This judgment was handed down in private on 20 March 2014, and published in a redacted form (removing identifying features of the family) on 24 October 2014 together with
 EWHC 2305 (Fam)
 EWHC 4150 (Fam)
The Honourable Mr Justice Cobb :
||Introduction & Summary
||Position of the Parties
||Threshold and other procedural considerations
||Issues arising for consideration at this hearing
||The well-being of the children
||Contact between B and the fathers; the plan for a joint contact with A and B
||Social work assessment
||Expert assessment: Dr. Berelowitz
||M1's deteriorating mental health; the appointment of the Official Solicitor to act as her litigation friend
For ease of reference:
||The First Applicant
||The Second Applicant
||The First Respondent
||The Second Respondent
||The older child (aged 13)
||The younger child (aged 8)
||The social worker
Introduction and Summary
- By this judgment, I propose bring to an end nearly six continuous years of litigation concerning two girls, A (now aged just 13) and B (rising 9).
- A and B are the two biological children of F1 and M1. Both F1 and M1 are in permanent civil partnerships (respectively with F2 and M2). I propose to refer to F1 and F2 as the 'fathers' and M1 and M2 as the 'mothers'.
- The litigation began as a private law application by the fathers for contact to A and B. Their contact application came before me for a five day hearing in July 2013 for substantive determination. Following that hearing, and in light of further evidence being filed (expert and non-expert), in the autumn of 2013, I directed a report under section 37 CA 1989. This, in turn, led to an application by X County Council ('XCC') for public law orders under Part IV of the CA 1989 (27 November 2013).
- There followed (in December 2013) an urgent hearing at which I was invited (by the Children's Guardian) to consider removal of A and B from the care of the mothers. I declined to authorise the removal of the girls, but made an interim supervision order in favour of XCC. A further six day hearing has now been held to determine the consolidated public and private law applications.
- As is apparent from the short narrative above, this is the third substantive judgment which I have delivered in this case. For an understanding of the background of the case, reference should be made to the earlier judgments, which will be published on the same date as this judgment; for ease of reference, I provide the neutral citations below:
i) In July 2013 ("the July 2013 judgment"): see  EWHC 2305 (Fam)
ii) In December 2013 ("the December 2013 judgment"): see  EWHC 4150 (Fam).
- Some months ago, Dr Berelowitz (Consultant child and adolescent psychiatrist) advised me that "there are almost no options left" by which the children and the family could enjoy a positive outcome of these proceedings. Faltering developments since then have yielded a few grains of optimism. Of one thing I am nonetheless sure; the continuation of litigation is not creating or nourishing positive or potential options for the children; it is having a contrary effect.
Position of the parties
- At this hearing I heard oral evidence from F1, F2 and M2; M1 made a brief visit to the court for a half day but did not give evidence, nor did I (for reasons more fully explained below) expect her to do so. I heard from the social worker. Evidence was also given by Dr. Berelowitz, Dr. R, and the Guardian – each of whom brought to the case considerable expertise and wisdom, for which I am grateful. The Guardian has made an invaluable contribution to the case over the course of her lengthy involvement, spanning nearly four years.
- At the conclusion of this contested hearing, a measure of agreement emerged between the majority of the parties about the appropriate orders. XCC, the Children's Guardian, the mothers and A all formed broadly similar conclusions, albeit that the routes which each had taken to their conclusion differed. They invited me to conclude that:
i) The private and public law proceedings should finally be brought to an end now;
ii) A supervision order for 12 months should be made in respect of A and B favour of the XCC;
iii) A contact order should be made in respect of B for contact 8 times per year;
iv) No contact order should be made in respect of A (save possibly for an order for indirect contact);
v) A mutual section 91(14) order should be made for a period of no less than 2 years.
- The fathers took a markedly different line, advocating that:
i) The private law proceedings should conclude; they have served their purpose; but that…
ii) The public law proceedings should continue;
iii) There should be a further fact-finding hearing in respect of allegations emanating from 3rd parties;
iv) A supervision order is not sufficiently robust to meet the needs of the case; I should make an interim care order. Alternatively a final care order. I could, indeed should, authorise the removal of the children into foster care.
v) Contact in respect of B should be more frequent than 8 times per year, and should build up to unsupervised and staying contact by the end of twelve months;
vi) No order should be order made under section 91(14).
Threshold and other procedural considerations
- Before I can make any Part IV CA 1989 order in this case, I must satisfy myself that the 'threshold criteria' is established.
- I have already addressed this issue in my July 2013 judgment and December 2013 judgment for the making of interim orders. In the event, there has been no dispute that the threshold is established for the purposes of a final order on the basis of the findings set out in my July judgment. The fathers invite me to go further and have set out additional points in a schedule (entitled 'Schedule of Findings') delivered with their closing submissions.
- When going on to consider the substantive order, welfare considerations dominate. The welfare of A and B must be (and are) my paramount consideration (section 1 CA 1989).
- In approaching these applications at this stage, where I seek to make cogent welfare decisions for the children, I am conscious of the marked differences of approach to their resolution advocated forcefully by the fathers as against the other parties. Quite apart from the need to ensure that paramountcy is given to the children's welfare (see §12 above), I remind myself of some core principles of family law procedure – specifically the need to deal with the application justly, having regard to any welfare issues involved. In a case which has grown immeasurably in almost every sense (including the number of parties, volume of documents filed, duration of proceedings and length of hearings), there is a need to ensure (more than ever) that they are dealt with expeditiously and fairly, proportionately to the nature, importance and complexity of the issues, while ensuring that the parties are on an equal footing. I bear in mind the need to save expense (these proceedings have been financially crippling to the parties – over £500,000 had been expended in fees by the July 2013 hearing – and there have been two contested hearings since then), and to allot to this case an appropriate share of the court's resources, taking into account the need to allot resources to other cases (see generally rule 1.1 FPR 2010). Consistent with these objectives is the statutory requirement upon me to have regard to the general principle that any delay in determining a question concerning the children's upbringing is likely to prejudice the welfare of that child (section 1(2) CA 1989).
- Specifically, there is a clear expectation that this public law application should be resolved in accordance with a timetable appropriate for these children – that is to say, that I should have "particular regard" to the impact which "the timetable for the proceedings, any revision or extension of that timetable would have on the welfare of the child to whom the application relates" (revised PD12A §5.2); this dovetails with the expectation of completing the proceedings in 26 weeks (at the date of delivery of this judgment, we are in fact in week 16). Further, and in a similar vein, the revised programme for private law proceedings (the Child Arrangements Programme) will contain a provision (§15.2) that a court "shall, at all times during the proceedings, have regard to the impact which the court timetable will have on the welfare and development of the child to whom the application relates. The judge and the parties shall pay particular attention to the child's age, and important landmarks in the immediate life of the child" and (§15.3) shall not order a review or reviews of its orders "unless such a hearing is necessary and for a clear purpose that is consistent with the timetable for the child and in the child's best interests".
- Finally in this regard, I draw the parties attention to §53 of the judgment of the Court of Appeal in Re A  EWCA 1104 (Civ), in which McFarlane LJ said this:
"The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court's powers, which is likely to be effective as opposed to ineffective."
I return to this passage later.
Issues arising for consideration at this hearing
- In the paragraphs which follow I describe and discuss a number of key issues which fall for specific consideration at this hearing. For reasons already identified, I pick up the narrative essentially following the December hearing. The issues are:
i) The overall well-being of the children;
ii) Contact between B and the fathers; the plan for a joint contact involving A and B; the future for contact;
iii) Social work assessment;
iv) Expert assessment; Dr. Berelowitz;
v) M1's deteriorating mental health; the appointment of the Official Solicitor to act as her litigation friend;
vi) Further fact-finding ;
vii) Care plans;
viii) The hearing.
The well-being of the children
- A and B appear to be achieving well at school academically; albeit that this is not a guaranteed measure of psychological well-being, they are nonetheless said to be happy in school. Their school reports are broadly positive. Both children are recorded as having good attitudes to learning, and have a broadly fulfilling social life. Dr. Berelowitz described them as "physically well; they are charming and polite" (XX Fottrell).
- The social worker observes:
"both A and B are vocal, self-assured, mature and kind, loved by their peers and achieving very well at school. It would be hard to deny the positive impact of the good parenting they have received through the years by both their mothers" [E150] (section 37 report).
- The children appear to have strong relationships with the mothers, though M1's mental ill-health "plays on her [A's] mind". A worries "about stuff … about the court and what is going to happen". The home in which they live is described by the social worker (XX Kelly) as "vibrant, busy, educational, influential in a positive way; instruments to play; a busy but calm atmosphere… even when it has not been easy".
- M2 told me that A "is doing brilliantly at school; her confidence had started to return" (evidence in chief). A is assessed by her teachers to be more anxious and withdrawn when court hearings are close, and she appears to find (typical of many 13 year olds I suspect) the long school days and the quantity of homework exhausting. A is keen on art and drama; there was a possibility of her obtaining an art scholarship.
- B is said to be a "high achiever".
- The children appear to have formed a good relationship with the social worker, GBR.
- Neither child has a rewarding or mutually fulfilling relationship with their fathers at present. Both children currently indicate their opposition to contact. A in particular appears most strongly opposed to contact, and holds steadfastly negative views about F1 and F2. A has been reasonably consistent for some time in her opposition: "her worst worry is that she and her sister will be made to see them" (20 August 2013: to Dr. Berelowitz). Last summer, Dr. Berelowitz found both girls to be "profoundly denigrating of their biological father and his partner"; their worries about resuming their relationship with the men "are very important and powerful". The children have a "prevailing worry" which is directly related to the conflict, and they have expressed their anger about "the negative impact they feel the conflict has brought for their mothers, themselves and their life in general.".
- A has obviously become aware of the themes, and indeed some of the detail, of the judgments delivered in these proceedings. She knows (according to M2) that I was critical of M2 in my July judgment; she also apparently now knows that M2 took mouth swabs of the girls for the purposes of seeking to establish their paternity (contrary to the explanation which was apparently volunteered to the girls by M2 at the time). She cannot, I expect, have been other than troubled by what she has learned.
- The discord between the mothers and the fathers which I have described extensively in my July 2013 judgment has now been compounded by divisions riven within M1's own family (I discuss this more fully below). Any hope that the children may have been spared from exposure to this further split were confounded by sight of letters which the girls had personally written to their aunt and niece, Y and Z. These letters are angry and disrespectful. It is troubling that the children should have been embroiled in this separate dispute in this way. I detected no indication that the mothers had tried to moderate the children's views, or influence them against writing in such unbridled and trenchant terms; indeed M2's astonishing evidence was that she had "scanned" the letters, "I have not read them in any detail", adding "It is not for me to scold A and tell her what is and is not appropriate in this context. I have said that I am not going to control these processes." In my judgment, M2's stance showed a marked abrogation of responsibility for the upbringing of A and B; she (and M1 when well) should in my view take greater responsibility for steering and guiding their children.
