London Borough of Bexley v MJ & Ors [2007] EWHC 1688 (Fam)

[2007] EWHC 1688 (Fam)

Case No FD06C00469

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12/07/2007

Before

MR. JUSTICE RODERIC WOOD

Between

London Borough of BexleyApplicant

Mr. Stephen Lyon for Local Authority

Miss Martha Cover for Mother

The Father appeared In Person for in person

Mr. Malek Wan Daud for Children

Hearing Hearing dates: 2 nd July to 11 th July 2007

Judgment

[1]I am concerned with two children: OTJ (hereinafter referred to as “O”), born on 1st April 1997, and thus 10 years and 2 months of age; and his younger brother EMJ (hereinafter referred to as “E”), born on 16th January 2000, and thus 7 years and 5 months of age.

[2]They were both born in the course of their parents’ marriage, and thus both parents, to whom I shall refer in more detail below, have parental responsibility for them.

[3]Both children have been diagnosed with autism, coupled with, in the case of O, moderate learning difficulties, and in the case of E, with severe learning difficulties.

The Applications:

[4]The Applications before me at the commencement of the hearing were as follows: i) On 22nd June 2006 the London Borough of B (hereinafter referred to as “the local authority”) issued proceedings under Part IV of the Children Act 1989 (hereinafter referred to as “the Act”) seeking a care order in respect of each child pursuant to the provisions of Section 31 of the Act. ii) The local authority on 14th June 2007 issued an application for leave to withdraw those proceedings pursuant to the provisions of Rule 4.15 of the Family Proceedings Rules 1991. iii) By notice of application of 19th June 2007, and miscellaneous letters the father invited the court to instruct Professor Z (a well-known and distinguished child and adolescent psychiatrist) to carry out an assessment of the children and prepare a report for the court on their respective conditions. iv) By letter of 23rd June 2007 the father invited the court to Ward the children pursuant to the inherent jurisdiction of the High Court. v) By letter, and in miscellaneous documents, the father sought a “shared care” order in respect of each child. vi) By letter of 25th June the father sought a greater degree of contact to each child than that which he now enjoys (see below). vii) By letter of 28th June 2007 the father invited me to see the children. viii) The mother, in the closing submissions of her counsel sought a residence order in her favour in respect of each child. ix) The mother further seeks definition of the father’s contact. x) Both the mother and the father invited me, in entirely separate proceedings under the Matrimonial Causes Act 1973, to resolve certain difficulties in relation to their matrimonial finances. I shall refer later to the outcome of each of these applications not all of which were pursued in closing submissions. The Law: Threshold:

[5]In approaching this case I have taken the following fully into account.

[6]When considering whether or not to make a Care or Supervision order section 31 of the Children Act operates. By virtue of the provisions of sub-section 2:

“A court may only make a Care Order or Supervision Order if it is satisfied; a) that the child concerned is suffering or is likely to suffer significant harm; and bi) that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him if the order were not made, not being what it would reasonable to expect a parent to give him; or ii) the child’s being beyond parental control.”

[7]In sub-section 9 certain definitions of relevant terms are set out including: i) “harm means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another. ii) “development” means physical, intellectual, emotional, social or behavioural development; iii) “health” means physical or mental health; and iv) “ill-treatment” includes sexual abuse and forms of ill-treatment, which are not physical.

[8]In sub-section 10 of that same section the following appears:

“Where the question of whether harm suffered by a child is significant, turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”

Burden and Standard of Proof:

[9]In considering the allegations originally made I had clearly in mind that the burden of proving the allegations would have been upon the maker (in this case the Local Authority).

[10]The standard of proof is the civil one of the balance of probabilities, following the case of Re. H & R

[1996] 2FLR 80

et seq. In considering that standard, I bore in mind the observations from the speeches in that case.

[11]As Lord Nicholls said at 96B:

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts (1964) 1 W.L.R. 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.” “This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”

The Predictive Case:

[12]In cases to be determined on the basis of “likelihood of harm” that “likelihood of harm” has been defined in Re H.

[1996] 2FLR80

as follows: “in this context Parliament cannot have been using likely in the sense of more likely than not …. The context shows that in section 31 (2) (a) ‘likely’ is being used in the sense of a real possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in a particular case”.

[13]As Lord Nicholls observed in that same case at 102B, the threshold required to establish likelihood of harm is “comparatively low”. General Comment:

[14]I have set out these passages for the sake of clarity, for even though all parties agree, as do I, that the threshold cannot be established in this case, these statutory provisions have provided me with the framework by which I reach that same conclusion.

The “Outcome” Stage:

[15]I do, however, have to consider applications within Part I of the Act, for I am invited to make orders under Section 8 of the Act.

[16]By virtue of Section 1 (1) of the Act, when I am considering and determining any question with respect to the upbringing of a child that child’s welfare shall be my paramount consideration.

[17]In determining the issue of welfare I shall be guided by what has become known as the “welfare check list” set out in section 1 sub-section 3. In that sub-section the following are relevant, and the court shall have particular regard to: a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); b) his physical, emotional and educational needs; c) the likely effect on him of any change in his circumstances; d) his age, sex, background and any characteristics of his which the court considers relevant; e) any harm which he has suffered or is at risk of suffering; f) how capable are each of his parents, and any other person or relation to whom the court considers the question to be relevant, is of meeting his needs; g) the range of powers available to the court under this Act in the proceedings in question”.

The European Convention

[18]The European Convention on Human Rights and Fundamental Freedoms 1950 (hereinafter referred to as the “Convention”) has been incorporated formally into English jurisprudence under the terms of The Human Rights Act 1998. Even before its formal incorporation the courts were taking a purposive view in interpreting domestic statute and case law in the light of the Convention.

[19]Of particular relevance in this case is

Article 8 of the Convention

which reads as follows: i) Everyone has the right to respect for his private and family life, his home and his correspondence. ii) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[20]Thus when making any orders I should, consistent with the Children Act 1989 (hereinafter referred to as “the Act”) section 1 (5), start with the principle that no order may be required. Only if I consider that an order is necessary should I go on to consider the range of options available to me, which include private law orders under section 8. I should only make such order as the facts require, and only then in compliance with the principles of necessity and proportionality set forth in Article 8 (2) of the Convention.

[21]Where there is a tension between the Article 8 (1) rights of a parent or parents and those of their child or children, in considering the resolution of that tension, and the extent to which it is necessary for the court to interfere with those individual rights and make adjustments as between them in accordance with the principles in paragraph 8 (2), I should give predominance to the interests of the child, consistent not only with section 1 (1) of the Act, but also European jurisprudence which now agrees with our domestic law.

[22]In Yousef v the Netherlands

[2003] 1 FLR 210

at paragraph 66 the proposition to which I referred in the preceding paragraph is exemplified in the following words:

“Lastly, if there was any clash of Article 8 rights between a child and its father, the interests of the child should always prevail”

. Article 6, European Convention on Human Rights and Fundamental Freedoms 1950.

[23]Article 6 (1) provides that:

“In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

[24]I have set out this provision in full as a proper reminder to myself of this absolute duty. In this complex case the father has chosen to represent himself, having previously dismissed two sets of solicitors. He is, as described elsewhere, a high functioning autistic. He has comported himself throughout with dignity, and has thought carefully about the questions he wishes to ask. Nevertheless, as many of the experts have noted, he has not found the exercise of shaping his questions and marshalling the extensive material an easy one. Dr. S., with Dr. O agreeing, (see below), described him as a “querulous litigant” (see paragraph 47 below). I bore in mind this characteristic, displayed in full in the run-up to this hearing when the father deluged all parties with hundreds of pages of documentation, many in his own handwriting. It thus became necessary, on occasions in the course of his questioning, to intervene in order to avoid unnecessary repetitions.

[25]Like many litigants in person, he found the boundary between giving evidence and shaping questions for cross-examination a difficult one, and periodically either I, or the witness, would check with him to establish the precise nature of the questions he was asking. It thus became possible to ensure that all understood the precise nature of the question being posed before the witness answered.

[26]Also, in the light of what I said in the previous paragraph about litigants in person, I had him affirmed at an early stage of the proceedings, so that when he strayed into giving evidence from the well of the court instead of asking questions, I could take that material fully into account when coming to my conclusions. It thus follows that a transcription of his very limited oral evidence from the witness box would not give a full and proper flavour of the nature of the material he arrayed before me orally.

