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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> L, Re [2015] EWFC B235 (26 November 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B235.html Cite as: [2015] EWFC B235

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THE COUNTY COURT AT NEWCASTLE

		Law Courts The Quayside Newcastle upon Tyne NE1 3LA
		26th November 2015

1. His Honour Judge Wood : The court is concerned with the welfare of six children, two sib sets, unrelated biologically, but thrown together by the marriage of the first sib set's mother and the second sib set's father, a widower.
2. The children are A, B and C who I will refer to as the X children, ranging in age from 14 down to 11. The mother of the X children is RM, who is 32. Their father is FX, who is 37. They separated in November 2007, eight years ago.
3. The second set of children are D, E and F, and they are broadly, indeed in the middle exactly the same age, in the same range of 14 down to just under 11. I will refer to them collectively as the Y children. Their mother was YM, who tragically was killed in a road traffic accident in 2007; their father is YF, who was born in 1980, he is therefore 35. He then married M in the summer of 2008, they having cohabited since December of the previous year.
4. The Ys separated in September 2014, following which time all of the children continued to live with M, who I will refer to as the mother, until May 2015 at least, when the relationship with D and the mother broke down and D went to live with her maternal grandmother.
5. Northumberland County Council, on 22^nd October this year, issued care proceedings, having presented a care plan of essentially assessment whilst the other five children remained in the care of the mother. At the case management hearing, on 9^th November, it announced a revised plan, not evidenced by any written care plan, of immediate removal of the remaining five children from the mother, under an interim care order; a plan that coincidently, or not as the mother would say, the children's vastly experienced Guardian, Mrs Wendy McGaughey, had advocated in her initial case analysis, a plan now pursued before me, with the support of both FX and FY, but opposed by the mother. Judge Hudson gave directions at the case management hearing and adjourned that issue until yesterday and it was transferred to me when her list did not permit her to consider it.
6. I have said enough already to indicate to anybody listening or reading this judgment that this is a far from straightforward case. It is anything but. The history is immense, something that Mr Spain, on behalf the mother, prays in aid in telling me forcefully that there is simply no legal basis for the children to be removed, countered by all the other parties who say that just because mistakes may have been made in the past, it is not a reason for the court not to act now.
7. This is an interim hearing; the order sought is the most extreme, the making of interim care orders for all six children and the removal of the five living with the mother, and, as I will come to, the law is very clear as to very high standard of necessity that must be made out before such a plan can be sanctioned. I cannot avoid trying, as succinctly as I can, to say something about the history. This is a case that regrettably can be characterised as a private law dispute that has escalated hideously out of control. Whatever its rights or wrongs, the children have been caught in the middle. Indeed, the Y children have ended up living with a woman who has been their stepmother since 2007, to the exclusion, until recently at least in D's case, of their biological father and extended paternal family. One is entitled to ask rhetorically just how such a lamentable and sad state of affairs could come to pass.
8. There is in the history a sense of it repeating itself. In June 2010 all contact between the X children stopped with their father and in October of that year he made an application for contact, the mother have sought and obtained a non molestation order against him in July of that year. His application for contact was met with a barrage of allegations made by the mother that included serious sexual violence including rape, domestic abuse, as well as other serious allegations of financial irregularity. The court then ordered a fact finding hearing; that hearing never took place because on 23^rd May 2011 the mother complained that she had suffered a total amnesic episode; she could remember nothing and that is to be taken, it is said, literally, before that date. Since then, although she says that some patchy memory has returned, her case is that most of what she asserts, that pre-dates May 2011, is information re-learnt from family and friends.
9. The failure of the fact finding to take place led to a complete impasse; experts' reports, including a psychologist and a psychiatrist, failed to produce clear understandings as to how all of this could have happened and so, in 2013, the court ordered, and Northumberland County Council produced, a report pursuant to Section 37 of the Children Act, with a view to considering whether care proceedings should be brought. That report identified some serious concerns, including a concern about fabricated or induced illness, but it fell short of recommending care proceedings then, albeit it advised further investigations. It recommended contact which was initially successful for B and C, but wholly unsuccessful so far as A was concerned, who by then had developed a marked physical and emotional reaction to any mention of his father; a reaction which remains to this day. As a consequence of the report, a child protection plan was formulated, based on the risk of emotional abuse.
10. Without any resolution of the X children's situation, in September 2014 Mr and Mrs X broke up. Strikingly similar allegations were made by the mother against FY to those that she had made against FX. The police were involved. I understand that ultimately they indicated they would take no further action, as recently as September. All contact between the Y children and their father stopped. The following month, the court ordered an addendum Section 37 report, which was filed in February, with a very similar outcome. No public law proceedings were to be taken, but a child protection plan to be formulated for the Y children.
    
11. On 1^st March, the local authority was alerted to an apparently concerning incident where it was believed that the mother had attempted to take her life by wading into the River Mersey. She denies that, but accepts that as a consequence of what happened that day she did need hospital treatment. In May 2015, there was an incident between the mother and Be who, to put it neutrally, left the mother's care. E and F were interviewed by the police under the ABE procedure in respect of the mother's allegations about FY, and then C in June. There as been, so far as I can tell, no disclosure in relation to that process and so the court, as matters stand, has no information as to what, if anything, emerged from that process.
12. On 3^rd June, the local authority decided to issue proceedings. Inexplicably, those issues were not issued until 22^nd October, getting on for five months later. The rather unwieldy threshold document pleads the mother's dishonesty, with particular concern about allegations that she has made against both fathers, but for present purposes the headline concern is the alleged alienation of each child from their father. Judge Hudson ordered the mother to file a schedule of allegations; she has done so, alleging a serious sexual assault by FY and other abusive behaviour dating back as far as 2008, the beginning of their relationship. He denies it all.
13. Judge Hudson ordered a psychological assessment, directed at the issues of emotional harm and alienation and the case is timetabled to an issues resolution hearing in March next year. Having reached the view that the local authority did, to leave the children where they are, the local authority revised its position, following a recent advocates' meeting and decided to seek interim care orders. Noting the Children's Guardian's analysis of the mother's passive engagement with professionals, whilst at the same time alienating the children, that the risk of the litigation will increase the pressure on the mother and thereby on the children, and the long history of emotional harm that the mother's contention that the harm flows from the abuse by FY, the local authority found itself in agreement with her and concluded that there were no measures that could be put in place to protect the children and that the emotional or psychological safety of them required their removal. Its plan, in short, is that A should go into foster care; that B and C should go and live with their father; and that E and F should join D at their maternal grandmother's home, thus ensuring family placements for all save for A.
14. The only evidence called by the local authority was from the social worker of the last year, Laura Wheatley. The only other evidence called before me, and called at my request because of an issue that emerged in her evidence, was FY. The social worker had made a detailed statement, setting out the history in support of the original care plan, that is to say to maintain the status quo. It concluded that the local authority felt the case could no longer be managed under the umbrella of private law proceedings and, given the sheer number of incidents of instability that the children had suffered, it was a view of the local authority that the assistance of the court was required.
15. She made a further statement, following the change of plan which, from the evidence was on legal advice, amounts to a B-S analysis considering eight options identified with the pros and cons in respect of each. She told me that, considering by reference to the present and ongoing emotional harm, that since Be had moved to her grandmother's she had opened up and become more chatty; by contrast, she felt that the other children told her what she wanted to hear. She was concerned that, given that D was enjoying contact with her father despite refusing to see him before, that her siblings namely, E and F, were at risk of further alienation. She also told me that very recently F had said to her that he actually wanted to see his father, but since then she has had no opportunity to address this because, and these are my words, she is fire fighting other issues that arise constantly and coincidentally in this case.
    
16. Cross examined, she conceded that the Section 37 report more than two years ago identified exactly the same harm. That the need for support was known to the local authority three years ago; it was self evident that it was not until the actual hearing of the case management hearing, that the local authority considered removal, or at least advanced it. She acknowledged that the physical care of the children was good; that a good sibling relationship exists between all six children and that there had been no recent or new event that had triggered new concerns. Denying that the Guardian had influenced the decision that the local authority made, she attributed it to arising from the advocates' meeting, since which time C and B have in fact resumed contact with their father, which had broken down.
17. Asked about the evidence that she presented to the court of emotional abuse, she said:

"I don't have evidence that they are being emotionally abused but there is no evidence that they are not".

18. She accepted there was no expert evidence in support, but she maintained her belief that they were being so abused. A's extreme reaction to his father has been known for two and a half years; she was taken to a document that demonstrated it, and she agreed that above all determination of many disputed facts is required. She did not see how the local authority could work with the children in situ and short of 24 hour monitoring she did not see what measures could be put in place to protect them.
19. In support of the allegation of emotional abuse, she gave an example of B resisting contact with his father; him being talked around by her at school, but then a couple of days later seemingly inexplicably refusing to go. She cited this also as evidence of the guarded nature of the children's conversation, when living with their mother, as well as A's refusal to call his father anything other than by the initial of his first name. In a discussion about contact for the Y children and their father, she said there was nothing to stop it happening, but then some startling information emerged, that the Y children, whilst having sibling contact with D at their grandmother's, had in fact been sending texts to their father, contradicting the stated position that emerged when with their mother, with expressions of affection, the fact that they are missing him and expressing a desire to see him. This had come to the social worker's attention in a conversation with FY, it was difficult to judge exactly when, but some weeks ago was the impression the court was left with. But seemingly, she had had no opportunity to act on it or even take it up, and said that it had slipped her mind when presenting her evidence before the court. In answer to a specific question from Mr Gray, on behalf of the children, she denied that there was any other piece of information that was missing. On the back of that particular fact that emerged, I asked FY to give evidence. He confirmed what the social worker said; he was unable to produce the phone; it is apparently stuck in a car somewhere. But he confirmed that he had not mentioned it in his statement, saying that no had asked him about it. That was the evidence I heard.
20. On behalf of the mother, it was said the evidence did not begin to discharge the burden on the local authority. Even the texts, which excited such attention, could not have been regarded as significant, because no one had mentioned them at all, until Miss Callaghan, on behalf of FY, raised it in cross examination. Mr Spain complained that every adverse presentation of the children is attributed to the mother, despite, for example, A showing signs of an extreme reaction to his father, as long ago as 2012. Despite a raft of experts, over the years, no one had actually uncovered evidence of alienation and the local authority position was inexplicable, against such a long history of worrying presentations over many years. The father has acknowledged the long and difficult history, but the facts, it is said, now speak for themselves and for example the text exchanges should plainly carry more weight than they appear to have done at least in the preparation for this hearing.
21. D's change of presentation is not challenged by the mother and an experienced Guardian has formed a powerful view and, as I said at the outset, just because the local authority had not acted before, does not mean to say that its failure to act was the correct decision. The local authority sought indulgence in circumstances that are highly complex, dynamic and fast moving at that; it has required a vast amount of professional time,; the local authority says it is a case of incremental abuse, drip, drip negativity, as Miss Woolridge put it, and therefore she invited me to the view that it is possible, properly, to conclude from the mother's own statement that she is, in fact, wholly opposed to contact. She perceives herself as having a victim status, and there is direct evidence of her involving the children in the dispute, discussing things with them and so on. She is therefore unable or unwilling to promote a relationship with the fathers and the children therefore need to be removed from that environment.
22. The Guardian, whose report I have referred to already, held views that the local authority could not properly ignore, although counsel invites me to the view that in the context of a highly acrimonious dispute with serious allegations, they were now legitimate professional views and analysis, that translated into solid evidence. Taken in conjunction with the changes of views clear in D, inferentially available in respects of E and F, in the form of the texts, the court therefore did have reasonable grounds to believe that these children were suffering significant harm, of an emotional nature.
23. There is no dispute as to the law that applies. I was referred specifically to the case of LA but if may just go to what Black LJ said in local authority in Local Authority v KAB [2010] EWCA Civ 871 it is quite clear from the authorities beginning with LA that, at this stage, the decision taken by the court on interim care order must necessarily be limited to issues that cannot await the fixture, namely the final hearing, and must not extend to issues that are being prepared for determination at that fixture. Second, that separation is only to be ordered if the child's safety demands immediate separation. As she said, in that case, the important point was the very high standard which a local authority must meet in seeking to justify the continuing removal of a child from home. Thorpe LJ in Re K & H [2006] EWCA Civ 1898 identified the key paragraph as paragraph 16 in Re M (A Child) [2014] EWCA Civ 226, providing that interim removal is:

"Not to be sanctioned unless the child's safety requires interim protection".

24. A reference was made to another case in 2009, where the direction of the trial judge was approved in these terms:

"Whether the continued removal of the child from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care."

25. The court then went on to refer to the judgment of Wall LJ in that case, in which he indicated that psychological welfare was encompassed within the concept of safety and therefore was worthy of interim protection as well. I was reminded of other authorities and in particular the judgment of the President of the Family Division earlier this year in Darlington Borough Council v M [2015] EWFC 11, in which he reminded courts, faced with making decisions, this was a final care order in that case, but the principle is exactly the same, of this elementary proposition:

"The findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."

26. He went to indicate that:

"Much evidence that is found in such cases is hearsay, often second or third hand, whilst it is admissible, where it is disputed, a local authority, unable to produce the evidence to support it …" as he put it "… may find itself in great or indeed insuperable difficulties if a parent not merely puts the matter in issue but goes into the witness box to deny it."

27. He also referred to what Macur LJ had said in a case in 2011 emphasising the importance of the evidence in support of any analysis that is put before a court.
    
28. I have found this case immensely difficult; I have the gravest concerns for the welfare of all six children, who, regardless of the outcome today, have had their childhoods, for the last five or more years, dominated by extreme parental acrimony, separation and wholly inconclusive litigation. It is all too easy with hindsight to look back and see how things could or should have been done differently. Just because the local authority did not act previously before on numerous occasions, it certainly does not follow that a failure then to act was necessarily correct. It is not a reason not to act now, if the evidence justifies that course, but acting now has, as the President says and the cases show, to be supported by a proper evidential basis so to do, particularly when the stakes are as high as they are here.
29. These children, to the court's belief, have no idea presently that the local authority is asking that they be plucked from their home of the last eight years, separated from each other, and, in E's case, placed with a complete stranger. True it is, that in every other case the plan is a family placement, but even that is not without difficulty because none can be said to have a current established or secure relationship with the proposed carer. E and F, despite their recent texts, which obviously I have still not seen, have not seen their father for more than 12 months. A faces foster care; the plan being an immediate move to be broken almost straightaway, with five days of respite care next week, amounting to three changes in placement in the space of a couple of weeks.
30. Well having quoted the law, I must apply it. On the evidence before me, there are reasonable grounds for believing that each of these children is suffering significant harm, arising from this terrible dispute, and I include in that D, who seems to have been unceremoniously removed from her home and had to relocate and be separated from her siblings. It is, of course, some consolation to her that is living with a family member, but she only sees her full siblings once a fortnight as I understand it, and the other siblings with whom she has lived for so long, so far as I can tell, she does not see at all.
31. The harm identified in the B-S analysis produced by the social worker and the cons against maintaining the status quo are long, chronic and their cause remains as opaque as they have done throughout. As the social worker candidly accepted, there has been no precipitating event; indeed she went further in her evidence and said there was no recent event at all. Indeed, whether on legal advice or not, the statement of evidence on which she relied was exactly the same statement as that that she had put before the court in support of maintaining the status quo.
32. Analysing what she said, the height of it was that the change noted in D, who is said to be more open and willing to work with her, on analysis, was of limited assistance. Nothing has emerged, for example, by way of a disclosure. What she did say about D was that she had formerly been the quiet one, but is now more open and chatty. What I think I was being asked to infer was that that change in presentation bespeaks previous exposure to emotional abuse that has now been removed. But the evidence is frankly equally consistent with a quiet child, in a busy household, finding the peace and space to open up. So, whilst the local authority interpretation may be correct, I cannot find that there are reasonable grounds before me to believe that it is.
33. Then there was the recent evidence of F expressing interest in seeing his father, which unfortunately has not been followed up. It is a shame that it was not. He has plainly expressed an interest in seeing FY, but it has not been put to the test. What he said, I accept, is at odds with what he has said previously and what the mother says. There is no reason that the court can see not to test it out, whatever the outcome today, and had it been before now, the results might have been instructive. That is reinforced by the evidence of the text communications; those inexplicably were forgotten by the local authority, mother and FY, at least when they prepared their statements. It was only, as I say, raised in cross examination of the social worker, despite being known for some time. It has not been followed up, in circumstances where it might well have added strength for the local authority case, or demonstrated that measures, short of separation, could be deployed to safeguard the children in the meanwhile by, for example, promoting some contact. The same can be said of B and his changing his mind about seeing his father, as I have mentioned.
34. What I am left with is an abundance of evidence that has given rise to a reasonable belief that the children are caught up in the adult dispute; are aware of their surroundings and environment, including a mother who, in saying that she is "not effusive about contact", her words, demonstrates a mastery of understatement, and on that basis I am satisfied that the risk of significant harm is self evident.
35. In the case of the L children, there is in fact no one exercising parental responsibility. Their father cannot practically; the mother does not hold if so far as I can tell, nor does the maternal grandmother in respect of D. In the case of the X children, although there is an exercise of parental responsibility by their mother, the extreme reaction of A to references to his father and his anxiety generally point to a young person with very significant needs, that are not being met. It is questionable how, from the local authority plan, certainly as explained from the witness box, it seeks to meet them. A suggestion that a social worker would visit him once a fortnight did not exactly inspire confidence. There are also concerning issues arising from the fragility of B and C's contact with their father.
36. Without seeking any disrespect of the social worker, who I am sure is trying her hardest, it seems that the demands of this case, both the static and dynamic ones, are such that the court is fearful that the case has not had the time and resources it needs, notwithstanding the demands that I have no doubt it has placed upon the local authority.
37. So is an order necessary? It is a welfare question, but an order can only be made if it is necessary to establish a holding position, pending a full hearing. It is a question in the court's judgment separate and apart from the issue of removal, to which I will come. But I am satisfied, at this stage, that it is necessary for the local authority to share parental responsibility, because of the risk of harm to the emotional needs of these children, caught up in this dispute, and a clear issue as to the capability of the key adult - the mother - to meet those needs in circumstances where no other adult, save in D's case, is doing so.
38. Having so decided, does safety demand that the five children still living with the mother require the further interim protection of removal? As I have indicated, the test is a high one, and rightly so, because the stakes could not be higher: removal from the only mother the X children have known and the de facto mother to the Y children for eight years, in circumstances where they lost their own mother, and there is but a limited relationship with their father, at present. Again it is a welfare question, their wishes and feelings are clearly stated. There is a suspicion, a strong suspicion, that they are not accurately stated and the limited evidence to which I have referred would provide some support for that. Their physical and educational needs are well met; there is a very major question over their emotional needs and the likely effect of a change in their circumstances, such as this would bring about, is not easy to predict in each case. It will, I am satisfied, be utterly devastating to A, separated from his mother and his siblings and placed with a stranger. I am far from convinced that his two siblings will embrace the move proposed for them enthusiastically, and so far as the Y children are concerned, beyond them seeing their sister fortnightly, it is wholly untested. This former group of six, will be split three ways, that is another further very significant change. The cause of the harm they have suffered is apparent, if only from the adult dispute, but the attribution of fault is not for now. It is hotly disputed, as is the capability of the key adults concerned, and all of this has to be considered in the context of the range of powers available.
39. I am very clear that psychological welfare is every bit as important as other aspects of welfare and safety generally. I do not ignore the instinct of the very experienced Guardian whose knowledge of the case may be said to extend beyond that of the social worker by some way. All of those concerns may prove to be entirely well founded in due course, but on a cold analysis of the evidence put before the court, I have struggled to find that it reaches the standard required. The careful B-S analysis put before the court by the social worker identified long standing chronic concerns, but nothing that I could find proved, even to the interim standard, that would warrant taking this extreme step, having regard to the likely trauma to the children, as well as the issue of proportionality and the Article 8 rights of them. The cons of removal, on the evidence I have heard, do not satisfy me that they outweigh the advantages at the present time. If every child caught up in a chronic acrimonious adult dispute, of which I accept this is an extreme example, were to be removed from their residential parent, there would be even more applications for care orders than there are at the present time.
40. I want to say very clearly to the mother that she should take no succour at all from this whatsoever. The history gives rise to very concerning information indeed. I am not permitted to and I have not in any sense pre-judged it at this stage. I have been conspicuously careful not to do so, because what is required is the earliest resolution of the disputed facts. But if the allegations the local authority makes are made out, the outcome may be very different.
41. In the meanwhile, I see no possible basis for B and C not to continue to see FX regularly, nor do I see any reason why E and F should not have contact with their father. An obvious way to re-introduce that contact plainly exists, via the medium of the maternal grandmother, and that needs addressing urgently, and the local authority now invested with shared parental responsibility have the greater power so to do.
42. None of the matters the mother raises against either father poses any risk to these children, in the context of supervised contact, and I have very much in mind the remarks of Macur LJ in Re M [2013] EWCA Civ 1147, as well as those of McFarlane LJ more recently in Re A [2015] EWCA Civ 486, in which the safety of supervised contact is highlighted, and I regard the promotion of that as a priority from a welfare point of view, as well as informing the assessments going forwards. As I have said, what is urgently needed is a resolution of facts, which will inform the assessment, including the psychological assessment that I have already ordered, and ideally that needs to be done as soon as possible.
43. Any evidence of obstruction of this plan by the mother will be viewed by the court with the utmost concern; likewise, both fathers will equally be under scrutiny and the evidence will inform the assessments of each of them in due course. My proposal, subject to hearing submissions and practical difficulties, is to conduct a fact finding hearing, commencing on 4^th January, and I will direct that evidence be filed in support of such a hearing in time for an issues resolution hearing which I will conduct no later than 21^st December. I make it plain that at the conclusion of that fact finding hearing if there is evidence that so satisfies the court, there will be nothing to prevent it from revisiting the issue it has refused today.
44. The case is already timetabled to an issues resolution hearing in March and to a final hearing on 4^th April, but the timing for that can be reconsidered in the light of my proposal that we address the facts as soon as possible; not least, because I anticipate that it will shorten the final hearing. At risk of repeating myself, the issue of contact in the meanwhile needs to be addressed urgently.
45. So there will be interim care orders in respect of all six, but I refuse the local authority permission to remove the children from the mother at this stage.

End of judgment

We hereby certify that this judgment has been approved by His Honour Judge Simon Wood.

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