E v E & Anor [2025] EWFC 289 (B)

IMPORTANT NOTICE 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.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.Case No BM22P00518[2025] EWFC 289 (B)
IN THE FAMILY COURT AT BIRMINGHAM
Venue Birmingham Civil Justice Centre
Priory Court
33 Bull Street
Venue Birmingham, B4 6DS
Date of hearing: Friday, 2 nd May 2025
Page Count: 28 Word Count: 10351 Number of Folios: 144
Before
DISTRICT JUDGE PARKER
Between
EApplicant(1) ERespondents(2) THE CHILDRENRespondent
MR WARREN, Counsel (instructed by MS HOLLY KNOWLES of MSB Solicitors) for ApplicantMR KELLY, Counsel (instructed by MS CHERYL GREEN, Pro Bono Coordinator) for First RespondentMS PATEL appeared for Second Respondent
JUDGMENTDigital Transcription by Marten Walsh Cherer Ltd2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTel No: 020 7067 2900. DX: 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.comDISTRICT JUDGE PARKER:Date 2025-05-02
[1]I am dealing with four children: EG, who is aged 13, and has autism; A, who is 12; O, who is nine; and EL, who is eight.[2]This case has a very lengthy history. BACKGROUND TO THE PROCEEDINGS[3]A police referral and attendance took place on the 23 December 2021; the children being exposed to aggressive behaviour from the father and shouting. It was reported that the father had smashed a laptop and hit the mother to the forehead. The children said that this was a rare occurrence and felt okay.[4]A further referral was made in relation to domestic abuse by the hospital, on 17 March 2022, and on 31 March 2022.[5]There was a further referral, where O disclosed being smacked by his mother, with a wooden stick. The children were police protected on 1 April 2022.[6]On 4 April 2022, the children were accommodated under section 20 of the Children Act 1989.[7]At the child protection medical, on 4 April 2022, no injuries were seen. Although there was no disclosure by EL that EG, O and A claimed that their mother had hit them with a wooden spoon and gave a consistent history but made no disclosures regarding the father.[8]A child assessment was undertaken on 19 April 2022, which recommended the return of the children to father’s care only pending section 47 enquiries, that mum’s contact should be supervised with a Child Protection Plan in relation to physical harm and a working agreement.[9]At a Child Protection Conference, on 21 April 2022, the children stated that the father was aware of what mum was doing. There were concerns as to failure to protect and incidents of coercive control and financial abuse.[10]There was a child visit, which was undertaken on 8 July 2022, where father’s behaviour was viewed as intimidating and threatening. There was concern that the children may be exposed to such behaviour whilst the parents were together.[11]The issue of who the children should live with was contested, and there were concerns as to the parents’ acrimonious relationship. There appeared to be no issues in relation to the children’s school, and on 14 July 2022 the children were to remain on the Child Protection Plan.[12]Within a section 47 report the children are reported to be happy and safe with the father, but there were concerns as to the children being caught up in parental conflict and the family needed support via a family support worker.[13]A further visit took place with the children on 3 August 2022. It was observed there was very little bond between the children and the mum, and on a further visit on 9 August 2022, the father said the children cannot be forced to see their mother. On 27 October 2022, the father refused family support saying it was not needed.[14]A further Child Protection Review Conference took place on 16 December 2022. The children appeared settled in father’s care. Apart from EL, the children did not want contact with their mother, and it was felt that there was no need for further support.[15]Mum refutes the allegations against her and says that the father has manipulated the children. No safeguarding concerns were observed. There were concerns, however, about the father’s mental health and paranoid behaviour.[16]In relation to the social worker report to that Child Protection Review Conference, the safeguarding concerns seemed to have subsided. There was no further role from Birmingham Children’s Trust. The children were happy and well in father’s care, and he had engaged with the new social worker.[17]Running alongside this there was also an application in relation to a Non-Molestation Order pursued by the father. The papers of Birmingham Children's Trust within the pleadings for those proceedings indicate two incidents of domestic abuse: on 21 December 2021, in relation to assault; and June 2021, in relation to controlling behaviour and financial abuse.[18]It was reported that if the parties were to reconcile, the children would be at risk and there was concern that the children’s loyalty to their father was impacting on their relationship with the mother.[19]The application for a Non-Molestation Order was dismissed on 5 July 2022. The father did not participate.[20]By a further order, on 18 August 2021, mention was made as to an appeal of that decision, father says he had not received notice of the hearing. The application was treated, rather than as an appeal, as an application to set aside the order due to non-attendance.[21]Directions were made for evidence to be filed, and if failed to do so, the application would be treated as having been dismissed. Those proceedings remain dismissed. THE APPLICATION BEFORE THE COURT[22]The father has applied for a Child arrangements (Live with) Order on 18 November 2022. He asserts neglect by the mother[23]The mother, in her Form C1A, alleges domestic abuse and alienation. She denies all father’s allegations.[24]On 16 February 2023, directions were given with regard to the potential Finding of Fact Hearing, and on 5 July 2023, the matter was reallocated to district judge level.[25]I note there were safeguarding letters of 15 February 2023 and 17 February 2023.[26]By order of 27 July 2023, it is noted that the father agreed with the recommendations in the safeguarding letter with regards to a Finding of Fact Hearing and indirect contact with the mother once a month. Mother opposed there being a Finding of Fact Hearing. At that hearing, the Court declined to order a Finding of Fact Hearing, given the extensive involvement of Social Services.[27]By order of 2 November 2023, I noted that the parties gave different accounts as to why no indirect contact had taken place. Indirect contact was further ordered on alternate weekends with FaceTime every Saturday at 12 noon.[28]By order of 17 November 2023, the Court directed a section 7 report, with indirect contact to continue on alternate weekends with the matter being listed for a Dispute Resolution Appointment.[29]On 13 March 2024, this matter came before me, for the first time.[30]I noted that there were issues of parental conflict, negativity, a lack of encouragement to promote the relationship between the mother and the children or offer appropriate reassurance. I made a “Live With” Order with regards to the father and contact with the mother on alternate Saturdays, for two hours at a contact centre, with indirect contact the weekend contact does not take place. I also directed an addendum section 7 report.[31]By order of 24 June 2024, I appointed a Children’s Guardian, due to father’s limited compliance with the order. I directed that the father should make sure the children spend time or otherwise has contact with the mother, in accordance with my order of 13 March 2024.[32]This matter came before another judge, on 8 August 2024. I note that: EL had not seen the mother since August 2022; O had not seen the mother since 30 March 2024; and EG and A had only seen her once since April 2022, namely 30 July 2024.