- Dr. Berelowitz cited these letters as an illustration of the damagingly dichotomous thinking in the home of the mothers:
"I worry about an ever more high-wall fortress around the family. …. If you are not unequivocally with us then you are out of the fortress for ever. There is the same message for Y as for the men… the more you want to see us the less we want to see you." (evidence in chief)
- In a similar vein to the letters, A has drawn a picture of the Children's Guardian; it is a portrayal of anger and evil. While I recognise the value to children of being able to express themselves freely, I nonetheless am concerned about the overtly negative constructs which A in particular has created around people who have challenged her mothers.
- The girls, A in particular, is keen for the litigation to end. A told me this herself when I met her in December.
Contact between B and the fathers; the plan for a joint contact with A and B
- As foreshadowed by the December 2013 judgment, contact was arranged between B and the fathers, and took place on 16 December 2013. This was the first time that B had seen the fathers since March 2012.
- This contact took place in part due to the enthusiasm of the social worker in facilitating it (for which I give her credit) and partly because M2 realised "what the consequences would be if we did not…" allow it to happen (i.e. care proceedings were threatened at the time).
- Before the contact, B was said to be "positive about it and did not display fear or concerns". The contact appears to have been, in many senses a success. B was perhaps surprisingly neither overawed by, nor reticent about, the occasion, and although a little apprehensive apparently soon settled into the contact and played apparently naturally with the fathers. The fathers, to their credit, managed to keep their emotions in check, to make the contact as normal as possible for B. GBR reported (to the CIN meeting) that L was "relaxed" and they had a good time. GBR felt that the turning point was when the fathers took photos of B.
- F2 told me, poignantly, that B "was as relaxed she could be… she was the B we remembered…".
- After a couple of hours at the fathers' home, B indicated that she wished the contact to an end. She was reluctant to hug the fathers on leaving, but gave them each a 'high five'. On the way back in the car she was reported to be quiet. She said that she was scared of the fathers, and said that she did not want contact to take place ever again. GBR felt that B's views needed to be further explored, because she seemed to be genuinely enjoying the contact while it happened.
- After Christmas 2013, GBR discussed with A and B the possibility of a joint contact with the fathers. She told me repeatedly that she wanted to organise a "fun" contact. She apparently obtained the agreements of the girls, individually, for this event. The social work record in fact reveals:
"A came in and I asked if she would consider having contact on her terms with the fathers and B. She was reticent to start with but then agreed that it would be an opportunity to talk to them directly about what she has issues with – B said the same…".
- GBR then presented the plan to the fathers. She expected that they would be delighted with her proposals, but they were not. She said in terms "I was shocked to see that both F2 and F1 put up barriers to contact with both girls when I expected them to be rejoiced (sic.) in the idea of contact progressing."
- In fact, the fathers had responded to GBR's proposal in an e-mail as follows:
"we are encouraged by your suggestion of a meeting with A and B. We are naturally cautious about an initial meeting with A involving B too, not least as to how A's demeanour might impact on B. We would suggest that a first meeting with A is with you and her alone. If this meeting is successful then maybe we could plan a joint meeting. In any event, we believe that B requires a few more independent visits for her to relax with us without A's direct influence. Can we please discuss these options when we see you?"
- This was, in my judgment, a perfectly sensible, reasoned, response to the suggestion of a joint contact, particularly given the terms on which A had said she would attend. The fathers' view was, as it later turned out, shared by Dr. Berelowitz who expressed himself "troubled" by the idea; he felt that there had been "insufficient thought about why A apparently proposed to join B's contact .. my impression is that she would be attending only for the purpose of safeguarding B and this will not be helpful to the development of B's relationship with the men…". He elaborated on this in his oral evidence:
"this is a case in which everyone gets criticised, the problems are immense we all struggle to come up with solutions. But given the sustained picture of A's views, I am surprised that the social worker did not question why A wanted to go. A does not think that B is safe with the men. I think that what would have been in A's mind was the opposite of 'fun'. It would have been better to ask the men first". (evidence in chief)
- The Children's Guardian also agreed ("it is unlikely that [this] would have assisted any fledging relationship between B and her fathers").
- On 3 January 2014, a meeting took place between GBR and the fathers; this joint contact was discussed. GBR told the men, I accept, that A had "issues she wanted to get off her chest". The fathers expressed again their concerns about the impact of this on L. GBR told me that the fathers had told her that:
"they wanted me to work on A first. … and I took that to mean work ON her…I took it that I had to convince A… to enforce something which the men wanted me to put in her mind… I found it difficult to understand what they wanted me to work on… it sounded like they were describing her as a very difficult child" (XX Jones)
- GBR took away from that meeting that the fathers had rejected the planned joint visit; the fathers maintain that they had not rejected the proposal, but had asked the social worker to reflect on their concerns. They thought that she had agreed to do so.
- At the CIN meeting, a few weeks later the proposal for a joint contact appears to have been endorsed by the team manager who described the girls as 'coming as a package'.
- The plan for a joint contact was essentially well-intentioned, but in my judgment naïve, probably reflecting a deficit in the social worker's true understanding or appreciation of the history, nuance, and/or dynamics of this difficult case. I accept the views of the fathers that it would have been disastrous for the future of B's contact if A had chosen to unburden herself of her views (and anger) at a joint visit in front of B. This may have had the effect of snuffing out the weakest flicker of light in relation to contact between B and the fathers.
- Regrettably, the children have come to believe that the obstacle to this attempt at a joint contact was created by the fathers. GBR initially told me (evidence in chief) that: "I said to the girls that it was down to me. I said that I could not do it at the moment. I put it down as my issue". GBR repeated this when cross-examined by Ms Jones ("when I did, I said it was because of ME. They were quite happy with that.) In fact, the contemporaneous social work notes record a different version, which I find is the more accurate. The social work notes reveal that A was unfortunately told by the social worker that it was F2 and F1 who "did not agree with what I [GBR] wanted to do so I have decided to abandon it.". Having been given this information, according to M2, the girls "…have reverted back to a position of not wanting to see them at all and feeling quite fearful about contact again.". It was a particular concern that GBR initially misled me about what she had said to the girls, but more worrying that the girls believe that the fathers had not agreed to the contact – it would have been bad enough for the girls to know that if it were accurate. But it wasn't even accurate.
- The social worker's casual and at times undisciplined approach to information sharing with the parties and the children (see generally below) is likely also in my judgment to have caused the children to believe that the social worker had a view that contact was not 'safe'. I note that at her meeting with the children on the 13 December the social worker appears to have told them that "there was nothing to fear" from the contact "it was to be an enjoyment (sic) and nothing to fear". On 9 January 2014 the social worker appears to have told B that she would be present at contact as "her safety was my priority". I suspect (as GBR told me later in her evidence) that she had used the word 'safe' as a synonym for 'comfortable' (XX Tolson, and confirmed XX Jones) but the word 'safe' and 'fear' are likely to convey very different messages from 'comfortable' to the 8 year old child. GBR recognises now that her phraseology was inappropriate; sadly, I suspect that a small amount of damage has been done.
- The fathers have sent presents to the children in November 2013 and again at Christmas 2013. In December, F1 wrote a letter for A, on which he had sought GBR's advice; GBR thought that the letter was 'perfect'. There has been no acknowledgement of these gifts or letter.
- As to the future of contact:
i) There is professional support for contact between B and the girls from Dr. Berelowitz and the guardian. Dr. Berelowitz supported the contact at a frequency of 12 times per year;
ii) The social worker is keen that there should be contact, even between A and the fathers: "I do think that it is important that she has an understanding where she comes from…this has been my impression that she wants to work with me." (XX Kelly). She expressed herself satisfied on the balance of probabilities that contact between B and the fathers will happen (she put this at a 60% likelihood: XX Jones) and envisages that "contact will progress reasonably quickly .." (§3 Care Plan).
iii) Dr. R shed a little light on M1's views. He told me that "she would like the children to see F1 and F2 if the children want to. She appears to be happy with that…" nonetheless "she is fearful of the children being forced to do something which they don't want to do." (XX Jones).
iv) M2 indicated her support for contact at the frequency recommended by the social worker.
v) F1 told me that he would "go along with 8 times, though I would want to rely on Dr. Berelowitz (who suggested 12 times, see above). He added "At the moment, I accept no direct contact with A, but I would like the open line of communication to A. I am clear that we are not in a position to force A to come to contact. It is important that she knows that I am thinking of her…" (XX Jones). Their position by the time of submissions had hardened: they sought
"direct contact monthly, the first 2 occasions to be supervised for the purposes of professional feedback as to quality, and thereafter the contacts to proceed swiftly to weekend staying contact, B to be collected from and delivered to her school"
- Mr Tolson contended that any contact order should be made under section 34 of the Children Act 1989; this of course would only apply if I were to make a care order under section 31.
Social work assessment
- Having heard the evidence of GBR in December, I had high expectations for the progression of social work assessment and planning for this family prior to the hearing.
- In many respects, however progress has been limited. This is in part because there has not been much time in which to achieve the ambitious objectives. It is at least in further part attributable to the fact that M1 has been very unwell – her in-patient admission for a period of three weeks in the Christmas holidays effectively removed her from any effective social work or other assessment; this undoubtedly had an effect on the other members of the immediate family too. M1 then suffered a bereavement; her father died.
- I am satisfied that GBR has devoted a respectable amount of time and energy into the interim plan since the last hearing – albeit, I regret, to minimal effect. Her somewhat unconventional approach to her work, to the parties, to the children, and to the court, has brought benefits to the case, which on one view had become stale by conventional endeavour. Her style appears to have resonated well with the mothers who have welcomed her "new and different approach"; M2 has indicated in terms that she "has found the work that she has been able to do extremely helpful". Her informality appears to have been appreciated by the children, who have responded well to her. However she has, in my judgment, tried too hard to be 'all things' to all of the key parties in the case – at times compromising her professionalism in an attempt to befriend, and ingratiate herself with, the parties in particular the fathers; F2 told me specifically that "I felt that she had certain ways of ingratiating, we went along with the fact that she was giving us personal information. I started to question this. I felt like I wanted to say something…. I held my tongue. From that perspective I am glad I did" (XX Thain). While relying on social work instinct (which may in many ways be right) she has failed to bring to the task the critical rigour of analysis, which would derive at least in part from extensive background reading and research (which was crucial to a proper understanding of the case, but which was lacking here). Regrettably, where the discipline of professionalism has been relaxed, there has been correspondingly greater scope for confusion and misunderstanding – this has undoubtedly pervaded, and regrettably irreparably damaged, important relationships between the social worker and the fathers in this case.
