely if mistakenly held, reckless, for she would be sending B to a mother she thought wholly incapable of caring for him appropriately, and believing that he would be at serious risk in his mother's home.
(xii) Even in the early days, when her circumstances were very different (for example, given the violent nature of the relationship with the father), there was no child protection concerns in relation to the mother's care of this little boy."
Having heard further evidence myself during this week I have no reason to depart from any of those findings. They were all borne out by the evidence which I have heard. Wood J continued:
"Additionally, it seems to me that [District Judge Walker] adopted the wrong test in assessing the likelihood of success for the mother's application for permanent leave to remain in referring to 'no certainty that that is what the outcome will be'. What is required for these purposes is, I suggest, a finding that there is no 'probability that is what the outcome will be'. To suggest that all parties, or indeed any of the parties, have to satisfy the court that permission would certainly be granted is putting the bar far too high, bearing in mind the applicable standard of proof in such cases.
Thus, it appears to me to follow that the District Judge over-values the likelihood of the risk that the mother:
(i) Would be administratively removed, and
(ii) that B would go with her to an uncertain life in Cameroon … or
(iii) that he would remain here . . . but have to deal with all the problems of separation from mother he was just learning to rely upon in every sense.
If the District Judge had applied what I suggest is the correct test to the risk of these outcomes, the risk is significantly reduced.
Finally on the subject, it was, in my view, not open to the court to determine the issue on the basis that' the law, both Statute and case law, may change'. Cases up and down the land are decided on the basis of relevant operative statutory and/or regulatory basis and any authorities of the court relevant at the time of the decision. There might be marginal room to depart from that proposition if there was known to be coming in the immediate and foreseeable future a decisive change to the statutory and/or regulatory structure, or the advice and/ or guidance set out in the authorities."
"Whilst I recognise the enormous difficulty in this case of determining the least detrimental option for B District Judge Walker's analysis puts far too much weight on the ultimatum of MN. In doing so it completely deprives B of the opportunity to have considered by the court living with his mother, albeit she is described in very positive terms in the way I have set out above . . . It was, in my view, wrong for the court to deprive itself of that essential material deriving from staying contact before it had looked at the advantages and disadvantages of a residence order to MN.
It seems to me there was insufficient attention paid to the right of B to be raised by his mother. The problems which the District Judge identifies all emanate from the behaviour and attitudes and threats of the father and of MN.
B has Article 8 rights under the Convention above-referred to in relation to his father, to MN and to his mother and to his half-brother K. There is little or no consideration of the last of these which I can detect in the Judgment, nor of the consequences for B when he grows older and understands his mother is his mother, and questions why he was not brought up by her as K was.
I appreciate that having stated the obvious, namely, that delay should be avoided, the delay caused by the commencing of staying contact, and the assessment process by a court in the light of the proper evidence then available , would further extend the timeframe of these proceedings."
Accordingly, Wood J set aside at least part of the order of District Judge Walker, and he made an order that there should be interim staying contact on an alternate weekend basis from Saturday at 10 am to Sunday at 5 pm. In effect, he decided that B's best interests would be served by taking on directly and clearly the ultimatum laid down by MN. Plainly, he expected MN to co-operate with staying contact. Originally, he listed the case for himself for a final hearing in late 2014 at which he plainly planned to decide whether the circumstances were such that B might now move to live with his mother. No doubt, he hoped to look at the development of staying contact over that period of time.
"Saturday, 21st June 2014. I received a text message from MN at 9.05 stating that B would not be coming to my house to stay over so I should not bother to come. I decided to go to the house.
