M (A Child: Leave Application) (No 3), Re [2025] EWFC 170 (B)

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 any children mentioned or and members of their family must be strictly complied with. Failure to do so will be a contempt of court.RE M (A Child: Leave Application) (No. 3)[2025] EWFC 170 (B)
IN THE FAMILY COURT AT CARLISLE
Carlisle Combined Court
Before His Honour Judge Baker
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE CHILD MARY
Christine
Diane Applicants
And
Bethany First Respondent
Alice Second Respondent
The applicants appearing in person.
The first respondent appearing in person.
Ms Fildes, counsel, appearing on behalf of the second respondent, instructed by Cumbria Family Law Solicitors.
Hearing: 11 th June 2025
Judgment: 16 th June 2025
Anonymisation
1.In the event that this judgment is published, the names of the parties and family members will be changed to substitute pseudonyms. Where relevant, I will maintain the same pseudonyms used in previous judgments concerning the subject child.
Date 2025-06-16

Introduction

[2]This matter concerns an application for leave to issue an application for a child arrangements order with respect to a child. That application is made jointly by the child’s maternal aunts, Christine and Diane. The child concerned is a 9-year-old girl – Mary.[3]The respondents to the application are Bethany and Alice. Christine and Diane are Bethany’s sisters. Mary lives with Alice pursuant to a child arrangements order. Bethany is the beneficiary of an order providing for her to spend supervised time with Mary although, as I will relate later, that has not progressed smoothly.

Previous Proceedings and Judgments

[4]There is a considerable history to this matter. I first substantively dealt with applications concerning Mary in April 2023. In that judgment, Re M (A Child) (No. 1) [2023] EWFC 312 (B), I set out the history of proceedings relating to Mary in detail. I do not intend to repeat the detail of that judgment, which can and should be read to understand fully the context of this decision and to understand the full extent of the court’s involvement in Mary’s life up to that point.[5]Those proceedings concluded in May 2024. At the conclusion of those proceedings, I discharged the care order that Mary had been the subject of. I made a supervision order for 12 months, until 2nd May 2025. Amongst other orders, I made a child arrangements order stipulating that Mary lived with Alice and that she spend time with Bethany, supervised by the local authority (who had agreed to do so under the supervision order support plan). I also made a section 91(14) order preventing further applications being made by Bethany regarding Mary without leave of the court until 2nd May 2029.[6]My reasons for the orders I made are set out in Re M (A Child) (No. 2) [2024] EWFC (99) B. Again, that judgment relates further detailed history that must be read in full in order to understand the complete context of this judgment.

This Application and the Law

[7]On 15th May 2025 Christine and Diane applied for leave to apply for a child arrangements order with respect to Mary.[8]The Children Act 1989 stipulates applicants who can apply for section 8 orders without the court's permission and those who must obtain permission or leave before making an application. Christine and Diane fall into the category of requiring leave.[9]Section 10(9) of the Children Act 1989 specifies that in considering such an application the court shall have particular regard to the following factors when determining whether to grant permission:a. The nature of the proposed application for a section 8 order.b. The applicant's connection with the child.c. Any risk there might be of the proposed application disrupting the child's life to such an extent that she would be harmed by it.[10]The provision that the child's welfare shall be the court's paramount consideration under section 1(1) of the CA 1989 does not apply to applications for permission and nor does the welfare checklist (Re S (A minor) (Adopted child: Contact) [1999] 3 WLR 504). This is because when considering an application for permission, the court is not making a decision concerning the upbringing of a child, within the meaning of section 1 of the CA 1989. The welfare of the child is not therefore the court's paramount consideration (S v D and E [2013] EWHC 134 (Fam)).[11]However, the factors listed in the welfare checklist may be relevant to the determination of the application for permission. The child's welfare can be considered when assessing the merits of the substantive application and whether an applicant has an arguable case (see S v D and E above).