- Picking up the themes of the care plan from my earlier judgment (see December 2013 Judgment), I discuss progress as follows:
i) Mental health support for M1 has been effectively provided by the community psychiatric team; a CPN has been allocated; so far as I can tell, M1 is well-supported by the mental health agency;
ii) Social work home visits have been undertaken; on the whole M2 has been observed to maintain routines for the children, and "shown that a sense of calm is possible". GBR opines that M2 has "maintained excellent parenting skills… A and B act and present in M2's company as relaxed, safe and comfortable, the same is to be said in relation to M1". Having had the opportunity to see the contemporary social work records, I felt that the court reports had presented in some a somewhat benign picture. I have in mind in particular that the potentially disturbing scene greeting the social worker on her home visit on the 13 December which was not reproduced in the witness statement.
iii) Life story work: The life story work has commenced, through the medium of art. This prompts the following comments:
a) It appears that, while GBR undoubtedly has a talent as an artist, she is not in fact (and contrary to the impression given earlier) a qualified 'art therapist' – it was not right that she should have so described herself, using a HCPC protected title; her oral evidence at this hearing added to the confused thinking on this: " I have used art. And achieved great results with it. I use it as a means of communication, I am not analysing the art per se. I do use art therapy … I regard myself as an excellent artist who uses art as therapy" (XX Tolson QC).
b) A has a particular talent in art, and has benefited from this medium. A produced a graphic caricature of the court scene, with the portraits of my 14 predecessor judges hanging on the wall behind the bench where I am sitting, the protagonists lined up on either side of the dispute. The satirical piece is illuminating, underlining perhaps the impotence of the judge – a point picked up by Dr. Berelowitz who described it thus
"There is the idealised on the right, the denigrated on the left; the impassively useless in the middle. There have been 14 of them in the middle" (evidence in chief).
c) There is insufficient clarity about what the therapy is for. Dr. Berelowitz is of the opinion, which I share, that "without clarifying the purpose of the therapy it is … at best unhelpful and furthermore probably wrong for B to be attending for any therapy". I see no harm in B being given the opportunity to use art as a tool for her discussions with the social worker, but any therapeutic component has to be clearly defined.
iv) Interview and assessment of the mothers: The social worker has not been able to advance her assessment of the mothers as much as she would have wished, given M1's decline into more serious mental illness; this was soon followed by the death of her father, with necessary arrangements for the funeral. Issues of proven domestic abuse which were to be investigated as part of the interim social work plan have not been explored at all. The social work assessment is that M1 and M2 have a "strong bond" and have been observed to be "caring and supportive of each other". This largely corresponds with the occasional observations of the couple by Dr. R; he told me that he had seen:
"no evidence that M1 has been controlled by M2. I am aware that both women have spoken – M1 said that she had hit M2. I can only judge on what I see. I have not seen M2 being unpleasant. I have only seen her being supportive. I have had occasions when M1 wanted to speak to me alone, and M2 has left the room. Certainly since July, I have seen nothing to give me cause for concern. I have seen minor references to things a long time ago. In recent times, M2 presented as supportive and loving. During the hospital admission, similar observations were made. Home leave went well. At times when M1 was agitated, she seemed to calm down when M2 had been… and would be brighter in mood". (XX Hughes)
v) Therefore although there is some support for the fact that, at least superficially, the couple seem to be currently supportive of each other, I am concerned that the social worker has not (yet) dug beneath the surface and explored the admitted patterns of domestic disharmony and admitted physical abuse historically. Nor has she contacted Katherine Arnold, who was selected to work with the mothers; she told me that when the appointment was made she was going to contact Ms Arnold but did not do so. Regrettably, these patterns of behaviour which were discussed in my July 2013 judgment, and have been supplemented by more recently disclosed (ostensibly credible) evidence have not been analysed either adequately or at all. That said, I am satisfied that the social worker will work on this aspect; as she told Mr Tolson "I am working on uncovering risk. It is an ongoing process."
vi) The social worker has not yet tackled with the mothers the implications of my July judgment and findings. She has, however, considered individual aspects of the history, including the DNA testing (which M2 told the social worker "she really regrets" XX Jones). The social worker herself considered that M2 had "committed grave errors in the past" and added that she thought that M2 "accepts that". GBR further advised me (as M2 had herself) that "she (M2) felt more sympathy with the father's position when she was staring into the abyss" herself (XX Jones); perhaps significantly she added that the "shock (of the potential for the removal of the children) affected them both…. I feel that they have turned around, and have acknowledged that some of the things which have happened in the past should not have happened" (XX GBR of Jones).
vii) One of the themes which the fathers have strongly advocated is the notion that M2 has so dominated M1 that she (M1) has become emasculated as a person and as a parent. The social worker rightly observed in my judgment that "M1 can be volatile and M2 is certainly controlling and domineering … M2 explains that she needs to be controlling to protect M1 and avoid further mental breakdown" (emphasis by underlining added). Unfortunately this appears to have become an engrained way of functioning for the couple, and is I believe depriving M1 of the opportunity to be a parent to the children. That said, it must be borne in mind that M2 has to fulfil the roles of more than one parent for the children; she has to compensate for M1's ill-health and unavailability for the children. What may be seen to the outside world as 'control' may in fact simply be a description of M2's rigid organisation and administration of the family and its functioning, taking responsibility for many aspects of the children's, and M1's, life. I should add that Dr. R commented that M2 has "overwhelmingly presented as loving, caring and supportive" of M1. I have found, and indeed M2 accepts, that she has 'over-stepped the mark' in terms of control in the past; she must guard against doing so in the future.
viii) The CAMHS referral has not got off the ground; CAMHS did not consider that it had a role at this stage, though pertinently observed that until the dispute between the adults has been resolved "the children will continue to experience disruptions, confusion and will undoubtedly absorb the feelings of all the adults which will in the long term have potential to impact on their mental health."
ix) There has not yet been a referral made to a domestic violence agency.
x) There has been no direct work with the fathers; as indicated elsewhere in this judgment, the relationship between the fathers and GBR ran into difficulties at or very shortly after the hearing in December and has not recovered; it is proposed that the newly appointed social worker will undertake this work
xi) A Family Group Conference was convened on 22 January 2014. In the end it was not as successful as it could have been; neither Y nor Z (M1's aunt and niece respectively), although two friends of the mothers attended. A further FGC has been planned. M2 welcomes this, and told me that she wishes SB and PF to be there: "it will be really helpful" she said (evidence in chief).
xii) The children will be subject to a Child in Need Plan. I believe that this is reflected by the Care plan before me.
- The relationship between the fathers and the social worker has suffered significantly in the period since December; they now maintain that GBR has been 'inconsistent' and 'over-familiar' with them and that this has led to 'misunderstandings'. They give examples of injudicious remarks which they maintain she has made to them. Specific incidents which have fuelled their mistrust include:
i) That F2 contends that GBR had privately confided in him while at court in Newcastle that she had lied to me in a number of respects when giving evidence at the December hearing and had done so in order to preserve her contract; GBR denies this;
ii) Their different perspectives on the appropriateness of a joint contact involving A and B (see above).
- On 3 January 2014, GBR met with the fathers (as I have earlier said); this was undoubtedly an awkward meeting for all. GBR says that she found the fathers' manner "intimidating", and felt undermined by the fact that the fathers had researched GBR, and her art on the internet (she told me that she found this "negative, pointless… it was a distraction" (XX Tolson); GBR thought that this had been done in an attempt to discredit her, and made her "ill at ease". I pause here to remark that I do not criticise the fathers for this, and I consider that GBR was wrong to interpret their actions in the way she did. GBR had told them, I accept, that she had appeared on a television show, and that her art work was featured on-line. Either or both of these comments could predictably have prompted some internet research. In fact, GBR's notes of the meeting do not reflect this discomfort; indeed, GBR reports that she offered the fathers and their counsel art therapy "if they were prepared to take on the challenge", and appeared to volunteer for them "my poem about my art" and (surprisingly) details of her financial circumstances.
- The discussions at that meeting turned to the issue of joint contact, where the fathers and GBR plainly had (as I have discussed above) a different approach. However this left GBR doubting their commitment to the children's needs "as they seem more centred round their own needs and feelings and goals rather that (sic.) of the girls.". She went on to say that she felt that the fathers "do not show much empathy or consideration for the children's perspective even after we had discussed their lack of understanding towards A and B … when I do not agree with them or go their way, they have proven to be quite argumentative and at times intimidating."
- On 16 January 2014, the fathers (and indeed the mothers) attended a Child in Need meeting at the offices of the social services. The meeting was in the view of the fathers and mothers (albeit for different reasons) unsatisfactory. The mothers felt that the fathers "dominated" the discussions, and were "aggressive" to the mothers. The fathers felt that GBR had misrepresented their position on the issue of joint contact, which "became an issue in the meeting" (per F1) (GBR had apparently represented to the meeting that the fathers had refused a joint contact for the 3 January 2014. They maintain that they had not). Following the meeting, GBR alleges that F2 threatened her. Specifically, she maintains that he said to her "You are dead"; she says that she was 'shocked' and felt "intimidated and threatened"; she told me in evidence "I was not mistaken. It was very, very, threatening. He was enjoying doing it; I am not mistaken". Later (XX Tolson) she said: "I can absolutely recall "You're dead". That was the one I remember the most. I believe that he said that "You know what you have done". He may have done. I just remember "you're done"". She reported this incident to the police. F2 denies this. F1 did not hear the exchange.
- Both gave evidence about this incident. GBR is adamant that the words rehearsed above were said, and in spite of a hearing problem, told me that (a) F2 was very close to her, and she could hear what he was saying, and (b) in any event she lip reads.
- GBR and F2 agree that F2 did speak to GBR after the meeting and said to her "You know what you did". The fathers have given two different explanations for this comment: they have maintained that
i) this was a reference to GBR's misrepresentation at the meeting of the purported arrangement for a joint contact on 3 January 2014;
ii) they have separately maintained that this was a reference to the fact that "the Local Authority are changing their care plans and expectations that have been stated by the social worker to F2 and F1 previously".
