This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No BH17P00386[2020] EWFC 16Courts of JusticeDeansleigh RoadBournemouthBH7 7DSDate Date: 4.3.20
Before
HIS HONOUR JUDGE DANCEYSitting as a section 9 Judge
Between
JD and LDApplicantVB 1stRespondentB 2ndRespondentA 3rdRespondent(by her children’s guardian)RespondentJD and LD ApplicantsVB 1 st RespondentB 2 nd RespondentA 3 rd Respondent(by her children’s guardian)The Applicants appeared in person for in personKate Branigan QC and John Ward Prowse (instructed by Jacobs Reeves) for 1 st RespondentAdam Langrish (instructed by Abels) for 2 nd RespondentAnthony Hand (instructed by Pengillys) for 3 rd RespondentHearing Hearing dates: 10, 13, 14, 20, 22, 30 January 2020JUDGMENTHis Honour Judge Dancey:Index (with hyperlinks)This judgment is divided into the following parts (with paragraph numbers):
[2017]B was upset at the outcome of the enquiry and expressed that she didn’t trust the police. June/July 2019 274). On 4 June 2019 B told a teacher at her school that she had been sexually abused by the father and she wanted social care to follow this through and that it be reported to the police. On 5 June 2019 the school made a referral to the MASH. The school’s referral form noted B as saying she had told her mother. 275). B followed this up on 18 June, wanting to know what was happening. On 26 June the mother telephoned the school to see what was happening as B was not happy. The mother was told to call the police. 276). It seems that B called the police on 28 June saying that she had been told previously to call them when she was ready and she was now ready and wanted to provide details of the abuse. She did not want to be seen at home with her mother and wanted to be seen at the police station with a teacher. 277). B made follow up calls on 9 and 12 July unhappy that she had not heard anything. There is a note on 15 July that B did not want her mother to know she was reporting. 278). The police saw B at school on 19 July. She was asked to describe what happened but “she struggled and went silent”. She went on to give some information but, it seems, no more detail than she had reported previously. B was hard to engage with, would stare at the table, sit in silence or just stare at the officer. She said the police were all corrupt and why would no one believe her. How could they leave her sister living with a convicted sex offender (in evidence B denied referring to the father as a convicted sex offender). According to the police there wasn’t any reasoning with her. 279). The police decided again to take no further action. The parties’ submissions The mother’s submissions 280). The court should not overlook the toll these proceedings have taken on the mother. The case management has been tortuous and the father’s aggressive approach, his ‘machinations’ around participation, preparedness to give evidence and attempts to dictate the direction of the proceedings, have been difficult for the mother to cope with. Nonetheless the mother has acted with dignity and calmly and has made realistic litigation decisions in A’s interests. The difference was that, as was submitted to HHJ Meston in 2017, the father approaches the case on the basis of what is best for him, whereas the mother’s approach is focused on A and B. 281). This is realistically the last chance the mother has to re-establish a relationship with A during her minority. It is abundantly apparent that indirect contact is failing to maintain the mother and B as a reality fora. A. The father is unable to give A any sort of positive message about the mother and even when words are apparently positive they are undermined by the more subtle but equally important messages that A is getting. 282). This is a subtle form of alienation, with the mother projected as a bad person who has said wrong things about the father, who cannot obey the rules to the extent that A is not allowed to see her and who cannot be trusted to know where A is living or to attend her school. These are mixed messages A cannot reconcile and her vision of the mother is fading and is at high risk of becoming almost meaningless under a regime of tightly controlled and monitored indirect contact. 283). The single most important determination for the court is whether the mother’s more developed acceptance of the court’s findings means that within contact the mother is capable of conducting herself in a way that will protect A from B’s allegations and the mother’s belief system around those allegations. In respect of that the court knows there is no evidence to suggest A was made aware of B’s allegations: a) in the time A was living with her mother down to December 2015; b) whilst having contact in the immediate aftermath of the transition to the father’s care, and when A was upset and asking why she was no longer living with the mother and B; or c) in all the contact visits that followed. 284). Further, there is no evidence that, in the two years since the hearing before HHJ Meston in 2017, the mother has discussed or raised concerns outside the proceedings with professionals or others about the allegations. 285). Crucially, the father accepted in evidence that A had not said or done anything to suggest she had been made aware of the allegations. 286). The mother’s approach and insight have improved over the last two years. Whereas the father sees her as motivated to continue a personal campaign against him and the stepmother, in fact her motivation is solely driven by her concerns about A and her emotional welfare if she is to grow up without knowing her mother in any meaningful way. 287). The task for the mother of squaring the circle of living with B maintaining her allegations and seeing the need for A to be protected is impossible. Dr Jefferis’ approach to this is puzzling. The mother struggled in interview with Dr Jefferis, perhaps hampered by her dyslexia, and did not give of her best. 288). The guardian was right to be more reassured by what she heard of the mother’s approach, of thinking of the girls in separate compartments. The court should find the mother’s acceptance of the findings is genuine and demonstrates insight into how damaging it would be for A and her carers if she were to be made aware of the allegations. 289). Ms Branigan outlined the ways in which the father had failed to engage with the proceedings. The father had constantly expressed concern about whether the April 2015 findings were being challenged, notwithstanding the mother’s consistent position, reiterated by the court, that neither she nor B seek to re-open the findings. This almost obsessive seeking reassurance demonstrates that for the father these proceedings have become all about protecting himself and the stepmother, losing sight of the global needs of the child for whom he has caring responsibilities. This may have been laid bare had the father met with Dr Jefferis. As it is the court must rely on its own assessment of the father from the witness box. 290). In fact when the father did attend he showed few of the vulnerabilities the court had been led to expect, engaging with questions fully and demonstrating detailed knowledge of the papers. 291). It became apparent that everything is viewed through the prism of the father’s concerns, with the position that A is happy and settled, confirming everything he has said about contact in the past and justifying his approach now and that by removing the mother and B from A’s life all will be well. This demonstrates no insight into the damage to A done by cessation of direct contact and potential damage in the future. 292). The father has no idea how he will manage difficult questions by A, which she is already asking. Ms Branigan refers to Dr Jefferis’ assessment of A as a child who has suffered, and is at risk of suffering, emotional and psychological damage, who is ‘shut down’ emotionally, who is adept at keeping her emotions close to and not speaking about how she feels. She is worried about saying something wrong and is unable to speak freely about her past. The father is completely wrong to believe that all will be well through rigid indirect contact. 293). A is rapidly approaching the age where she will access social media. The father badly underestimates the challenges he will be presented with in the near future. It is not enough to say her social media use will be monitored and controlled if necessary. A may be resentful if her privacy is being compromised. To suggest the mother blocks A completely lacks insight into how damaging that could be for A. His evidence that he would not let the mother know if A asks to see her demonstrates both an intention not to allow the mother into A’s life and lack of insight into her emotional and psychological needs. 294). Ms Branigan suggests that the father has sought to manipulate the court at every turn. He knows exactly what he has to say and do. He says that he and the stepmother have always said it was ok for A to have a relationship with the mother and B and have tried to encourage it; that is patently untrue. 295). Any narrative to be given to A is the father’s own narrative. He does not want the mother knowing where they live. He would not tell her if they move. There is a lack of a coherent plan about consultation over schooling or any other decision-making. Any attempt to contact the school, doctors etc should be ‘criminalised’. 296). The father has for some time been threatening to walk away from A. He has now added to that the threat of his mental health issues. Ms Branigan expressly avoids submitting that, when the father’s bluff is called, he does not carry through his threats and the court should pay little heed to them, tempting though that is. It is accepted that the father’s mental health, and risk of deterioration, particularly in the context of poor physical health presents a risk that cannot sensibly be ignored by the court. Those risks have to be weighed in the balance with all other checklist factors in reaching a decision which has A’s welfare as the paramount consideration. The father’s position should not become the trump card outweighing all other considerations. 297). As to B, the father relies on Mr Stringer’s opinion that she was the most damaged child he had assessed, yet, when the local authority issued care proceedings and assessed her, they concluded the worst damage B had suffered was the devastating separation from her sister, coupled with the fear that she too would be removed from the care of her mother. In fact, we now hear of a young person who is working hard and doing well and see her in court conducting herself with astonishing dignity throughout – she is an impressive young woman. She has to live with the heavy burden that the current legal wrangle is largely the consequence of her actions. 298). There is complete agreement that A enjoys contact with her mother and B and that she would like to see them again. We have a surface picture of a lovely, happy and settled girl attached to her primary carers and without problem. Beneath that surface is the more worrying picture revealed by the section 7 report and Dr Jefferis’ assessment. It is not difficult to imagine how A’s suppressed emotions could so easily boil over in an uncontrolled and unpredictable way. 299). To endorse the status quo would be to fail A, leaving her at high risk of future emotional and psychological damage beyond that sustained already. 