[33]The Court reinforced to father that all the children must be having family time with the mother. A section 37 report was ordered, as well as an Interim Care Order, and a Child Arrangements Order with a Penal Notice in relation to alternate Saturday contact. The child’s passports were to be deposited to the solicitors for the child, and a Prohibited Steps Order was made in relation to the non-removal from the jurisdiction, and the matter listed for a PHR and thereafter a Final Hearing.[34]There then followed an application by the Children’s Guardian as the passports had not been handed in and no contact had taken place on 13 August, 27 August and 13 September 2024, despite the provisions of the order.[35]This matter came back before me on 14 October 2024. The Children’s Guardian was concerned that the current child arrangements are not in the children’s best interest, given their express, as well as their ascertainable wishes and feelings.[36]Father had failed to comply with the order as to surrendering his passport to the child's solicitor. The Court also noted father’s limited engagement with professionals. The issue then being raised as to whether or not the children should, in fact, be placed with their mother, or indeed public law proceedings commenced.[37]I gave an extension in relation to the section 37 report and made an Interim Care Order. Again, I directed contact should take place on alternate Saturdays, for two hours, with a Penal Notice, and I repeated the Passport Order and the Prohibited Steps Order.[38]I indicated that the matter should remain listed for a directions Pre-Hearing Review, to consider the outcome of the section 37 report and the provisions of the order of 8 August 2024 and to consider the need for a Final Hearing at that stage, with representatives to attend from the Local Authority.[39]The matter came back before me again on 4 November 2024, in relation to concerns with regards to the father’s non-compliance with orders concerning contact and indeed the issue again with regards to the passports.[40]On that occasion, I decided to take the step of initiating contempt proceedings of the Court’s own initiative, which the Court is able to do, in exceptional cases of clear contempt.[41]I noted that the father needs to engage with targeted family support so as to understand parental alienation and conflict. I again directed a section 37 addendum report and made an Interim Care Order.[42]I also made a Child Arrangements (Spend Time With) Order, to be facilitated by the Local Authority, on alternate Saturdays, and repeated the Passport Order with regards to a Penal Notice. The passports were subsequently handed on, or at least the UK passports were.[43]The father then pursued his own application for relief from sanctions. He indicated, he had reservations about the children having contact with the mother due to physical abuse of the children and their resistance to attend contact.[44]He said the children had refused to go to the contact centre on 2 November 2024 and refused to go with the social worker on 12 November 2024. He indicated, however, they would attend on 30 November 2024. He indicated, he was satisfied the contact centre was safe and would be promoting contact, moving forwards, but was concerned that the children’s views were not being heard. He accepted that both ES [?] and O both want to see their mum, but not the other children. He would support contact on Tuesdays and Saturdays, if the children wished to attend.[45]The matter came back before me on 2 December 2024. I directed that contact should continue, as per my order of 4 November; in other words, contact on Tuesday, from 3:30 to 5:15, facilitated by the Local Authority, at Keystone Children Centre, and on alternative Saturdays, for two hours, at Selly Oak Contact Centre. Both orders were endorsed with a Penal Notice.[46]I, again, requested an addendum section 37 report, to include an update with regards to contact, as well as the information from the children's school and a Family Group Conference, and indeed any parenting assessments. I also repeated the Interim Care Order.[47]The matter then came back before me, on 4 February 2025. At that hearing, I discharged the Interim Care Order and noted that the mother is now pursuing and seeking a Live with Order.[48]I made directions for the social worker to attend the Final Hearing, to update the Court as to the contact, the pre-proceedings process, what work had undertaken, the level of engagement, and the support of the mother, if there was to be a change of living arrangements.[49]I directed a statement from the mother in relation to her proposed living arrangements for the children in relation to accommodation, schools, supports available, and proposed contact with the father.[50]I directed the father to file his own response, and indeed, the Guardian to provide a balancing exercise in relation to the proposed change in living arrangements and contact with the father. The matter, therefore, was listed for today.[51]There is a section 7 report, which goes back to 28 February 2024. It reports the children at that time were not spending with the mother, face-to-face, and the last contact was April 2022, with cross-allegations of domestic abuse. The children disclosed physical chastisement by the mother and remained under a Child Protection Plan. They were settled in father’s care. But there was an issue with regards to parental conflict and negativity towards each other and the father seeking to alienate the mother.[52]EG has reported not to want to see the mother. She believes she will chastise her. She is concerned as to what dad might think if they were to write back to the mother. EG seems torn between the parents.[53]A says mum never hit her but is not sure she would want to communicate with the mother. (There is a question of whether or not they are actually being encouraged to do so)[54]O says he does not get on with mum. She hits him, and if he saw mum, dad would be sad. Again, there is a question of reassurance.[55]EL does not want to see mum, because of parental arguments. Again, there is a question of whether there has been appropriate engagement. They were, however, positive when they read a letter from the mother.[56]It is reported there is clear evidence that the father is not promoting contact. He is very negative towards the mother. He says he will not be forced to allow the children to see their mother, and yet there is no safeguarding reasons as to why the children should not do so.[57]There is a recommendation as to professionally supervised contact.[58]The addendum section 7 report, of 8 June 2024, recommends a Rule 6.4 Guardian be appointed, there are a number of concerns contained within the report indicating that the children are being emotionally harmed by the father. There is no reason that the children should not be having contact with the mother, and it posits a potential change of ‘live with’ arrangements. However, the mother currently has no suitable accommodation to accommodate the children[59]The Local Authority have undertaken a section 37 report.[60]In relation to EG, it is reported that the child said that it was good to see the mother in August 2024 and wanted to see her again.[61]With regards to A, it reports that they saw the mother in August 2024, but she gave him food, which made him sick, and he does not wish to see her again. She hit him, when he was five or six. (A is now 12 years of age) He reports of his mother wanting him to go into foster care. It seems that the court papers have been shown to him.[62]With regards to O, it is also clear that the father has been sharing information, they comment that “the child's Guardian is working against us”. They do not want to see the mother, as she hits them. But she would want to see the mother if they get a gift voucher![63]EL, it is reported, does not want to see the mother, as she is mean. They cannot recall what she looks like. It would cause problems if they saw her. But they would like her to write and send a photo.