I knocked on the door. The Second Respondent did eventually come to the door. I insisted that she called B, which she did do albeit reluctantly . . . I lent towards B, gave him a high five gesture and asked if he was ready to come. He told me he was and looked to the Second Respondent [MN] asking if he should go. [MN] asked B why he was asking her because she said he had told her that he did not want to go with me. B replied saying that he promised he would come back if he went with me. [MN] said plainly that she had already told him that if he goes, he is not coming back. There was some repetition between B and MN at this point in which he was promising to return and she was telling him he could not come back if he went. I reassured B and told him to go and change. He stated directly to [MN] that he would go with me but that he promised to come back and that he would not sleep over. [MN] asked B if he was sure he wanted to go with me and he said yes before turning to climb the stairs to change. As B was about to go up,[MN] asked me if I would return B at 5.00 pm. I told her that if he changed his mind and wanted to stay overnight then I would let him but I would bring him back if not. She responded angrily, she would not therefore let B leave and she told B not to go and change. [MN] told me that she would be working at 5.00 pm and she would not be available to telephone the police to have B brought back if I did not return him. She repeated getting the police involved several times in the presence of both B and her daughter, N, who was also in earshot. I told her it was not appropriate to keep mentioning the police in the presence of the children. B then asked if he could say something to which MN responded initially by telling him to go upstairs and not to say a word. She then changed her mind and told him to say what it was he wanted to say. B said he was confused. He said he did not know who his real mummy was and that he had not yet decided. He said he found it difficult to make a decision to go for a sleepover because it would upset MN, but if he did not go that 'G' would be upset. [MN] told B that as he has a new guardian she could decide. This is in direct breach of the Order which had been made less than a month before. However, I was really concerned by B's reaction and whilst I could see that he wanted to stay over with me, I did not want him to feel pressured any further so decided it was best to leave. I told B that I loved him very much, that I would always be his mummy and no matter what, I would always love him. I offered pleasantries to [MN] and left."
"Saturday, 28th June 2014. MN did not deliver B to Tulse Hill Station so I attended her home. I knocked at the door but received no reply . . . I waited outside for almost two hours continuing to knock and politely request that [MN] come to the door with B. It was pouring with rain and I was soaking . . .
[ Later], the door was opened all of a sudden by B and N. I don't think I was in view from the spot I was sitting, and B told me they thought I had left . . .
I suggested to B that we have a chat. [MN] was at the door by this point and stepped in front of B pushing him behind her and told him not to say a word and stay there. I repeated again to B that we just have a chat. [MN]insisted that this was not going to happen, and that they were going out . . .
I had brought B's scooter with which he loves to play, and I could see him looking at it . . . I took this opportunity to talk with B. [MN] telephoned the police on 999.
[She] told the police that 'someone' would not leave her property. I did not think it was helpful to call the police in the presence of the
children . . . In a sensitive manner I encouraged B to come with me and reassured him that I would return him at 5 pm if he did not wish to stay overnight. I reminded B that I loved him and was there for him . . . I could see that again, he wanted to go with me but his voice was faint when he was speaking as he was clearly scared to do so but he nodded his head and said 'Okay'.
[MN] all of a sudden dropped the phone, marched towards us, grabbed B's right hand, started pulling him and pushed me telling me to leave. B was actually slightly in front of me on his scooter so I went down on my knees and held him to my chest in a reassuring hug to try and stop [MN] dragging him. She was shouting repeatedly telling me to leave and becoming increasingly louder. B was screaming and I could still hear the piercing in my ears. It was heart-breaking. I told [MN] to stop as she was hurting my boy. It was clear that she could not see or feel B's pain, which as a mother, I could. [MN] was trying to pull B around from my front who was crying with his face towards me.
There were neighbours opposite who started shouting across the street to the Second Respondent to leave him alone . . . B was continuing to scream and I could no longer bear seeing B in pain so I moved aside. The neighbours then came over and as [MN] saw them coming she forcefully took B inside."
In my view this incident was primarily caused by MN's militant refusal to comply with Wood J's order without any good reason. I do not criticise the mother for going to MN's house, indeed, I was told that this was on her own solicitor's advice. Again, it is my view that MN's demonstrated a grave absence of insight into B's emotional needs, and risked causing him significant emotional harm.
"B's disclosed, in the presence of me and of a teaching assistant, that MN beats him with a cane. He told me that the reason he will not stay overnight at mother's house is because his carer has warned him that if he agrees to this he will be beaten with a cane and he will not be allowed to return home. I asked him later in the conversation if he is beaten with a cane, he replied he was, and that his carer also shouts at him and tells him to go to bed, and he will not wake up. In my professional opinion this little boy is possibly experiencing both emotional and physical abuse by his carer. There is a court order for the birth mother to have overnight contact with B, however his carer is resistant to this and has threatened to relinquish responsibility for him. My concern is for B, to keep him safe whilst he remains in her care. I do not know how MN will behave towards him when she discovers what he has said. The head teacher has been made aware of the disclosure and this referral."