300). Ms Branigan invites me to reach findings on the basis of agreed or uncontentious evidence that direct contact would: a) reflect that A has enjoyed contact with her mother and continues to wish to see her; b) give them lifelong benefits of a unique and irreplaceable relationship; c) uphold their right to respect for family life; d) respect A’s underlying (agreed) wish to see her mother and heal the deep sense of loss she has suffered; e) mitigate the high risk of harm from being separated from a loving parent, discovering that was at the instance of her primary carers, and turning against them in the future; f) remove the impact on A’s sense of identity and self-worth of realisation that her mother is not worthy to act as her parent (because she has lied and doesn’t keep to the rules); g) reassure A about her mother’s wellbeing in a way indirect contact cannot; h) remove the risk that indirect contact with wither and fade away due to lack of clarity about its objectives and lack of trust and co-operation; i) avoid A having an incomplete, controlled and possibly misleading experience of her mother. 301). I agree these are all findings which I can and do make based on the evidence I have heard. 302). As to the orders sought by the mother, Ms Branigan reminds me that I am dealing with an application to vary an order made by consent in March 2017 after two days debate in the court corridor. 303). Working from the current situation to a place where A can have safe direct contact with the mother will take time and professional input. The mother would engage with a family assistance order under which the guardian helps A start to make sense of what has happened. She hopes the father and stepmother would also consent to be named in such an order. 304). The mother accepts the continuation of the existing non-molestation order without limit of time. She would accept such reasonable conditions or prohibited steps orders as the court may consider necessary around a direct contact order. The court should bear in mind that the mother has not sought to communicate with the father or stepmother or attend A’s school, has not breached the prohibited steps orders put in place by HHJ Meston and is not active on social media. There is no justification in converting existing prohibited steps orders into non-molestation injunctions. 305). As to her exercise of parental responsibility the mother should: a) on the basis she has no intention of going there, know where A is living 344. me when I was asked to direct disclosure of the father’s address to the court); b). be informed about foreign holidays; c). know which school A attends and be informed about any change of school; d). be able to go to the school for pre-arranged meetings when the father is not there; e). be consulted about senior school; f). be informed about any health concerns, significant medical issues or accidents and outcome of any related appointments; g). receive photographs of A and be able to send photographs of herself to A, particularly significant if direct contact is not frequent/regular. 306). The best outcome for A would be for her to remain where she is settled and have a full relationship with her mother (and sister) through regular contact. The worst outcome for A, says Ms Branigan, would be for the father’s proposals to prevail. There are undoubtedly risks in seeking to re-establish direct contact but the far greater risk would be to leave A in a position where her mother plays no relevant part in her story. The father and stepmother are going to do nothing to advance the relationship between A and her mother; it is the court’s obligation, it is submitted, to step into that breach. Submissions on behalf of B 307). Mr Langrish adopts Ms Branigan’s submissions. He notes a lack of case law about sibling contact, save Re H [2010] EWCA Civ 1200 where Thorpe LJ, inj a very brief judgment, found that the court had fallen into fundamental error in elevating the father’s anxiety above the importance of very real potential gains from indirect contact between a half-sister and two younger children. 308). As Mr Langrish points out, however, the court scarcely needs authority for the proposition that sibling relationships are typically the most enduring and deserving of the most careful consideration. 309). Mr Langrish is critical of Dr Jefferis’ unexpectedly dismissive and unbalanced approach, referring for example to the ‘possible benefits’ only to A of resumption of contact and, when weighing up the pros and cons, not being sure there were any positives to weigh. Given this approach it was unsurprising that his view of direct contact was negative. 310). Similarly, Dr Jefferis had thought it likely the mother and B would make negative comments to A in contact, yet had to accept there was no evidence of such comments being made in many months of contact and placing concerns about this ‘relatively low down the list’. 311). Dr Jefferis was unduly critical of the mother’s approach to the parallel narratives of B’s allegations and the court’s findings, despite my indication to him that the mother seemed in an invidious position. 312). Dr Jefferis accepted his report did not address medium and long-term issues, giving undue weight to short-term risks of disruption with barely a reference to the longer-term impact on A of losing direct contact with her mother and sister. 313). That said, Dr Jefferis had accepted as a ‘hopeful sign’ that B was now saying her view had changed and that she now felt she had said all she could. If the court accepts that, it does not shut the door on direct contact between B and A. Had Dr Jefferis not approached the balancing exercise in such a dismissive and unbalanced way, the door might be wide open. 314). Addressing the guardian’s differential view of the mother and B, Mr Langrish suggests that the guardian has not considered the steps that could be put in place to restrict further referrals by B to police, social services and others if direct contact progressed. The guardian had agreed there was no reason to think B would breach a court order and she came across as a mature and sensible young lady who presented herself with dignity in the hearing and “not what you expect from the 15 year old she is being compared with”. The guardian agreed that, if it was believed B would stick to orders, on that basis contact could happen, subject to the impact and risks around the father’s mental health. 315). B had explained her different motivations in going to A’s school and the police. She had explained how when going to the police and seeing Dr Jefferis she wasn’t as level-headed as she was now – all she could think about was the upset and grief she was feeling about not having A around. She understood the impact of her actions in the past and was focused now on re-building her relationship with A rather than pursuing allegations. Her evidence, says Mr Langrish, bore the hallmarks of sincerity and honesty and was consistent with her unplanned meeting with the guardian on 10 January. 316). The father’s evidence was littered with examples of glaring lack of insight into A’s present and future emotional needs and hugely underestimated the potential long-term impact on her of having no meaningful relationship with her mother and sister. Essentially his position is that this can be put to one side until A is 18. 317). Dr Jefferis talked about the extent of damage to A (in not having direct contact) depending what else is going on for her at the time (in terms of her father and stepmother). The evidence suggests that the father and stepmother cannot be trusted to adopt a child-focused and sensitive approach. Without skilful parenting A is likely to suffer with emotional dysregulation. Neither Dr Jefferis nor the guardian had met with the father. The court has at least had the advantage of forming a clearer view of him from his evidence. Mr Langrish noted the contrast between the medical evidence submitted by the father that he would struggle to concentrate or provide ‘adequate testimony’, and his statement that his mental health was ‘rock bottom’, with his appearance as a remarkably bullish and robust witness. 318). While B will agree any reasonable restrictions on referrals to social services or A’s school arising from contact that should not impede counselling or therapeutic intervention. Any suggestion that a non-molestation injunction is needed is firmly refuted. The only referral she has made in the last 2½ years was to the police in June 2019 supported by her counsellor. B is concerned about false allegations being made against her by the father (abusive calls and staring at him at the food festival). There is no formal application for an injunction against B, although I have deemed such an application to have been made. The evidence relied on by the father does not, says Mr Langrish, come close to imposing potential criminal sanctions on a young woman who has shown insight and desire to put the interests of her sister first. 319). The father and stepmother have not been able to demonstrate that they can be the safe custodians of what little could remain of a relationship between A and her mother and sister if direct contact is prevented. They have already distorted A’s view of her mother and sister. The balance tips firmly in favour of direct contact. The guardian’s submissions 320). Mr Hand described Dr Jefferis’ report as well reasoned and he held to his case in cross-examination. The guardian was impressed by the mother’s evidence and her views towards the mother are somewhat softer than the expert’s. The guardian thought the mother would have the ability to make contact childfocused. She did not have the same confidence aboutb. B. 321). To a greater or lesser extent, the mother, father and B are all at fault, or have been at some stage. The district judge had found, effectively, that A had suffered from parental alienation at the hands of the mother to the extent that justified a transfer of residence. Thereafter A became caught in the middle of the continuing litigation. 322). Now A’s welfare remains wrapped up in the welfare of her father, perhaps more so with the passage of time. She now effectively only knows one biological parent at first hand, with the mother becoming a more distant figure for her over the last 2 years. 323). The father’s mental health has deteriorated and, rightly or wrongly, he perceives that he and the stepmother are being harassed. His perception, which has some foundation in history (including more recently), is very important. Even if this is an “egg shell skull” case there is good evidence that the father has struggled and is struggling mentally. There is no suggestion A should be moved from his care. The risk of further deterioration of his mental health cannot be risked; it would simply be disastrous. 324). Further, A has spent much time with the stepmother as a primary carer who is at risk of walking out. How, asks Mr Hand, would A cope in the sole care of the father. This would again be disastrous for A. 325). Thus, making an order for direct contact, even identity contact, cannot be risked. HHJ Meston felt the father was telling the truth when he said he wouldn’t comply. The court could test the father out, but the increased pressures on him, on the stepmother and in their home would be high risk. 326). Judicial strategy requires that an order should only be made if the court intends to follow it through with enforcement. That would not be in A’s interests. 