[27]As with almost every case in the Family Division a vast quantity of information is set out in written statements and reports. There is also a substantial corpus of hearsay material requiring careful evaluation in the light of other objective, or perceived to be objective, evidence.

[28]I have been vigilant on the part of all parties, but particularly this father, in my attempt to ensure that even if he failed to ask questions which seemed to me to be part of the sub-stratum of his case, I was able to do so to establish the views of the various witnesses on the relevant subjects.

Shared Residence Orders:

[29]In the light of the father’s written request that I should consider making a shared residence order pursuant to the provisions of Section 8 of the Act, I set out what seem to me to be the relevant passages from authorities casting light on how to approach such a request. I do so, even though ultimately, he did not pursue his application for reasons which will become apparent later.

[30]In A v A (Shared Residence)

[2004] 1FLR 1195

, Wall J. (as he then was) considered comparatively recent authorities on the subject, all binding upon him, and indeed upon me. Having reminded myself of his survey of those cases, and having re-read the original authorities, it would be otiose for me to attempt my own summary and analysis of those cases, and of the principles to be derived therefrom as set out by Wall J. I can do no better than quote from his Judgment, with which I respectfully agree. He said: i) “There are three recent decisions of the Court of Appeal dealing with the question of shared residence orders. They are, in chronological order, D v D (Shared Residence Order)

[2001] 1 FLR 495

(D v D); Re A (Children)(Shared Residence) [2002] 1 FCR 177 (Re A); and Re F (Shared ResidenceOrder)

[2003] 2 FLR 397

(Re F). ii) The most important of these, in my judgment, isD v D.In that case there were three children who, following their parents’ separation, spentsubstantial amounts of time with each, despite the fact that there was a high level of acrimony between their parents and frequent applications to the court to sort out the detail of the arrangements. The father argued that without a shared residence order he was treated as a second-class parent by authorities with whom he had to deal over matters relating to the children. The judge made a shared residence order,and the mother appealed. iii) The judgment of Hale LJ (as she then was) is valuable both for its statement as to the current law and for its historical analysis. Hale LJ cites a passage (at

[2001] 1 FLR 499

) from the Law Commission’s Report (Law Com No 172 published in 1988) on which the Children Act 1989 is based, and which bears repetition. Apart from the effect on the other parent, which has already been mentioned, the main difference between a residence order and a custody order is that the new order should be flexible enough to accommodate a much wider range of situations. In some cases, the child may live with both parents even though they do not share the same household. It was never our intention to suggest that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the children’s benefit. However, the evidence from the United States is that where they are practicable they can work well and we see no reason why they should be actively discouraged. None of our respondents shared the view expressed in a recent case [Riley’s case] that such an arrangement, which had been working well for some years, should never have been made. More commonly, however, the child will live with both parents but spend more time with one than the other. Examples might be where he spends term time with one and holidays with the other, or two out of three holidays from boarding school with one and the third with the other. It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other. Hence we recommend that where the child is to live with two (or more) people who do not live together, the order may specify the periods during which the child is to live in each household. The specification may be general rather than detailed and in some cases may not be necessary at all. iv) It is for those reasons, Hale LJ comments, that section 8(1) of the Children Act 1989 defines a residence order as an order ‘settling the arrangements to be made as to the person with whom a child is to live’. v) In her judgment in the case, Dame Elizabeth Butler-Sloss P helpfullycites a passage from the guidance contained in the Children Act 1989 Guidance andRegulations, Volume 1, Court Orders published by the Stationery Office in 1991 paragraph 2.2(8) at page 10: - ‘It is not expected that it would become a common form of order, partly because most children will still need the stability of a single home, and partly because in the cases where shared care is appropriate there is less likely to be a need for the court to make any order at all. However, a shared care order has the advantage of being more realistic in those cases where the child is to spend considerable amount of time with both parents, brings with it certain other benefits (including the right to remove the child from accommodation provided by a local authority under s.20), and removes any impression that one parent is good and responsible whereas the other parent is not.’ i) The essence of the decision in D v D seems to me to be as follows. It is a basic principle that, post separation, each parent with parental responsibility retains an equal and independent right and responsibility to be informed and make appropriate decisions about their children. However, where children are being looked after by one parent, that parent needs to be in a position to take the day-to-day decisions that have to be taken while that parent is caring for the children. Parents should not be seeking to interfere with one another in matters, which are taking place while they do not have the care of their children. Subject to any questions which are regulated by court order, the object of the exercise should be to maintain flexible and practical arrangements wheneverpossible. ii) D v D makes it clear that a shared residence order is an order that children live with both parents. It must, therefore, reflect the reality of the children’s lives. Where children are living with one parent and are either not seeing the other parents or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order. However, where children are spending a substantial amount of time with both their parents, a shared residence order reflects the reality of the children’s lives. It is not necessarily to be considered anexceptional order and should be made if it is in the best interests of the children concerned. iii) These themes are reflected in to other two decisions. In Re A, there were three children, a boy and two girls. The girls lived with their mother and the boy lived with his father. The boy was unwilling to see his mother, and was not doing so. A Recorder made a shared residence order. The father applied for permission to appeal. Granting permission to appeal and allowing the appeal in part, the Court of Appeal set aside the shared residence orders. In so doing, Hale LJ said (at [2002] 1 FCR 177 at 181: - ‘17] I completely appreciate why the recorder wished to make a shared residence order in this case. He wanted to recognise the equal status of each parent in relation to all three of these children. He may, although he does not say so, have been afraid that the father would not recognise this if he did not make a shared residence order in relation to all three children. But the law is that the parents already have shared parental responsibility for their children. They have equal and independent power to exercise that parental responsibility. A residence order is about where a child is to live. It is very difficult to make such an order about a child who is not only not living with one of the parents but is, for the foreseeable future, unlikely even to visit with that parent. Notwithstanding, therefore, that that parent does not wish there to be any distinction between the children, because she does not wish M to feel rejected by her, the court’s order has to be designed to reflect the real positionon the ground. That being the case, in my view the shared residence order in relation to M was inappropriate. For that order there should be substituted an order that M is to live with his father and to have contact with his mother in the same terms as the order laid down by the learned recorder.’ iv) In Re F a judge made a shared residence order in relation to two small children, notwithstanding the fact that the mother lived in Edinburgh, a considerable distance from the father’s home in England. The Court of Appeal, upholding her decision, said that such a distance did not preclude the possibility that the children’s year could be divided between the homes of two separated parents in such a way as to validate the making of a shared residence order. A shared residence order had to reflect the underlying reality of where the children lived their lives, and was not made to deal with parental status. Any lingering idea that a shared residence order was apt only where the children alternated between the two homes evenly was erroneous. If the home offered by each parent was of equal status and importance to the children an order for shared residence would be valuable.” Threshold Document: Responses:

The Law:

[31]In an undated document (which on 6th July HHJ Bevington ordered the local authority to file) they set out their proposed threshold criteria. It was based on both the alleged existence of significant harm already suffered, and a likelihood of harm.

[32]The allegations included domestic violence by each parent upon the other at various times throughout the marriage, with consequential emotional harm to each child; a failure by each parent to appreciate the effect of arguments/violence on each child; an inability of each parent fully to address the needs arising from each child’s autism with consequential developmental delay; the provision of inconsistent parenting by each child in respect of each child; the father undermining the mother’s authority; the mother’s inability to distance herself from the father; etc.

[33]Although she filed her response considerably later than had been directed, the mother’s document of 15th January 2007 challenges both the principle of harm or likelihood of harm, and most of the allegations of specific events. She makes very limited admission as to factual matters (for example that the children had observed assaults by the father upon her, but denies that this caused or would be likely to cause emotional harm).

[34]The father responded, again out of time, in an undated document which I have taken to be a denial of both the principle, and most of the specific allegations. He does not flinch from criticising the mother, but draws short of agreeing with the local authority’s assertion of significant harm or likelihood of it arising from her (or indeed his own) care.