"B also spoke about his mother when we were talking about his worries. He said: 'G gives me bad dreams, she's really rude to me. I get scared by her, sometimes don't. Boring stuff with G, going for a walk and that's it. When I asked him what happened if he got into trouble B said that he had to kneel and had time out. This time he has not disclosed that he was hit with a cane. He reported kneeling for a long time when he wet himself. It was only when I directly asked the question, which MN had encouraged me to do, that B said: 'Never get smacked, not really, she's stopped it now. When I make mega extra trouble, only when I'm in big trouble, and cane. It doesn't hurt me. My mum hits me with a cane'."
He clarified he was talking about MN rather than the mother.
"Gets cane and hits me. She definitely smacks. She just says that she used to do it. B told me that the cane was kept with the cooking things."
"MN said that she did not use physical chastisement on B, and that he is sanctioned by having time out and by losing his tablet. She reported that when he has time out he kneels or sits and we discussed how kneeling may not be appropriate. She said that she did not agree she has physically chastised B, but she is willing to sign an agreement confirming she will not resort to this in the future. "
A little further on she says this:
"Based on the information I have available at this time, from the information I have read and meeting with MN and B, and his evidence, that this is a complex case. With regard to the specific area of concern that MN used a cane to hit B, it is my view that this has possibly happened. B told me that it had happened and was able to describe some specifics about where the cane was kept and what it looked like. I am of the view that it is unlikely a child of seven years would make this up. However, I would note the account he gave to me was not consistent. During my conversation with B I also felt that at times he seemed to be careful about what he should say. It seemed that he had either been coached or had overheard inappropriate adult conversations. I have clearly explained that it is inappropriate and illegal to use an implement and that physical chastisement is not an effective sanction. MN has denied using a cane, however, has signed a written agreement indicating that she will not resort to this. Based on this, it is my preliminary view that this case should transfer to a Long Term Child in Need team. This would mean that an allocated social worker would have ongoing oversight of his emotional well-being and would be able to provide B with ongoing support. The Local Authority is also able to offer specialist parenting classes to all parties. This would mean that they would provide her with education in respect of child development, issues of identity, attachment and relationship, and the need for B to receive consistent nurturing care from all those who care for him. The allocated social worker could reinforce this through direct work. It is also my view that B would benefit from therapeutic intervention. He has presented to professionals as confused about his parenting. As he grows and develops he needs to understand his circumstances and have strategies is to manage the pleadings that he will have. Based on the information I have at this time I am of the view that B should remain living with MN and her husband. His basic care is good and he speaks highly of his family. I believe to remove him would be detrimental to is emotional wellbeing."
"I have never said that to B. I don't know how he reaches that conclusion. It is my view but I've never told him that. I'm a hundred per cent sure I have never said that to B. I don't believe he said that. The guardian has made that up."
"Saturday, 5th July 2014. B was brought to Tulse Hill on that day after a long wait. The first thing said by [MN] was: 'Say what you have to say to B, who stood silent before me. He then proceeded to state, as outlined in the transcript obtained from a recording made by [MN] during the handover, he said that he wanted me to stop disturbing him, that he really didn't want to come with me, and pointing out what I had [supposedly] done to his head. He also said that I was trying to kill him."
Then there were some further conversations:
"… but B was listening to what I had to say and at that point, [MN] intervened and said: "Come on, let's go."
There is a transcript of that conversation because MN recorded it on her mobile phone. I think it would be right to say that the transcript is unhelpful because some parts where words are plainly being said by B are labelled "G", and some parts which are plainly being said by G are labelled "MN", but doing one's best to untangle that riddle it is plain that the recording confirms that B said at least these words:
"I don't want to come with you. See what you've done to my head, it really hurt it. So just, just, I don't want to come with you, stop disturbing me. You are trying to kill me."
Further on in the conversation the mother said:
"Do not talk to me like you're talking to someone in the street. I am your biological mum. I gave birth to you in the hospital."
And B says:
"No, you didn't. It's all a lie."