- Having heard the evidence of the parties, I am satisfied that:
i) GBR did make a private comment to F2 in December while at court about her evidence which she had then recently given; I do not find precisely what words were used, or the precise nature of the comment, but I am satisfied that it was along the lines referred to by F2. I cannot find, to the required standard, that GBR admitted lying on oath; but it seems to me that she may well have said something which gave F2 to believe that GBR did not respect the gravity of her sworn evidence. I do not believe that F2 has made this up.
ii) By the time of the CIN meeting, relations between GBR and the fathers had become poor. The fathers were disparaging of GBR's lack of professionalism, and had a dim view of her appreciation of the dynamics of the case. The 3 January 2014 meeting had not gone well. The men felt that they had been sidelined in the CIN meeting (F1 told me that "We were upset that things were being misrepresented, having one conversation at home, and another one in the CIN" XX Hughes); a letter written by their solicitor afterwards refers to them being "disheartened by the … lack of progress being made at the [CIN] meeting". I find that F2's frustrations did probably boil over at the end of the meeting, and he did speak to GBR in a threatening tone after the meeting on 16 January 2014. I am unable to assert on the balance of probabilities what the precise words used were. It is possible that the only words uttered were in fact "You know what you did" ('did' and 'dead' being easily mistaken), but I am sufficiently sure that whatever he said was uttered in a tone which was threatening, and caused GBR to be fearful.
- Whether F2 threatened GBR or not (and I find that he did), it is difficult to see how a professional relationship between GBR and the fathers could have been sustained in the future, "especially when the issues are exceptionally delicate". In the circumstances, XCC has sensibly appointed a new social worker to co-work the case with GBR.
- The fathers are critical of a lack of social work analysis: F1 articulated this as follows:
"I think there needs to be some regular daily checks on the welfare of the children, and on M1, there needs to be proper investigation of the matters which come to light, a number of these … the local authority not to have done so… they don't investigate… the broken picture frame. The risks are already known to us…. There should be more support – for the way they are being emotionally parented… the support for A writing letters to her aunt and niece, both A and B doing it together… DNA testing information… there needs to be challenge of the couple… Any care plan does not properly investigate these issues firmly and quickly will not be effective; will pose risks. It feels like an experiment to do anything less." (XX Thain)
- There is some force in what F1 says. I wish to add one or two further observations about the local authority's case of my own.
- There is disappointingly little analysis of the options and the issues in the filed social work evidence, and little more contributed in the oral evidence; the social worker told me that the work had been done under 'pressure' albeit not rushed. I accept that she was under pressure of time. However, where such analysis has been offered it is regrettably insubstantial, and not compliant with the guidance recently given by the Court of Appeal in Re B-S  EWCA Civ 1146 (at §30 et seq) and Re W (A Child)  EWCA Civ 1227 (see - and  in particular).
- Notably, in one important respect, the social worker appeared to negate one of my principal findings; in my July 2013 judgment I had found that: "There is evidence that the children have been exposed to the strong hostile views of M2 and M1 towards the children's father, and his partner;"; the social worker by contrast observed "I have to dismiss the claims that those fears [of the girls for their fathers] have been instilled in them by their mothers." (emphasis by underlining added). While it may be the case (as the social worker told me) that she did not believe that the women were denigrating the fathers now ("I have not seen that for myself"), she appears to have had no regard to the fact that her assessment directly conflicts with mine and with the earlier assessment of Dr. Berelowitz ("my impression that the strongest current source of the girls worries comes from their own household. Neither of the mother figures has anything positive to say about the men…"). Although the social worker's later oral evidence reflected that: "I agree that there have been derogatory comments in the past. I have not seen evidence of the mothers doing that now." (XX Jones), overall, I felt that the social worker's position on this issue was confused, and lacking in any real appraisal of the material – particularly notable for the lack of any discussion of my finding, and how she may have reached an alternative conclusion.
- I felt that the concluding position of the social worker – with her recommendation for contact between B and the fathers merely four times per year – reflected rather too strongly her personal animus towards the fathers borne of her recent experiences of them.
- I was advised by the fifth day of the hearing that a second social worker would be appointed to co-work with GBR. On the eve of giving judgment, I was further advised that GBR would be leaving the department and that she would be replaced; the replacement social worker will co-work it with CM a 12-years post-qualified senior practitioner social worker. It remains to be seen what impact GBR's departure has; M2 had commented that "a change of social worker would be disastrous". The children will, I suspect, be disappointed. However, I make this clear under no circumstances are the children to believe, or be led to believe, that the change of social worker had anything to do with the conduct of the fathers. On the information which I have been provided with, it did not.
- The fathers will not, I suspect, mourn the departure of GBR from the case. They submitted, in terms, that the present social worker could not continue in the role. A necessary change of social worker is not however a cause for keeping the litigation alive.
- It follows from all that I have said that I am disappointed that not more constructive social work or analysis has been attempted let alone completed in the period since the last hearing. Making allowances (as I do) for the limited time between 20 December 2013 and 10 February 2014, the pressure to produce the final plans in a short period of time, particularly given the intervening Christmas period, M1's illness, hospitalisation and bereavement, I nonetheless consider that more attention should have been given to the wider ramifications of the case. I detected that the social worker's activity has in part been misdirected, and lacking in focus. While making allowances at the December hearing for the fact that she had not read into the background of the case, such allowances could not be afforded now – yet I did not really feel that the social worker even now had read all of the key documents, or understood the very complicated background of this family. I bear all of these matters in mind when considering whether the authority can be entrusted to deliver on its care plan in the future.
Expert evidence: Dr. Berelowitz
- Dr. Berelowitz provided expert evidence in writing and orally at this hearing. I have referred to his opinion elsewhere in this judgment, citing his evidence where relevant. I found his contributions of particular value at this hearing. I highlight here some of his key recommendations.
- He was supportive of maintaining contact between B and the fathers. He felt that if B does have contact with the fathers, and if A cannot support B in this, then she (A) "needs to be kept out of the discussion". While in relation to contact he felt that "the door is still ajar for B" (XX Hughes), he gloomily considered that we had "reached the end of the road" so far as contact between B and the fathers was concerned (XX Hughes) (in fairness, Dr. Berelowitz did not mix the metaphors quite as badly in his evidence as it would appear by my having placed extracts of his oral evidence in juxtaposition in this judgment).
- Specifically, he did not recommend any contact for A with the men at this stage, or really at all: he commented that "if A says she wants contact… I think that if all goes well and B is seeing the men.. there needs to be a conversation, to ask what is this about? It could be joint contact or separate contact…I cannot be more prescriptive about it" (XX Tolson). He did support contact for B on the basis that the women "have to support it" and "they need to keep A out of it". He felt that it is a good thing for B even though "it is a tough thing to suggest at this stage".
- He felt that B's contact should be:
i) At a frequency of at least once per month: "the difficulty is the more infrequent, the more exceptional… the problem is that it becomes too big a deal… it becomes worse." (XX Hughes)
ii) Supervised/observed: "I would go for supervision; not on welfare grounds; more of a recorded observation. It would be helpful to her to know that there has been an objective record. It has to be as natural as possible, she needs to know that there is nothing to fear from the men; I would start with recorded/observed contact." (XX Hughes)
iii) The transition from home to the fathers should take in a neutral venue: "If B went to contact from school, and then back to a relative and then home, it dilutes some of the intensity" (XX Hughes).
- He seemed keen to see a reasonably rapid evolution of the contact with extended periods of time with the father over a weekend:
"it is very helpful, in a situation of conflict, when there is a high ratio of 'middle' to 'beginning' and 'ending'. If the middle is dauntingly big at the outset, then it puts her off from the outset. It is a question of balance, and I would certainly recommend to the LA that if the contact goes well it should rapidly evolve. It could evolve to staying contact within the 12 month period. Staying contact right now – I would be worried that she would not go at all" (XX Tolson)
- On assessing future risk, Dr. Berelowitz did not favour the mothers going to see Katherine Arnold as part of any quasi-forensic exercise:
"I don't think that there is a value in putting the 2 mothers in a room together with a highly experienced psychotherapist and ask them to talk about dynamics in the relationship in a way which will be disclosed to the court. There is a risk in that. It is a case with fraught with criticism. I would like to have seen challenging of the women separately, rather than putting them in a room together" (evidence in chief).
- Dr. Berelowitz did not recommend a change of residence to the fathers; nor did he advocate a move of the girls to foster care unless it was demonstrated that the quality of the care which they were receiving at home had reached the level of significant harm. Of course, the threshold (significant harm) is in fact not contested; I interpret his comment as meaning 'so significant' that it cannot be tolerated by the girls, or is so contrary to their best interests.
- Dr. Berelowitz advocated that the proceedings should conclude at this hearing: "at an ordinary human level, I would like to see the proceedings dropped" (XX Thain). This was not without acknowledging that the litigation had in fact achieved some benefit:
"The continuation of the court proceedings is one of the mixed blessings in the children's lives. If these had ceased some time ago, there would be no chance of B in the men's life. The court proceedings are a clear stressor for A and not much else; for B they are the stressor AND the only reservation of an opportunity of contact and of the means of preserving it…" (XX Hughes)
- Later, in answer to question from me he said:
"Sometimes the court is the only thing which has kept the contact alive. My concern is that the ultimate safeguard will have been removed (i.e. if the proceedings come to an end). On the other hand, just speaking for me, there are only 2 outstanding questions. Will M2 promote the plan? And will the men do everything they can to convey to B that there is no triumph for them at all, and they are not against the women? I am sure that will be clarified as best as it can be by the end of this hearing.
The court message should be "People should go away and do their best…"
Then we should stop after this week. This should send a powerful message to the parties. This is it."
"This is one of the cases where all the difficult things which could arise do arise… I still think that this should be done by the social worker".
M1's deteriorating mental health; the appointment of the Official Solicitor to act as her litigation friend
- The awfulness of this litigation for the entire family has been compounded by the fact that M1, with a long history of mental ill-health going back to 1993, is now suffering so acute a stress reaction as a result of the litigation that she has lost capacity to litigate, and appears by the Official Solicitor as her next friend. A certificate as to capacity was signed by Dr. R on 30 January 2014 (ten days before the start of the hearing). The appointment of the Official Solicitor was achieved after two proposed litigation friends were proposed on behalf of M1 but, because of their involvement in the proceedings in the past, regarded by some of the other parties as not suitable (per rule 15.4(3) FPR 2010).
- I wish to record here my gratitude to the Official Solicitor for stepping in as the litigation friend only 4 working days before the final hearing.
- I have discussed M1's history of mental ill-health in my July 2013 judgment, to which reference should here be made. I referred to her acute difficulties prior to the December hearing in the December judgment.