[35]The local authority indicated in the course of a directions hearing on 14th June 2007 that they were no longer seeking to establish threshold, could see no realistic prospect of so doing in the light of the expert assessments of each child available to the court (see below), and that any attempt so to do in the forensic arena would be wholly unconstructive and damaging to each parent, and the working relationships between each parent and the local authority.

[36]The mother, the father, and the guardian all agree that threshold cannot now be established.

[37]However, the mother, through her counsel, argued at the outset of the hearing that I should continue these proceedings even beyond the eight days set aside for hearing them because the care plans put forward by the local authority are inchoate. It was her submission that until there was greater clarity of planning, and various referrals have been made and accepted, and funding has been authorised by the local authority/education authority/health authority, I should not let go of these proceedings. Since the father’s position on continuing proceedings was at the outset that I should invoke the wardship jurisdiction, I considered him, for these purposes, to be more or less in agreement with the suggestion that the court should not end its involvement at this stage whatever the jurisdictional umbrella.

[38]Prior to the coming into force of the ‘89 Act in October 1991 the courts regularly exercised, within the wardship jurisdiction, its powers to direct, sometimes in considerable detail, the care planning for children, even though the court had already made a care order in favour of the local authority pursuant to the then statutory provisions (Section 7 Family Law Reform Act 1969). With the coming into effect of the ’89 Act those powers fell away. Once a care order has been made on the basis of an approved care plan the duties of enacting that care plan fall solely upon the local authority. The court thereafter only has powers to discharge the care order (section 39) or to provide for contact to children in care (section 34). No orders could be made pursuant to the provisions of section 8 of the act where a child is in the care of the local authority (section 9.1). The use of the wardship jurisdiction where there is a care order is inhibited by the provisions of section 100 of the Act which permits very little possibility of exception to the general prohibition.

[39]Where no care order has been made the powers and duties of local authorities to make provision for children in need are set out in Part III of the Act. Education authorities and health authorities have a statutory framework of their own governing their powers and responsibilities in relation to individuals. In this case the local authority now say, if I accede to their application to withdraw the Part IV proceedings, that they will make full and proper provision for each of these children pursuant to their powers and responsibilities under Part III of the Act. Given an historical level of mistrust on the part of the mother, and at the start of the hearing he less than specific nature of the provisions to be offered to each of these children in the foreseeable future, and despite the preliminary crafting last week of a set of proposals by the local authority for the provision of services, the mother asserted that I should not put my faith in the provision of services under Part III, but should continue these Part IV proceedings until a greater degree of certainty as to the provision for each child is established.

[40]Although happily, both parents withdrew any application for an adjournment/review hearing, I consider it necessary, for the avoidance of doubt, to set out my views on the original invitation. Even if I were disposed to take that course of adjourning the case (which I am not) I would have no jurisdiction so to do. Since all parties now agree that threshold cannot be established (and I respectfully agree with them) the necessary threshold leading to the invocation of the court’s powers under Part IV to make a care order or a supervision order is not established, and the proceedings must end. If I were to extend them, whilst finding that the threshold had not been established, I would be doing so artificially in order to police the local authority’s implementation of its current care plan. I have no statutory jurisdiction for so doing.

[41]Given the matters I have referred to above in relation to the wardship jurisdiction and its inter-relationship with the Act, I cannot adopt that route to provide a policing service even if I were inclined so to do, which I am not.

The Father: Psychiatric Assessment

[42]NAWJ (hereinafter referred to as “the father”) was born on 3rd February 1963. He has been the subject of two psychiatric assessments, the first by Dr. S. (consultant psychiatrist) at KCH, in May 2006; and the second by Dr. O. (consultant forensic psychiatrist) at SUH, his report being dated 30th May 2007.

[43]Dr. S gave a diagnostic summary of the father at the conclusion of his report. He found the father to have a life-long pattern consistent with severe personality disorder of a paranoid nature, complicated by aggressive outbursts. He described the father as suffering from paranoia which overwhelms him, and he becomes aggressive and abusive as a consequence of his paranoia. This is thus not in his view a paranoid psychosis and “probably won’t respond very well to medication and he probably won’t take medication” (see volume P. C16).

[44]It was, I believe, Dr. S. at some stage who prescribed medication for the father (including Prozac, Lithium, Carbamazapine, and Stellazine), but that psychotropic medication was stopped in 2000.

[45]Dr. O did not go quite so far, he not classifying, by reference to international diagnostic classifications (ICD-10), the father as having a “disorder”. He did, however, agree that there was a paranoid element to the father’s personality “as he appears excessively sensitive, sometimes misconstruing neutral action, with a combative and tenacious sense of personal rights, out of keeping with the actual situation. I am in agreement with Dr. S that this is compounded by his aggressive outbursts for which he has no insight and is in denial, often seeing the reasons for his actions as being precipitated by the other person and rationalising the excessiveness with which he responds”.

[46]Thus, although differing as to the precise classification, both are agreed as to the presenting signs.

[47]Dr. S. further diagnosed the father as being a “querulous litigant,” “a known complication of paranoid personality disorder. This leads him to constantly seek out court cases to ‘prove’ that he is right, write voluminous letters to his wife and the authorities to somehow assuage his anxiety and his paranoia” (volume P, C16).

[48]Dr. O agrees with this designation on the basis not only of the generality of the father but his own observations and experience of him (D76, M7), save, as noted in the preceding two paragraphs, his declining to use the word ‘disorder’.

[49]Dr. O was concerned about the father’s “proneness to discharge aggression, which are (sic) often excessive, again to which he has no insight” (D77, M8).

[50]Dr. O found no clinical evidence of an enduring psychotic or depressive illness. The father receives no current medication (psychotropic or otherwise) nor does he see a psychiatrist for treatment. Given his view of the father’s lack of insight into his difficulties, there would be limited, if any, benefit from treatment; and in any event prior to any intervention there would need to be a planned structured behavioural programme carried out by a clinical psychologist who has experience of dealing with people with similar problems.

[51]Given these two conditions it seems unlikely to him, that the father would co-operate, and even if he did, how helpful such interventions would prove. Ultimately Dr. O. considered “the prognosis is presently poor”. Dr. L. (consultant child psychiatrist - see below) viewed the father slightly differently in terms of his insight. She was of the view he did have some insight, and was accordingly less pessimistic than Dr. O. about the possibility of the father co-operating with such a clinical psychologist.

[52]Over-arching all of these considerations, Dr. O. agrees with the term employed by Dr. L. who describes the father as a “high functioning autistic” (D76, M.5). The father, whilst accepting the diagnosis of high functioning autism, does not accept the designation of paranoid personality disorder, nor indeed many of the other descriptions of him, some of which I have incorporated into this Judgment, the balance appearing in the report of Dr. O at D63 et seq. It is the father’s case that the report of Dr. E, (consultant radiologist at the B hospital) that report being dated 19th November 1993, showing as it does some abnormality of brain formation/activity is sufficient foundation to establish that he suffers or may suffer (in addition) from bi-polar disorder. He asserts that if this is the correct diagnosis, it has radical implications for the diagnosis for each of his children, and thus the needs of, and care package for, each child. It is his belief, given his family history (see below) and given his wide-ranging reading on the subject of autism, bi-polar disorders, and other psychiatric text books, that the children (although not yet formally so diagnosed) are, or may be, suffering from a bi-polar disorder with associated ADHD.

[53]Dr. O was clear on the basis of a wide range of information that this was not a diagnosis with which he was in agreement for the father. I shall consider the children later. He had taken into account the father’s self-report of symptoms, his own observations of the father (signs), and the history incorporated into the documentation he had received, and the father’s medical records.

[54]I have seen no evidence which would entitle me as a layman to question the very careful opinions arrived at by Dr. O. and Dr. L. as to the designation ‘high functioning autistic’, and Dr. O’s rejection of the father’s suggestion that he suffers from bi-polar disorder. Although, in principle, the opinion of Dr. O. (it being his specialism) on the subject of the father’s insight might be said to carry more weight than that of Dr. L., the latter had the opportunity of considering this issue in the course of her very extensive enquiries into this case, and in the light of a number of meetings with the father at which she had lengthy discussions on the subject of his beliefs as to his children’s condition, appropriate management techniques, etc. I am thus, in the light of her evidence, less inclined to pessimism than Dr. O. on the subject of the father’s potential for cooperation with clinical psychologists, and/or the slightly remoter possibility of him accessing individual therapy for himself.