"My problem is with staying contact. The mother can't be trusted to have overnight contact. If there was overnight staying contact I would not look after B. I would just then be a child minder, I would just be an unpaid child minder. If you find that there should be overnight contact then it will follow that my view is that B should go and live with his mother. If an overnight contact order is made I would relinquish care. It would be a hard thing to do but I have to think of my family and my daughter. I really do not like the mother. I believe she sexually abused B. It is a sexually deviant thing for her to do what she did to B. I think District Judge Walker got that wrong. I have a good relationship with my father; I will take his side. I do not agree with Judge Walker on her findings on sexual behaviour. Nothing you say will persuade me that the mother did not the cause of B's sexualised behaviour. It is clear that all she wants is her immigration status sorted out. It is all because of her immigration status. I feel that she will abandon B as soon as she gets her immigration status sorted out. I would not be prepared to look after B in that scenario. I agree it is not a responsible decision. I have to say what is right to protect my family. B would be exposed to sexualised behaviour and, having learned that, he would come back to my house and would pollute my daughter. I cannot take the risk. If it happened and he went I would not be comfortable. I would not have that boy in my house again. I am owed gratitude. I take no responsibility for what happened on 28th June. If B went to live with his mother I would not let C (N) see B. For me, no. I might let C(N), if she asks. If he wants to see me, yes, fine, but I would not have him overnight in my house. If the decision was that I was to relinquish his care under a planned transfer I would not co-operate. Once he had overnight contact that would be it, he would not be able to come back to my home. He calls me 'mum', he grew up in my house. I gave him the care. I deserve to be called 'mum'.
"When a court determines any question with respect to—
(a) the upbringing of a child;
the child's welfare shall be the court's paramount consideration."
Of course the welfare of B will be at the forefront of my mind in dealing with this case and will always be my paramount consideration. I am reminded of s.1(2):
"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."
And also s.1(3):
"(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question."
"Where, as in the present case, there is an intractable contact dispute, the authorities indicate that the court should be very reluctant to allow the implacable hostility of one parent to deter it from making a contact order where the child's welfare otherwise requires it (Re J (A Minor) (Contact)  1 FLR 729). In such a case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered (Re D (Contact: Reasons for Refusal)  2 FLR 48).
In fact, those cases and those sentiments do not really do justice to the facts of this case where the protagonists are not one parent against another, but they are a mother and a sister, and the father is really on the side lines. If the court should be reluctant to allow the implacable hostility of a parent to deter it from making a contact order, how much more should a court be reluctant to allow the implacable hostility of someone who is not a parent to deter it from making a contact order? I am entirely satisfied that B's relationship with MN and the father will be much more appropriately promoted by mother if B is with her than MN and father have promoted B's relationship with mother under their, or particularly under MN's care. I am afraid that in view of all the matters I have set out above leaving B with MN runs the very real risk of his suffering very substantial emotional damage, more of the sort that, sadly, he has already suffered. These factors point very strongly towards B living with the mother.
"A relatively small number of cases of alienation inevitably means that not every childcare professional will have experience of dealing with a case involving an alienated child. In this case, for example, in her final statement, Mrs. K very frankly conceded that, despite my 21 years of experience in social care, high conflict cases and child protection prior to this case I do not have any previous experience in alienation. In making that point I do not, in any way, seek to undermine the sterling work she has undertaken in this case. Her dedication and commitment have been exemplary. However, I am bound to say that for my part I am in no doubt that in determining any high conflict case involving an alienated child it is essential the court has the benefit of professional evidence from an expert who has personal experience of working with alienated children."
"An immediate change of the primary residence of children during the course of ongoing court proceedings, where further assessment has been ordered, must be supported by evidence which establishes that such an interventionist step is proportionate to the need to safeguard the children's welfare on an interim basis. I am satisfied that the judge approached her decision on that basis. In paragraph 75, on two occasions, she states that the mother 'cannot safely' have unsupervised contact to the younger boys and that it would be 'unsafe' for them to spend Christmas with the mother and her family. The determination of the factual allegations on 23rd December was itself a dynamic event. Given the mother's previous track record, as found by the judge, the court was entitled to consider whether that dynamic event, the making of the findings of fact, materially altered the potential for the children to suffer emotional harm if they were to remain in the care of the mother. The judge's conclusion was that it did and that they could not remain with her, or even have unsupervised contact to her at that stage.
Despite the clear submissions of Mrs Crowley to the contrary, for which I am genuinely grateful, it is, in my view, simply not possible to categorise the judge's order changing residence as being wrong or disproportionate to the circumstances of these young people as she found them to be."
Permission to appeal was refused.
"(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances.
(2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should—
(a) apply for a care order or for a supervision order with respect to the child;
(b) provide services or assistance for the child or his family; or
(c) take any other action with respect to the child."