The Hearing

[12]Christine, Diane, Bethany attended court in person. Alice and her Counsel, Ms Fildes attended by CVP.[13]Each party has filed helpful statements with respect to the issue of granting leave. In addition, as the supervision order for Mary had only expired some 13 days before the application, I had directed an updating statement from the local authority as to their involvement since the conclusion of the last set of proceedings. Mr Saidykhan, social worker, provided that statement and attended the hearing.[14]Each of the parties made submissions as to the issues in the leave application. Mr Saidykhan was not in fact called upon to contribute to the hearing save to indicate that the local authority is going to end their involvement with Mary now that the supervision order has lapsed.[15]At the end of the hearing I indicated that I would provide a written judgment as I wanted to think carefully about the issues in this matter before reaching a conclusion.[16]I would also add that with the permission of both Alice and Bethany I provided Christine and Diane the opportunity to read in particular the judgment I gave in May 2024 as the contents are relevant to the decision I am asked to make. I took that decision knowing and pointing out that whilst the publicly available versions of the previous judgments anonymise the participants, reference to those judgments would make it clear to Christine and Diane who the participants were. I did this because(a) I did not think it was fair that the background of their application remained unknown to them and(b) because it was clear from the statement that they had filed that they were already aware of some of the information from the previous proceedings and(c) of necessity they had seen further details of the previous proceedings as a result of the contents of the statements submitted by the respondents and the local authority.[17]Both Christine and Diane told me that they were aware of the need, in particular from the child’s perspective, for them not to make public information about these or previous proceedings. As it happened, this hearing was attended by a member of the press and a ‘transparency order’ was made to permit anonymised reporting of this matter, as indeed had been the case during previous related proceedings before me.

Christine and Diane’s Application

[18]As will be seen from the previous judgments, Mary has had an unsettled childhood. Between the ages of 0 and 3 and then again when she was 6/7 she was either cared for or spending unsupervised time with Bethany.[19]During those periods she of course spent time with both her aunts and their children. Additionally, between the ages of roughly 3 and 5 Mary saw other family members in the context of family time supervised by the local authority when Mary was subject to a care order.[20]In their (joint) statement Christine and Diane refer to some of the evidence that they were aware of as a result of discussions with Bethany about Mary’s expressed wishes and feelings from 2023 where Mary talks positively about, in particular, her cousins (the applicants’ children).[21]I have little doubt she saw them regularly and I have no reason to doubt that in general terms those relationships were positive.[22]They relate how after April 2023 they no longer saw Mary and observe that such an abrupt cessation in those relationships is likely to have been harmful to Mary.[23]In their statement they indicate a wish to see Mary twice per month and would be happy for this to be in a supervised setting or in the community, together with a wish to send Mary cards and gifts on significant occasions. Their statement refers to there being “already a structure in place for Mary to have contact with her mother, Bethany. We are simply asking to be included in contact with Mary in the same format – ideally around existing arrangements – so that we can maintain regular contact with her broader family.”[24]In Bethany’s statement she also states “There is already a precedent and structure in place for Mary to see me, her mother, and they [Christine and Diane] are proposing that family contact takes place in the same way — not to disrupt Mary’s routine, but to strengthen her emotional wellbeing and sense of identity.” Unfortunately, as will be related shortly, that structure has not in fact existed since June 2024, although that of course is not something for which the applicants bear responsibility.[25]Christine and Diane also relate that they have raised the issue of wider family contact with the local authority during the currency of the supervision order and point out that there are no safeguarding concerns with respect to them or their children. It transpired that these requests had all been channelled through Bethany (i.e. Bethany asking on their behalf) although I can easily understand why Bethany may have seemed like the appropriate conduit for such requests.[26]In submissions they both eloquently explained to me that they were not making this application to circumvent any previous court orders and wished to be regarded to some extend separately from Bethany. They were at pains to emphasise to me that they were making the application for Mary’s benefit.