The Father: Further Background:

[55]I summarise other aspects of his history as follows: the father describes his father and grandfather as cool, aloof, and disciplinarian. His own family speculate that the occurrence of autism in the family has been inherited genetically through the generations.

[56]His own father (now 70 and divorced) is still alive. He has limited contact with him. His 67 year old mother (with whom he has no contact), re-married. He is the elder of two, his sister T now being 39 years of age, single, and with a career. He does not appear to be close to any of the named relatives, and is positively antagonistic towards his mother who sided with her new husband against him a number of years ago in the course of a criminal prosecution in which the father was accused of hitting the mother’s new husband over the head with an iron bar.

[57]On his own account his school days were “bad”, although he did not truant, and says that he had friendships there. He found academic work difficult, although he did leave with a number of ‘O’ levels. He has had work subsequently in the building industry, and save for the period between 1992 and 1996 when he successfully studied for and obtained a law degree, and spent six months as an articled solicitor, his adult life has been spent in that trade. He currently works managing large building projects. As experts in this case have observed, his metier happily accommodates his personal characteristics.

[58]His first marriage in 1981 to K (now aged 43) ended without children. They divorced in 1985, and there followed his second marriage to the mother. That marriage itself ended in 2005, the mother alleging unreasonable behaviour on his part. Although he does not appear to accept the allegations she made he “did not bother to defend”.

[59]I cannot leave this account of the father (abbreviated as it is) without reference to his forensic history. He has a number of previous convictions for thefts (and a number of suspended prison sentences in respect of those convictions), handling stolen goods, breach of a probation order, assault on police officers, affray, a number of driving offences (leading to four disqualifications), and a conviction for racially aggravated assault upon a neighbour who lived next to the former matrimonial home. Prior to his conviction on this charge he was remanded in custody for two months, and following a plea of guilty (although he appears in the documentation to be denying that he committed the offence), he was sentenced to two years probation with a condition not to reside at the family home, and to undergo psychiatric treatment.

[60]The father agrees with the mother that there was physical violence within their marriage, although he makes no admissions as to any such violence occurring in the presence of the children. Furthermore, he asserts that he was assaulted by the mother, and any violence perpetrated by him against her was solely by way of self-defence.

[61]As the marriage was breaking down he left the family home, but for a considerable period lived in a shed at the end of the garden. It is one of the features of this case that this couple (this illustration perhaps being an example of it) have not in fact separated in the emotional sense, and remain enmeshed. It was a noticeable feature of the evidence that neither gave any impression of having a wide social network, or indeed any network at all, and thus they frequently fall back on each other for support, or simply as a conduit for their anxieties and complaints. Given that each has a different perspective on their children, their diagnosis and prognosis, and given that they have a long history of conflict (both physical and emotional), this enmeshment is fertile territory for creating problems, and entrenching the existing lack of trust in each other.

[62]What is beyond doubt, and agreed by all witnesses, is he has great love for his children, and wants only the best for them. It is, however, suggested by a number of witnesses (Dr. L. included) that he has unreasonable expectations of what these children might achieve. Dr. L. was further of the view that he has, in reality, not really accepted that his children are as disadvantaged as the professionals believe. I shall consider this again when speaking of the children.

The Mother:

[63]Her family originate in the South-East of England, and although some of her family members live locally to her, and her 65 year-old mother lives in Kent, the papers suggest that the mother has little to do with any of them (save possibly a sister) and they are not a fount of support for her. Thus she turns to the father for support despite the difficulties of their relationship (see above).

[64]She left school at 16 years of age and worked for a bank for the following 17 years, leaving only when she became pregnant with O. She would hope, one day, to return to a normal working life outwith the home, but such are the exigencies of caring for these two boys that such an endeavour is out of the question at the moment. She met the father in 1999, and describes a violent relationship with him even before they were married. It is a feature of her account that she has been the victim of regular and frequent physical assaults by the father (a matter denied by him – see elsewhere). Her allegations of violence even extend to a knife attack during her pregnancy with O, who was a planned child. For the reasons given earlier when considering the issue of threshold, I have not investigated where the truth lies in relation to these allegations and counter-allegations. Although I have borne in mind my duty to lay to rest contested issues, particularly as they relate to domestic violence, there being potential implications for contact if I find one spouse has been violent to the other, or each to the other, I have agreed with the parties that this would be a jejune exercise. I have been influenced, in particular, in reaching this decision, by the opinion of Dr. L. that in fact the autism of each child is of such a level that the violence between the parents (agreed by both to have taken place, even though they have different perspectives on issues such as aggressor/self-defence) that it would not be possible to say with any clarity, or at all, that these boys, or either of them, have in any way been influenced by such parental behaviour.

[65]The mother is described in many documents as being a deeply loving one, highly committed to each of these boys; her recent life has been totally consumed in the raising of them, and she is periodically overwhelmed by the demands made of her.

[66]It was clear to her that O. was not developing normally from the age of about 12 months. His reactions were different from other children and he had no speech. He was formally diagnosed as autistic at 2 years 4 months. Her worries about E. began when he was about 9 months old, and, following on the diagnosis of O. as being on the autistic spectrum, it was a further blow when E. was likewise diagnosed.

[67]The separation between the mother and the father came at her instigation in 2004, although, as above described, they did not in truth separate. He lived in the garden shed for three months, and left the family home in October 2004, but the intervening years have been striated with frequent communication between them, face-to-face, by letter, by telephone etc. These communications go far and away beyond what may be required between two parents who have two such children to raise. Although I have considered this issue earlier, it is worth repeating that their relationship is clearly not over, for they have not, in truth, emotionally separated from each other. A perfect example of this was provided in the course of the consultation between the father and Dr. O. when the mother rang to speak with the father. She has, furthermore, agreed with him at times to go outwith the contact ordered by me in April 2006, and arranged with the father to have longer periods with his sons. Dr. L., when considering the parents, thought it unlikely that either of them would change their styles with each other radically, but that in helping to erect a structure to provide greater levels of support to the mother it might give her other conduits to discharge her anxieties, and other people to turn to rather than the father, thus bringing about some essential distancing between them, and, it is hoped, reducing the conflict between them.

[68]All observers find her to be a calm and patient mother, doing her best to meet the disparate and high levels of need of each of her children.

[69]These proceedings have been an immense strain upon her, and particularly she has found it difficult to continue working with the local authority (until the arrival of the newly allocated social worker Ms. H.). The issuing of the care proceedings, the allegations set forth in the threshold document, and the early (unsuccessful) application by the local authority to remove both children from her care, caused the foundations of the working arrangement between mother and authority to quake. Happily, Ms. H., a social worker of considerable experience, has been able to restore a level of confidence. Nevertheless, in part because the expert reports were delayed, the local authority have been unable to finalise the care plan prior to this hearing. Thus, the mother finds herself facing a degree of uncertainty as to the nature of the provision which is to be made for each boy, and she is anxious for clarification and implementation.

[70]The mother’s working relationships, and associated difficulties therewith, are not reserved to staff of the local authority. For example, Ms. O’R., a senior nurse of the nursing disabilities team of the B. Child and Adolescent Mental Health Service (CAMHS) worked with the boys in the course of 2006, but the mother terminated the arrangement. Ms. O’R., in a report of 7th December 2006 (E20) quotes part of an e-mail the mother sent to her on 1st December which reads:

“I am not happy that issues you and I discuss have been used in this court process, I have no trust at all in working with any professional in this Borough”

. The mother went on to criticise Dr. A., a consultant child and adolescent psychiatrist with B. CAMHS whose draft report of 20th September 2006 appears at D3. The nature of the mother’s loss of confidence in the psychiatrist is difficult to establish. It appears that the doctor dealt with the mother mostly by telephone at the mother’s request, she finding it difficult to keep appointments face-to-face. The doctor diagnosed, on the basis of description provided both by the mother and, on one occasion, by E’s class teacher medication in the form of risperidone. She periodically altered the level of medication in response to reports of deteriorating behaviour on the part of E. provided by the mother. She furthermore persuaded the mother to administer risperidone to O., but bearing in mind the mother’s reluctance to have him medicated, she only agreed to a one week period at the conclusion of which O’s medication was reviewed, and in the light of the mother’s reports about O’s behaviour the medication ceased at that time. A further aspect of her report, which may have caused the mother to depart from the doctor’s advice, was in connection with whether or not one or both children should attend a specialist boarding school, even though the mother had begun to consider this option. I suspect that the mother’s disenchantment with this witness was part and parcel with her disenchantment with the local authority generally, and the health service professionals in addition, exacerbated in the case of Dr. A. by that professional’s prescribing medication for O. even though she had not met the boy, albeit, paradoxically, the doctor was trying to assist because of the mother’s inability to attend appointments.

