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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> P v C & Ors [2018] EWHC 693 (Fam) (28 March 2018) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2018/693.html Cite as: [2018] 3 FCR 266, [2018] 2 FLR 1139, [2018] EWHC 693 (Fam) |
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family
must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. 2018] EWHC 693 ( Fam) | ||
FAMILY
COURT AT THE ROYAL COURTS OF JUSTICE
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF S (A boy: born [on at date in] 2004) & N (A girl: born [on at date in] 2005)
Strand, London, WC2A 2LL |
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2018 |
B e f o r e :
____________________
| P |
Applicant |
|
| and |
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| C and S (by his guardian) and N (separately represented by NYAS) |
1st Respondent 2nd Respondent 3rd Respondent |
____________________
P (the children's father) (in person)
Ms Linda Sweeney (instructed byAFG Law) for the 2nd Respondent
Ms Katy Rensten (instructed by NYAS) for the 3rd Respondent
Ms Magdalen Case(instructed by the Legal Department) for the local authority who were invited by the court to take part in the hearing
Hearing dates: 19th February to 23rd February
2018
____________________
Crown Copyright ©
The Honourable Ms Justice Russell:
Introduction
family,
and, at the time of the previous hearing, they were adamant that they did not want to go back to Sweden at all. They appeared to be wholly rejecting their father, their Swedish relations and that half of their own heritage.
families
and further assessments were carried out by the local authority. The local authority and the guardian, unsurprisingly concerned about the children's apparent alienation from their father, their paternal
family
and their Swedish heritage, considered that it was likely to be necessary, in their best interests, to move them to live with P in Sweden. The AFC filed its report in September 2017 and recommended the immediate transfer of residence to Sweden. I shall return to their recommendations later.
2018
commenced (half-term) in Sweden. In addition, the children have been supported by direct work with their allocated social worker, Ms Clark and a
family
assistance worker.
Parties' positions and representation
family.
2018,
Ms Clark and the local authority had changed their position: they no longer supported a move to Sweden and sought a
Family
Assistance order to continue to support the
family
in England. The guardian, too, in her final analysis no longer recommended that S and N be moved and recommended that the court make a supervision order in favour of the local authority to support the children should they remain with their mother.
Background and history
family
home made by the Swedish court. Both parents were seeking a court order that the children live with them; P in Sweden, C in England. An investigation was carried out by the Swedish child welfare authorities who reported to the court; it recommended custody be granted to P. At the time the poor relationship between P and C, which was described as "virtually non-existent", was considered to one of the problems faced by the children; it is a problem for them that continued and has persisted to the present. S's learning disability was already apparent and there was a provisional diagnosis of Asperger's syndrome.
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which in turn, may be seen to provide some explanation for her behaviour regarding her own children's contact with their father.
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in England while they are on holiday in Sweden, his video contact which takes place twice a week when they are at home in England is stilted and the children do not engage with him to the same extent. His oral evidence was that he although he believed that the children were now able to speak to him unhindered or monitored without their mother or any other
family
member being present, the children were not interacting with him for very long (about 10 minutes or so) in the way he would like and expect. The fact that S and N now have unimpeded and frequent video contact with their father is another improvement, if not transformation in their contact with him since the fact finding hearing next year.
Family
Court that children are easily distracted by other more immediately interesting (to them) things, and that parents often find their children's concentration on talking to them disappointing and even hurtful. It is not realistic or reasonable for P to expect the children to ignore what is going on at home and to concentrate exclusively on their video contact with him.
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has, according to P and his mother, altered and is much more strained than it was before. It is fair to say, on the basis of his own evidence, that P finds his relationship with N difficult at times. It is more likely than not that N's relationship with P would have altered, whatever happened in the past, as she approaches adolescence. There is a perception expressed by both children, that P has an easier and more active relationship with S. This is something that was already evident before contact was stopped for the period between August 2016 and April or May 2017.
family,
it is more likely than not that their relationship with P will have been influenced by their expressed wish to remain living in England. They are, and have been aware, that where they will live in the next years of their childhood is a decision that is to be made, in due course, by the court for most of the time during which contact has been reintroduced. They are also aware that their father wants them to be moved to live in Sweden. Nonetheless, as P has described in his evidence, N has managed to maintain a relaxed enough relationship with him to send WhatsApp messages when she has wanted to change the time of a video call. He also described a recent occasion when he and N went shopping, just the two of them, and how much she and he enjoyed it.
Law
family,
which is the recommendation of the local authority and the guardian, on balance, they have also recommended that there is either a
Family
Assistance Order (FAO) pursuant to s16 of the CA 1989 or a Supervision Order under s 31 CA 1989. Any decision in respect of CAO is subject to the provisions of the CA 1989 and the Children and
Families
Act (CFA) 2014.
Family
Court Practice [2017 Ed. At 424] as a statement of fundamental principle by which the court must ensure that the child is given the opportunity to be heard (see Re D (A Child) (international Recognition) [2016] 2 FLR 347, CA). The wishes and feelings of children are not, of themselves, the determinative factor in the court's decision, as welfare of each child is the priority. In this case there is some dispute about how reliable the children's expressed wishes are because P, and the authors of the AFC report say that the children are reflecting what they know to be the views of their mother. In reported cases concerning children's objections in Hague Convention cases the Court of Appeal has reminded judges that there should be a straightforward analysis of the question and that an over-intellectualised approach is to be avoided. The wishes and feelings of a child, of which objections are a part, are questions of fact to be analysed by the court: Re F (Child's Objections) [2015] EWCA Civ 1022.
The children's wishes and feelings
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assistance worker (who has been working with them) that they do not want to move to live in Sweden with their father. This will necessitate a consideration of the root causes of their wishes and feelings and whether they can be considered to be reliable having taken into account all of the various factors at play, including the extent of the influence their mother has on what they have told these independent witnesses.
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support worker and social worker, and, has agreed to the children being referred to CAMHS.
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life which goes beyond their relationship with their mother and their father. They live with WC and their two younger siblings; it is not disputed that S and N enjoy their life at home with those other three members of their
family;
nor that this would, self-evidently, constitute a right to a
family
life pursuant to the Human Rights Act 1998 and Art 8 of the ECHR.
Family
Assistance orders. The guardian has recommended that the children remain living at home with their mother, stepfather and siblings with a supervision order in place to monitor their mother, and to ensure that adequate resources are put in place to provide therapeutic intervention and treatment for C and for the
family
as a whole; and that the local authority have a duty to bring the matter back to court should the social work team and other professionals consider it necessary. The court can only make a supervision order if it is satisfied that the threshold set out in s31(2) CA 1989 is crossed. There is no dispute that the children have suffered significant harm as set out in the judgment of the court handed down in April 2017; and, in the words of the statute, that the harm suffered was attributable to their mother's care not being what it would be reasonable to expect a parent to give them. The local authority does not object to a supervision order being made but submit that a
Family
Assistance Order (FAO) would be more appropriate and result in the same level of support, monitoring and intervention.
Evidence
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support worker; Ms Henry, social worker, who co-authored the reports of the AFC; Dr Shahnavaz, who prepared the reports with Ms Henry; and the children's guardian, who has now met the children on several occasions, and who has a well-developed and long-standing knowledge and understanding of their needs.
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relationships over a period of time when there was no contact with their father, through the reintroduction of contact and subsequently as contact has continued to take place. Similarly, Ms Clark (and the local authority) have allocated an unusually substantial amount of time and resources to this private law case. Their intervention has been both timely and proportionate; as the guardian said in her oral evidence, Ms Clark has demonstrated real commitment to the case and to the children. The time she has spent with the children and the work she has carried out directly or in a supervisory capacity up until the hearing allows the court to place some considerable weight on her opinion and assessment of the children and their welfare.
2018
and their report prepared in September 2017. Both gave evidence, and Dr Shahnavaz had the advantage of hearing Ms Henry's oral evidence before she gave her own evidence to the court. It was submitted on behalf of the children that the evidence of Ms Henry might have been considered to be "over dogmatic" by the court; I agree with that submission. Ms Henry did not waver from the recommendation made by the AFC that the children should be removed from their
family,
and in particular from their mother at once and placed in Sweden despite their expressed views to the contrary. She also adhered to the recommendation that all future contact with their mother, their immediate
family
in England was to be supervised for a period of two years.
family.
On the face of the recommendations this would lead to a reversal of the alienation, this time sanctioned by the court. The local authority and the guardian, who had initially supported the children's removal from their mother's care, expressed concern from the outset at the recommendation by the AFC for the drastic reduction in any contact between S and N, their mother, step-father and younger siblings.
family
therapy. She and the court were told that a possible and local provider known to the guardian and the local authority has been identified and approached, and was ready and willing to take the case on in respect of the former and, in respect of the latter it would be available from CAMHS. The local authority will support any
family
referral.
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relationship and begs any number of questions about the effect of this on the children themselves, what explanation they are to be given and what they are to gain from this experiment (for that is what it is), never mind the effect on their
family
in England. There seems to be a punitive element, towards C in particular, to the course of action proposed by the AFC. There was no assistance forthcoming from either Ms Henry or Dr Shahnavaz about how the mechanics of two years supervised contact was to be resourced or provided. In law it is a gross interference with the
family
lives of all six individuals unsupported by cogent evidence.
2018,
saying things which are completely different from that which she had said in May 2017 to the social worker and in August 2017 on being interviewed at the AFC.
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therapy. The latter is necessary because trust and communication between both the parents need to improve hugely before they can co-parent effectively. To ensure that C does not resume her past conduct and to provide support to the
family
Ms Clark has told the court that she and the local authority will remain involved and continue to work with S and N and their parents. Ms Clark is to be highly commended for her commitment to this case and to the children.
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the way they used to. This has been observed by both P and his mother, but unlike their social worker, they lay the blame entirely at C's door. The social worker believes that further work and therapeutic intervention is required but that it must take place outside and away from court proceedings. To this end both she and the guardian have asked the court to make a s91(14) order prohibiting the children's parents from returning to court with any further applications without the court's prior permission.
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there. By common consent S enjoys a more relaxed and seemingly fruitful relationship with P, than N, but this is most likely to be because S is a less-complex personality. He is obviously a very loving and sweet child. It is on his repeated expressions to independent witnesses that this court can place the greatest reliance and place the greatest weight. These are professional witnesses (Ms Clark, the
family
support worker and the guardian) trained and experienced in working with children to whom S has always said he wants to remain in England living with his
family
here; he has said so in vehement terms and told the guardian to tell the judge this is what he wants. I find that it is more likely than not that S is expressing what he believes to be his own views and that the expression of those views is in large part based on his own wishes and feelings. S is fourteen. In less than four years he will have reached the age of majority. I keep this in mind when reaching any decision about S; as I do the need to treat with some respect what he is saying.
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and friends, to be somewhat unrealistic. He complains she spends too much time in her room; she is a twelve year old girl and this is, surely, a perennial complaint from parents of twelve year old girls. It is of concern that he is reading more into normal pre-adolescent behaviour than there is, as it is likely create a problem about and for N that does not, in fact exist. Similarly, P expressed concern about N not keeping up with her Swedish friends, and losing interest in one of them; again this raises a concern that he is has unrealistic expectations of N and her interaction with girls that she was previously friendly with not to mention reading too much into what is a normal situation; girls fall out and fall in with their friends at this age; children grow up and change. None of this is particularly significant on its own but the import of his evidence about N, when taken in its entirety, is indicative of P seeing N as problematic and the more difficult child which would not bode well for P's ability to handle the change in her life he seeks to bring about.
familial
conflict. As counsel for S submits on his behalf and that of the guardian, P is not perfect, nor does the court expect him to be. P's commitment to a full relationship with his children cannot be faulted but it would be tragic if that relationship were to be severely undermined, if not permanently damaged, by the children seeing him as the person who took them away from their
family
and life in England against their wishes. The guardian reiterated that while P says that S wishes to go to Sweden that is not what he has said to his guardian and it is certainly not what N wants to do on a permanent basis.
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in Sweden disclosed more positives than negatives. I keep in mind too, that both P and G, naturally and understandably, were giving evidence with a view to achieving the children's removal to Sweden.
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would struggle to contain N. The resolution for the behaviour of a deeply distressed and angry teenager cannot be simply left to social services however good they are; such a step would inevitably pathologize the child which cannot be said to be in her best interests. Neither P nor G were able to demonstrate any examples or details of the difficulties that are likely to arise with S and N individually other than to say they knew it would be difficult and really hard work.
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was given further illumination. Some allegations that C had physically abused S many years ago were raised for the first time. It made for unedifying reading.
Discussion and conclusions
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here. Contact will continue to be as set out in the court order. N will have to understand and accept that the court considers that her relationship with her father and her Swedish
family
must be given priority. As she gets older I expect that she will be able to negotiate some changes to the regime if there are special events at school or with her friends which coincide with contact visits; but for the present the time spent with her father and her paternal must come first.
family without feeling that their behaviour is to continue to be subjected to oversight and interpretation. The way is clear for a swift return to court by the local authority should it be necessary.