Bethany’s response to the application

[27]Bethany supported her sisters’ application. In a 27-page statement she referred to evidence of Mary’s previously positive relationships with members of her wider family, including appending some delightful pictures of Mary in their company. Her statement also cites evidence as to Mary’s wishes and feelings, in particular around the time of the involvement of the previous social worker, Ms Harding (i.e. 2022 and 2023).[28]Much of Bethany’s statement relates in detail to her view of the local authority and her opinion that the local authority has not, during the course of the supervision order, taken seriously or treated her appropriately with respect to her ADHD diagnosis and as she describes it, her “suspected Complex PTSD (CPTSD).”[29]As mentioned above, Bethany has not in fact seen Mary on a face-to-face basis since June 2024. Bethany considers that this cessation was brought about by the unreasonable approach being taken by the local authority with respect to issues such as car parking, coming into contact with Alice at contact and the timing of the supervised contact. Bethany describes that these difficulties caused her to “break down emotionally in front of Mary” and that she “chose to pause contact to allow the local authority to respond to my safeguarding concerns, my request for trauma-informed support and my disability to be acknowledged…” Unfortunately, Bethany’s dispute with the local authority remained unresolved and contact did not resume.[30]In oral submissions Bethany told me that she was prepared to take a step back to allow her sisters to have contact with Mary. She reiterated her complaints about the local authority. She told me that she had not read the previous judgments and I understood her to be saying that she had not done so because she would find them too traumatic and triggering for her.

Alice’s response to the application

[31]Alice opposes the application by Christine and Diane. Her statement relates her distrust of the timing of the application, both in terms of the lack of direct requests made to the local authority by the applicants and the proximity to the supervision order ceasing. She relates that she perceives the maternal family to have been supportive of Bethany previously, including re-posting social media posts made by Bethany and family involvement in Bethany seeking to evade the authorities in April 2023.[32]In respect of Mary, Alice does not dispute that it is very likely that Mary spent time with her aunts and cousins prior to 2023. However she asserts that since that time they have not been known to Mary and that Bethany’s choice (as she sees it) to stop seeing Mary “has been something Mary has struggled with over the period of time since contact has taken place but she is now in quite a settled place in terms of knowing that both myself and the local authority have done all that we could have to promote contact, albeit in a supervised setting which I know Bethany is not supportive of.”[33]Alice expresses concern that further court proceedings will be disruptive to Mary as she is of an age where she understands that court proceedings have taken place for the majority of her life. Alice acknowledges that Mary knows who Christine and Diane are and that “in an ideal world I would want Mary to have contact [with them]” but expresses doubts as to how contact can take place safely, given Bethany’s past behaviour and does not see a practical way for it to take place. Alice suggests that the statement prepared by Christine and Diane shows no insight into past events or how the current situation has arisen.[34]Alice says that she would not object to gifts and cards being sent for Mary’s birthday and at Christmas and suggested, during submissions, that this could be via her solicitors (who had kindly agreed to receive and pass on the same) or that Christine and Diane could set up a PO Box and communicate the details via Alice’s solicitor.[35]In submissions, Ms Fildes on Alice’s behalf highlighted the evidence and the court’s conclusions during the previous proceedings, the length of time that Mary has been the subject of court proceedings and the asserted potential risks to Mary’s stability and welfare were leave to be given.

The Local Authority

[36]Mr Saidykhan’s statement relates the perspective of the local authority during the course of the supervision order.[37]He asserts that with respect to Mary and Bethany’s contact, Bethany “stopped attending contact in June 2024 as she was unwilling to continue attending supervised contact as stipulated in the court order dated 2nd May 2024 and wanted it to immediately move to unsupervised in the community. Alice continued to offer Bethany contact fortnightly and the local authority continued to communicate this to Bethany. Bethany has neither responded to nor attended any of these offers and so contact has not taken place since June 2024.”[38]The statement sets out that monthly social work visits have taken place at home and at school to speak to Mary. Mr Saidykhan relates that Mary is doing well in Alice’s care, she presents as relaxed and happy and has not raised any concerns. The school reports that Mary is thriving educationally and excelling in all areas of her learning. She had undertaken life story work with an emotional wellbeing worker, who has commented on Mary’s relative maturity and positive engagement.[39]He reports that the local authority has not received any direct requests from Christine or Diane to spend time with Mary and all such requests have been made via Bethany.[40]He expresses concern for Mary’s welfare if further court proceedings took place and indicates that the local authority support the position expressed by Alice.

Discussion

[41]First, it is worthwhile setting out those matters which I have not taken into account in reaching my decision.[42]Both the local authority and Alice report that in April 2023 when the court sanctioned the removal of Mary from Bethany’s care (for the reasons set out in the first judgment cited above) Bethany took Mary to Manchester allegedly in an attempt to avoid the authorities, necessitating the making of a recovery order. Some family members were alleged to have been involved in assisting in that ‘flight’. Alice acknowledges in her statement that “I do not know what role Christine and Diane played in that situation”. I do not have any evidence before me that would allow me to conclude that Christine and Diane were culpably involved in any such actions (there are other family members) and so I proceed on the basis that they were not so involved.[43]Likewise, I understand entirely why suspicion is raised with respect to the timing of the application, coming as it does so shortly after the end of the supervision order and without any previous direct approach being made to the local authority by Christine and Diane themselves. However, I have reminded myself that relatives are at arms-length of such situations and whilst it may have been better for Mary if such an application had been made during the previous proceedings and/or directly to the local authority during the supervision order, having heard Christine and Diane’s submissions I do not consider it necessary to reach any conclusion as to the suggestion that there is any clandestine purpose behind the timing of the application and so do not attribute any significance, in determining motive, to the timing of the application.[44]Further, I remind myself that this application is not Bethany’s application. The fact that, for whatever reason, contact between Bethany and Mary has ceased is part of the context of my assessment. I am not, in considering this application, seeking to resolve that specific dispute. I have previously reached conclusions as to Bethany’s approach to imposing her needs to the detriment of others and her child (as set out in the two previous judgments, for example at paragraphs 53 and 54 of the second judgment) but am conscious that I have not heard detailed evidence as to the reasons for the breakdown in June 2024 and I have no application before me that seeks to address that situation. It remains a matter of fact that Mary has not seen Bethany since June 2024.[45]I also wish to be clear about my assessment of Christine and Diane’s insight into the situation Mary now find herself in, which both Alice and Mr Saidykhan allude to as being lacking in their statements. Until Christine and Diane attended court they had not read the judgments referred to above. They may not have understood the reasons why Mary was removed from Bethany’s care, nor the lengths the court went to in order to try to engage Bethany in the proceedings cognisant as the court was of Bethany’s ADHD diagnosis (as set out in detail in the second judgment). Given that all communication between them and the local authority appears to have been undertaken through Bethany, it is inevitable that they would not have had any objective or at least alternative account of the situation and clearly would be entirely and indeed understandably reliant upon Bethany’s point of view. As related above, Bethany herself has not read the judgments, so it is highly unlikely that she will have referred her sisters to them.[46]Thus, it is not surprising that Christine and Diane do not have insight into the ‘bigger picture’ which involves an understanding of a complex history wherein the court came to conclusions about Mary’s welfare, the harm she has suffered, the influence upon her expressed wishes and feelings at certain times and its’ assessment of the parents, one of whom is their own sister.[47]Accordingly, I take this application by Christine and Diane entirely at face value. The primary argument for giving leave can be stated simply – Mary has Aunts and cousins with whom she previously had a relationship, why can that not be resurrected especially in circumstances where, for whatever reason, Mary’s relationship with Bethany has ground to a halt?[48]That is a powerful proposition and one I have thought about very carefully in the context of section 10(9) above. In essence, as Alice herself put it in her statement ‘in an ideal world’ Mary would have a limited but relevant relationship with her wider family members and it may offset some of the harm arising out of the fact that Mary does not currently spend time with Bethany.[49]The context of this application is of course a series of court applications in which Mary has been the subject child. In essence, as set out in the first judgment, Mary has been in proceedings almost constantly from the age of 2 until she was 8 years of age. When there were not extant court proceedings she was the subject of a care order, with all the subsequent involvement of professionals that entails. Further, as set out in my previous judgments, the local authority exercised its’ parental responsibility in such a way as to allow itself to be manipulated by Bethany. That gave rise to a situation whereby Mary was subjected to significant harm, again in ways set out in the previous judgments, and to the harm consequent upon by that situation being rectified, which included a period in foster care before being returned to the care of Alice. Thereafter Mary has been the subject of a supervision order since May 2024 which has, as set out in Mr Saidykhan’s statement, included further involvement of professionals.[50]None of that is the fault of Christine or Diane but it is undoubtedly relevant to the prospect of setting in train further proceedings.[51]In terms of the harm that such further proceedings risks inflicting upon Mary the evidence, accepted by the court, of Ms Clark, Independent Social Worker, instructed in the previous proceedings was certainly clear in 2024. Her report is set out extensively in the second judgment. For the purposes of this judgment it will suffice to refer to the following paragraph:
“21. In looking at what the future holds for Mary, it is my clear view that she desperately needs permanence, a finality to the court proceedings and some finality to the local authority involvement. The risk from future court proceedings will be significant and cause cumulative harm to Mary. The impact of harm should not be underestimated and will likely result in lifelong and irreparable, emotional and psychological harm.”
[52]Ms Clark’s conclusions were entirely understandable. Mary has thus far had a life of instability and indeed harm. The constant and contested involvement of professionals involved uncertainty and inconsistency. She was subjected to emotional abuse and her wishes and feelings were adversely influenced. It seems to me highly probable that there will be an association between all of those negatives and court proceedings consequent upon Mary’s lived experience for the majority of her life thus far.[53]During the hearing of this application I asked questions designed to explore whether, if leave were granted, there would be a way of ameliorating the effect of proceedings on Mary, including the suggestion that Mary not be told and directions given for, as an example, the re-appointment of the Children’s Guardian pursuant to rule 16.4 who did not, at least at a preliminary stage, meet Mary again. However, I have reached the conclusion that such an approach is not realistic in this case.[54]First, that would be an unrealistic and unsustainable lie by omission to Mary. She is 9 years of age and it is unlikely that for a child of such an age a Children’s Guardian could make a recommendation for her to spend time with the applicants in the absence of ascertaining Mary’s wishes and feelings.[55]Second, it would involve Alice in a lie to Mary. As well as being unfair it risks undermining trust between a child and her primary carer, especially given her age.[56]Third, in the context of the history of Mary’s life, it is also unlikely that the actual determination of whether the court should make a child arrangements order could be undertaken without further professional input. The issues will be myriad, by way of example:a. What is the family narrative of Mary’s life?b. How supportive is the family of Mary’s home with Alice?c. How will the family deal with questions from Mary?d. Will contact between Mary and other family members undermine Mary’s home with Alice?e. How robust is Mary at her current age in the context of the possible need to cope with adverse influence?f. What risk is posed by other family members?g. Does contact need to be supervised?h. Who will supervise the contact (now that the local authority is no longer involved) in the event that it needs to be supervised?[57]Those questions (and probably more) would require careful assessment because, for Mary, it would be wholly against her welfare interests and positively harmful if the wrong decision was taken about any future arrangements and something were to happen that once again undermined Mary’s stability.[58]I do not, I am afraid, consider that risk to be a fanciful one. I have set out my assessment of Bethany in my previous judgments. I have little doubt that in 2022/2023 the local authority (and Mary) were manipulated by Bethany, giving rise to the situation described in my previous judgment. That happened in circumstances where the professionals concerned had access to all the judgments given before my involvement and expert the assessments. It is reasonable to assume that Bethany’s family members may be as suspectable to manipulation and the inculcation of a false narrative (one that could and in all probability would be significantly detrimental to Mary’s emotional welfare).[59]Further, there is no indication in Bethany’s statement (or submissions) made in these proceedings that points to increased insight on her behalf. It is to be hoped that, perhaps through the therapeutic support Bethany referred to in submissions, she can be assisted to understand why there has been such concern about her past behaviour and approach. I suspect, as an aside, that such understanding is key to any future relationship between Mary and Bethany in the longer term.[60]Thus, any future proceedings would by necessity involve further professional assessment and input. They would inevitably have to involve Mary in order to reach a welfare conclusion.[61]They would also involve Alice. Whilst I do not attach undue weight to this aspect I do note that Alice has also been involved in court proceedings for the last 7 years. As I said in my second judgment:
“The evidence shows that Alice is a very capable parent. She has needed to be. Through no fault of her own she lost contact with Mary for extended periods of time and has had to endure years of court proceedings. At times, despite numerous judgments and assessments that have endorsed her position as a capable, attuned and appropriate parent, it must have seemed as if they were not worth the paper they were written on. Despite that, Alice has never objected to contact between Mary and Bethany. She has in the past been criticised for being too focused on the past. History has shown that she was right to highlight her concerns when the local authority was exercising its parental responsibility in a way that was in ignorance of the risks and was not in Mary’s welfare interests.”
[62]The updating evidence continues to show that Alice is a capable parent. However, I do wonder how much more time and expense it is reasonable to ask her to devote to court hearings that do not arise out of her behaviour or approach and the effect on her, as Mary’s primary carer, of yet more court proceedings. It will not, at the very least, be positive.[63]She is Mary’s primary carer and she is, by all reports, doing a good job. It seems to me reasonable to take into account, as a minor but nevertheless relevant factor, the negative effect upon Alice as Mary’s primary carer, of yet more court proceedings.[64]It might be argued that Alice’s approach to this application is such that it invites further proceedings. She could, after all, simply agree to Mary spending time with Christine and Diane. However, as can be seen from the analysis above, I consider the concerns that Alice has, at least in their generality, to be reasonable, realistic and cognisant both of future risk and past experience.[65]In my view it is far too soon to involve Mary in yet more court proceedings and in reality too soon to initiate investigations into the issues that would be raised by consideration of Mary spending time with her maternal aunts (and potentially other family members), whether in the context of court proceedings or as part of some other process (e.g. mediation). The reality for Mary is that she has not spent time with her aunts since April 2023. Whatever the arguments about why that has been the case, it is Mary’s reality and there is no evidence that in the short or medium term that absence is causing her harm. Whilst in the longer term it is desirable that children have relationships with wider family members, a decision taken at this stage may be different to a decision taken when Mary is older. I note that in respect of the section 91(14) that I made with respect to Bethany in May 2024 I observed as follows: “74. There is an overwhelming welfare imperative for Mary to have stability and 'peace' in her life given recent and long-term events and disturbances. I note and accept the evidence of the independent social worker, set out above.75. Furthermore, this (and previous) judgments have identified clearly the nature and extent of change likely to be required to warrant re-evaluation of the child arrangements order being put in place today.76. Accordingly, I am entirely satisfied that an order pursuant to section 91(14) is appropriate.77. In submissions Mr Gilmore on behalf of the Guardian expanded upon the Guardian's reasoning for suggesting 5 years. First, the imposition of a leave requirement should no longer be thought of as presumptively disproportionate when viewed in light of PD12Q and the amendments to the Children Act. Secondly, such a period would cover the transition from primary school to secondary school. Thirdly, the evidence of harm and disruption to Mary is such that a longer period of recovery and stability is warranted. Mr Gilmore also referred me to the observations of Lord Justice Jackson Set out at paragraphs 43 and 44 of Re M (No 1) above. made on Bethany’s appeal application in previous proceedings, which are set out in my earlier judgment.78. I agree…” (my emphasis)[66]Later in Mary’s minority, when she is able to have a greater understanding of the issues and an ability and firm foundation to protect herself from the risks it may be appropriate to explore the possibilities around contact with Bethany’s wider family. Part of the foundation for such exploration is in my view a lengthy period of stability and peace whereby she is freed from the adult issues that pervade the history of this case.[67]That requirement is not consequent upon anything the applicants have done. However, it is the consequence of the bigger picture of which they have been understandably not fully aware. It is not an ‘ideal world’ for Mary and the court is faced with what might be termed as a ‘least worst option’ but is the one that, out of all the relevant options for Mary, best meets her current and medium-term welfare needs. Whilst her welfare is not determinative of this application, it is a relevant factor which enhances my primary conclusion with respect to matters to be considered in section 10(9) of the CA 1898.[68]Ultimately therefore I have come to the conclusion that for the reasons set out above I cannot give leave to the applicants to make their application.[69]I will make an order refusing leave. That will bring this application to an end.

Appeal Time Limits

[70]In accordance with the suggested best practice advised by The President of the Family Division I will remind the parties that in the event that any party wishes to appeal this judgment they should do so within 21 days of this judgment being formally handed down (i.e. from 16th June 2025). The procedure, time limits etc concerning appeals from this court are set out in the Family Procedure Rules 2010 rule 30 and the accompanying Practice Direction 30A. HHJ C Baker 16th June 2025