[71]In the course of the private law proceedings preceding the issue of Part IV proceedings under the Act, the mother has never sought a residence order, but there were numerous applications concerning contact to the children, and she also, at times, made application for orders to prevent assaults/molestation, and to exclude the father from the family home.

O.:

[72]This 10 year old boy has many and complex needs. Before turning to them I shall attempt a brief portrait of him. He is described as polite and cooperative (when the mood takes him) whilst comparatively limited in his communication skills. He gives every appearance of being very happy to live in his mother’s care (although his behaviour there is not without problems, although not of the same magnitude as those presented by E.). He has been observed as being affectionate to his mother, and often sits close to her or enjoying cuddles with her.

[73]He clearly enjoys his time with his father, although aspects of the father’s management skills will be the subject of further critical comment below. No-one doubts that he has an attachment to, and a relationship with, each of his parents. He is much loved by both.

[74]He can be extremely demanding and challenging in the family home, and at one time was said regularly to physically attack his mother and spit at her. Such was the loss of control of the mother over him that there was also a period where he failed to attend school in 2005, although the mother has now been able to re-engage him, and his school attendance is good. Unhappily, his behaviour there is not always good, and he seems to have fallen under the influence of one of his peers, they leading each other into bad behaviour.

[75]Ms. O’R. the senior nurse at the learning disabilities team referred to elsewhere has reported twice (D1, 30th June 2006; and E20, 7th December 2006). At E21 she sets out in tabular form “the initial main challenges/concerning behaviours within the home”: O’s include slapping, night-waking, total disregard for direction/command/requests; physical aggression to E. and the mother; kicking, biting, swearing, spitting, verbal abuse, smashing objects, writing on walls, interfering with car driving, insulting behaviour to neighbours, poor diet, and school refusal. It is greatly to the mother’s credit that the guardian notices considerable improvement in O. in recent months. Nevertheless some of these described behaviours are not by any means resolved. For example, he is reported by Ms. R. (principal educational psychologist) as having about three major behavioural outbursts each week at school “in which he will kick, hit and shout. He is taken out of class by support staff if unable to calm down”. He is furthermore described as having a wide repertoire of attention seeking behaviours at school.

[76]He has a capacity to occupy himself, but any directed shift in activities can lead to problems. The mother has developed strategies, but even so any request for compliance with an imposed rule is more likely than not to be met with negotiation, and an outright “no” from her is more likely than not to lead to rage on his part. As so many children with his particular diagnosis, certainty of routine is particularly important to him.

[77]In addition, he has a long-standing problem of constipation with occasional leakage, and various attempts to medicate this problem have proved ineffectual. It is thought that perhaps for emotional reasons he withholds his faeces. I was told by both parents that this soiling only occurs in each of their homes and not at school. It is nevertheless a problem. The father is greatly worried that this problem has a physiological underlying cause which is not yet diagnosed, and both parents would wish, without I think the necessity for invasive examinations, to consider this possibility further, although the experts are largely agreed that the problem is essentially associated with his autism, and a frequently encountered sign of that condition amongst those on the ASD. The parents agreed with each other in their oral evidence that they would consult another specialist privately.

[78]As Professor B. notes:

“O. continues to have significant qualitative impairments in sociability, empathy and the ability to infer what other people are experiencing or thinking; and the communicative use of language and creative imaginative play; and behavioural and cognitive flexibility, range of interests and activities”

. She further considers that “his adaptive skills are like those of a much younger child”.

[79]Standard IQ tests (4th U.K. Edition – WISC – IV UK) reveal full-scale IQ, verbal comprehension, working memory and processing speed all in the extremely low category, and perceptual reasoning in the borderline category. A language assessment of him showed that all but one of his standard scores were at the very bottom of the range allowed for such scores “suggesting a very significant language impairment”. His functioning in receptive and expressive domains is in the lowest 1% of children. Yet his major language difficulties are not strikingly obvious because he has reasonably good functional expressive language, and can accordingly have his needs met and use language to convey his thoughts. On some levels his functioning presents a picture of a child with greater skills than he actually possesses, and indeed greater skills than are classically found in autistic children: for example he has a capacity to tease, smile, and evince attachment to others. Yet Ms. R. suggests that O’s “overall level of personal and social skill is very low”, with his socialisation at an overall age equivalent of 3 years 10 months. In addition, on the ASD spectrum Ms. R. considers him to be well within the severely autistic range.

[80]He undoubtedly is on the autistic spectrum with moderate learning difficulties. Professor B reports that he shows “no sign of having an underlying causative neurological disorder” (D26). Along with many children with learning difficulties (let alone autism) there is a higher percentage risk than the balance of the population that such a child will either have an underlying mental disorder, or will come to develop one. Thus neither Professor B., nor Dr. L., could rule out the possibility of a bi-polar disorder developing with or without associated ADHD as a co-morbid condition (see above for the father’s beliefs on this subject), although neither saw current evidence to suggest that these conditions are now present.

[81]He attends the W. school which can take him until he is 16. There is accordingly, no urgent need to look for an alternative provision, Ms. R. considering that the W. school provides appropriately for his existing needs. However, as with all such children, he will require regular re-assessment so that his programme can be adapted to his specific needs (resources permitting). The W. school is specifically for those suffering ASD, and has a special unit for those with learning difficulties. It is the view of Ms. R (one not shared by the father) that it is unlikely that O. will be able to live, even semi-independently, and might not be able to hold down a job. As she reports, and as she repeated in evidence, the greatest barrier to him achieving a degree of independence is his “impulsive, non-cooperative behaviour”. Much of his behaviour is currently impulse driven, and the differential management techniques adopted by each of his parents do not assist him in learning boundaries. The father, in particular, has been invited not only by Ms. R. but by other witnesses to consider the techniques he uses to manage O’s behaviour. Dr. L., after extended observations of father and son was particularly concerned at the father’s inability to establish boundaries, and at his tendency to reward poor behaviour by failing to establish and enforce appropriate rules and boundaries. I have no reason to doubt their comments having heard the father’s evidence on this subject, he not denying the truth of their observations, but seeking only to justify his approach. I regret to say that I find he does indeed have limited insight into the effect of his approach, and a rigidity of thinking which may make it difficult to advise him as to any necessary changes (see below). In so finding, I should emphasis that I do not find a shred of mischief in his approach, but, to the contrary, that he genuinely believes in the correctness of it. He is acknowledged by all to be a deeply loving father, of enormous commitment.

[82]It was the view of Professor B. that his primary need is for proper and specific educational provision in particular addressing his primary skills. He has a pressing need in Professor B’s view for a stable and supportive home, and the provision of sufficient and specific help for the parents (particularly the mother as the main carer), paediatric assistance (particularly in the area of addressing his drug regime, if any, and his constipation), psychological and psychiatric input (see below when I comment further upon Dr. L’s evidence), and social work help. This is quite a menu of provision, and it is to this menu that the local authority are addressing themselves.

[83]Unhappily, much of what is required is not within their gift. By definition, provision of education falls within the domain of the educational authority; the provision of medical services falls within the domain of the health authority; the provision of psychological and psychiatric assistance falls likewise to CAMHS (operating under the aegis of the health authority). Mrs. H. (see below) did inform me, however, that this local authority has the enormous advantage of having a Children and Young People’s Directorate, upon which sit representatives of social services, the education authority and the CAMHS. Once the directorate has approved a plan for the children then each of the constituent authorities will do their part in achieving it. It is nevertheless considered essential by Professor B and others that the burden of attempting to co-ordinate the provision of services for O. (and E.) should fall upon the local authority. The job was described by Dr. L. as being that of “case manager”, and is not an easy one to fill. Apart from all the other qualifications, it will require the mother and the father to have confidence in the relevant social worker. Currently these children are lucky to have Mrs. H. as that social worker. I hope that as a result of the change in the legal structure surrounding the affairs of these children following on from this Judgment (the case reverting to private law proceedings under the Act) there will be no change on that front for the foreseeable future, and I was happily given an assurance by Mrs. H. that whilst she is unlikely to see these children through to their respective minorities, she is more likely than not to remain in post on this case for a considerable period.