[64]There was limited engagement in relation to the father, and he has a negative view in relation to professionals. It is clear that he has shared the court papers with the children and told the children that the mother wants them to go into foster care. The father remains very negative towards the mother.[65]The mother raises concern in relation to alienation, there being no contact since August 2024. It has been difficult to work with the father in relation to fortnightly contact. It seems that the children are versed in the father’s narrative. There is a high level of alienation and emotional harm, and father’s behaviour is a concern. Father believes it is for the children to make their decision as to whether they see their mother or not, and they should not be forced, accordingly the removal will impact in their emotional health and wellbeing.[66]Mother at this stage accepted that removal was not in the children's best interest. There has been no consistent contact for two years and her accommodation is not suitable.[67]It was reported that the Local Authority should undertake further work before making final recommendations. Contact should be facilitated by the Local Authority: midweek after school for EG and O; that that contact is more likely to take place if the father is not involved in the process. It was recognised that Saturday contact should be suspended.[68]The section 37 addendum report indicates that the matter has been progressed through the public law outline and parenting assessments undertaken including sourcing alternative carers. However, there was no intention of issuing proceedings at that stage.[69]A further section 37 addendum report gives examples of the difficulties: that on 19 October 2024, contact was arranged for 4:30 but then changed to 2:00 pm. Both parents were notified, but the father did not attend. On 12 November 2024, the children were not in school and did not want to attend contact. Father suggested the children were going to be put into foster care.[70]On 6 November 2024, contact was cancelled because mum was unavailable. On 26 November 2024, the children were not available for contact and the father said he would not force the children to have contact.[71]It appears prior to then that, on 31 October 2024 EG appeared open to contact; EL was indifferent; A was reserved, as was O, and further work needed to be undertaken.[72]I note from Child in Care meetings that, with regards to EG, the main concern is the children are withdrawn and may need emotional support. In relation to A, there were concerns as to their demeanour and the need for therapy. With EL, it was difficult to engage with them and they were emotionally withdrawn. O was also withdrawn. There were issues with regard to communication, behaviour and the need for potential therapy and further assessment.[73]There was a further section 37 addendum report. The school had reported concerns with regards to father’s behaviour. The father lied to the social worker with regard to the children’s whereabouts on 12 November 2024 in relation to contact, and there were concerns as to what he was saying to the children by way of threats.[74]It was noted, however, that contact has improved somewhat since supervised by the Local Authority and has been, in the main, positive, despite what father is saying, and the relationship with the mother was improving. Indirect work with the children and the father needs to progress during the pre-proceedings process. The children, however, still present as guarded. Saturday contact had only taken place once, and it is not working. Local Authority contact is better. It is clear that father is not promoting the children's relationship with their mother or meeting their emotional needs. Father’s fixed views of the mother are unlikely to change. The Local Authority, however, do not intend to issue proceedings and will continue to work with the family as currently the mother does not seek to care for them.[75]I have read the statement from the social worker. It appears that the children do not express any interest or desire in relation to contact with their mother. No reasons were given. EL has refused to speak or see her. The concerns in relation to previous physical abuse with regards to the father have not been substantiated. However, there are concerns in relation to emotional harm and since the previous hearing the position had deteriorated.[76]Overall, however, it was deemed at that time that the threshold for the public law outline process had not been met, and therefore the local authority involvement would come to end.[77]I note that from the Chair of the Child Protection Conference minutes that the father is the root cause of the children's emotional harm. The children are simply surviving in father’s care. His mental health is also a concern. He is erratic and unfocused and unable to focus on the children’s needs. It moots whether or not the mother should seek an Occupation Order to return to the family home so as to care for the children. However, she is reluctant to do that, and there is no application before the Court. Neither was that presented before me as a potential option.[78]The social worker would support a move from father’s care. The weekend contact is not happening. EG asked the family support worker if he could write down everything that she said, which is an unusual request for a child. The children seem to be guarded and closed. They are saying no to all suggestions of contact.[79]In the social worker’s view, there is no reason why contact should be limited to the contact centre or indeed remain supervised. The father does not respond to suggestions for activity-based contact in the community. The children continue to display angst in relation to contact with the mother.[80]Overall, there are concerns with the children’s presentation and their resistance to contact. The reason being is that they will be hit by a spoon, which seems to be rehearsed, and yet there is no apparent fear of their mother. The children appear emotionally detached.[81]The children need to have re-enforced positive memories of their mother through contact. The continued trajectory will only increase their estrangement. Father is entrenched and causing the children emotional harm. The children will need support in relation to any such change of living arrangements, the main issue being mother’s accommodation, for which a referral will need to be made to Social Housing. As far as the social worker is concerned, a change in the living arrangements is the only option. The alternatives are stark![82]With regard to mum, she maintains that all steps taken to reestablish her relationship with the children have been frustrated by the father, who has continually disobeyed court orders.[83]On 2 November 2024, she says she turned up for the four children and he kept the taxi running instead of leaving and instructed the children to say they did not want to see her. The supervisor reports that the youngest child was heartbroken. All contact now was to be arranged by the Local Authority, who are concerned as to the emotional harm towards the children by the father.[84]Unsurprisingly, she now seeks a change of living arrangements, due to the risk of emotional harm whilst in the father’s care. She currently is in a one-bedroom flat. If the order were made, she says the Local Authority would assist in securing private, more appropriate accommodation, although she said there will be a waiting period. She anticipates that it may well be the two younger children may be transferred to a more local school. The eldest children will remain where they are. She will take time off work to manage the transition. She will promote father’s contact, as advised. Although she works full-time, her work is flexible.[85]The father’s position is that he maintains the children are at risk of physical abuse and neglect in the mother’s care. They have not lived with her since April 2022. Her proposals are not tested, neither is the relationship, beyond that of supervised contact. He maintains that he has promoted contact. It is the children’s decision however whether to engage or not. They cannot be forced. The children are not being listened to; albeit, of course, I note that the youngest children are eight and nine respectively, the older 12 and 13.[86]The children are settled in the father’s care; a change would be disruptive. Mother’s accommodation is not suitable, and no timetable has been given to remedy this.[87]He denies alienating the children and says that the children believe that the professional’s view is that the only way of proceedings is for the children to live with the mother. However, there is no justification nor evidence to justify this. He is happy to progress supervised contact to that of unsupervised.[88]The Guardian has filed a number of position statements. In her first position statement, their view was that contact must be adhered to. There is no reason not to. O wanted to see the mother, and reference is made to a contact they had on 30 March 2024.[89]The contact note on 30 July 2024, regarding EG and EL shows positive contact, but they were anxious. Robust action is needed. She proposed a section 37 report and an Interim Care Order due to emotional harm. Mother, at that stage, was unable to facilitate a change in the living arrangements and did not wish to see the children go into foster care. However, the father needed to comply with court orders.[90]The second position statement of the Guardian confirmed that the Guardian agreed with the recommendations set out in the section 37 report. She reiterates her concerns as to the change of view subsequently with regard to EL and A, in not wanting to see their mother. All the children, she says, should be seeing their mother.[91]In the third position statement, again, she reiterates that the children should be spending time with their mother. There have been no sessions taking place since 13 March 2022. Nothing has been undertaken to ensure this. If the children want to see their mother, there is no reason why they should not do so. Any wishes and feelings work should not be undertaken at this time as it is unlikely to reflect their true views.[92]Father says he will now promote contact, but he has said this before. The section 37 report does not address how the children’s relationship with the mother will be supported to take place and that the Court should continue with the Interim Care Order and should not await the public law outline process or parenting assessment. Various recommendations were made.[93]In the fourth position statement, the Guardian again indicates there is no reason why the father should not be facilitating contact. Clearly, the father is not promoting that. The Saturday contact was father’s chance to show that he is prepared to promote contact, but he has not done so.[94]In the Guardian’s final analysis and recommendations, it reports that the Child Arrangements Order for supervised contact with the mother on alternate Saturdays and every Tuesday has not been consistent, and compliance has been poor.[95]Father states the children do not wish to see their mother, but the Guardian is not satisfied that these are, in fact, the true wishes and feelings of the children. The children are suffering significant harm in the father’s care because of the pressure the father is placing on them and the narrative given to them in relation to their mother and by thwarting a relationship with them.[96]Father has also disengaged with the Children’s Guardian. The last visit she had with the children was 8 April 2025. She supports the social worker’s view that there should be a change of living arrangements due to emotional harm. The only issue is one of rehousing. Mum lives in a one-bedroom flat, which is not suitable for the children long term; albeit she points to the potential duties under section 17 of the Children Act in relation to the Local Authority.[97]In the short, there will be anxieties with regards to removal from father's care, and a change of school, and a move from the area. But this, she feels, is the only option if mum is to have a relationship with these children. To a certain extent, there may be a sense of relief on respect of removal from father’s care due to the pressure they are under. The children, themselves, may also benefit from a fresh start.[98]The father shows an unwillingness to change his behaviour even with committal proceedings hanging over him. He lacks insight as to the emotional harm being caused to these children. He is unwilling to change his behaviour or adhere to orders. A change of ‘live with’ arrangements is needed to prevent further harm. The children remain guarded.[99]Following such change, there needs to be a three-month period for the children to settle and for the Local Authority to undertake work. There should be no face-to-face contact with the father in the intervening period. There should be indirect contact only, once a fortnight, and then supervised contact under the Child Protection Plan until it is safe to progress to unsupervised contact.[100]I am also helped in relation to a chronology:a. 7 October 2024, this was the first Child in Care meeting and father did not attend.b. 15 October 2024, the Local Authority letter to the father.c. 19 October 2024, the father did not bring the children to the contact centre. Father was abusive on the telephone to the staff.d. 25 October 2024, section 37 report, further work was to be undertaken, and a section 37 addendum, intensive family support in relation to alienation. Contact to continue weekly at a contact centre, involving EL and O. Saturday contacts to be put on hold.e. 7 November 2024, Child in Care meeting. The Local Authority arranged contact with mum on 12 November 2024. The children were not in school, father aggressive on the telephone. Contact did not take place at the end of November 2024.f. 3 December 2024, supervised contact took place with all the children, apart from A, who had an audiology appointment.g. 13 December 2024, all four children attended contact.h. 14 December 2024, only O, A and EL attended.i. 7 December 2024. The social worker called dad, who put EG on the phone, who said he did not want to attend contact.j. 24 December 2024, only O attended contact. The other children did not want to attend.k. 31 December 2024, none of the children attended contact. The children did not want to attend.l. 7 January 2025, all of the children attended. A left early due to a reaction to a snack.m. 11 January 2025, none of the children attended.n. 14 January 2025, all the children attended.o. 21 January 2025, all the children attended.p. 25 January 2025, the children did not attend.q. 28 January 2025, A did not attend due to an ear appointment.[101]I have also had sight of various contact reports, which it is useful to summarise as follows:a. On 3 December 2024, it was reported that the children did not want to go to contact and were hesitant and anxious. The children refused food when offered to them.b. 10 December 2024, this was a more positive contact.c. 31 December 2024, the children refused to come for contact.d. 7 January 2025, the children need coaxing to go to contact. The children hesitant when given hugs but accepted them. The children started to gain confidence. The father was abrupt at handover on return with the contact worker.e. 14 January 2025, the children enjoyed contact and were a lot happier.f. 21 January 2025, O said he did not want to go to contact and also refused a hug and refused a gift. The other children interacted well with mother.g. 28 January 2025, O and EL demanded to leave the contact.h. 19 April 2025, the children refused to come into the contact centre despite staff encouragement. Dad said he did not want to force it, and they left. EVIDENCE THE SOCIAL WORKER Questions from Father’s Counsel

EVIDENCE

[102]She confirmed that contact only commenced in March 2024 at a contact centre and has progressed to the community.[103]She was referred to various contact records which displayed mixed emotions from the children. It was put to her that the children's relationship with the mother has a number of issues. However, the social worker indicated that the explanation as to why this is needs to be explored further. As far as she was concerned, there are some parenting issues which mother needs to respond to.[104]She was asked questions about the alleged incidents concerning the wooden spoon. It was put to her that this is why the children do not want to see their mother. The social worker’s view is that this view appears too rehearsed. She was challenged as to whether or not she had fully taken into account the views of the children and that their reluctance to attend contact could be because of the previous physical chastisement and their experience of the same. The social worker was of the view that she did not believe this was the case.[105]She accepts that the progression of contact needs to be at the children’s pace, but they have had no overnight contact at all and lived with their father for three years. It was put to her that what the Local Authority was proposing is a substantial change in living arrangements.[106]It was put to her that the children also need to remain in their current school. However, the social worker indicated that the Local Authority would support the family in any way they can, and that any change can be undertaken in a planned way.[107]It was put to her that any school move will also have a significant impact. However, the social worker believes it can be managed with the right support. She accepts, however, that any move would have a short-term negative impact.[108]She was asked about mother’s accommodation, a one-bedroom flat, and that the children need their own space. She said she has not seen the flat and appreciates this is only a short-term solution for about three to six months, but the Local Authority can assist in any accommodation search. She has spoken to the Housing Department and escalated matters to the Head of Service, with regards to private renting and providing financial assistance. However, there is no timescale with regards to that.

Questions from Mother’s Counsel

[109]She confirmed that contact is not regular, and not all four children have attended. The father is not proactively promoting this. He says he will not force them to go and cannot force them to go.[110]It was put that EG asked for a pen and paper to write down what was said in front of the family support worker. This was the first time a child has ever asked her for a verbatim transcript which she regarded as very unusual. It was questioned as to whose benefit this was for. EG has additional needs, which makes it even more unusual in the circumstances.[111]She confirmed that in making arrangements to attend contact on 8 April 2025 there was no communication from the father. She had already prepared EL and O to attend. EL had indicated he was happy to attend, although O appeared apprehensive. But they both agreed – ultimately – to attend.[112]Both children chose an activity, and there was no evidence of them being fearful of the mother. The children acted appropriately and there were no issues. They also disclosed previous positive memories of their mother. They were also positive over the next contact which was due to take place on 15 April 2025 which involved a trampolining. At the handover, the social worker also informed the other children with regard to this; although, EG declined.[113]Sadly, when the social worker turned up, contact could not take place as the children were still in bed. O said that just because he had discussed attending did not mean that it would happen. Father was aware of what was suggested. There was no interaction with him.[114]Also of note is that the father in the contact of 8 April 2025 informed the school that he would call the police as the children were being forced to attend contact by the teachers and the social worker in relation to O and EL. This was not the case.[115]The children, it is reported, are in a precarious position if they remain in father’s care. They will continue to suffer emotional harm which will impact on their future emotional development. The children have absorbed the father’s feelings about the mother and are doing things to please him, which if it continues will create further estrangement. The cycle needs to be broken, and the only way is via a change of living arrangements.[116]Mum is essentially powerless, as the father holds all the cards. Unlike the father, she will promote a relationship. She was also previously their primary carer. The father is showing superficial or disguised compliance. The father has never portrayed the mother in any positive light, and it is difficult to establish the father’s true rationale. The children turn up to contact and they say they do not want to see the mother. The father is unlikely to change.

Questions from the Children’s Guardian

[117]The children will experience confusion initially if they are removed from the father, but mum presents as attentive to the children's needs and is consistent and empathises with them. Once the children do attend contact, there is positive interaction. The children should be able to adjust, and it can be managed. Potential challenges can be overcome.[118]The mother has engaged with the Local Authority throughout. The Local Authority will assist the mother to maintain the children in their current schools. There is no approval in place yet, but if a change of live with arrangements is made, then the Local Authority will have grounds to make a request. The school may also be able to facilitate an early and later drop off.[119]Mother works five days a week hybrid working. Her employer is aware of the situation, and she has flexibility and support.[120]As to the children’s wishes and feelings, it is felt they were the father’s and not their own. They are telling professionals what their dad wants them to say. At the outset, EL initially hid under the blanket from the social worker. But over a period of time, they were able to break through, and contact took place. Sadly, however, this previous behaviour has reverted. The court needs to make robust decisions.

Judicial questions

[121]I asked details about the layout of the flat. She has not seen it, but it consists of a bedroom, a living room space and a kitchen, it is maisonette type accommodation.[122]I asked specifically why the Local Authority had not undertaken public law proceedings. They said at the time, they were not able to evidence alienation, until now.[123]In essence, they forestalled issuing, on the basis of what the Court may do today. If the Court does not sanction the removal of these children, the Local Authority may well escalate matters; although, ideally, they would wish to place the children with the mother in the first instance. She accepts there are concerns in relation to the placement of the older children, more so than the younger ones. A, in particular, but EG is more likely to be accepting; although, she does accept that there is a potential dynamic in relation to the older children not wanting to remain with mother and the younger children being more malleable.[124]I discussed what wraparound support was available to the mother if removal was sanctioned, because we are now at a Bank Holiday weekend. She indicated that there would be visits to the children, as well as support for the mother and the children, including emergency support over the weekend. Any removal, she felt, would have to be from school, rather than the father’s home, due to potential adverse influences potentially increasing the children’s distress. The logistics of the children’s belongings can be resolved at a later date. GUARDIANS EVIDENCE Examination in Chief

GUARDIANS EVIDENCE

[125]The Guardian's views of a change of living arrangements remains the same, that such an order needs to be made as soon as possible, due to father’s ongoing influence over the children and the emotional impact, which will further distance the children from their mother.

Questions from Father’s Counsel

[126]Again, reference was made to the difficulties in relation to contact where the children requested to leave early. She accepts that the wishes and feelings of the children are important, and she accepts that the children have never been to the mother’s property and there has been no overnight contact, and the change of living arrangements will be a significant change, because they have not lived with their mother for three years, but they will adapt to this.[127]Similarly with the move from school. However, the children, she said, do not speak of any particular friendship groups. I note that the two elder children attend one school, and the two younger children attend the other school. In respect of friendship groups, they have the companionship each other. She accepts there will be some upset, but children can, and will, adapt.[128]It was put to her that the father has maintained the children throughout and they are reluctant to attend contact due to the physical abuse of the mother. However, the Guardian’s view is that the children’s views, themselves, have changed throughout the proceedings.[129]She responded in relation to the accommodation point in relation to there being no space for them to do their homework. She accepted that it is not an appropriate property long term and that there is no guarantee that this will quickly be resolved.

Questions from the mother’s counsel

[130]The Mother maintains that her property and the living area was big enough to accommodate some bedding, but it would reduce the living space; albeit I commented that this could be potentially mitigated by blowup beds, with sleeping bags and pillows, but not as a long-term solution, of course.[131]She accepted that the Local Authority will only take action to support the mother once the decision has finally been made. She was asked, does a short-term confinement and change for these children override the emotional harm the children are currently experiencing? The answer is yes. The children’s true wishes and feelings have been masked by father’s narrative. There have been positive contacts, as well as negative ones, so it fluctuates. The father has disengaged from the Children’s Guardian since August 2024. The children have been disrespectful, as well, which it is believed is encouraged by the father. However, the father has also presented aggressive in the children’s presence and negative about the mother. An example was given on 23 July 2024. He also has been sharing information about the proceedings with the children. She has no confidence that the father will promote contact. If the children remain where they are, they will suffer further emotional harm and, therefore, they need immediate removal.[132]In relation to potential placement problems, the only issue is A, but she feels that all four children should be placed together. She accepts the logistics of removal from school by the Local Authority, to lessen the impact of further emotional harm to these children, with a three-month settling in period in relation to limited contact and indirect contact with the father only.[133]At the close of her evidence, I heard that there was a message from the family support worker, at 12:23, in which EL had indicated – unprompted – that the father can get an emergency passport if they need to, bearing in mind I have already made a Prohibited Steps Order in relation to the children not being removed from the jurisdiction, due to the fact that although the UK passports have been handed over, there is a question mark over whether the father has the Nigerian passports.

SUBMISSIONS FROM THE FATHER

[134]The children should remain with him and contact to continue, in line with the wishes and feelings of the children. He is able to meet their needs. It is not viable for the children to be in a one-bedroom flat with no likelihood of moving them in the near future, and this will serve to only enhance tensions due to their being limited living space. A move is a significant change, and it is an untested placement. He denies influencing the children. The issues in relation to why the children object to seeing their mother has never been fully addressed. The children are still fearful of the mother. JUDGEMENT The Law

JUDGEMENT

[135]Children can resist contact for many reasons.a. This may be justified as a result of domestic abuse suffered or witnessed, or other forms of harmful parenting, such as neglect.b. Alignment with the residential parent, whereby the child prefers to spend time with one parent,c. Has a strong preference to that parent as a consequence of the separation; andd. The minimal involvement of the other parent.e. Attachments may be activated by appropriate age or gender-based reactions or a sense of loyalty towards the resident parent.f. Alienating behaviours, either intermittent or persistent, which can be emotionally harmful to the child.g. Harmful conflict, such as fear or an inability to cope with conflict situations.[136]In Re B (A Child) [2016] EWCA [Civ] 1088, it said this:
“10. Implacable hostility is exactly that: a case where one parent has become (usually irrationally and for poor motives) implacably opposed to contact taking place between a child and…[their] absent parent. That is… or may be very different from a case where a child has become alienated from a parent.”
[137]In relation to alienation, the Court needs to be satisfied that three elements have been established to conclude that alienating behaviours have occurred:a. The child is reluctant, resisting or refusing to engage in a relationship with a parent;b. The reluctance, resistance or refusal are not consequent on the actions of that parent towards the child or the other parent; anc. The other parent has engaged in behaviour that has directly, or indirectly, impacted the child.[138]When the Court is satisfied that one parent has, without good reason, sought to eliminate the other from the children's lives, the Court should not stand by and not take positive action.[139]As said in the case of Re M (Children) 2017 EWCA [Civ] 2164:
“Where [the] intransigent parent is fostering in their child a damaging view of the other parent and thereby alienating the child from the other parent and denying contact between them, the court should not hesitate to invoke robust methods where that is required in the child's interests. Thus, the court may make an order transferring the living arrangements…from one parent to the other, either to take immediate effect or…suspended so long as the defaulting parent complies with the court's order for contact.”
[140]An example for that is V v V (Contact:Implacable Hostility) [2004] 2FLR 851. In that case, there was a transfer of residence, based on the conclusion that the mother’s refusal to allow the children to have a normal relationship with the father amounted to emotional abuse, and even though the children were opposed to such a move, their views had been tainted by the mother and could not be determinative of the outcome.[141]In high conflict cases involving older children, before making an order, the court should consider – in light of what was known about the parents – the child or the family dynamics, whether there was a realistic possibility that the order contemplated was practicable and workable and whether, in the event of non-compliance, there was a realistic possibility of it being successfully enforced. The issue of enforcement, of course, is problematical in high conflict cases, particularly those involving children who are old enough, not only to express their wishes and feelings but to vote with their feet, in order to try and ensure that their wishes and feelings prevail.[142]As said in the case of Re S (Parental Alienation: Cult) [2020] EWCA [Civ] 568:
“10. Where a process of alienation is found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child's welfare, and not merely those that concern the relationship that may be under threat…The judge must consider all the circumstances and choose the best welfare solution. 13. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party, and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent's right to respect for family life before it is breached…What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.”
[143]A transfer of living arrangements is described as a judicial weapon of last resort, Re A (Residence Order) [2009] EWCA [Civ] 1141.[144]However, in Re L (A Child) [2019] EWHC 867 [(Fam)], the President considered that a suggested change of residence as a last resort in a different light:
“59. …there is, in my view, a danger in placing too much emphasis on the phrase "last resort"…It is well established that the court cannot put a gloss on to the paramountcy principle in CA 1989, s 1…The test is, and must always be, based on a comprehensive analysis of the child's welfare and a determination of where the welfare balance points in terms of outcome. It is important to note that the welfare provisions in CA 1989, s 1 are precisely the same provisions as those applying in public law…cases where a local authority may seek the court's authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice…is between care by one parent and care by another…against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as "last resort" or "draconian" cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s 1(3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child's welfare needs.”
[145]Of course, there is also the matter of a suspended Child Arrangements Order, regarding who the child should live with, conditional upon future non-compliance. A case such as that was Re L-W (Children) [2010] EWCA [Civ] 1253.[146]I could also order a temporary transfer of living arrangements to provide a real-life experience with the other parent. Whilst non-compliance with a court order is a serious matter, the Court must not conflate non-compliance with welfare. Non-compliance with a court order is not, in and of itself, a reason or a transfer of care; albeit non-compliance in the capacity to take up and act on professional support and guidance may be relevant factors in the welfare determination.[147]Central to the Court’s evaluation of welfare will be the risk of harm for the child to exposure to continuing alienating behaviours and disruption to the relationship with a parent in the parent’s home, weighed against the risk of harm to the child on being uprooted to a parent with whom the child has been reluctant, or resistant, or refusing to engage and the capacity of that parent to have the child live with them after an interruption of the parent-child relationship and a potential placement breakdown and the consequential effects this might have.[148]Even, if on some dimension, another care-giving environment may be better than the child's current one, the decisionmaker should assign considerable weight to the value of continuity of good enough care. The Court must be mindful of the trauma of removal, and the manner of it must be weighed into the balance when considering a fundamental change in a child's living arrangements.

Decision

[149]The children have been reluctant and resistant to engage in a relationship with the mother.[150]I am satisfied, on the evidence, that that reluctance, resistance and refusal is consequent on the actions of the father. Not in the actions of the mother.[151]The father says he is happy to progress contact. But there can be no confidence that he will do that, and the history of these proceedings point conclusively otherwise.[152]I am aware that one of the Welfare Checklist aspects is the children’s wishes and feelings, themselves. But those are not the paramount factor and, of course, I have to be mindful of how those wishes and feelings have been coloured by the perspective and the narrative of a parent with whom they live.[153]In my determination, the children’s wishes and feelings have been masked by father’s negative narrative of the mother. They have not been given permission to have a relationship with her. This is creating emotional harm, and has created emotional harm throughout these proceedings, and will continue to create emotional harm. Over time, that harm – in my view – will be significant.[154]The justification provided by the father as to why this is so is disproportionate and, in my view, not borne out by the evidence. I accept a change of living arrangements is not without risks. It will require intensive support from the Local Authority, at least in the interim stages.[155]The mother’s accommodation is not ideal. But im taking in everything that I have read, having regard to section 1 of the Children Act, that is the paramountcy of the children’s welfare, and the Welfare Checklist, the balance is ticked – in my view – firmly in removing these children to the mother’s care immediately. The choice in this case is stark: an immediate change in the living arrangements of these children or the mother simply walking away from the court.[156]The children remaining with the father, in my view, is not an order in these children’s best interest, having regard to their current and future needs.[157]With immediate effect, I will order that these children will move and live with the mother, until further order.[158]There will be a Prohibited Steps Order, preventing the father from removing the children from the mother’s care, from the school and from the jurisdiction, endorsed with a Penal Notice, until further order, which will be served on the schools.[159]There shall be no direct contact between the father and the children until the Local Authority considers it appropriate.[160]In the intervening stage, there will be indirect contact once a fortnight, via emails or letters, via the Local Authority.[161]This matter will need to be re-listed before myself to review matters.[162]I am aware there is an application for committal, on 7 May 2025 in relation to the father. That remains listed. However, depending upon what happens over the Bank Holiday weekend, if there is any urgent application that needs to be made, then I will hear that in lieu of the committal application, if needs be, and this case will travel alongside that.[163]That is my judgment and the reasons for it.164. Digital Transcription by Marten Walsh Cherer Ltd165. 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP166. Tel No: 020 7067 2900. DX: 410 LDE167. Email: info@martenwalshcherer.com168. Web: www.martenwalshcherer.com