Section 38 reads:
(b) the court gives a direction under section 37(1),
the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)."
"This was the second time I had used the s.37 procedure to remove children who were being denied all contact with their non-residential parent and were suffering significant harm because of the residential parent's false and distorted belief system about the non-residential parent which the children had imbibed. I am conscious of the fact that there is a tendency in family law to see an outcome such as this as a panacea, one-size fits all solution. I emphasise that this is not the case, indeed, this Judgment comes with a series of strong health warnings. Firstly, of course, s.37, which I have set out above, can only be used if the facts of the case meet its criteria. It must appear to the court that it may be appropriate for a care or supervision order to be made with respect to the children in question. In other words, at the very lowest the court must be satisfied there are reasonable grounds for believing that the circumstances with respect to the children meet the threshold criteria under s.31(2), that is to say the children are suffering or are likely to suffer significant harm. Section 37 is accordingly a well-focused tool to be used only where the case fits its criterion. It is sometimes forgotten that the court has the power to make an interim care order when it gives directions under s.37. The definition of 'specified' proceedings includes private law proceedings for contact or residence orders."
Then, a little further on:
"Although this case is but an example, it does seem to me that it is possible to extract some general considerations of wider application from it. I put these forward tentatively as each case is different and what fits one may not fit another. Some points are self-evident but need stating nonetheless. I will state them in short form and then expand on them where necessary:
(1) The court must be satisfied that the criteria for ordering a s.37 report is satisfied.(2) The action contemplated for removal of the children from the residential parent's care either for an assessment or with a view to change of residence must be in the children's best interests. The consequences of removal must be thought through. They must ensure that there be a coherent care plan of which temporary or permanent removal from the residential parent's care is an integral part.(3) Whereas here the allegation is that the children have been sexually or physically abused by the absent parent the court must have held a hearing at which those issues were addressed and findings made about them.(4) The court must spell out its reasons for making the s.37 order very carefully and a transcript of the Judgment should be made available to the Local Authority at the earliest opportunity.(5) The children should be separately represented.(6) Preferably the s.37 report should be supported by professional expert advice.(7) Judicial continuity is essential apart from saving time, because also this means that applications can be made to the judge at short notice and he or she can keep tight control over it.(8) Undue delay must be avoided.(9) The case must be kept under review if the decision of the court is to remove the children from one parent to another."
(1) I am satisfied that the criteria under s.37 are justified on the facts of this case. MN's resistant behaviour and its effect on B amply engage s.37(1) and it is entirely appropriate that the Local Authority considers the matters in s.37(2). It is to be hoped that in fairly quick order a care order will be discharged because B has been successfully transitioned into the mother's home. I suspect that even then some services and/or assistance will be necessary to ensure that B settles and maintains a relationship with his father's side of the family.
(2) I am satisfied that the move is in B's best interests. I have weighed the potential harm of leaving him where he is against the harm of moving him and reached the conclusion that the balance favours immediate removal. The plan for removal is that B will go into foster care to provide a hopefully temporary and neutral setting where the work necessary to prepare him for the move can be done with very much more prospect of success than could be hoped if he remained with MN.
(3) I would be minded not to make any specific orders for contact but to leave it to the Local Authority to make decisions within the normal statutory framework. I would suggest that contact with the father and MN in the foreseeable future needs to be supervised and carefully monitored.
(4) I am satisfied that findings of fact have been made to support this plan and that everybody interested in this exercise has had the opportunity to make representations about the plan.
(5) I intend to retain judicial continuity with a tight timescale by making an order for the case to return to me after a suitable and not very long interval. I will discuss the details at the end of my Judgment.
I want to make clear that the matters I have referred to above, in particular MN's behaviour to B, more than adequately give me reasonable grounds for believing that the s.31 criteria are made out. In my view, B is suffering significant harm as a result of MN's care and would be likely to suffer more significant harm if this order is not made. I should not make a care order unless I am satisfied that the children are suffering or likely to suffer significant harm, and that the harm, or likelihood of harm, is attributable to the care being given to the children or likely to be given to them if it were not being what it would be reasonable to expect a parent to give them. "Harm" under s.31(9) includes ill-treatment or the impairment of health or development. "Development" includes emotional and social development.
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In this case, of course, it is the protection of B that arises.