[84]In addition Professor B. considered speech therapy, (better provided through the school, and W. school is lucky enough to have one) would be appropriate, as well as at a minimum a consultation with an occupational therapist (usually provided through the health services).

[85]Professor B. and Dr. L. were both very concerned about the availability of a clinical psychologist. Both regarded the provision of this service as fundamental. What does the role entail in relation to this boy (and E.)? The psychologist would be required to visit in particular, the mother’s home for significant periods both during the day time and night time to observe the boys, their behaviours and routines, and the management strategies currently adopted by the mother (and also the father when they are with him). After this prolonged observation and analysis of the findings, it is the role of the clinical psychologist to help each parent create child-specific techniques of boundary setting and managing the relevant behaviours. An added complication is said to be the father’s own autism for he is said not to take advice readily, and clearly has entrenched ways of dealing with the boys, as well as, in the eyes of all of the experts, false expectations of their ability to achieve and/or adapt. Dr. L. took the pragmatic approach that it may not be possible to change the father’s way of dealing with each of these boys, but as long as there is a sufficiently solid structure of behavioural management provided by the school and the mother, whilst change on the part of the father would be highly desirable, it may not be achievable, and may be in itself managed in the way described above.

[86]Whether a clinical psychologist of the relevant expertise can be found remains to be seen. There is a severe national shortage. Professor B’s own unit is essentially a tertiary provision and with rare exceptions provides limited assistance on a continuing clinical basis. The other main London provider may also, at the moment, not be able to assist. Thus the role of the co-ordinator once again comes into its own.

[87]Even that will not solve all the problems, for as Professor B., Dr. L. and Ms. R. all make clear, the provision of expert psychological help is a scarce commodity in today’s funded world. Even where funds exist, there is not necessarily the right candidate to fill the post. This is particularly true of clinical and educational psychologists. In the course of her oral evidence, Ms. R. suggested, contrary to the provisional views of Professor B. and Dr. L., that the need for psychological intervention in this case would be satisfactorily met by the instruction of an educational psychologist rather than a clinical psychologist. The advantages would be perhaps all too obvious, for the continuing need to examine the appropriate educational programme (IEP) for each of these children could be carried out by such a professional, the necessary expertise to advise on behavioural management outwith the school and in the home would also be part and parcel of that professional’s armoury. The local authority have in mind an approach to Ms. A (an educational psychologist) currently working on a short-term contract with the local education authority, and potentially available and open to negotiation to carry out a specific contract in relation to each of these two boys. It is not possible to guarantee that she would accept such a role at this stage, and in any event although Mrs. H. is very optimistic, I must bear in mind the Complex Cases Panel does not meet to consider this case until 16th July 2007. I hope that Mrs. H’s optimism is not misplaced as to funding, and have no doubt that once funding is in place she will, on behalf of the children, seek out an expert of the appropriate qualification and experience.

E.:

[88]Ms. O’R. identifies some of the “main challenges/concerning behaviours within the home” as follows: slapping, night-waking, total disregard for direction/command/request; physical aggression to O. and the mother; kicking; biting; urinating on the floor; stripping off; screaming, and laying on the floor.

[89]He frequently physically attaches himself to his mother dominating her attention for long periods “in his attempts to control, the environment”. Of the two brothers he is currently physically by far and away the more aggressive with the mother, kicking, biting, hitting, pinching and spitting at her until she complies, or until he has exhausted himself “through shear rage”. Even then, after a short break, he will repeat these behaviours.

[90]He has no consistent speech although he is beginning to struggle with language. His way of communicating his needs, in the absence of language, is to attempt to pull people about in order to direct then towards what he wants. His intense frustration is evident. Despite these descriptions he has been observed being intensely affectionate towards his mother, and there is no doubt that there is a great love for him on her part.

[91]He has major problems sleeping, despite the administration of chloral hydrate. His mother reports him as sleeping only a few hours a night, often waking at 3.00 to 4.00 am screaming, disturbing O., and then crawling into her bed (a habit O. also indulges in).

[92]He is described as being clearly very pleased to see his father and enjoying the games they play together, appearing very comfortable in his father’s presence, (D138- the GAL). That witness noted that E. presents very differently when with the father, appearing to be much more relaxed, and able to operate more independently. There is a clear inference that the way in which each parent has managed each child has now become routine/ritual for that child, and the father’s more relaxed approach has reaped a (temporary?) dividend. It is the guardian’s view that E. has benefited from having separate contact with the father away from O. (an arrangement the parents came to in their subversion of the contact order Hedley J. made in April).

[93]E. attends the S. school, and will have to change establishments when he reaches the age of 11. Thus it is becoming a matter of urgency that his complex educational needs should be addressed, by way of statementing or otherwise. The S. school caters for children with severe learning difficulties, and some are ASD in addition. The classes are mixed, and the ASD provision is not separated out. Such a structure is by no means ideal for him, and he ought in due course to be placed in a school specialising in ASD, whilst being aware of, and capable of assisting children with, learning difficulties.

[94]The school report him as a healthy affectionate child who responds well. Although his attendance throughout the school year has been variable, in the course of this academic year he has managed 95% attendance. He is there described as fairly compliant, with limited academic skills. There have been concerns from the school about his sexualised behaviour, although the experts in this case (particularly Ms. R. the educational psychologist) do not regard it as a particularly worrying sign, being frequently associated with those children with learning difficulties. It requires strict management techniques, but is not evidence, in their view, of a more fundamental problem.

[95]He is described as being in the middle of the severely autistic range and with severe learning difficulties. It is Ms. R’s view that E’s overall level of personal and social skill is very low, although he has some moderate strength, particularly in the area of daily living skills which place him in an overall age equivalent of 2 years 11 months. His socialisation (his next best area) places him in an overall age equivalent of 1 year 9 months. Finally, his communication skills place him in the age level of 1 year. He has little or no awareness of danger, and is very vulnerable, needing constant supervision. Whilst his current school meets his educational needs, Ms R. considers that speech and language therapy would be appropriate (assisting the teachers in understanding and therefore meeting his needs). Unhappily, his current school has no speech therapist, and is, on the current assessment, most unlikely to be able to engage one. It therefore is my hope that the local authority will seek such a provision independent of the school, with the necessary negotiations as to funding between themselves/education/health services. Ms. R. considers it extremely unlikely that E. will be able to live and work with any recognisable degree of independence, and it is more likely than not that he will need life-time care and occupation, although, once again, the father finds this very difficult to accept.

[96]All the experts emphasised, as they did with O, the need for clinical and/or educational psychological input to address management issues in the two homes, especially that of the mother where he spends most of his time.

[97]I have already touched upon the issue of his medication (see above in relation to the report of Ms. O’R.). There has been much discussion of this issue throughout the proceedings, particularly as the father has expressed historically, considerable reservations about the administration of chloral hydrate to him when E. is staying with him. It is the father’s view that in that home E. has no particular sleeping problems (unlike those experienced in his mother’s home). As Dr. L. told me it is perfectly possible for E. to have two quite different rhythms of sleep depending upon the routines and behavioural management techniques adopted by each parent. It is thus perfectly possible for him to sleep through the night in his father’s home, and display the demanding and disturbed behaviours he displays in his mother’s home during the night.

[98]One of the issues raised by the experts is the unhappily long period of time which has elapsed between consultations with CAMHS where each of the boys is assessed for any appropriate drugs. As a matter of urgency, appointments should be made for each of the boys to have a full and thorough review of what is required. This would include a review of his Resperidone. Whilst it is clear pharmacologically that those to whom Resperidone is administered require repeated and regular dosage (with no gaps), it was the view of Professor B. that it is possible to administer chloral hydrate in one home, and not in the other. However, when the mother gave her evidence, she told me that Dr. S. (of B Cams, and not Dr. S. the psychiatrist who reported on the father as earlier referred to) indicated that it must be administered on a daily basis with no gaps. It thus becomes very important to establish the view of the treating child and adolescent psychiatrist on this issue. It may be that what has been a serious problem in the course of negotiations between the parents may prove to have comparatively little significance in the light of that expert opinion. Meanwhile, on periods of staying contact for E. at his father’s (see below), agreement has been reached for the interim.