327). The facts are pretty unique – a child suffering from parental alienation, moving and now arguably suffering from parental alienation by the other parent. There is no easy fix. A has paid the heavy price of losing meaningful relationships with her mother and sister. To attempt to regain those relationships means risking the stability she has achieved, bringing it down like a house of cards and risking losing her relationships with her father and stepmother. 328). There is no right answer, just many wrong answers. It is about picking the less damaging option; that is the status quo A has experienced, and within which she has to some extent thrived, for the last 2 years. 329). This guardian’s heart is as heavy as the last guardian’s heart in recommending that direct contact, even identity contact, would be contrary to A’s welfare and should not be attempted. 330). Life story work is absolutely essential and the guardian seeks a family assistance order to enable that to be completed over the next 6 months or so. 331). The guardian also seeks a section 91(14) order until A starts the second year of secondary school (by my calculation September 2023). The father’s submissions 332). The father stresses that it is not that they will not comply with an order, it is that they cannot. To do so would cause emotional distress to A and to him and his wife and would continue the constant warfare that had been so toxic for A. a workable safe solution is needed. Putting A through 11 more years of tension, emotive handovers and emotional manipulation is far worse than being removed from direct contact. 333). The father says it is clear the hostility would never end and could not be resolved. Enough is enough. A is at severe risk of becoming embroiled and emotionally damaged for the rest of her life. He and his wife are both past breaking point. Mr Stringer was right that the children risk being run over by the tanks. 334). The father placed some blame on the courts and professionals. Nothing has been done to stop the unfounded allegations. B had not had the correct counselling. There has been no consistency of judges, Cafcass or even representation. 335). I pause there to point out that over 7 years of litigation, save for the appeal, three judges have conducted this case, the first for three years until retirement, the second for two years until he moved court and now me. At each of those stages there has been continuity. Likewise, new guardians have only been appointed because of the retirement or changed roles of the previous guardian. And although not all the lawyers involved in representing parties have been able to do so there have been some, such as Mr Hand and Mr Ward-Prowse, who have had long involvement. 336). The father says that court seems to have been more about slandering and character assassination than trying to find solutions. The fact that the case remains open prevents him getting the treatment he needs. 337). In response to the suggestion that he is not child-focused, the father says he is not trying to alienate the mother or B but rather has encouraged A to write affectionate cards and drawings. 338). The father points to Dr Jefferis’ assessment for evidence of the risks to A in contact and some of the emotive and confusing comments made by the mother in justifying the conclusion that direct contact could be an emotionally charged and disruptive experience for A rather than providing comfort, reassurance and a relatively straightforwardly enjoyable time with her mother and sister. While the father agrees that A would want to see them and be happy to do so, she would be unaware of the dangers that have happened and would more than likely happen again. 339). The father says that they sought help and guidance before and after the decision to transfer residence from social services and Cafcass to help A see things and understand in an appropriate way but were ‘stonewalled’. The guardian did see A at school and explained it was it keep her safe. They also asked for life story work to be done but were told the resources were not there to do it. They arranged for A to have support at school so she could speak freely there. 340). Telling A that the other parties made up lies about them is the truth – is it suggested they should lie or hide this? What would that promote other than distrust? 341). The order in March 2017 was their last attempt to try and make things work. They spent a long time coming up with a devised plan for contact, and in fact gave the mother and sister more than they were asking for, only to have it used within weeks to renew the abuse allegations. 342). The father agreed with Mr Stringer and Dr Jefferis and disagreed with the guardian – the mother has a personality disorder and is incapable of change. He referred to the number of people the mother had discussed the case with (see paragraph 18 of the judgment of Cohen J, referring to paragraph 76 of the judgment of HHJ Meston, where he says it is clear from the list that a number of the mother’s friends weighed in on the mother’s behalf during the period March to June 2017 and made representations, particularly to the guardian). He refers to the mother’s involvement in the referral to the school and police in June 2019, phoning the school to find out what was happening. 343). The father calls on the court to put in place a robust and effective approach that will last. 344). He had asked for a non-molestation injunction against B in 2017 but the court was hesitant given her age. Instead B promised the court to stop her actions or risk contact ceasing. When B went to A’s school he renewed his request but B was still under 18 and it was felt inappropriate to impose a restriction on her. 345). The latest expert evidence and police disclosure underlines everything the father feared would happen. The court should acknowledge what two psychologists have said and understand that the mother and B are solely motivated to get revenge and will never stop. A non-molestation injunction is, the father says, the only logical and feasible option to keep his family safe from this persecution. 346). To the extent that it may be said B is only just 18 and herself a vulnerable young person, the father says she has shown she knows and understands the difference between right and wrong and the consequences her actions would have on him and his family, as has been made clear to her by professionals and the court many times. If she is competent enough to bring her own application, she is mature enough to be held responsible for her actions. 347). B’s counsellors do not have access to the full materials and act on what they are told by her. This compounds and entrenches her beliefs which, the father says, she was most likely emotionally abused into believing by her mother’s lie. She will continue to spiral out of control until she comes under the care of a professional able to help her come to terms with the fact that she was not abused. 348). The father refers in his submissions to an extract from a police report in October 2014 expressing that pressure had been placed on B by her mother to the extent it was felt B was being emotionally abused by her mother. Each time B was seen she made no disclosure The word ‘disclosure’ is used in the police reports, although its use has been deprecated since Cleveland as pre-supposing there is something to disclose. and, when the mother was informed no action was being taken, B would say she had more to say but when spoken to would again make no disclosure. When the mother was again told no further action would be taken she made a complaint. 349). Dissemination of confidential court documents and continually making allegations breaches the father and stepmother’s Article 8 rights to respect for private life. I have already indicated that the father argues he should be allowed to clear his name and reputation by a letter from the court confirming the findings were unfounded or allowing him to disclose the court’s findings. He also seeks protection in respect of his Article 2 and 3 rights and reminds me of the provisions of PD 12J when seeking non-molestation injunctions and a section 91(14) order for five years. 350). The justification for a five year older is, he says, that it will allow A to settle into a proper routine and have the security she needs to know this will not be changed. It will give her primary carers the reassurance they need to move on from these proceedings and give A the love and support she needs. 351). The non-molestation injunctions sought against both the mother and B would, in summary, be in the following terms: a) not to contact the father and stepmother by any means save through solicitors; b) not to cause them alarm, harassment or distress; c) not to denigrate them and in particular not refer to or insinuate that the father is a child abuse or paedophile; d) not to contact A save as allowed by court order; e) not to encourage or assist any person to make a referral, complaint or accusation about the father being a child abuser or paedophile; f) not, without the court’s permission, to refer to these proceedings or the court’s findings to any person save their legal representatives and not to communicate such information in the media, internet or social media. 352). The prohibited steps order sought against the mother and B are (again in summary): a) not to go to A’s school; b) not themselves or by others to contact A’s GP, dentist or other medical professional except when informed of an emergency by the father or stepmother and on condition that no information relating to the father or stepmother is given to them; c) not without the court’s permission, save in genuine emergency) to contact or communicate with staff, any other child or their parents or guardians at A’s school. 353). The father points out that the wording sought in respect of the prohibited steps orders is similar to the existing orders, adjusted to take account of recent developments. 354). The father goes on to say he is happy for the mother and B to be in A’s life and for the mother to be part of the decision-making process regarding schools and they will consult with her. 355). He notes the mother is now seeking disclosure of his address, given under an assurance she would not seek it. He sees this as underhand and undermining of the court process. The stepmother’s submissions 356). The stepmother refers to the father’s vulnerable mental health state, brought about by the actions of the mother and B and confirmed by letters from mental health professionals. She regards it as unfair to characterise the father as wilfully not engaging with the court process and holding it to ransom and not being child-focused. What he needs is the protection of the court. 357). While there is no evidence that the mother has breached orders over the last 2 years, that does not mean she hasn’t been speaking to people inappropriately. People with personality disorder are, she says, incapable of changing their behaviour. Both the mother and B have a history of saying one thing to the court and doing another. She described the illusion of B now suddenly having moved on and developing a more mature understanding as all false for the court. They have heard it all before. The only deterrent is an injunction. 