- Following the December 2013 hearing, M1's mental health deteriorated significantly. Dr. R saw her on 12 December 2013. The mental health team arranged for M1 to be admitted for in-patient treatment to Harlow Hospital on a voluntary basis. Interestingly it was observed by the staff that "when M2 visited … her mood improved and she appeared more settled". The family were together only for Christmas day (which apparently had a beneficial effect on M1's mental state), and M1 was discharged home on 3 January 2014. Since then she has been receiving reasonably intensive community based psychiatric support.
- In the middle of this period, M1's father died. While the funeral presented another opportunity for members of the family to come together in grief, it in fact served (paradoxically) to highlight the deep fractures within it. All causes of stress for M1.
- A mental health meeting was held on 30 January 2014 to review M1's condition; her mental state was said still to be fluctuant. Dr. R then assessed M1, and following that assessment he completed the certificate of capacity (30 January 2014) which makes the following important points:
i) M1 is "suffering from mental disturbance which is as a result of reaction to severe distress";
ii) She fails the three vital aspects of the functionality test in section 3 MCA 2005 (ability to understand, weigh, and retain information);
iii) The loss of capacity is, or may only be, temporary: "it is my opinion that the stress of this case is the major trigger for M1's mental health symptoms…".
- In a more detailed report prepared by Dr. R for this hearing (3 February 2014), he commented more fully about M1's condition noting that she continues to suffer from bi-polar affective disorder, and that this in conjunction with her personality and emotional make-up leave her "particularly vulnerable to stress". Dr. R is of the view that the
"most significant source of stress, by a considerable margin, for a number of years has been the ongoing court case … M1 experiences recurrent acute stress reactions to the repeated emotional trauma she experiences as a result of her difficulty coping with the events and proceedings of the case."
- He is of the further view that:
"at times between hearings, whereby M1 has less stress to deal with or become anxious about, her mental state greatly improves and her parenting, particularly during holidays, would appear to return to pre-morbid abilities. It remains my opinion that when the case is concluded it is likely that M1's mental state will begin to recover to her previous level of functioning and parenting".
- He emphasised these views in his oral evidence, telling me (evidence in chief):
"I base my opinion on what she has presented to me at times of stress. It has been her anxiety about the case; I am aware of other stress factors, but have seen limited evidence of her being stressed by these. There are some concerns about financial matters to some extent. There have been concerns raised about the relationship; but I have not seen the evidence of this. 95% of the stresses are attributable to the court process".
"having bipolar makes her more vulnerable to acute stress reaction". (XX Jones)
- The issue of M1 "self-medicating" on drugs obtained on the internet, and separately on alcohol, was a concern of the social worker in the section 37 report. This was explored in the hearing, but no clear evidence was identified to support this concern. It appears that M1 has from time to time taken more than the recommended dose of benzodiazepines and had therefore on a recent occasion run out of them prematurely; Dr. R attributes this to M1 being "haphazard" in her approach to taking what is prescribed. He told me (XX Tolson) that "…. I have not had any suspicion that she has been taking these (Benzodiazepines) from somewhere else", and I make no finding in this regard. I cannot pass up discussion of this topic without remarking how struck I was by M2's evidence relevant to this point; when cross-examined by Mr Tolson, she told me that "I would not know what dosage (of prescribed drugs) she takes" and added in my view, indignantly, "I am not her nurse … I have not been watching her medication". Later to Ms Jones she added: "I hate the fact that there is an imbalance in the relationship, because of her illness. I do not want to be her jailer". I have to say that I found those answers, and the tone of them, extremely surprising.
- Dr. R told me (XX Hughes) that it would be unlikely that M1 would be able effectively to access psychological therapy until the conclusion of these proceedings.
- At the Pre-Trial Review, I was invited by the fathers to make provision at this hearing for oral evidence to be given from three family members of the mothers, and by two former work colleagues of the mothers, so that I could determine issues which they had raised both in witness statements which had been filed and served by the local authority, and in their discussions with social workers, in the autumn of last year.
- Mr Tolson acknowledged that, in large part, this evidence enlarged upon the findings which I had already made (July 2013 judgment) (including – but not limited to – M2's denigration of the men, the impact of the proceedings on the family, the dysfunctional and at times abusive relationship between the mothers, including M2's control or domination of M1); he nonetheless asserted that there were further issues of fact which I ought to determine in order to reach an informed conclusion on the public law application (the Toronto incident – see below, M1 over-medicating: see above).
- I declined to authorise this step. In doing so, I paid close regard to PD12J FPR 2010 and the guidance of the Court of Appeal in Re C (Children)  EWCA Civ 994, in which it was said that it is within the discretionary function of the court to determine what evidence is relevant and should/should not be called. I have an inquisitorial role, and a duty to ensure that the court's resources, and the hearing-time available, are properly used.
- As I indicated at the time of the PTR, I now give my more detailed reasons for declining to hear that additional evidence:
i) The allegations from the family members were in large part (though not exclusively) historical going back some 7 or more years (V, for example, had last seen the family 4-5 years ago) and therefore unlikely to be of particular value to my current evaluation of the current harm / risk of harm to the children;
ii) I had already made significant findings about M2's role in procuring false DNA results in relation to the children (one of the more recent issues canvassed); it still remains a mystery how the first test results could have been so wrong, but further fact-finding in court was not in my judgment going to yield any clearer answers;
iii) It was not proportionate to extend the hearing further by adding additional witnesses whose evidence, in the main, simply expanded on the findings I had already made; in any event, in some respects, M2 accepted some of those findings (e.g. DNA testing, controlling of M1);
iv) In order to reach a cogent view of the facts, I would have needed to hear from M1; as Dr. Berelowitz later observed "I am not sure who would shed light about them apart from M1 herself if she felt robust enough"; given her mental ill-health she (self-evidently) would not be able to contribute to the forensic enquiry;
v) The time-estimate for this hearing was already heavily committed. In the event, the five-day estimate was insufficient to complete the case; a further day had to be identified for submissions; judgment writing time had then to be found amid my other judicial commitments in London and on circuit;
vi) The potential benefit of achieving greater clarity on the issues would have been outweighed by the disadvantage of requiring M1's family members to give evidence essentially 'against' her and M2, inevitably deepening the fractures in the family relationships at a time when XCC is endeavouring to achieve family reconciliation through the Family Group Conference;
vii) XCC are keen that contact should be rekindled between Z and A and B; this would be in the children's interests, but would be significantly jeopardised if Z and Y gave oral evidence at this hearing.
- As it transpired, M2 did give evidence about an incident which featured in these statements – an occasion when M1 and M2 were on holiday in Toronto (in 2012), when M2 left M1 after an alleged argument, and drove with the children to Vermont. M1 had only just been discharged from a 17 day inpatient admission to the Priory Hospital in order to go on the holiday; M1 was said, at the time that the couple separated in Toronto, to be mentally unwell, and in many respects she was helpless. The account which M2 gave in oral evidence at this hearing was in itself chilling in its lack of empathy for M1.
- I cannot imagine that the children were not at least concerned about M1 (in spite of M2 trying to persuade me otherwise).
- I suspect that A has chosen not to reveal what she knows. Insofar as it may lend credibility to M2's account, an e-mail from M1's friend in Toronto 'G' includes this comment:
"I received an e-mail from M2 a few months ago, and was amazed that she thought I might even reply (I did not) after the way that I had witnessed her treating M1 and by extension the kids.".
- M2's account of this incident told me enough to know that she acted in a callous, and uncaring, way towards M1 causing inevitable upset to the children.
- Dr. Berelowitz suggested that further exploration of this issue (re Toronto) and like issues, and in particular the dynamics between the two women, would be important to effective safeguarding in the future, but not more important than trying to preserve contact
"I would not go for further assessment of the mothers. I would focus on is the still flickering flame of B's capacity to be in a relationship with the men, and my focus would be on protecting and strengthening that". (evidence in chief)
- Dr. Berelowitz postulated that M1 is "so dependent on M2, so afraid of her, and so fragile in her own right, that she is not in a position to be fully frank and forthcoming". He felt that this would be best achieved away from the court room, at a time and place where the women had less to lose by being frank; he proposed that the social worker should explore the issues with M1 assisted in the interviewing by Dr. R.
- Dr. Berelowitz amplified this in his oral evidence:
"If there is ongoing violence and discord between the 2 women, and M1 were to disclose, and say that she was leaving and the children need to be protected from this, in a sad way that is the overall in the children's best interests. I do not see how any kind of outcome from other investigation could take us forward in the best interests from where we are today" (evidence in chief, emphasis by underlining added)
"if it [i.e. life at home with the mothers] is not perfect but OK I would leave it… if it is more concerning than that, I would expect the social worker or independent social worker doing a more extensive piece of work with the mothers and I would expect the social worker to do this with Dr R and not to push her too far. Her mental health comes first… M2 is highly articulate… she may need to shed further light on these matters, but it is not my business to say who may be cross-examined about what." (re-ex Jones)
- Additional support for this approach may be located in the discussion which the social worker had with M1 on 13 December, where she said that "she would write down what she wants me to know – when she is away and she would try and be more self-aware of her needs and how she sees herself in the family and in her relationship with M2" (13.12.13).
- Overall, I am satisfied that I have a sufficient and secure factual platform on which to make final determinations. I am unconvinced that further efforts to plumb the evidence in court would produce meaningful result. The local authority has my findings from July, and from this judgment, as a solid platform to work with this family on the further investigation and management of risk.
- The sensible proposal for joint interviewing of M1 by the social worker and Dr. R as part of the ongoing investigative risk assessment of the authority gained traction during the hearing, and now features as part of the local authority care plan. It is re-assuring to note that the social worker considers that the allegations of Z, Y and V are prima facie "credible"; an appropriate starting point.
- Both Dr. Berelowitz and the Children's Guardian had expressed themselves dissatisfied in their oral and written evidence with the original care plans as lacking in sufficient safeguards, light on investigation going forward, and insufficiently robust.
- Ms Hughes appropriately challenged Dr. Berelowitz and the Guardian in their oral evidence to furnish the authority with such advice, and/or specific amendments to improve the plans, so that the authority could refine its proposed intervention. Ms Hughes responded efficiently to this and other evidence of the experts, and after a number of iterations, a final care plan was laid before the court dated 21 February 2014.
- Key features of the care plan now are:
i) the care plan will be co-worked between the yet to be appointed social worker (to replace GBR) and CM, social worker;
ii) an investigation into the allegations raised by third parties will be carried out by the social team. Sensibly, M1's response to these allegations will be taken in the absence of M2, and in the company of Dr. R. It is specifically and appropriately provided that "if it is that serious concerns about the immediate safety of the children were uncovered in the course of the assessment, the Local Authority would hold a Legal Planning Meeting with a view to returning the matter back to court." (§1); I would like to see some reference here to drawing the threads of investigation together well within the currency of the supervision order so that there is time then to put in place a programme of intervention if required before 12 months expires;
iii) ongoing life-story work with the children through the medium of art will be undertaken. I am not sure what emphasis will be given to the art now that GBR is no longer the social worker. I believe that life-story work is important, provided that it is balanced, and fair (providing good quality information about the important role of the fathers in the children's lives) – undertaken by someone who has a good working knowledge of the family history;
iv) there will be liaison between the social worker and the therapist for the mothers, Katherine Arnold to address issues in the mothers' relationship;
v) indirect contact will be supported for A and both direct and indirect contact for B;
vi) a family group conference will be arranged to include Z and Y – the first step towards a rapprochement within the family, I hope;
vii) it is not envisaged that there will be further therapy for B at this stage;
viii) there will be 6-weekly reviews
ix) the visiting of the family will take place fortnightly (this was in Ms Hughes' final submissions, but not in the care plan; it ought to appear in the care plan);
x) there is a specific provision in the plan for the restoration of the matter to court in the event that the authority considers that the mothers are interfering with the contact arrangements (see below); I approve of this.
- These care plans need some re-working, to eliminate typographical and other errors; so that it is clear that these plans are relevant for the next 12 months (not up to the hearing in February).
- In essence, and subject to the comments above, I am content that the care plans now reflect the preponderance of professional view in the case, and are apposite to meet the needs of the children.
- This litigation has become, on my assessment, as bruising and distressing an experience for these lay parties as any family law litigation in which I have been involved either as advocate or judge. The fathers speak of the "stressful" experience of the litigation which has been "at time emotionally draining". M2 referred to the proceedings as bringing "an enormous stress on our family", and "the proceedings have affected every aspect of our lives and the children's lives. We are completely exhausted.". All of this was overwhelmingly apparent. M1 has been rendered incapacitous following an acute stress reaction; F2 has recently (in my finding) acted uncharacteristically aggressively towards a professional again I am sure the result of frustrations and strains of this difficult process.
- At this hearing, as in the two other hearings which I have conducted, documentary and other evidence going back over many years has been picked over by the parties and their lawyers; I found myself listening to the protagonists being (unhelpfully in my view) questioned on comments made by the children as long as three years ago, as if they necessarily had currency now. While it is undoubtedly important to review a family's history in a case of this kind (and learn more about its dynamics), there is a considerable danger (exemplified by this case) that picking over past events in minute detail shifts focus away from the important present circumstances and future plans for the children.
- Regrettably the ill-feeling between the lay parties surfaced on occasions (and uncharacteristically so for the family bar) in the style and manner in which the hearing was conducted. The examination of some of the witnesses was hostile, occasionally sarcastic, and at least in one notable respect highly insensitive. Litigation of this kind is no place for personal insults; the fathers' description of the social worker (in their closing submissions) as a "publicity-seeking eccentric" fell on the wrong side of the line. These somewhat unedifying features of the presentation of the case raised the temperature of the dispute and served to underline for me the wholly destructive character of this litigation.
- Each parent was asked by counsel to speak positively about the other parents, ostensibly, I believe, in an attempt to expose the inability of each to do so convincingly. To some extent, the forensic exercise made the point: against the considerable volume of criticisms which each make about the other, the compliments did indeed sound hollow, and it was evident that where the recipient of the tributes was sitting in court, they were unmoved. Indeed when F2 was speaking about M2's qualities (he described her, among other things, as "passionate … resilient"), she visibly turned away from looking at him.
- A, as a party to the case, has become aware of much of the detail of my judgment; I have no doubt that the repercussions of the court hearings are felt long after the event; where A and B are concerned, they are bound to affected by the distress of their carers.
- I have a duty to bring it to an end, in the interests of the girls. I do so directly for their benefit, and also for the benefit of M1 who, I hope, will be enabled to achieve a reasonable recovery away from these powerfully aggravating factors.
- In the end, it is apparent that neither the mothers nor the fathers entirely accepted my findings, which I set out in detail in my July 2013 judgment. None of them have felt under any great obligation to follow high quality professional advice (described as "rich and careful") from some of the most distinguished experts in the field.
- The rejection of professional and judicial opinion places a serious question mark over the validity or value of the forensic exercise.
- General: If there is one issue on which all agreed, it is that this is undoubtedly an unusually and extremely complex case.
- As I pointed out in my July 2013 judgment, I am significantly circumscribed in what the court can achieve in this case by a number of factors, many of which I adumbrated in §7 of that judgment, and which I summarise as:
i) The inordinate length of litigation (nearly 6 years); I remind myself that B was merely 3 years old when the litigation began; she is now about to be 9. It is unacceptable for a child of any age to be subject to litigation for that period of time, in B's case, now 2/3rds of her life;
ii) The number of court orders (now well over 30); some of these had been made, breached and unpunished long before I had become involved;
iii) The woeful lack of judicial continuity; this has caused an absence of what Munby J (as he then was) described as a lack of judicially set 'strategy' to deal with the case (D (Intractable Contact Dispute: Publicity)  EWHC 727 (Fam);  1 FLR 1226);
iv) The failure, or refusal, of the parties to pay any attention to the rich advice of distinguished experts in the past;
v) The resistance of the parties to accept the findings of this court (reference my July judgment) when adverse to them;
vi) The fruitless endeavours of experienced Cafcass guardians, independent contact facilitators, family therapists, mediators, and of specialist organisations;
vii) The widespread flouting of penal notices to the orders;
viii) Six years have passed since A last stayed with the fathers; over 3 years have passed since she last saw them;
ix) A has adopted an entrenched position, advocated through her own legal team;
x) The mental incapacity of the children's natural mother, a condition overwhelmingly likely to have been provoked by this litigation.
- The case illustrates all too clearly the immense difficulties which can be unleashed when families are created by known-donor fertilisation; these difficulties have been identified and discussed in a number of earlier cases (including Re B (Role of Biological Father)  EWHC 1952 (Fam)  1 FLR 1015 (Hedley J), B v A (parental responsibility) sub nom D (contact and parental responsibility: lesbian mothers and known father)  EWHC 2 (Fam),  All ER (D) 25 (Jan) (Black J) R v E and F (Female Parents: Known Father)  EWHC 417 (Fam)  2 FLR 383 (Bennett J)) and I do not propose to add further comment to those authorities. Thoughtful and sophisticated people find themselves experiencing remarkable, unprecedented, emotional difficulty, with no easy way of out of it. A very high psychological price can be paid, and I believe has been paid in this case, by all concerned.
- Article 8: In reaching my conclusions, I have considered carefully the Article 8 rights of all family members. I have reflected specifically on the fact that 'The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life.' Gnahoré v France (Application No 40031/98) (2002) 34 EHRR 38; Kosmopoulou v Greece (Application No 60457/00)  1 FLR 800, makes clear (§43–44) that these principles apply not merely to what we would call public law cases but also to private law cases. Where the Article 8 rights of the parents and the children are at stake, the child's rights must prevail – where it is necessary (as it is in this case) to balance the rights of the child on the one hand and the rights of the parents on the other, it is the rights of the child which must prevail: see Yousef v The Netherlands  1 FLR 210.
- I am conscious that affording paramount consideration to A and B's overall welfare may produce an outcome which is seen as 'an injustice' from the perspective of the fathers – an outcome recognised by Balcombe LJ in Re J (A Minor) (Contact)  1 FLR 729) in which he said:
"… the father may feel that he is suffering injustice. I am afraid to say that I think he is suffering an injustice, but this is yet another example where the welfare of the child requires the court to inflict injustice upon a parent with whom the child is not resident."
- But, as I say, whether as a matter of European jurisprudence or domestic law, the principles are broadly similar; the welfare of the children prevails.
- Welfare checklist: The welfare decisions which I am enjoined to make at this hearing can helpfully be informed by a review of the factors in section 1(3) CA 89; these factors are all actively engaged in this case.
- The ascertainable wishes and feelings of A and B have been well before the court, and are viewed in light of their age and understanding. In A's case, at 13 years old and competent to conduct this litigation on her own behalf, the wishes assume a particular importance, even though they cannot be determinative. B's ascertainable wishes and feelings are more difficult to gauge; her response to, and following, contact leaves considerable scope for interpretation. I believe that she is considerably more ambivalent about her future relationship with the fathers than A; there is a glimmer of interest in preserving and enjoying that relationship. I am conscious not to let B's wishes and feelings (so far as I can ascertain them) be subsumed by those of her older sister.
- The children's educational needs appear to be being well-met; their emotional needs are not currently being met. They have an emotional need, in my judgment, to have relationships with their fathers and to be protected from dysfunction in their home. It is proposed that social work intervention within the context of a supervision order (by which the authority can "advise assist befriend" the children) would be adequate and proportionate to mitigate the harm, and monitor the impact of any harm on the children.
- There is no doubt that any change in A and B's circumstances would have a "devastating" effect on them. Although encouraged by the fathers to take a robust approach to the failure of contact, I have to guard against creating a worse situation for the children by removing them from their homes in order to achieve that objective. I have in mind the difficult litigation concerning the 11 year old boy who was the subject of a transfer of residence order against the backdrop of failed contact in Re S (Transfer of Residence)  EWHC 192 (Fam);  1 FLR 1785. In spite of this course being recognised as a legitimate means to achieve an end, ( EWCA Civ 219), the actual transfer never effectively happened when the practical concerted efforts to effect the change failed (Re S (Transfer of Residence)  1 FLR 1789).
- The children are bright and articulate; they are the children of two mothers and two fathers – the mothers and fathers never lived together as a family; in these senses their background, and characteristics of the family are relatively unusual, and relevant.
- I have already found that the children are suffering harm and remain at risk of suffering harm for as long as the conflict continues. The harm will be significantly mitigated by the proceedings concluding. The harm to them by having only a reduced relationship with their fathers, is less grave than the harm which would be caused to them by perpetuating the litigation, and/or removing them from their mother's care – both outcomes contended for by the fathers.
- The capability of the parents to meeting their needs is one of the crucial welfare factors. M1 has been rendered, temporarily at least, incapable of conducting this litigation, inevitably a mark of her incapacity also as an effective parent. Although the fathers express deep concerns about M2's ability to meet the needs of the children, the objective evidence from the social worker, Dr. R, and in some respects Dr. Berelowitz reveals that she is coping with the children well, in spite of the considerable demands on her physical and emotional resources.
- The fathers have demonstrated an ability to meet B's needs at contact; however, when in litigation their presentation can be seen as aggressive and lacking in sensitivity. The local authority is concerned that the fathers will not rest until evidence of serious harm is uncovered in the mothers' household, and yet there is a potentially self-fulfilling aspect to this, for the longer the litigation continues, the more serious harm is actually, in my judgment, being done.
- GBR rightly, in my judgment, described the fathers as having "set ideas" as to how things should happen, allowing "very little space" for events to unfold more naturally. In these proceedings, I cannot help feel that the fathers' claims have become ever more exorbitant, with the effect of raising the temperature of the proceedings unnecessarily high. They had, in the December hearing, asserted that if the children were removed from their mothers, it may not be appropriate for the children to maintain a relationship with M2 for the time being.
- In their closing submissions at this hearing, they had pleaded that Article 2 and Article 3 ECHR applied on the facts of the case now, contending that the girls (in particular A) are at serious risk of physical as well as emotional harm which reaches the Article 3 threshold (that is to say that A is currently being subjected to "torture or inhuman or degrading treatment"); they advance the same submission in relation to M1. They went on to submit that I am now aware of a real and immediate risk to M1's life which requires investigation and/or protection under Article 2 ("right to life") (in fact the evidence is that M1 spoke of suicide referred back over a year to February 2013, although had spoken of it again when very unwell in December 2013). I reject the submission that Article 2 or Article 3 has any relevance to the case before me.
- The range of powers available to the court. The court has a wide range of powers. I turn to consider them now, answering for my self the questions which I posed to counsel at the conclusion of the evidence.
What if any public law order do you invite the court to make?
- When considering what, if any, public law order to make in this case I have to weigh a number of factors. Specifically, I have taken into account:
i) The evidence which I have heard (summarised at the outset of the judgment) about the current well-being of the children, and the reasonably positive appraisal of many aspects of their home life;
ii) The immense value to these children of there being some local authority statutory intervention in this family's life;
iii) The effective work surrounding the preparation of the section 37 report, even though confidence borne of the encouraging early interventions have been tainted by a lack of effective social work in the last 6 – 8 weeks;
iv) The incomplete risk assessment at this stage, noting however that
a) I have been able to perform my own evaluation of risk over the last three hearings,
b) I am strongly advised that further risk assessment (fact-finding) within the forensic / court setting is not likely to yield meaningful results given the importance of engaging M1 in the process, and
c) The authority is keen to undertake further assessment of risk under a supervision order.
v) That the mothers have been cooperative with the local authority social workers;
vi) This is not a case where the local authority might need to remove the girls from their care without further resort to the court;
vii) This is not a case where the authority might need to override the mothers' decision-making in relation to the exercise of parental responsibility
viii) As a matter of law, I have regard to the well-established principle, derived from section 1(5) of the 1989 Act, read in conjunction with s 1(3)(g), that the court should adopt the 'least interventionist' approach. As Hale J, as she then was, said in Re O (Care or Supervision Order)  2 FLR 755, 760:
"the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary."
- I am wholly satisfied that it would not be proportionate, let alone necessary, to make orders which would have the effect of removing A and B from their current home. It is widely acknowledged by all parties (including the fathers) that such a step would be "devastating" to the children; such benefits as may accrue from relieving them from the emotionally harmful environment at their mothers' home would be substantially outweighed by the trauma which they would experience in being removed from their primary carers. Dr. Berelowitz felt that "if they were to go into foster care solely or almost exclusively for the purpose of trying to rebuild their relationship with the men, this may well not work.".
- In one of the most significant passages from Dr. Berelowitz's report, he says:
"if the current care of the children is clearly not good enough, and cannot be remedied, then a move to foster care becomes potentially justifiable. But if the current care is just about good enough, then we may unfortunately have to view the situation as one of the possible tragic outcomes of assisted fertilisation, and furthermore one which can no longer be undone or reversed. In that case we should now leave the girls be."
- The Children's Guardian, having previously advocated removal at an earlier hearing, does not support removal of the girls at this stage. This is not because she is any less concerned that the children are suffering significant emotional harm in the care of the mothers, but this is "primarily because of the risk has been reduced by the family receiving regular announced and unannounced visits from the social worker. The mothers are co-operating"; moreover, M1 is receiving community based psychiatric support, and is no longer abusing alcohol. The Guardian told me (XX Fottrell) that "The care (which the children are receiving at home) is good enough. But I still have concerns" (XX Fottrell).
- M2 has said in terms that "I want the girls to be in a place where they feel supported in their relationships with each of the adults in their lives. I will do everything that I can to support this and to work with the local authority.". I propose to accept her word for that. This judgment will be an official record of her statement. B will be told that this is what she has told the court.
- Picking up Dr. Berelowitz's comment, it seems to me that the "current care" of the children, overall, is on the worst case "just about good enough", on a more favourable assessment, it is rather better than that. With that in mind, and taking into account all of the circumstances summarised above, I consider that the proper order is a 12-month supervision order in favour of XCC; that is the public law order which I propose to make in this case.
What, if any, contact order do you invite the court to make in relation to A?
- It is now three years since A saw the fathers. She is adamantly opposed to any resumption of contact; insofar as she has been prepared (reluctantly) to attend for contact this has been with the clear objective to 'get things off her chest' with the fathers; this would not be fruitful.
- I nonetheless consider that it is in A's interests that she should know, as she progresses through her adolescence, that her fathers are there for her, and interested in her; a route should be maintained by which A herself can travel back to see the fathers. These objectives can be adequately achieved by an order for indirect contact. I shall therefore order that the mothers shall facilitate receipt by A of indirect contact (card/letter/presents) from the fathers which coincides with the timings of the direct contact to B.
What, if any, contact order do you invite the court to make in relation to B?
- The 16 December 2013 contact should not be seen as a 'one-off'; it was the 'toe in the door' for future contact. I firmly believe that contact has to be allowed to develop: if M1 and M2 ignore that advice they do so at the risk of ultimately alienating their children from them, and/or causing them further damage. From a child welfare point of view, M1 and M2 have nothing to fear from the contact; indeed I would like to think that they may find that accepting and supporting contact is less arduous and emotionally draining than fighting it. Time will tell whether they feel any more able to accept my advice than they have any of the other professionals. The fathers for their part need to be allowed to let the relationships evolve, and not force the pace. As Dr. Berelowitz said at an earlier time "don't push the 'daddy' business".
- Dr. Berelowitz opined (XX Fottrell)
"Good quality contact and denigration of the mothers is profoundly incompatible. Both sides require more. The women need actively to promote contact. The fathers need to be respectful of the mothers"
- Dr. Berelowitz had recommended that there should be contact between B and the fathers at a frequency of monthly. Consensus by all, bar the fathers, appears to have fallen on the proposal that contact should be at a frequency of eight times per year. This retains the value of regularity and rhythm, but does not impose such an intense level of visiting. I accept the proposal for eight visits per year for the duration of the supervision order; I consider that Dr. Berelowitz was bringing the pendulum too far in the direction of regular contact by proposing a monthly frequency.
- I propose this to be a defined frequency without scope for variation. It seems to me that there is a risk that if I were to order a mechanism for in-built variation "if it goes well" or "if it goes badly" the parties would find the first opportunity to disagree over that essentially subjective evaluation, and controversy would ensue. I also consider that such a provision would be likely to place intolerable pressure on B because of the need to assess after each contact whether it has "gone well" largely by reference to B's presentation, behaviour and remarks during and after such contact.
- In my judgment these contacts should take place in (1) the forthcoming Easter holidays, (2) Whitsun half-term, (3) the beginning of the summer holidays (4) towards the end of the summer holidays, (5) October half-term, (6) Christmas holidays, and (7) February half-term. I leave it to the parties to slot in another date at a convenient point, perhaps at a weekend in early December when there is usually a good variety of pre-Christmas activities for parents and children to enjoy together.
- Contact shall for the time being be supported; B needs to feel 'comfortable' (there should be no direct references to her being 'safe'). I consider that support for the contact can be relaxed when:
i) B indicates that she would be happy for it to be relaxed;
ii) The fathers indicate that they are happy for it to be relaxed (I am conscious that support for contact may have benefits or insurance for them).
It shall be for a duration of 2-3 hours on each occasion for the first four contacts, and 3-4 hours for the last four.
- I propose to extend the contact order beyond the life of the supervision order. I direct that it shall continue (from March 2015), on eight occasions per annum and in the absence of agreement as to the specific dates and duration and supervision, on the second Saturday after the start of each of the six school ½ terms and on the first Saturday of the Christmas holidays and on the first Saturday of the school summer holidays, for four hours duration, unsupported. I accept the provision in B's care plan that "if contact does not progress sufficiently within the timeframe and the need for supervision (I prefer 'support') continues, that the Local Authority will make adequate provision for alternative supervision or facilitation by either exploring friends and family" but do not consider that it would be in B's best interests for the contact to move to "independent contact centres" as proposed. I entirely endorse and underline one important aspect of the care plan:
"if it becomes apparent during the course of the Local Authority's involvement that B's views and wishes are either influenced or impeded by the negative views held and expressed by her mothers and if it is deemed that this significantly impairs her ability to re-establish meaningful and positive contact with her fathers, the Local Authority will hold a planning meeting with the view to return the matter to court."
The mothers should be under no delusion about this; this refers to consideration of an application for a care order.
- Insofar as the fathers argue that 'we have been here before' (reference the December 2011 Order of Hedley J), I respectfully disagree. Previous orders for contact have not been buttressed by a supervision order imposing a statutory duty on a local authority to advise assist and befriend the children, together with a Child in Need Plan. The authority is (perhaps unusually) proposing actively to be engaged in the facilitation of each and every contact over the next 12 months. That is a significant change in the proposed arrangement from anything which has gone before.
- For the avoidance of doubt, I make it clear that I make a discrete contact order in relation to B on the basis that it is better for her than making no order, or leaving the requirement for contact as a feature of the care plan (section 1(5) CA 89).
Can/should the proceedings conclude at this hearing?
- It will be apparent from reading this, and my previous judgments, that the litigation has had a destructive effect on the parties; the stresses on them I have referred to above. I fear that the childhoods of A and B have been irredeemably marred by the ongoing court conflict.
- At the conclusion of my December 2013 judgment I said that the proceedings will conclude when the well-being of the girls was secured. Within the considerable limitations of the court process, that objective has in my judgment been achieved as far as it reasonably can be. The conduct of these parties over the last six years has been shown not to be "readily conducive to organisation and dictat by court order" (see Re A §53). I consider that (within the constraints identified above) I have utilised such substantive and procedural resources as are available to me to determine the issues relating to A and B in a manner which affords paramount consideration to their welfare. Importantly, I consider that I have taken all appropriate steps (and by 'appropriate', I mean those which would be likely to promote rather than encumber the best interests of the children) so far as I am able, and within the limits of my powers, to make orders which are more likely to be effective than ineffective.
- There is widespread professional support for the proceedings to come to an end. The social worker is of the view that it is "crucial" that the proceedings conclude for the sake of the children. Dr. Berelowitz and the Guardian broadly agreed – indicating that the only value of keeping proceedings alive would be if there could be meaningful forensic evaluation of concerns within the family home; I have already found that there is no likely benefit from that forensic exercise.
- We are unlikely to find out more about the household simply by keeping the litigation going. M1 and M2, A and B all have self-protective interests in concealing what may be going on. It is appropriate to continue looking further into these matters if there is a specific risk or a clearer solution which is identifiable and requires further forensic exploration; as things stand, there is not.
- The Guardian – who has provided invaluable continuity of professional involvement in this case, and who has plainly agonised over it, told me in terms that she did not want the proceedings to continue beyond today:
"I think that everyone has had sufficient litigation; it has gone on far too long; it has had a huge impact on M1's mental health, and the children's well being and no doubt on the other adults as well… the court has been a great stressor. … I would like the preservation of the relationship between B and the fathers…. this should be preserved as well as it can, she has had very good quality contact, and I was very impressed that she was able to see them again at that time". (evidence in chief)
- As indicated above Dr. Berelowitz commented that there were two questions which needed to be considered in the context of bringing the proceedings to an end:
i) Will M2 promote the plan?
ii) Will the fathers do everything they can do to convey to B that there is no triumph for them at all, and they are not against the women?
Dr. Berelowitz was sure that by the end of the hearing these issues would be clarified "as best as it can be". I believe that they have been. I have a commitment from M2 to promote the plan for contact and to co-operate with social services; she has told me that I can tell the children in a letter that she promotes the plan. A local authority will be involved over the next 12 months requiring her to promote the plan. Furthermore, I believe that the fathers will do everything they can to convey to B that there is no triumph for them. I do not consider that the positions of these parties would be any further advanced by protracting the litigation; there is a real risk that they would have retreated.
Is the current care plan sufficient to meet the needs of the children?
- I have reviewed the revised care plans (which have been through a number of iterations during the hearing). Subject to my comments above, I believe that the plans are appropriate to meet the needs of the children.
Is a letter to the children a good idea?
- I asked Dr. Berelowitz whether it may be appropriate for me to communicate directly with the girls to give them my short narrative on the outcome of these lengthy proceedings. He supported such a step; indeed there is now broad support among the parties that I should write such letters. If I send letters, I do not propose to send them until the period in which an appeal could be lodged has expired, or an appeal determined. The children need to know when the process is effectively at an end.
- If letters are to be sent, they should include the following
i) I should identify the matters which have been acknowledged by the court – the achievements of the girls, their recognised attributes and skills;
ii) I should identify the issues which I have had to rule upon; the role of the local authority in the past and in the future; orders for contact;
iii) I can tell the girls that M2 has told me that she wants to support contact. They can be told that M2 wants both children to be free and able to phone the fathers or go around to see them;
iv) It will be important for me to inform the girls that M2 has told me (in terms) that she thinks that F1 and F2 love the children very much; M2 has told me, and I believe her, that the girls must not feel that they cannot phone or ask to see them… they need to feel free to talk about them, to see them, to write to them;
v) M2 has told me that she thinks it would be really good for the girls to see F1 and F2 and she wants them to have a good time. As indicated above, I will distil her comment that she wants the girls to be in a place where they feel supported in their relationships with each of the adults in their lives, and that she will do everything that she can to support this and to work with the local authority;
vi) That while M1 has been poorly throughout the last phase of this litigation, I understand that M1 is happy for the girls to have contact if that is what they want;
vii) That their home is with their mothers.
viii) I should recognise that A has made her wishes known and wants to be heard. That I have decided that it is right to hear her on this, and act according to her wishes;
ix) I want her to know that the fathers very much hope that something else was possible, but that they have accepted that they should not press it at the moment;
x) That the fathers hope that in due course A will start to re-kindle her relationship;
xi) That I hope that she may want to think again about this in the future;
xii) That I hope that she will accept that B is her own person, and is trying to steer a slightly different course for herself, and your mothers have accepted that.
xiii) That I have noted that she is currently saying that she does not want contact;
xiv) That it has been noted by a number of people that she appears to look as if she is enjoying contact when she has gone;
xv) It has also been noted how she has behaved afterwards and what she has said;
xvi) That I have taken all of this into account and that I have created a plan for her… which will mean that she will see the fathers a few times each year, essentially in holiday times, to fit around her holidays with the mothers;
xvii) I think that there is room for a relationship with their fathers, and their mothers have agreed.
Should the court make a section 91(14) order at this stage? If so, in relation to what order, and in respect of which party and for how long?
- Section 91(14) CA 89 provides that
"On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court".
- The circumstances in which such orders may be made are widely variable. In Re P (Section 91(14) Guidelines) (Residence and Religious Heritage)  2 FLR 573 Butler-Sloss LJ drew up a number of guidelines (at p.592-3) from the reported cases, while indicating that the court always has to carry out a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the court. The guidelines are as follows:
i) Section 91(14) should be read in conjunction with section 1(1) which makes the welfare of the child the paramount consideration.
ii) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
iii) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
iv) The power is therefore to be used with great care and sparingly, the exception and not the rule.
v) It is generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.
vi) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
vii) In cases under para (vi) above, the court will need to be satisfied first that 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 in dispute or between the local authority and the family; and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain;
viii) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
ix) A restriction may be imposed with or without limitation of time.
x) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of order;
xi) It would be undesirable in other than the most exceptional cases to make the order ex parte.
- The local authority, Guardian, the mothers and A broadly support the making of an order under section 91(14). The fathers oppose my making of an order under section 91(14). While the advocates for the order underline the length of this litigation, the toll it has taken on the protagonists, and the pressing need for respite from the stress, the fathers contend that the welfare of the children requires the protection of the court – not its absence.
- I am satisfied that, against the background of this lengthy and troubled litigation, the children desperately need the reassurance of knowing that for a period of time there is at least a limited brake on further applications being brought before the court. I am equally sure that time needs to be given to relieve M1 of the "unacceptable strain" (per Re P) of these proceedings which I am satisfied have had such a deleterious effect on her mental health; recovery of her good health will, of itself, be of significant benefit to the children.
- For the next twelve months, and for as long as the supervision order is in place, there is local authority monitoring of the family. At the end of 12 months, the local authority responsibility under Part IV CA 89 will fall away, unless it applies to extend the order (schedule 3, para.6 CA 89). It remains to be seen whether A and B are still assessed at that time as children in need (entitled to services under Part III CA 89). By that time, I expect that a pattern of contacts will have been established, but if not, I recognise that the fathers may have (although they should not interpret this as encouragement) a legitimate case for restoring the matter to court.
- I propose to make an order under section 91(14) providing that no application under Part II CA 89 may be made with respect to A and B by F1, F2, M1 or M2 without leave of the court until 19 June 2015 (i.e. for 15 months, the duration of the supervision order, plus three months). This will allow the local authority time and opportunity to work with this family. I am satisfied that the relatively short duration of this order, while the supervision order runs its course, strikes the correct, and proportionate, balance between intruding on the rights of the parties to bring disputes concerning their children before the courts, while promoting the welfare of the subject children. I make the order for this period conscious that a specific duty is imposed on the local authority (section 35(1)(c)(i)) to apply to the court during the next 12 months for variation of the supervision order where it considers that the order is not being wholly complied with.
- That is my judgment.
- Substantive and consequential orders will need to be made.
i) There shall be a supervision order in favour of XCC in respect of the girls for a period of 12 months.
ii) The revised care plans shall be lodged with the court by noon on 28 March 2014;
iii) The fathers shall be permitted to send A a letter or card and a gift 8 times per annum on the occasions of Christmas and A's birthday and on up to six further occasions when B is provided with a gift during periods of direct contact between B and the fathers. M2 and M1 shall ensure that the same is brought to A's attention and shall (in liaison with the SW) encourage A to respond.
iv) M2 having confirmed her intention to support B in re-establishing direct contact with her fathers in accordance with such advice and guidance as may be given by the allocated social worker over the next 12 months;
a) M2 and M1 shall make B available for direct contact to the fathers as follows:
b) during the course of the next 12 months for visiting contact on 8 occasions on such dates, at such times, for such duration and subject to such support as the LA in the guise of the allocated social worker may from time to time request;
c) thereafter, on 8 occasions per annum and in default of alternative agreement as to the specific dates and duration and supervision, on the second Saturday after the start of each of the six school ½ terms and on the first Saturday of the Christmas holidays and on the first Saturday of the school summer holidays, for four hours duration, unsupervised.
v) The fathers shall be permitted to provide B with a letter or card and a gift 8 times per annum on the occasions of Christmas and B's birthday and on up to six further occasions during periods of direct contact between B and the fathers. Where the same is not provided to B directly by the fathers, M2 and M1 shall ensure that the same is brought to B's attention and shall encourage B to respond.
vi) Warning Notice addressed to M2 and M1 [although re: M1 the prospect of taking any action for breach may be slight given the capacity issues] in relation to the contact orders.
"Where a contact order is in force: if you do not comply with this contact order –
a) you may be held in contempt of court and be committed to prison or fined; and/ or
b) the court may make an order requiring you to undertake unpaid work ("an enforcement order") and/ or an order that you pay financial compensation."
vii) There will be an order under section 91(14) order prohibiting F1, F2, M1 and M2 from making applications under Part II of the CA 89 for a period of 15 months.
viii) This judgment shall be made available to Dr. R, Dr. Berelowitz;
ix) I shall authorise the release of the passports to the mothers;
x) Reference will be made to the letters which I propose to write to the children. Once drafted these will be sent to XCC for the social worker to give to the children.
- I further provisionally direct the following:
i) Miss Hughes and Miss Jones shall together consider together how this judgment and the earlier judgments (either in full or edited form) can be anonymised and/or in parts redacted with a view to publication in line with the President's Guidance. Once they have formed a view they shall circulate their proposals to the other advocates, with a view to agreed versions of this, and extracts of my earlier judgments, being published;
ii) I propose to direct that any submissions on the question of the costs of the private law proceedings shall be made in writing. The fathers shall make their representations first (by 17 April 2014); the mothers and any party affected may reply by 8 May 2014); the fathers to have opportunity for a short reply by 22 May 2014.