[99]Although initially resistant, E. has recently begun to spend limited periods of time at F. (a respite care centre). He has had certainly one overnight stay there which was successful. This is perhaps surprising, given his absolute need, along with most autistic children, for clarity, and strict routine. It is hoped that he will spend regular and frequent stays there to provide respite for his mother.

[100]As to his future schooling, the experts are in agreement that it is more likely than not that he would benefit (and indeed positively needs) residential schooling. The mother is beginning to accept this, and the father appears to have accommodated the idea already. Whether or not that is 365 days boarding, monthly boarding, or weekly boarding matters little as far as the experts are concerned as long as there is continuity of provision and clarity. Once the routine is established it is thought that E. will accommodate it.

[101]He will have to move from S. school in any event at the age of 11 and Mrs. H. is invited (as co-ordinator) to begin researching the appropriate facilities, and instigating the relevant review statementing process, as well as seeking clarity from the educational authority on funding issues for such a placement.

[102]I have noted with some concern paragraph 154 of the guardian’s report (see D142). The mother expresses her worry as to how she would manage financially if E. were placed in a residential school, for Disability Living Allowance for him would cease, or greatly diminish in quantum. Given the long-running problems in resolving ancillary relief issues, and especially in resolving the issue of payment of the mortgage on the former matrimonial home, the mother currently needs this source of income to make the mortgage repayments. I express the hope that these parents will be able to resolve this issue swiftly. It is a continuing worry and irritant to them both, and for my part I would consider it catastrophic if the family home had to be sold (with or without direct action by the mortgagees) for it is a refuge for these children. Many children react badly to change; these children, with their particular conditions, would be gravely disturbed by any such moves.

[103]As with O., the experts (Professor B. in particular) were asked by the father as to the existence of co-morbid conditions (bi-polar disorder and/or ADHD). None detected any currently, although professor B. acknowledged the basis of the father’s worries to which I have adverted above, and agreed with him that the potential for such co-morbid conditions is higher in this particular section of the population. Continuing vigilance will be exercised by all the experts for signs that such conditions are manifesting themselves.

[104]The mother told me that E. is experimenting with two methods of communication: Makaton and ex Pex recognition (the latter being the conventional method of communication being taught to children with his diagnosed conditions). It appears that E. does not take readily to the latter, and his mother is proceeding with Makaton. It is not clear to me from the evidence whether or not the father is also learning how to communicate with his son in this way, but if that is indeed E’s preference, then in the interests of future communication it would be better, not only for E., but also for the mother, if the father were to adopt the same method.

Contact:

[105]On 4th April 2007, Hedley J. ordered contact, effectively his order being that O. should go to his father every Saturday from 10.00 until 6.00, and that E. should go to his father every Sunday from 10.00 until 5.00. Transportation between the two homes was by taxi, and was paid for by the good grace of the local authority. This means of conveying the children was designed to reduce the opportunities for the parents to meet and engage in verbal if not physical conflict, many scenes of such conflict having, over a long period, marred handovers to the detriment of the boys. In addition, this programme was designed so that each child would receive the full attention of the father, and one would not be prioritised over the other. As the guardian observed (see above) E. in particular, has benefited from this programme.

[106]As noted earlier, however, the mother and father agreed to go outwith this order and make their own arrangements. Thus O. began to have overnight stays with his father, largely, as the papers suggest, because of the mother’s need for a longer period of break from both children. I do not advance that as criticism of her express or implied. The demands made by these two children upon her are enormous, and structured contact along with respite care should provide the necessary relief for her.

[107]There was a period in the course of these proceedings when the father only had supervised contact with the boys. However, shortly after the New Year, contact was rearranged on an unsupervised basis, given the father’s objections to individual supervisors, and the inability of any organisation to provide someone acceptable to the father. Since the children undoubtedly needed to see him, it was thought better to permit unsupervised contact than no contact.

[108]Dr. L. had the opportunity of seeing the father with O. in the course of one of the Saturday visits. These observations included a visit from the father’s home to the well-known toy department store, Hamley’s, in London which is described in full in her report; it is, unnecessary to go into the detail. What emerges very clearly are the completely different strategies the father adopts in his attempts to manage the behaviour of O. as compared with those of the mother. There is some debate between the experts as to the necessity to have identical programmes, Professor B. expressing (albeit not strongly) the view that as long as in each household the programme remains clear it perhaps does not matter greatly that it is not an identical programme. As the cross-examination of her by the local authority continued, however, it seemed to me that she was reneging on this tentative position, and ultimately I am left with the clear impression from all the experts that Dr. L’s view of the need for a clear single programme of interventions and boundary setting techniques in both homes applied in each of the two.

[109]In the course of the hearing I was informed that through the good offices of the guardian and her counsel, it had been possible to broker an agreement between the parents as to future contact.

[110]In week 1, O. would be collected from his mother’s home on Saturday at 9.30 am and would stay overnight with his father being collected from the father’s home at 3.00pm on the Sunday in order to return to the mother’s home. That weekend E. would go to his play scheme and then back home to his mother. In week 2, O. would spend time with his mother and E. would go to his father on the same basis as O. in week 1. In week 3, O. would go to his father as in week 1, and E. would have respite care at the F. care centre. In week 4, O. would spend the weekend with his mother, and E. would have an overnight visit with his father on the same basis as in week 2.

[111]Unhappily, the agreement was short-lived, for by fax dated 8th July 2007 the father sent me his further thoughts on the subject. He does not, essentially, seek to overturn the heart of the agreement, but does seek an adjustment of the times. He has carried out a mathematical analysis of the number of hours O. currently spends with him, and the hours O. would spend with him under the order, and finds there to be a diminution in the total. He is unhappy about this. Whilst he notes that E. will be a net gainer, he observes that E. has different needs which will be well-met by the extension of his contact. Furthermore, the father wishes each overnight contact to end at 6.00pm on the Sunday and not 3.00pm, and asks whether or not each contact can begin on Friday night, as opposed on Saturday morning. I have considered these requests very carefully, but cannot approve them. The agreement reached last week was given a great deal of thought, and has the full approval of Mrs. H. and the guardian. I agreed that it was proper provision, and would begin the process of establishing a clear regime of contact for each boy, although all parties accepted, as do I, that this regime is not immutable. Indeed, I make specific provision for the mother and the father to extend the contact periods by agreement with each other, but that agreement must be made in advance, and in consultation with Mrs. H. I hope the father will be patient, and not attempt direct negotiation with the mother at this early stage, when in the course of last week’s hearing a more positive attitude towards each other was evident.

[112]As part and parcel of that negotiation there is also an agreement entered into between the mother, the father, and the local authority. The father will attend S. school to receive training in the administration of E’s medication (such training to be provided by the school nurse). He would also administer all prescribed medication to E. during the time that E. spends with him (that includes both Respiridone and chloral hydrate). Once that training has taken place the programme of contact described above will fall into place. The local authority have undertaken to continue the provision of taxi transport for the staying contacts, but they reserved the right to review that provision in three month’s time, and will continue to discuss with each parent alternative methods of transport not involving face-to-face meetings between the parents. Mrs. H. can give no promises, but I have the distinct impression that she would be a strong advocate of the local authority continuing to pay for this taxi service for at least a year (sharing as she did Dr. L’s view that it is unlikely that these parents could successfully have handovers face-to-face without tension for an appreciable period).

[113]I am happy to approve that agreement, and require a copy of the latter to be appended to my order marked “Schedule”.

[114]There is some evidence from each parent that these boys do have an attachment to each other despite the cautious approach of the experts who doubted that there could be one in the light of their respective conditions. The existence of this attachment is part of the foundation of the father’s request that I go further than the agreement and either immediately order some joint contact between himself and both boys, or give a strong indication that I feel it should commence in the reasonably foreseeable future. The other plank of his request is that he has successfully managed both boys when together despite the guardian’s evidence that when she observes such contact in the past she was concerned at the father’s ability to manage both children.