358). The stepmother complains that the guardian met with the mother and B but not her or the father despite them asking. This is not a complaint that was put to the guardian in evidence (because the father and stepfather were not present to question her and declined to put written questions) so I do not know her position on this. It would be unfair to criticise the guardian without her having an opportunity to respond. It may be that she took the view, as she was making a recommendation in line with the father and stepmother’s position, that it was more important to meet with the mother and B to make sure there was nothing in what they had to say that might affect her recommendation. 359). The stepmother refers to police records showing the mother shouting at B when she would not speak about the allegations and pursuing the referral to the MASH on 5 June 2019. She agrees with the police that the mother is the driving force behind the allegations. 360). The stepmother refers to emotionally charged cards sent by the mother to A since the 2018 order, despite being advised it causes A distress. It may be, she says, that it is B who writes “I miss you so much” but the mother writes in the same card. 361). She refutes any suggestion they are not child-focused or have sought to alienate A. She points to the fact that she turned her life upside-down and made a significant career change to become a full-time mother. The expert evidence shows no sign of alienation or manipulation of A by them. They always encourage A to talk about her feelings and promote her relationship with her mother and sister. They welcome Dr Jefferis’ suggestion of therapeutic work with A once this litigation has finished. 362). A has accepted the situation and is settled and stable and any attempt to restart direct contact would be disruptive and unsettling. The stepmother highlights as a frightening statement Dr Jefferis’ opinion that direct contact would place A at increased risk of emotional disorders such as anxiety and depression, relationship problems and educational and occupational underachievement. 363). Although on the surface A enjoyed her contact it was not a truly positive experience. 364). As A gets older and technology plays a larger part in her life, it may be suitable to move to communicating via email or messages but they would need to assess how A has developed as an individual to see if that was appropriate and safe for her. 365). They did not wish to control A’s relationship with her mother and sister any more than is required. They appreciate the need for her to understand the other side of her family and have a relationship with them. It had never been their intention to prevent this. They want A to think of her mother and B with warmth and have made clear to A that they love her very much. 366). The stepmother was concerned that their reinforcement over the years of the understanding given to A by the first guardian, following move to their care at the end of 2015, is being interpreted negatively. It will be helpful through life story work for A to hear the positive aspects of her relationship with her mother and B, however they cannot airbrush the negative truths. 367). The stepmother thought the life story work should be undertaken by a professional with experience of such work and was concerned that the guardian does not have such experience. This was not put to the guardian who clearly felt qualified to undertake such work. Doubtless this is a matter that can be addressed when this judgment is handed down and before the order is made. The stepmother refers to social work online guidance for life book work about the importance of an age appropriate truth being given. She then refers to the mother and B’s lies to social services, the police, the court and other professionals and friends as being the truth, on which it is difficult to place a positive spin. 368). The timing of therapeutic work (suggested by Dr Jefferis to start 6 to 12 months after the end of the litigation) should be taken into account when considering how A will benefit most from life story work. 369). The mother does not need their address. If they move address they will tell her the town/area they have moved to. She should not attend A’s school, which is her safe place, free from anxiety and worries. They will consult her about choice of secondary school but, as the mother agreed, the final decision should rest with them. Analysis of the witnesses and findings. 370). In this section I will consider the witnesses and make such findings as are possible and necessary to determine the issues. 371). I start with some points about credibility and reliability. 372). First, it is common for witnesses to lie in the course of investigation and hearing. They may do so for a variety of reasons – shame, misplaced loyalty, fear and distress being examples. It does not follow that because they have lied about one matter they have lied about everything: R v Lucas [1981] QB 720. 373). Secondly, the court should bear in mind that recall of events by a witness is a process of fallible reconstruction which may be affected by external influences and supervening events, moulded by the process of litigation and the drafting of lawyers, with past beliefs being reconstructed to make them more consistent with present beliefs and motivated by a desire to give a good impression: Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC (Comm), Leggatt J; Lancashire County Council v C, M & F (Children - Fact-finding) [2014] EWFC 3. The mother 374). Two judges, District Judge Willis in 2015 and HHJ Meston QC in 2018, have already made findings about the mother’s part in B’s allegations and her later conduct which I do not (and am not asked to) go behind. 375). In short, District Judge Willis found in April/December 2015: a) the mother was determined at any cost to ensure that A had no contact with her father; b) he doubted she had a genuine belief in B’s allegations (although did not make a clear finding to that effect); c) she tried to get friends unquestioningly on her side and influenced them; d) she was blind in her belief that something had happened (which would be inconsistent with a finding that she did not have a genuine belief in the allegations or at least that something had happened); e) she had coached B into making allegations; f) the mother would never accept his findings; g) she had an animosity towards the father so deep-seated that she would simply be unable to foster contact with the man she believed had abused her daughter. 376). HHJ Meston found in February 2018: a) although the mother said she accepted the findings, she maintained her belief in the allegations (to the extent that District Judge Willis did not find she did not genuinely believe the allegations, this finding by HHJ Meston stands); b) she had been unable to reconcile her wish to support B with her wish to see A and, ideally, to resume her care (at that point); c) he was not convinced by the mother’s assurances that she had ‘moved on’ although that was not in itself indicative that she would disrupt contact or destabilise A’s placement. 377). It is clear from the mother’s evidence before me now that she maintains her unhesitating and unwavering belief in B’s allegations. She accepted as much. To that extent she is unable to say she accepts the district judge’s findings as reflecting the true position. The question is whether she is trying to ride those two horses or whether her position is something different. 378). I return to the point that parties are, almost inevitably, unlikely to accept findings that disagree with their belief system. They do not simply ‘flick a switch’ as it has been put. That is part of the human condition. 379). It is important that the district judge did not make a positive finding that the allegations were untrue. He found that they were not proved. His comment that he could not say nothing happened may be regarded as unhelpful in terms of the mother (and B) moving on and in terms of the binary consequence of his finding. However, his finding was that the allegations had not been proved on the balance of probabilities. The binary consequence – that nothing happened – is the consequence of the finding, not the finding itself. 380). Dr Jefferis in particular is critical of the mother’s incoherent parallel position about this. I am less inclined to be so critical. Absent a finding that the mother does not actually believe the allegations herself, it is understandable that she finds herself in an irresolvable dilemma. My interpretation of her evidence is not that she genuinely accepts the court’s findings, but that she accepts the court has made the findings and the binary consequence for the purpose of the court’s decisions about A is that the matters alleged did not happen. That is in my view not an incoherent position to hold. 381). Both Mr Stringer and Dr Jefferis, more so Mr Stringer, thought the mother had traits at least of borderline personality disorder. Neither made a formal diagnosis. There may be enough in the mother’s behaviour generally to justify such a conclusion (coaching B, influencing friends, shutting out the father) but I am less convinced that Dr Jefferis is right to rely on what he regarded as her incoherent position as evidence of personality difficulties. The previous findings of the court have not been that the mother has knowingly fabricated false allegations in which she had no belief in order to alienate A from her father. On the contrary two judges have found that she has maintained her belief in the allegations and that is also a conclusion I reach on the evidence now. 382). I was impressed by the mother’s evidence. It was child-focused. If all that was “false for the court” the mother made a convincing job of it. She has been realistic in her expectations (not seeking A’s return, to re-open findings or discharge the non-molestation order). She has demonstrated her ability to comply with court orders. She has, I accept, continued to support B to the extent of following up her referrals to the police and the school but that is not inconsistent with her stated position about the allegations. 383). The evidence seems to point to the mother not knowing about B going to the school in May 2017 or to the police, via the school, in June 2019 until after the event. The only evidential exception is the note about B telling the school she had told the mother about repeating her allegations. The burden of proving that the mother did know in advance, or encouraged B on either occasion, is on the father and stepmother and they have not met that burden. 384). The crucial finding so far as the mother is concerned is whether she would be able to manage contact in such a way as to avoid emotional distress to A. Ms Branigan has referred to the positives which point towards the conclusion that the mother would be up to this, in particular the complete lack of evidence that the mother has at any point said anything to A. It is also the guardian’s view that the mother could manage direct contact safely for A. I agree that, all other things being equal and objectively speaking, the mother would be able to meet A’s emotional needs within contact safely. B 385). The findings that District Judge Willis reached in respect of B can be summarised as follows: a) when interviewed, what B said amounted to almost nothing and did not seem to be relating incidents that had actually happened; b) he seemed to accept Mr Stringer’s assessment of B as the most damaged young person he had assessed and his comment that she was “selfdestructing”. 386). HHJ Meston found: a) that B had been unable to control her strong, pervading belief that the father was a risk to A and had found it difficult to contain her sense of injustice; b) there was no evidence that B had communicated her allegations to A, but there was a continuing risk she might do so. 387). I agree the situation regarding B is different to that of the mother. It is evident from her dealings with the police over June and July 2019 and her meeting with Dr Jefferis as recently as November 2019 that B maintains a burning sense of injustice, particularly a sense of not being listened to or taken seriously. She was still worried about the risk to A living with the father as she saw it. 388). I also agree with the observations of B as calm and dignified in court and when giving her evidence. She struggled with some answers but did her best. 389). Once again, the question is whether B would be able to manage her own emotions in contact. 390). I share the concerns of both Dr Jefferis and the guardian about this. I have no doubt that B has come to understand that the return to court in May 2017 was a direct consequence of her visit to A’s school and that her referral in June 2019 will have exacerbated the difficulties (particularly coming on the back of the warning given by Cohen J). Her meeting with Dr Jefferis plainly did not go well. 391). When giving her evidence I am sure B had an acute sense of responsibility therefore for the way things are regarding contact with A. She is sensible enough to understand that if she presented in court and in evidence as she had done to Dr Jefferis that would pretty much end any prospect of direct contact, at least for her. 392). I do not accept that there has been a change in circumstances since the interview with Dr Jefferis on 12 November to justify the conclusion that B has drawn ‘a line in the sand’. B had learned at least two weeks earlier that the police were taking no further action. 393). Given the very recent context of her further allegations to the police, her attitude with the police (which I accept was accurately recorded in the police disclosure) and her attitude in interview with Dr Jefferis, I can have little confidence that B’s apparent maturity in court and in evidence could be maintained by her away from the spotlight of these proceedings. While I accept there is no evidence that B has talked to A about her allegations, there is a very real risk that she will be unable to contain her emotions and that contact may be used by her to monitor A, to resurrect further concerns about her safety and to make further referrals. The father 394). District Judge Willis’ impression of the father was generally favourable. There seemed to be an emerging child centred attitude and he recognised the importance of the relationship between A and her mother and sister. 395). HHJ Meston found: a) that it was certain, if A moved to live with the mother, the father would carry out his threat and have nothing more to do with A during her childhood; b) the father was bound to interpret the mother and B’s actions as part of a conspiracy to question the court’s decision and undermine A’s placement with him; c) the father was at the end of his tether and was genuinely concerned to protect himself, his wife and A; d) he was aware of the impact on A of ending direct contact. 396). I agree with Mr Hand that A’s welfare is wrapped up in the father’s mental health state. 397). Based on the unchallenged medical evidence produced by the father, I accept (and find therefore) that he has a diagnosis of adjustment disorder and has made two attempts on his own life as a result of the stress and anxiety caused by these proceedings and the allegations made by B. 398). I agree that much of the father’s evidence seemed to be more about him than about A and lacked child focus. I was concerned at his lack of insight in suggesting that the mother should block any attempt by A to contact her by social media. 399). I was also concerned that their negativity about the mother in particular would pervade the image the father and stepmother give A and I found that difficult at times to reconcile with their assertion that they promote the mother and B and do not seek to exclude them from A’s life. 400). I accept Dr Jefferis found that A did not treat her mother and sister as demonised figures and her profile did not suggest she had been subjected to an active campaign of alienation. 401). I remain concerned however at other aspects of Dr Jefferis’ findings about A, in particular her defensiveness and inability to open about her feelings. It is a reasonable conclusion that this child, as the object of litigation over the last 7 years, has been damaged by parental conflict from both parents. It is notable that despite that she seems settled and happy (superficially at least) and it should to be forgotten that she spent her formative years, when attachment was laid down, with her mother. I share the concerns of others that this superficial edifice is fragile and could easily crumble as A comes to ask ever more difficult questions which I do not consider the father or stepmother are equipped to answer satisfactorily. 402). I accept as genuine the father’s belief (supported by the stepmother) that he is too unwell to engage in these proceedings. He has convinced himself that he cannot cope with ongoing proceedings and he and his wife genuinely believe that to be forced to do so would be deleterious to his mental health state. There is however a degree of manipulation of the court and the court process. Objectively speaking it seems to me that the father is capable of more engagement than subjectively he believes. This is demonstrated by his ability to attend court and give evidence much more robustly than anyone anticipated from his state as reported to the court. His motivation in coming to court was to pursue his application for injunctions against the mother and B (hence his initial prescribed agenda of topics on which he was prepared to be questioned). 403). Although the father and stepmother maintain they are not seeking to hold the court to ransom there is a clear and, I believe, conscious element of that in their thinking and actions. That may be driven by circumstances as they see them but the father has allowed himself to be overwhelmed by those circumstances. 404). I agree, on the present evidence, that HHJ Meston’s finding that the father and stepmother are bound to perceive B and the mother as part of a conspiracy holds good certainly so far as B is concerned. Given the history I can also understand why they include the mother in that conspiracy, although objectively I consider that, although the mother has continued to provide direct support to B, she has to a degree endeavoured to distance herself from the allegations over the last 2 years. 405). Objectively speaking, the reasonable parent at this point would conclude that direct contact with A could be safely managed for the mother but probably not for B. 406). I accept however that, subjectively, there is a real and serious risk that if the court does order direct contact the father may a) make further attempts on his life, possibly successfully; b) even if not, suffer further negative impact on his mental health and ability therefore to meet A’s needs; c) relinquish care of A; d) relinquish any current relationship with A. The stepmother 407). I have not heard evidence from the stepmother other than to agree with the evidence of the father. I take into account her position statements. 408). Save that she seems to share some of the father’s lack of insight into the difficulties that are likely to present to them as A gets older, the stepmother does come across as focussed on A’s welfare. She has made significant adjustments to enable her to care for A. It is plain their relationship is close, to the point that the father would regard his wife as A’s primary carer. I accept Dr Jefferis’ assessment of the stepmother. 409). However, it is equally clear that the stepmother is naturally concerned to protect the father from anything that might impact on his fragile state and, therefore, the security of their marriage. So the stepmother’s perspective and approach has also been wrapped up in the father’s mental health state for a number of years of this litigation. 410). I accept that the stepmother has genuinely considered walking away from the marriage and that this remains a real risk in addition to those risks I have set out above in respect of the father. Is this a case of parental alienation? 411). In her submissions Ms Branigan submits that, even if this is not a case of active alienation by the father there is a more subtle form of alienation in play, with the mother projected as a bad person who has said wrong things about the father. 412). Mr Langrish does not describe this as a case of parental alienation but Mr Hand does. He says this is undoubtedly an alienation case. The findings of the district judge were, he says, in effect that A was suffering from parental alienations in the care of the mother. Further, Mr Hand said A is now arguably suffering from parental alienation by the father. 413). Parental alienation is not defined. Cafcass understand it to mean “when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent” https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parental-alienation/ . Implicit within the concept of parental alienation is that the child has been ‘turned’ against a nonresident parent. 414). Alienation itself exists on a spectrum, ranging from the unconscious undermining of a child’s relationship with a non-resident parent (including the more subtle form described by Ms Branigan) to the out and out deliberate campaign designed to destroy the relationship. The Cafcass Positive CoParenting Programme is careful to distinguish alienation from justifiable rejection (because of the non-resident parent’s behaviour), alignment with the resident parent and attachment issues. All of these exist on a spectrum and may overlap. It is not uncommon to see cases which feature all, or any combination of, justifiable rejection, alignment, attachment and alienation. It is essential that the court understands, through findings if necessary, what it is dealing with. 415). In fact, the present case suggests that A was not alienated in the care of either her mother or her father. If A had been alienated from her father by her mother even at 4 I would have expected greater resistance by her to the transition of her care to the father than appears to have been the case. And now, although A expresses some ambivalent thoughts about her mother and sister (borne out of suppression of freedom of expression) she is generally positive in her responses to direct contact and says she would like to see them. Dr Jefferis did not find indications of alienation in A. 416). So I do not see this as a case of parental alienation. There is a case for saying it could be attempted alienation, but that would be to suggest a deliberate campaign. I prefer to see this as a case of implacable hostility or intractability, both by the mother in 2015 and the father and stepmother now. The welfare checklist (a). A’s ascertainable wishes and feelings (considered in light of her age and understanding) 417). To ascertain the wishes and feelings of a child experiencing parental conflict and divided loyalty between warring parents is no easy task. Dr Jefferis explains A’s defensiveness and how she is emotionally closed down. I have no doubt that she is well aware of the hostility between her parents through bitter experience. It is unsurprising therefore that she finds it difficult to talk about issues around relationships and contact. Any positive comment she makes about her ‘other family’ is likely, through her eyes, to be seen as betrayal of those she is closest to. I also suspect, although this has not been canvased in the evidence, that she is well aware that her father is unwell at the moment, mentally and physically, and is anxious about his vulnerability. She may see her defensiveness as protective of her vulnerable father. 418). All that said, it seems common ground, and I agree, that A has enjoyed her contact with her mother and B and would like to see them again. I regard any hesitation in this respect when speaking to the social worker or Dr Jefferis as symptomatic of the internal conflict she experiences as a result of the adult disagreement. 419). A is clearly happy and stable living with the father and stepmother and sees them as her primary source of care and security. I have no doubt that A would wish for that to continue. 420). In the longer term it is safe to assume that A would wish to have meaningful relationships with all the important adults in her life. (b). A’s physical, emotional and educational needs 421). This is a crucial factor. Although I am concerned here particularly with A’s emotional needs I also consider her psychological needs. 422). A has two fundamental needs. The first is for stability of placement; the second is for meaningful relationships with all the important adults in her life, including her mother and sister. The essential question in this case is whether both of those needs can be met satisfactorily and, if not, which weighs heavier in the balance. 423). The need for a stable placement is core to A’s emotional security. I have to agree with Dr Jefferis and the guardian that this need takes priority. I deal below with the risks to A if this need is not met. 424). The need for meaningful relationships is also very important and weighs heavily in the balancing exercise. It has, however, in my judgment, to be subject to the priority need for security of placement. 425). The question the appeal raised is how the need for meaningful relationships is met. Involvement of both parents within section 1(2A) expressly encompasses the possibility of indirect contact. The question is whether indirect contact can preserve meaningful relationships or whether that can only be done through some form of direct contact, whether regular contact or less frequent identity contact. 426). If it were the case that less frequent (identity) contact could be managed where more frequent contact could not, then the case for identity contact might be made subject to two caveats: a) there is force in the point made by the father that each occasion of contact would be a ‘bereavement’ for A with the tension of a big build up and realisation at the end that she would not be seeing her mother and/or sister again for 3 or 4 months; b) there is also a risk, as the guardian recognised, that identity contact may not satisfy A’s need for a more regular direct relationship and may stir up unfulfilled need. 427). A has a further fundamental need essential to her emotional and psychological wellbeing. That is to grow up free, so far as possible, from parental conflict. This does not just mean avoiding tensions that might arise from handovers and possibly emotive direct contact. It also means all the adults giving her the same positive, emotionally supportive and consistent message that all of them love her and want what is best for her. If any of the adults convey to A that another adult is not to be trusted, that qualifies the positive message she needs. It makes her aware of mistrust existing between the adults. It prevents her having emotional permission to express herself freely about her needs. It creates the potential for divided loyalties. This will cause lasting emotional harm. (c). The likely effect on A of any change in her circumstances 428). The re-introduction of direct contact after two years would be a significant change of circumstances for A, whatever its frequency. If it could be managed by the adults I would consider that to be a change of circumstances bringing immediate and long-term benefits to A. 429). The risk is that direct contact is not managed, resulting potentially in loss to A of her father, her stepmother or at least ongoing tension and upset surrounding contact and, likely, more litigation. Those would be changes of circumstances with immediate and long-term negative consequences, possibly catastrophic. (d). A’s age, sex, background and any other relevant characteristics 430). At 8 A has reached the stage in her development where we can expect her to be asking more difficult abstract questions. The questions will get more difficult as time goes on. These years, leading up to her adolescence, I would regard as critical. 431). A has, and I use the term advisedly, been the object of litigation for 7 of her 8 years. She has suffered the loss of relationships with her father and then with her mother and sister. There has barely been a time when she has been able to enjoy relationships with them both at the same time, and certainly not in an uncomplicated way. Her perspectives of the non-resident parent have also been complicated by the adult perspectives communicated to her directly or indirectly. 432). Although A presents as happy and settled I see that as a fragile carapace. 433). It is also highly likely, in my judgment that there will come a time, quite soon, when A will be thinking about whether to contact her mother and B herself, probably through social media. It will not be difficult for her to find them, even if the mother does not use social media. The question is how that is handled by the adults. If A thinks she is going behind her father’s back and being disloyal that is likely to mean either that she doesn’t make contact, probably resulting in frustration and resentment, or that she does but behind closed doors, creating feelings of guilt and disloyalty. Neither will be healthy for A. (e). Any harm which A has suffered or is at risk of suffering 434). Unresolved and enduring parental conflict causes long-lasting emotional damage to children, affecting their mental health and life chances. This is a key message that is reflected, for example, in the DWP Reducing Parental Conflict Programme See https://reducingparentalconflict.eif.org.uk/ and the research of Professor Gordon Harold and others See http://www.sussex.ac.uk/broadcast/read/34955 . 435). Whether or not this is a case that has involved parental alienation (and I have concluded it is not) A has been exposed to high levels of parental conflict over 7 years. It is inevitable that this experience has been harmful for her. I accept there is no evidence that the mother (or B) has discussed B’s allegations with A. I accept that the father and stepmother have said to A that her mother and sister love her. I find also though that A has received very negative messages from each of her parents through their words and actions about the other parent (and B in the case of the father and stepmother). 436). What B is in fact told through life work will be a matter for professional advice and guidance. For her to have received a message the bottom line of which is that her mother and sister have lied and cannot be trusted, while being the truth as the father and stepmother see it, undermines A’s relationships with her mother and sister. 437). It is unsurprising in these circumstances that Dr Jefferis found A to be defensive and concluded that she had already suffered psychological harm. Her apparent resilience is fragile. 438). A has also suffered the loss of relationships with her mother and sister other than through indirect contact over the last two years. Although Dr Jefferis might have expressed more clearly the longer-term impact of this on A, he did address this in his evidence, if not in his report. He identified risks to A’s selfesteem and of self-harm and emotional dysregulation. These are all likely to have a long-term impact. 439). My own view is that for A to lose meaningful relationships with her mother and sister through direct contact and to risk such relationships as there are dwindling through indirect contact would be nothing less than a tragedy for her. It almost goes without saying that for a child to grow up into adulthood without such important relationships, relationships she would want to happen, is a huge deficit for her. 440). More catastrophic though would be the harm to A if, in pursuing those meaningful relationships, she lost her father, or a relationship with him and/or her stepmother. HHJ Meston said he was certain the father would walk away. I am not quite so certain, but I consider the risk of him either suffering a drastic failure of his mental health or simply walking away is very high. Either way, it is not a risk I can ignore. While the father’s medical evidence may be seen as self-serving, deriving largely from what he has told his treating medical practitioners, there is an unchallenged psychiatric diagnosis of adjustment disorder and two attempts on his own life which everyone accepts must be taken seriously. 441). I say that outcome would be more catastrophic for two main reasons. First, it would be the loss to A of her current primary carers. That would be a more profound change of circumstances for her that continuation of the loss of relationships with her mother and sister in circumstances where she has adjusted to that change, albeit superficially. Secondly, loss of her father would not mean automatic restoration the care of her mother. It is common ground that is not possible, at least at present. The likelihood is (unless the stepmother assumes sole care of her) that A would end up in foster care, an outcome that nobody considers would be in her interests. There is also a serious risk that A may come to blame the mother (and perhaps B) for the loss of her father or relationships with him and/or the stepmother. 442). I regard the risks around less frequent identity contact be broadly the same. 443). Whatever the decision about direct contact, I regard A as being at high risk of psychological and emotional harm in particular to her sense of identity, fulfilment and in her ability to regulate her emotions as she moves forward towards adolescence. 444). Whether this risk can be mitigated or avoided lies in the hands of the adults, not the court. (f). How capable each of the parents, and relevant others, are of meeting A’s needs 445). This includes of course the stepmother but also, to the extent that she is now an adult seeking direct contact, B. 446). It is common ground that the mother could not currently meet A’s primary care needs if she were to lose her current primary carers. I have found that the mother would be able to manage direct contact. Considerable professional work would be required with the mother and with A in order to prepare both for such contact and to supervise it. 447). For the reasons I have given, I do not have the same confidence at this stage in B’s ability to manage direct contact with A and therefore meet her needs. As I shall come to, I hope that may be possible in the future. 448). While I believe the father and the stepmother are well intentioned and absolutely believe that they are acting in A’s best interests, I consider that the father’s mental health state so overwhelms and dominates their thinking that they are unable to have full insight into A’s longer-term needs. 449). They are right to want an end to this litigation for their own and A’s benefit. They are also right to acknowledge the importance to A of a relationship with her mother and sister, to tell her that they love her and to promote that relationship through positive indirect contact, as they have done. 450). The problem lies in their inability to see longer-term the problems that are being stored up through lack of direct contact. They have no real plan how they will deal with difficult questions and issues other than saying they will take professional advice. 451). I accept that inability turns on the incredible stress brought about by these proceedings and the allegations made over a number of years. For that the mother (and B) have to share responsibility. 452). I am not naïve enough to think that my finding that the mother could manage contact is any more likely to ‘flick a switch’ and change the father and stepmother’s belief systems than the district judge’s findings in 2015 did for the mother. To that extent the problem for them is just as much part of the human condition as it is for the mother. 453). At the moment though it seems to me that the father and stepmother are quite unable to meet A’s need for direct contact with her mother (and sister, were she found to be able to manage it). (g). The range of powers available under the 1989 Act 454). The potential range of powers under the Act (not including therefore nonmolestation injunctions) seems to me to be: a) to order regular direct contact (supervised or otherwise); b) to order less frequent identity contact (again, supervised or otherwise); c) to continue indirect contact; d) to regulate behaviour thought prohibited steps orders; e) to impose conditions on contact under section 11; f) to direct the local authority to report (again) under section 37; g) to make an interim care order alongside a section 37 direction; h) to make a family assistance order for up to 12 months naming those who are prepared to consent to it (principally to enable life story work); i) to make an order under section 91(14) restricting further applications without leave. 455). Of course I need and should only consider realistic options. I mention at (f) and (g) above the possibility of a further section 37 direction with or without an interim care order because that, theoretically at least, is within the court’s powers. This is not advocated by anybody, but the experience of the appeal before Cohen J tells us that, advanced or not, the court must consider all available alternatives. 456). I can deal with the option of section 37 and interim care shortly. It is common ground that A is settled and apparently happy in the care of her father and stepmother, even if there are worries about her emotional and psychological wellbeing. There is no realistic prospect that a local authority will consider the threshold met at the moment for care or supervision proceedings. The grounds for interim care (the safety of the child requiring immediate separation) are plainly not engaged here. 457). Of course, section 37 is not just directed at the question of care or supervision for it also requires a local authority to set out the support it proposes to give the family (or, if it does not propose providing support, giving the reasons why not). 458). There is an argument in this case, given the identified harm, that the local authority may regard A as a child in need, requiring planned support. That is not a possibility I entirely discount but I have not heard argument on it. As this judgment is going out in draft there will be an opportunity for the parties to consider that with the local authority before it is formally handed down. 459). And of course, if the local authority does regard A as a child in need, that may enable support for life story work with A, and possibly professional support for and work with the adults, rather than through a family assistance order. 460). Otherwise it seems clear to me, as is common ground, that a family assistance order should be made directed to Cafcass to advise, befriend and assist those named in the order. I invite the father and stepmother to tell me whether they would consent to be named in such an order alongside the mother and A (and possibly B) Analysis of the options and conclusion Direct contact 461). The welfare of the child requires holistic analysis of the pros and cons of the realistic options. 462). I have in the course of addressing the welfare checklist set out the benefits (needs) and risks (harm). All these cases require the court to consider what the risks are, what the consequences of the risk would/could be, whether the risks can be managed and then to make an order proportionate to those risks which complies with Article 8 and is in the best interests of the child. 463). Stripped down to the essentials I need to weigh in the balance: a) the long-term benefits to A of re-establishing a meaningful relationship with her mother and/or sister b) the risks in doing that of destabilising her current placement and loss of her primary carers, permanently or during her childhood; c) the long-term emotional damage to A of loss of relationships with her mother and sister. 464). Although section 1(2A) of the 1989 Act envisages parental involvement through indirect contact, I accept that is unlikely in the long term to meet A’s need for meaningful relationships with her mother and sister. It is better than nothing as it serves to remind A about her mother and sister but it is no substitute for a direct relationship. I also accept that indirect contact may be more difficult to maintain and may give rise to more questions than answers as A gets older and more inquisitive and continues to ask ever more difficult questions about why she can’t see her mother and sister. 465). I have already identified why I consider the short and long-term impact on A of losing her primary carers would be greater than continued loss of relationships with her mother and sister. The risks about the latter are certain if direct contact is not ordered. The risks of the former (if it is ordered) are not certain but sufficiently high in terms of likelihood and consequence that I am not prepared to take the chance. 466). Could the risks be managed? If direct contact is ordered I have little confidence that either the court or the adults would be able to manage the risks. In this I am in agreement with Dr Jefferis and the guardian. I find it difficult to see how the court could enforce an order for direct contact when the father threatens to walk away. And what would be the point of punishment for its own sake rather than to secure compliance? 467). The risks apply were the direct contact to be frequent or identity contact. Although the opportunities for tension and anxiety might not arise so often with identity contact, the build-up and let down for the adults around less frequent contact does risk more emotive occasions and, perhaps, heightened monitoring of signs in A that all is not well in the care of her father and stepmother. And there are added risks of A asking more questions than identity contact answers and re-kindling a need that is unfulfilled by infrequent meetings. 468). So I have come to the conclusion on balance that the risks for A around direct contact outweigh the immediate and long-term benefits that it would bring her. As a result the order for direct contact of March 2017 is varied and the order for indirect contact made by HHJ Meston QC in February 2018 confirmed with the adjustments indicated below. Prohibited steps orders/mon-molestation injunctions/exercise of parental responsibility 469). The mother is already subject to the prohibited steps and non-molestation orders I have summarised. 470). The father and stepmother have produced no evidence to show that the mother has failed to comply with those orders, certainly in the last 2 years. I accept that the mother has sought to support B. That is not a ground in my view that warrants further intervention. 471). So far as the mother is concerned I cannot see that it is either necessary or proportionate to enlarge the existing prohibited steps order or to step any of those orders up to non-molestation injunctions. The existing orders will continue. 472). As far as the mother’s exercise of parental responsibility is concerned, I agree with Ms Branigan that the mother should: a) be notified in the event of any change of A’s address within the jurisdiction and told the area of any move, but not given A’s address; b) be informed about foreign holidays; c) know which school A attends and be informed about any change of school; d) be consulted about senior school; e) be informed about any health concerns, significant medical issues or accidents and the outcome of any related appointments; f) receive photographs of A; g) be able to send photographs of herself and B to A as part of her indirect contact. 473). Mostly this is the provision of information to the mother which could not impact on the security of the father and stepmother. The one point that was in issue was the provision by the mother of photographs. I am requiring this because it seems to me the minimum necessary to keep the mother and B visually alive in A’s mind and to mitigate the very real risk of her memories of them dwindling on the vine. If the father and stepmother truly wish to promote the mother and sister’s relationships with A I am sure they will understand the need for this. As Dr Jefferis said, this at least is something the father and stepmother should be able to manage. 474). I do not agree the mother should be given A’s address. This would run contrary to all the indications given to the court on behalf of the mother when seeking disclosure of the address to the court and would rightly be regarded by the father and stepmother as the start of a slippery slope. 475). I do not agree that the mother should be able to attend A’s school for the reasons given by Dr Jefferis – essentially that may be seen as threatening A’s safe space. It may be said A need not know but that would mean keeping secrets and somebody would be almost bound to let slip that she had been there. For the mother to go to A’s school but for A not to be able to see her could cause real problems for her. 476). So far as B is concerned the position seems to me from the evidence to be as follows: a) she went to A’s school in May 2017; b) she made a referral to the police in June/July 2019 via her school and followed it up; c) she has continued to receive counselling, presumably on the basis that the matters alleged happened. 477). Apart from that I have not seen any evidence of anything said by B to third parties or to A direct about the allegations. I have found the allegation that she made the ‘paedo’ call not proved. 478). The father asks me to ‘clear his name’ and to stop B from defaming him. I make clear that proceedings of this sort are about the welfare of the child and never about ‘clearing names’. 479). It would be wrong as a matter of public policy, it seems to me, to make an order that prohibits a person reporting allegations to the police or other responsible authorities or seeking counselling in respect of those allegations. I repeat that B is not bound by the 2015 findings. 480). There is a further point. If B is to have any chance of persuading the father and stepmother over time that she has indeed drawn a line in the sand, her chances of doing so should be improved if that has been achieved without the threat of criminal sanction hanging over her head. 481). In these circumstances I do not regard the making of a non-molestation order in respect of B as necessary or proportionate. 482). I do consider it would be sensible if any professionals working with B had access to this judgment so they can understand the family context. In this respect I note the very recent observations of Knowles J in A City Council v A Mother, AB and Others [2020] EWHC 217 (Fam) about the importance of professionals working with families understanding context. I understand of course that organisations specialising in counselling victims of sexual abuse approach counselling on the basis that the abuse alleged happened. As the father says, there is a danger, if it did not happen (and that is the basis on which the court proceeds), that B’s position will simply be reinforced and potentially further referrals encouraged. 483). I am not going to trespass further into the counselling or therapeutic work that B undertakes other than to say that Dr Jefferis’ recommendation for therapeutic work by professionals not involved in sexual abuse counselling and support should be considered by B (supported by the mother). If that work is not done it opens up continued argument by the father that there has been no change. Further I will give permission for this judgment to be disclosed to any professional working with A in relation to the matters raised in this judgment. 484). I have considered whether to require disclosure by B of the judgment to counsellors or other professionals. I am not going to do so for two reasons. First, I consider it would step too far into the counselling relationship. Secondly, that would require a condition attached to the indirect contact order (that is the only vehicle I can think of that could mandate disclosure). In my view any conditions on that order should relate to implementation or exercise of the indirect contact itself, not to wider questions. Section 91(14) order 485). There seems to be common ground that this litigation needs to end and for an appreciable period. It has been incredibly stressful for all the adults concerned and has impacted on A. It has certainly impacted seriously on the father’s mental health. 486). The father seeks a period of 5 years. He wants to be able to tell A that the court has said no contact for 5 years. That also was Dr Jefferis’ position. 487). About that I say first, 5 years is a disproportionate interference with access to the court, secondly, that I would be worried about the message the father would wish to give A. While I accept A would welcome some clear outcome and certainty about her situation that needs to be done carefully and with professional advice. If A wants to see her mother and sister, and she does, to be told the court has said you can’t see them for 5 years is likely to further shut her down emotionally, potentially with consequences for the father and stepmother later. 488). The guardian suggests an order until A reaches the second year of senior school. I agree with the guardian’s logic. When I sent this order out in draft I understood that would take us to Spring 2023 and proposed a 3 year order to allow time for any further judicial consideration to be completed if possible before A started a new academic year. The stepmother pointed out however that, as A is a ‘summer baby,’ she will not start senior school until a year later. Remaining faithful to the guardian’s logic I will therefore make a 4 year order. That is, I consider, a necessary and proportionate interference with access to the court (by requiring a filter) to allow A a period to settle at senior school without the additional uncertainty and anxiety of further litigation hanging over her at a point of transition. 489). The order will provide for a process whereby any application for leave should be considered by me (if available – if not another circuit judge) without a hearing and without notice to the other parties in the first instance. That gives an opportunity for the court to consider the application on paper and to refuse leave if it is considered a need for further judicial consideration has not been demonstrated. If there is an arguable case for leave, an oral hearing can be fixed on notice to the other parties. If leave is refused on paper, an oral hearing can be requested. The future 490). I conclude this judgment with some observations which I very much hope will help achieve a better outcome for A in the foreseeable future. It is effectively the same plea the district judge made in December 2015. 491). If there is to be any hope for the re-establishment of A’s fundamental relationships with her mother and sister in the future the following things, in my view, need to happen: a) now that the proceedings are concluding, the father needs to get the therapeutic help he so obviously needs to reduce his levels of stress and anxiety and to restore his mental health; b) I give permission to the father to disclose this judgment to any treating practitioner in the hope it will be of assistance in that journey; c) the mother and B need to demonstrate over the passage of time that they are able to accept that the court has made the findings it has and that A is not at risk from her father; d) while I do not impose any restraint on B, she needs to understand that further referrals (and any support the mother gives) will undo any progress made to reduce the father and stepmother’s anxieties and push back further any opportunity to re-establish relationships with A; e) professional work with and support of the mother and B to address their approach to the allegations will not only assist them but may also, in time, persuade the father and stepmother that they really have been able to move on and no longer pose a threat; f) I hope that over time, with more space and less stress and anxiety, the father and stepmother will be able to reflect and consider whether the very strong feelings, emotions and worries they have now have mitigated to the point where they can meet A’s need for those important relationships with her mother and sister; g) if that does come to be the position I would encourage the adults to seek professional help to resolve issues out of court rather than immediately seeking leave or making application to the court; h) the adults need to accept personal responsibility for the past and what happens to A in the future; attribution of blame is very easy in these high conflict cases, at the expense of personal agency; i) and the father and stepmother in particular need to embrace the fact that A, as she gets older, will in all probability be thinking at least about contacting her mother and sister, probably by social media – they need to think how they will manage that if matters stay as they are; j) most importantly, A needs a consistent and, so far as possible, narrative given with professional support and guidance, that gives her a more balanced perspective and she needs an environment within which she is able to express her feelings freely, whether to her father and stepmother, her school or elsewhere – no divided loyalties; k) as Dr Jefferis says, how A does will largely depend what is going on in her life – and that will largely be down to the father and stepmother. 492). I hope that the local authority will understand from this judgment just how vulnerable and at risk emotionally A is and will actively consider the support it may be able to provide to the family, whether through Early Help support, a child in need plan or otherwise. 493). Finally, I hope very much that time and understanding will enable a clearer perspective by all about A’s needs as she grows up. The outcome of these proceedings is, as everyone agrees, a least worst outcome for A. To achieve a best outcome for her will need all the adults in her life to accept their responsibilities and move on. Postscript 494). I sent this judgment out in draft on 26 February and it has been seen by the local authority. I have formally handed it down at a hearing this morning. The local authority was represented at the hearing by solicitor Nicola Preston together with an experienced social worker from the assessment team, Collette Keckes. The father and stepmother did not attend the hearing, the stepmother because of her pressing studies and the father for health reasons. Mr Ward-Prowse represented the mother, otherwise representation was as before. 495). Ms Preston explained that any life story work would be done by the local authority’s Early Help Team whose resources are hard pressed. She questioned whether the work would be proportionate. I had hoped that the work could be done by the same social worker, Ms Penny, who had already met with A in order to avoid introduction of a new professional. Ms Preston wondered whether Cafcass would carry greater gravitas in engaging with the parents. She said if a family assistance order is made directed to the local authority that would give the impetus for the work to be done. She also indicated that the work might be brokered to the local Adoption Agency who are experienced in life story work. If there is to be an order everybody agreed it should be for 12 months to allow time for the work to be done. 496). The mother and B have indicated their willingness to be named in a family assistance order. The stepmother has indicated by email that she would need to know more about the plan under that order before considering whether to consent. She says the father will not consent. 497). I make a family assistance order for 12 months requiring BCP Council to advise, assist and befriend A, the mother, B and, if she does consent to be named (as I hope she will), the stepmother. I have indicated that the work to be done should not exclude the father just because he is not named. The work should engage him to the extent that he is prepared to do so. 498). The purpose of the family assistance order will be: a) to undertake life story work with A; b) to further the objectives set out in paragraph 491 above. 499). The rationale for directing the order to the local authority is as follows: a) they have specific experience within the Early Help Team or the Adoption Agency of life story work; b) they will be better placed, as Mr Hand suggested, to follow up any issues that arise from the work to be done; c) the father and stepmother made some criticism of the guardian and her recommendation was against the case run by the mother and B – arguably all four adults may have reason to prefer that any work be done by an independent authority; d) in any event, sadly, the guardian is currently on long-term sick leave. 500). Mr Langrish expressed concern that the work should be done. The work is plainly belated, necessary and proportionate to the likely resources needed. I have directed that the local authority must file a report with the court when the work is completed or by 12 months at the latest setting out what has been done and any outcomes. That provides a mechanism by which the court can satisfy itself that the necessary work is undertaken. 501). I have considered whether a further hearing is necessary. Nobody wants that. I agree any further delay would be contrary to A’s interests. This is therefore the final hearing. 502). Nobody has sought permission to appeal the order I am making. 503). That concludes this judgment.