[115]The guardian is not alone in her caution, for it was shared by Dr. L., she having seen the father with each of his children, and being concerned as to his ability to keep both safe, occupied, and not give preference to one over the other (by force of circumstance as a result of their respective behaviour rather than by inclination to prefer one over the other). The last piece of evidence which I put into this part of the jigsaw is the mother’s when she told me that all she can say (by definition not having observed the contact) is that when the children went to see him together they both left her home to begin the visit happily, and returned happy from it.

[116]I well understand the father’s anxiety to re-commence joint contact, but no doubt to his acute disappointment I do not feel able either to authorise any immediately or give an indication as to when it might begin. I decline his invitation for two reasons: the first is that each of the children have enjoyed in their different ways their individual time with him. The second is that until there is some measure of agreement as to appropriate ways of managing each of these children, and the successful implementation of such an agreement, I would, on the current evidence, regard it as more likely than not to subvert the measure of agreement so hard achieved as incorporated into my order and the agreement which underpins it.

[117]Finally on this subject, I record that I have taken into account, in coming to this decision, the father’s evidence that when the guardian saw a joint visit it was in the context of their having been a break in contact prior thereto, and that the visit she observed took place in a small room with two supervisors present. Both of these features are, in my judgment, more likely than not to distort the behaviour of the children who would have been excited to see him, and would have found themselves in a comparatively strange place with two comparative strangers. I nevertheless hold to my views for the reasons given in the preceding paragraphs.

[118]The father further asks me to give an indication of what, if any, additional holiday contact might be arranged, and/or a prediction of when such might commence even if I did not order any immediately. For the reasons given above, I decline his invitation to enter into predictions at this stage, and I do not find it possible for those same reasons to order further contact in the holiday. It is by far and away in the interests of each of these children for there to be a period in which the new arrangements, in themselves being a significant extension of the current contact regime, become entrenched. Conclusions: Care Proceedings:

Conclusions:

[119]I accept the invitation of the local authority (supported by all parties) for permission to withdraw the Part IV proceedings.

Professor Z:

[120]At the outset of the hearing I heard the father’s application for the instruction of this expert, and refused it, stating that I would give my decisions in this Judgment. Professor Z was consulted privately by the parents on two or three occasions in 2005/6 (the dates are not clear from the evidence). I have seen nothing in writing from him, but did not get the impression from either parent that he had done anything other than confirm pre-existing diagnoses of each child, and prescribed medication for a limited period. I have the greatest respect for the expertise of Professor Z. having many years of experience of his approach in these courts. I do not, however, with the greatest of respect to that expertise, believe that he would have added anything to the existing galaxy of expertise available to me. To single out but one of those experts (I hope not invidiously, for each of them brought their own highly honed skills with them, and each provided a major contribution to the successful outcome of this case), Professor B. is a world-renowned expert in her field, and I have no doubt, having read her report and seen her in the witness box, that she, like other experts in the future, will exercise their vigilance upon the subject of co-morbid conditions which has so concerned the father, and in respect of which he thought Professor Z. might add something (see above for my findings on this vexed issue of diagnosis).

Wardship:

[121]I decline the invitation to Ward these children. The provisions of Part I of the Act are sufficiently extensive to provide the necessary statutory framework to make the orders now required. I cannot readily foresee circumstances in which the provisions of Part I will prove insufficient (save, and I hope this never occurs, that circumstances may arise requiring the local authority to contemplate again proceedings under Part IV).

Contact:

[122]I have given my approval to the draft order and agreement – (see above).

Seeing the Children:

[123]I well understand the wish of the father for me to meet with his children. He is not only devoted to them, as is their mother, but he is extremely proud of them. I was fortunate enough to see a considerable number of photographs of each boy provided to me by the father.

[124]Yet I have declined his invitation, for having read so much about them, and having heard so much about them, whilst I have no doubt it would be a privilege to meet them I did not consider that it would enhance the information necessary for me to come to a determination. In addition, bearing in mind their conditions, I did not consider it to be in their interests to take them from the familiar routines of their current existence, particularly at a time of high anxiety for each of their parents. Neither of these boys reacts well to changes of routine, and it is necessary in their interests, I consider, to keep to an essential minimum, the number of new faces they have to accommodate.

Residence Orders:

[125]At the moment there is no order in place, and neither parent has sought the making of one prior to this hearing. Even though the father sought a shared residence order (see paragraph 4 v above) the mother, even in her opening position at the start of this hearing did not indicate any wish for such an order. However, in her closing submissions, counsel for the mother sought to persuade me that the time had perhaps come for a residence order to be made. I reject that application for a number of reasons: i) Both parents agree that the main home of each of these children is with the mother; ii) The father went out of his way in his evidence to pay tribute to her, and her skills and devotion; iii) Each parent has parental responsibility, and the making of a residence order neither subtracts nor adds to those responsibilities; iv) The suggestion that there may be future difficulties (as there have been in the past) is speculative; v) The submitted potential need to have the “badge”of the residence order to enhance the mother’s bargaining power in negotiations with public authorities does not, in the light of the local authority’s current level of engagement, support, and enthusiasm to pursue what is right in the interests of each child, have any merit; and finally vi) To give her such an order may be seen as potentially very divisive as between these particular parents.

[126]As to a shared residence order, I reject the father’s application for the same reasons numbered (i) to (iv) above. In addition, having considered carefully the law which I have earlier set out, I do not see that a shared residence order is remotely appropriate in the light of the current arrangements for each of these boys.

Future Applications:

[127]As earlier noted it does not seem to me that this case is likely to require consideration under a jurisdiction other than Part I of the Act. The specific provisions of Section 8 are sufficiently extensive and flexible to meet such issues as are likely to arise for determination. I emphasise that I am not encouraging future litigation, for one of the many things this family needs is respite from the dreadful anxiety of it.

[128]In the event, however, that there are further proceedings, it seemed to me necessary to obtain two consents at this hearing, which I am happy to say were both forthcoming. I extended an invitation to the guardian to submit to an order that she becomes a Rule 9.5 Family Proceedings Rules Guardian for these children in any further applications. She kindly consented, having consulted with her manager overnight. I thus, on making the contact order herein, direct that she becomes such a guardian on the face of this order, and thus an automatic party to future proceedings, if any. I further extended an invitation to the local authority to consent to be interveners in any such further applications, they having an overwhelming interest in the case and a need to be part of that litigation. They too happily consented.

[129]Whilst I of course accept that judicial continuity is desirable, a combination of new duties (Family Division Liaison Judge for Wales) and a large body of reserved work already, it seems to me that I would be inhibiting, or likely to inhibit, the proper despatch of business by reserving it to myself. In so saying I have borne in mind the statutory principle of no delay. I have, however, attempted in this Judgment to summarise the necessary threads of the evidence before me, so that if this case should ever return to court before a different judge this document may be used as a starting point if that judge so wishes.

Financial Proceedings:

[130]As the hearing developed it became quite clear that there was unlikely to be any degree of agreement between the parties on the issues relating to matrimonial finance. Having carefully avoided the acrimony of a contested hearing in this part of the litigation it was the view of all, and I share it, that it would have been wholly unhelpful for me to have heard the financial disputes as a coda to these Children Act proceedings. I accordingly approved the withdrawal of the request made at the start of the week that I should do so.

General Comment:

[131]I have no hesitation in approving the scheme of the local authority for coordinating the various agencies in pursuit of assistance for each of these children. It is crafted, as is this Judgment, with as an essential underpinning an acute recognition that the way forward for each parent and each child will not necessarily be easy, but that these proposals are based on an analysis of those factors set out in the Welfare Check List, even if there has been no specific reference to aspects of it.

[132]As the father closed his submissions he read to the court two poems which he had written the night before, one for each of his sons. Each was full of beautiful imagery and suffused with his profound love for each boy. They were very moving, and the mother’s tears as she listened to them, spoke of her feelings also.

[133]I finish by quoting a remark of Dr. L. in the course of her evidence; she said:

“We want to help the children be what they can be, and accept what they cannot be”

. This is my Judgment: