A & B (Children) [2013] EWHC 4150 (Fam)

[2013] EWHC 4150 (Fam)

Case No FD08P01237

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

For the hearing sitting at the Newcastle District Registry

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

Date 20/12/2013

Before

THE HONOURABLE MR JUSTICE COBB

Between

F1 and F2Applicant

M1Respondents

M2Respondent

X County CouncilRespondent

ARespondent

B (by her Guardian)Respondent

Robin Tolson QC (instructed by Russell-Cooke LLP) for Fathers

Victoria Green (instructed by BTMK) for M1

Mark Twomey (instructed by Goodman Ray) for M2

Daisy Hughes (instructed by County Solicitor) for X County Council

Siobhan Kelly (instructed by Miles & Partners) for A

Maggie Jones (instructed by Bindmans) for Children’s Guardian

Hearing Hearing dates: 11 and 12 December 2013

Judgment

This judgment was handed down in private on 20 December 2013, and published in a redacted form (removing identifying features of the family) on 24 October 2014 together with

[2013] EWHC 2305 (Fam)

[2014] EWHC 818 (Fam)

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

For ease of reference:

F1= The First Applicant

F2= The Second Applicant

M1= The First Respondent

M2= The Second Respondent

A= The older child (aged 12)

B= The younger child (aged 8)

Mr Justice Cobb :

Introduction

[1]I am concerned once again, in this worrying case, with the welfare of two sisters, namely:(a) A, 12 years old, and

(b) B, 8 years old.

[2]A two-day hearing was set up at reasonably short-notice, given the urgency (in everyone’s interests, most notably the children’s) of a court decision on a critical question, namely: Whether the girls should be removed from the care of their mother and her partner (I shall for present purposes refer to them as the mothers, and shall refer to the ‘men’ as the fathers) and placed in foster care. This has been yet another staging-post along a long and tortuous path of family law litigation between the girls’ parents.

[3]I recognise the inconvenience to the parties and their legal teams for having travelled for this hearing to Newcastle (on 11 and 12 December) where I am currently on circuit, and where I could make time available in my list within a time-scale which was appropriate for the children. I am grateful to all for facilitating this.

[4]I informed the parties of my decision at the conclusion of the hearing, and circulated this judgment in draft on 17 December 2013. It is being formally handed down on 20 December 2013.

[5]The critical question outlined above (§2) has been considered alongside a review of:(a) The services which are to be provided, and made available, by X County Council (in whose favour I have already made an interim supervision order) in respect of the placement of the girls, either at home or in foster care;

(b) Interim contact issues. The specific ambit of this hearing was actually set out within a directions order which I made on 28 November 2013.

[6]At that hearing I gave a number of additional case management directions designed to ensure that within a reasonably short compass of time, relevant information would be made available to me for making this decision. Specifically,(a) I joined A to the proceedings as a party in her own right, and appointed a solicitor to act on her behalf;

(b) I gave directions about the filing of evidence and assessments; at that stage, the mothers’ long-serving and jointly instructed solicitor had recently come off the record as acting; two newly instructed legal teams were endeavouring to master the filed material;

[7]In reaching my conclusion, I have:(a) Read the written statements of the lay parties, and the reports and care plans of the professionals;

(b) Heard the oral evidence of the Children’s Guardian, the social worker GBR, her team manager Ms AM and M2;

[8]I should make clear that M1 was not present at this hearing. I had been advised that she had boarded a flight to Newcastle for this hearing but before the flight had left, she had had to disembark. She is reported to have been worried about having a mental break-down en route here, or while here. She has nonetheless (and within the limitations imposed on the situation) been represented.

[9]A attended the court. I met with her myself during this hearing. I saw her principally at her request; no objection was raised by any party to my seeing her, and having discussed the relevant issues with Ms Kelly before the meeting (specifically to identify the agreed ‘purpose’ of the meeting), this meeting was facilitated on the morning of the first day, and my discussion with her is summarised in an agreed note. Although a party to proceedings, A has not been in court for this hearing, nor has she had general access to the documents; having regard to the observations of Peter Jackson J in A City Council v T, J and K

[2011] EWHC 1082 (Fam)

[2011] 2 FLR 803

, I can confirm that I support the stance taken by her representatives in this respect.

[10]The positions of the parties on this issues before me are as follows:(a) The Children’s Guardian recommends the removal of the children to foster care; she is the primary advocate for this outcome. She advises that this removal should take place in the next few days. Thereafter, she supports there being some interim contact between B and the fathers and supervised daily telephone contact to the mothers and supervised bi-weekly contact to the mothers;

(b) The Guardian’s position on placement is supported by the fathers; the fathers however seek an immediate resumption of weekend staying contact with B;

(c) The local authority seeks an interim supervision order and proposes a programme of support and work with the mothers, the fathers, and with the children (which I discuss below). They wish to facilitate direct contact between the B and the fathers in the next few days.

(d) The mothers support, or at least do not oppose, the position adopted by the local authority.

(e) A wishes to remain living with her mothers; she does not want contact with the fathers.

Events post-July 2013 judgment

[11]The background to the current dispute is extensively set out in my earlier judgment delivered on 31 July 2013 (

[2013] EWHC 2305 (Fam)

“the July 2013 judgment”) at the conclusion of a five-day hearing at which I received oral and written evidence from the lay parties and experts. That judgment should be read alongside this.

[12]Without reproducing the detail here, when reaching this decision I have had specific regard to the evidence of Dr. Berelowitz summarised and discussed in the July 2013 judgment, and my assessment of the parties; I have further drawn specifically from my assessment of and findings regarding the following matters: Relevant to placement issues(a) the inevitable balancing the risks of harm;

(b) the evidence of disorder of relationships and the distorted thinking in the women’s home; the ‘folie a quatre’

(d) my observations on the issue of the DNA testing;

(e) M1’s mental ill-health, and in particular its impact on the children;

(f) domestic abuse between the mothers;

(g) the views of the children;

(h) my analysis of the evidence relevant to, and the reasons for/against, the children being removed from the care of the mothers; at that stage I made the point that removal may have a deleterious (and conceivably long lasting) effect on the well-being of M1. Contact

(i) history of the demise of contact, and the comments on the positive quality of contact;

(j) the dissonance between what B said about the men, and presentation when B was seen with the men;

(k) the advice of Dr. Berelowitz for the men about accepting a “modest role” and not pushing “the daddy business”;

(l) Dr Berelowitz’s concerns about M2’s position on contact;

(m) my consideration of whether attempts at contact should be abandoned (and my rejection of that option at that time);

(n) Five years ago there was a relationship – a significant relationship – between the girls and the men; this was “before the battle started”. At that time, A told her Guardian that she wanted things to be like they were.

[13]Following the July 2013 judgment, and at my direction, the family were further assessed by Dr. Berelowitz. Dr. Berelowitz met M1 for the first time, and also met the girls. He confirmed my view that “[t]he children are suffering significant emotional harm. The harm has a number of causes” (he identifies them, though I shall not reproduce the list here). In relation to future placement options, he advised:

“We could justify a transitional move to foster care if there is a very high likelihood indeed that it will lead to a resumption of a strong relationship with the men, with this relationship growing and consolidating over time, while retaining a relationship with the women. My own view is this is at best a possibility, and is far from a probability. We would have for example to countenance [A] running away or self-harming – do we persist with the plan under such circumstances? I think not.” “I am afraid that I have little doubt that if they are to be left where they are, M2 at least is likely to see this as a comprehensive vindication of her previous views, and I am afraid not likely to have a nuanced approach … leaving them where they are may in the end be the most compassionate (albeit exceptionally unsatisfactory) option of all the unsatisfactory available alternatives. … this question should depend mostly on the overall quality of care that the girls are now receiving, and should depend less on the more unknown issue of whether the move into foster care would ever lead to a restoration of contact with the men… In other words if the current care of the children is clearly not good enough, and cannot be remedied then a move to foster care becomes potentially justifiable. But if the current care is just about good enough, then we may unfortunately have to view the situation as one of the possible tragic outcomes of assisted fertilisation and furthermore one which can no longer be undone or reversed. In that case we should now leave the girls be”

(emphasis by underlining added).

[14]With the benefit of that report, the proceedings were restored before me on 1 October 2013, and I gave case management directions. At that stage, and by consent, I directed that the relevant local authority should prepare a section 37 report, appearing – as it did – that it may be appropriate for a care or supervision order to be made with respect to the children.

[15]A little over a week later, the matter came before me again, this time ex parte on the instance of the Guardian who sought directions as to the disclosure of information which had come to her anonymously. I directed the disclosure of the information to the mothers and the fathers. The sources of the information have subsequently revealed themselves, and in essence, they reported:(a) [per W]: that the parental role (and general confidence) of M1 was being eroded by M2, that M2 badly denigrated the fathers, and that contact has been sabotaged in the past;

(b) [per X] that M2 referred to F1 as the “sperm donor”; the relationship between M1 and M2 was causing harm to the children (M1 being fearful of and controlled by M2); she further referred to M2’s ‘unprofessonalism’, lack of honesty, M2’s derogatory description of M1’s illness, the difficulty with placing M2 under scrutiny.

[16]The social work section 37 report then followed, being served on 24 November 2013. This report was sufficiently comprehensive for the purposes for which it was directed, It revealed of significance inter alia the following:(a) Information from the mothers’ family members expressing concerns about dysfunctional family life, involving domestic abuse and its impact on the children;

(b) That the children have experienced significant harm, by exposure to M1’s mental illness, and the negativity surrounding contact;

(c) B expressing some interest in seeing the men, and wanting to visit the fathers in their home; she had (encouragingly, and perhaps surprisingly in the circumstances) acknowledged to the social worker that “I know that they love me” (the men);

(d) B was saying that she felt safer at school than at home (the social worker thought that this was context-specific to what they were discussing); it is to be noted that A is said to be “achieving well” at school, and L is “performing above average… rarely fazed emotionally”.

(e) That the children are “vocal, self-assured, mature and kind, loved by their peers and achieving very well at school. It would be hard to deny the positive impact of the good parenting they have received through the years by both their mothers”; the children enjoy a “good level of basic care…”

(f) The relationship between the adults feels “almost irretrievable” at this stage.

[17]The matter was listed before me again on 28 November 2013. On the eve of that hearing the solicitor who had represented the mothers throughout the proceedings removed herself from the record as acting (I subsequently caused enquiries to be made as to whether any child protection concerns lay behind her decision; they did not).

[18]At that hearing I directed statements from those who had contributed their views to the section 37 report. I have, in that regard, received statements from V, Y and Z. These statements, in essence, reveal the following:(a) V (M1’s sister) speaks of having had limited recent contact with the family; but expresses concerns about M1’s mental health;

(b) Y (M1’s sister) comments on the ‘damaging’ relationship between M1 and M2, domestic abuse, M1’s ill-health, the denigration of the fathers, the damage to the children, the incident in Toronto (when M2 and the children abandoned M1);

(c) Z (M1’s niece) speaks of domestic abuse in front of the children, M2’s manipulative behaviour; stress on the children.

Threshold

[19]For the purposes of making any interim Part IV order, I am satisfied that the threshold criteria has been established. This much has already been confirmed by my judgment of July 2013.

A’s view

[20]I saw A on Wednesday 11 December 2013 in the presence of her counsel, Ms Siobhan Kelly. In doing so, I meticulously followed the guidance set out in the Guidelines for Judges Meeting Children who are subject to Family Proceedings produced by the Family Justice Council and approved by the President of the Family Division in April 2010, as endorsed by the Court of Appeal in Re A (Fact-Finding Hearing: Judge Meeting with Child)

[2012] EWCA Civ 185

[2012] 2 FLR 369

. Although the advocates expressed no firm view about the appropriate stage within this hearing for me to see A, I decided to see her at the outset of the hearing.

[21]I would like to take the opportunity of recording that I found this a valuable experience, and I am grateful to A for coming to see me; I can only hope that A also found it helpful.

The evidence

[22]At this two-day hearing, I had limited opportunity to hear oral evidence; inevitably in reaching my decision, I have had to have regard to evidence both tested and untested. On the wide ‘spectrum of available procedure’ (Re B (Minors) (Contact)

[1994] 2 FLR 1

) I took full advantage of the availability of the witnesses who were in attendance, and have otherwise had to have regard to the written statements, attributing to them such weight as I have considered appropriate.

[23]The Guardian has been involved as the appointed Guardian in this case for three years or more. She brings to the case a great deal of experience of the family, and of the relevant history, and this is helpful. She knows the girls well – another great advantage.

[24]The Guardian had filed a short report for this hearing, to “build” upon her previous analysis. The Guardian outlined her researches, and summarised her concerns. She was of the view that the girls needed “some respite from this toxic situation.”

[25]For essentially practical reasons, the Children’s Guardian gave her oral evidence first; given that it was she who was recommending the option of removal of the children from their primary home, this was not inappropriate.

[26]She confirmed that her concerns about the girls could be considered under five particular headings:(a) Domestic abuse between the mothers; she (and the fathers, through their counsel) felt that this issue had become more sharply focused since the July hearing (especially given the statement of the family members and associates);

(b) M1’s mental ill-health (again, with reference to the statements of the family members and associates);

(d) M2’s behaviour in any event (ditto);

(e) M2’s failure to promote contact, and the denigration of the fathers. The children are given very negative views about their natural parents; the Guardian (and fathers’) concerns about this had been considerably strengthened by all of the evidence received in recent weeks.

[27]The Guardian expressed the view (repeated in submissions on her behalf) that removal of the children from their home is indicated at this stage, even on a temporary basis, in order to relieve the children from their emotionally harmful situation at home. Ms Jones emphasised in her closing submissions that removal now would not necessarily be a permanent arrangement.

[28]It is notable that prior to the July 2013 hearing, the Guardian had reached the conclusion (albeit tentative) that the “time had come for no further contact to be attempted and to let the children enjoy what was left of their childhood.”. This view was, however, displaced when the evidence about the DNA test came to light.

[29]The seeds of her current concerns (outlined above) had effectively (it appears) germinated during the hearing in July 2013 (to some extent this is borne out by her earlier report and the July 2013 judgment), but have been deepened by the new material. Her concerns had gained further weight following Dr. Berelowitz’s report in September 2013, and (I felt) had finally crystallised with the emergence of information from W, X and the extended family.

[30]She described feeling as though a “volume of information [had been]… thrown in my direction” since the July hearing, including but not limited to the ‘Toronto’ incident (referred to by a number of the family members), the apparent failure of M2 to inform her business partner of the section 37 referral (this is disputed), allegations concerning domestic violence, M2’s controlling behaviour towards M1, about the toys being bugged, and the derogatory remarks about F1 and F2. She described an “alarming” picture being painted by those who purported to know the family; it was the “information from colleagues and family members … which makes the difference” she said (XX Hughes).

[31]She could not pin-point a specific time when she had reached the conclusion that removal of the children was now the optimal situation, but indicated that it had probably been prior to the delivery of the section 37 report, and certainly before 28 November when the position statement was filed on her behalf.

[32]The Guardian acknowledged (XX Ms Hughes) that the emotionally harmful situation concerning the children is ‘chronic’ and that there has been no acute event justifying radical intervention. When it was pointed out that there had, for instance, been no specific deterioration of the mental health of the mother or similar critical event, the Guardian in reply raised the rhetorical query: How long does this go on? The Guardian’s response, I acknowledge, has force; I recognise the difficulty for any professional working with or alongside a family to gauge when the emotionally harmful ‘saturation’ or ‘tipping’ point has been reached.

[33]The Guardian had plainly hoped that a family member would be able to step in to offer ‘respite’ to the girls; the Guardian regarded this as a significantly more acceptable form of substitute care. However this is not possible; none of the family members live sufficiently proximate to the girls’ schools to offer continuity of schooling; the girls derive considerable benefit (and sense of security) from their schools at present and this should be allowed to continue. The only option therefore is foster care.

[34]The Guardian told me that she had reached the view that removal was necessary only on a “very, very fine balance”. She did not specifically advise her view as to the specific date for the proposed removal, but considered that it should be immediate in the next few days.

[35]I next heard evidence from the social worker engaged by XCC, namely GBR; she is an agency worker for XCC. When directing the Section 37 assessment, I asked that an experienced social worker be appointed given the complexities of the case, and I am pleased to acknowledge that this was done. GBR struck me as an independent, clear-thinking social worker, who has worked the case under the supervision of her employing Team Manager, Ms AM (from whom I also heard brief evidence). I can indicate at this stage that I was impressed by the evidence of both, and particularly GBR’s refreshing approach to the case.

[36]GBR has met the girls four or five times in the relatively short period in which she has been involved; she has met the mothers about the same number of times, both individually and together. It appears that she has developed a co-operative relationship with the girls and with the adults; she had recently been to see B, and had shown her albums and photos of gifts provided by the fathers; she described the event as follows:

“I phoned M1 to ask [B] about contact, I asked for permission. M1 had said that would be fine. I then phoned M2, and she was encouraging me to speak to [B]. … M2 asked me to come by and visit her and [P] on the way back from the school. M2 did not object. They were encouraging me [to interview contact].”

[37]It was apparent that she has not yet had time to grapple with all of the complex issues in this case (she had not, for instance, discussed with the mothers directly their views on contact), and I note that there are some factual inaccuracies in the report reflecting an imperfect understanding of the history. Both these deficits in her reporting are to some extent understandable and did not diminish the force of her evidence more generally.

[38]I felt that her assessment of the mothers was reasonably realistic; she has seen for herself some of the behaviours in the relationship between them about which I expressed concern in July (including M2’s controlling behaviour towards M1, and her excessive ‘domination’ of the relationship undermining M1’s confidence). She recognised that the mothers’ co-operation might be time-limited, and was realistic that future co-operation was not guaranteed. She told me that she was still assessing the situation on the ground.

[39]She said that she understood the Guardian’s concerns about the girls, and in my assessment she appeared in large measure to share them. The difference between their approaches at this stage seemed to turn on the fact that GBR did not feel that the situation had changed significantly (or perhaps more accurately sufficiently) since July 2013 to justify removal; in short, she did not believe that the tipping point had been reached.

[40]While she was cognisant of and sensitive to the Guardian’s obvious concerns, she felt that A and B “do not present as girls who are not functioning and not able to express their feelings”. She felt that she could effectively work with the family while the children remain at home. She told me that she would prefer that I should make an Interim Supervision Order than an Interim Care Order. She felt that this would be more consistent with the nature of the intervention.

[41]Scepticism was expressed by (and on behalf of) the Guardian, and on behalf of the fathers, that the social work done thus far, and proposed for the future, is superficial and that the approach of the social worker is naïve; it was further contended (by inference if not indeed expressly) that GBR’s optimism was misplaced, and her grasp of the complexity of the case inadequate.

[42]While I can to some extent appreciate the reason for scepticism has (deriving in large measure from the experience of the men and of the Guardian of this lengthy history, and failed professional interventions, rather than necessarily or exclusively from the proposals of the local authority or the enthusiasm of this social worker), I do not at this stage entirely share their views.

[43]On my limited observation and assessment, I feel that GBR brings something new and (I hope) revitalizing to the case. She refreshingly and bluntly stated that there needed to be a positive outcome for these girls, and I accept the sincerity with which she expressed it.

[44]I trust that X County Council will maintain the social worker’s agency contract until the work which is proposed has been completed. It is vital for the girls that there is continuity of social work involvement. Ms AM gave me such assurance as she could in this regard.

[45]GBR was asked to expand on the details of the written care plan. The plan contains provision for multi-disciplinary services to be offered to both sides of the family and the girls. I distil the proposals as follows:(a) It is envisaged that M1 will continue to receive the mental health support of Dr. R; perhaps significantly, he has recently introduced CPN services for M1, and home visits for the family (there had been visits apparently on 4 and 5 December 2013);

(b) Social work visiting of the family will take place once per week or twice per week; these visits will provide opportunities to assess family functioning, and individual and collective discussions of the issues arising, with the family members;

(c) Life-story work will be carried out with the girls: the social worker has commenced this work; it is being undertaken through the medium of words and pictures (art therapy – not previously used in this case); this is not, she emphasised, about “closure” of the relationship between the fathers and the girls; “it is about understanding their lives”. The social worker felt (and I accept) that the girls are or may well be confused about their lives; this work is designed (she emphasised) to support the girls’ contact with their fathers; she confidently told me that she is an “excellent art therapist” and while not having seen any work, I was inclined to the view (given her confident assertion, and her training and experience) that she probably was. She told me later in her oral evidence that she hoped that this work would address the issue of the perception of F1 as a “sperm-donor” (as per A’s position statement); she felt that it was not particularly difficult to undertake this work while the children are at home; she told me that she could not put a fixed time-frame on the piece of work; I understand that.

(d) The social worker would want to interview the mothers more fully, and to undertake some direct work with them in their parenting of the children, particularly at crisis points;

(e) The social worker will be making referrals for expert support for the girls – to reinstate CAMHS – this time on a referral from XCC; the social worker felt (and I agree) that a number of issues have not been addressed with the children thus far;

(f) There will be a referral to an organisation such as the Freedom Programme (though not this specific one) for M1 and M2; there are specific domestic abuse agencies for lesbian couples who experience domestic abuse; she wished to find a resource which would be helpful for these specific adults; the social worker indicated that she had taken into account (when trying to identify the right resource) the fact that these are intelligent women and that M1 is a psychotherapist, who would understand something of the dynamics of the relationship herself;

(g) The social worker proposed direct work with the fathers themselves; to help them to deal with their bereavement and loss; she would like to work with them on issues around the contact; she emphasised that this was not work addressing a terminal outcome for contact; this is about communication loss;

(h) A Family Group Conference is planned: this will be convened to allow the family to discuss a number of issues, including their understanding of the domestic abuse issues, the mental health of M1, and the need for respite care for the children (to name a few); the social worker is keen to bring the extended family into the ‘tent’, instead of leaving them (as at present) outside of it. (I interpolate to say that M2 indicated that she thought that this would be “vital”; that respite would be useful; they needed to have more information about the current situation);

(i) The children will be the subject of a child in need plan; I add here that:

(j) M2 suggested further that M1 could benefit from help with her drinking.

[46]The social worker was able to report on a recent exchange of indirect contact. The fathers had sent letters and small gifts to the girls which had been acknowledged by them. The fathers had involved the social worker in this, and she had played her part in facilitating this contact (“I showed B the presents on my phone; she was very happy to see that. B thought that these were appropriate presents”. There had also been gifts for the mothers and A (A did not see the gifts).

[47]The proposal for a further direct contact now came from B herself once she had seen the fathers’ albums shown to her by the social worker; this contact is to take place on 16 December 2013. B had said that she would like to go back to the house with the social worker “to re-assess the situation”; the social worker indicated that she would like to “take one step at a time”, by assessing the situation, and working with B. She was not able to advise how long the contact would be; this would be determined by B not the men. She and her manager were optimistic about this development, and the social worker felt (by B’s comments and body language) that B wanted to go. She proposed a form of order in the following terms:

“There shall be reasonable interim contact between [B] and the fathers. This shall take place on 16 December, supervised by the social worker, and for a duration as may be determined by the social worker. Thereafter the contact shall take place at a frequency and duration as may be determined by the social worker in consultation with [B].”

[48]The social worker is keen that A should have similar contact. However, in order to achieve this, A will need to perform a U-turn on her current stance; this is not, recognised the social worker, going to happen overnight, and would not happen without B wrestling with a sense of betrayal or disloyalty to the mothers. The social worker seeks an order enabling her to arrange contact.

[49]When asked to advise the court on alternative placements, she could only talk in general terms about finding a foster placement; the authority would do their best to match the profile of the children and the carers and would look at agency placements if there are none in-house. No enquiries have currently been made. The social worker said that she would continue to work with the girls, and reassure them as best as they could; she would seek to liaise the professionals, and the school.

[50]The social workers indicated that they would seek to support the placement; Ms AM indicated that she thought it would be challenging to cope with the children; it would be “near impossible for us to manage the distress of the children”.

[51]M2 gave evidence. She was asked about my July 2013 judgment; she repeated her (slightly less than fulsome) acknowledgement of responsibility for the problems which had featured in her position statement of 12 August 2013, and more recently in her witness statement. She said that she accepted that she had destructive influences. Although she did not accept that she was the most destructive of the protagonists, she did not specifically indicate that she was not. She said that she felt that she has moved on, and was in a different situation now. She said that she had reflected on the issues which B had raised with the social worker.

[52]She accepted the court orders have not always been obeyed, and that this has been a repeating pattern. She accepted that she had acted wrongly in relation to the DNA issue; she said that she had not always thought clearly, even about a ‘major thing’ like that. She realised that this had changed the way the Guardian had thought about the case. She could see that the children have been conflicted in the past. She told me that it had “hit home” having seen that B was saying to the social worker that she had wanted to go to see the fathers’ home.

[53]M2 asked me to accept that she had “moved on”. She had considered what it would be like for the children to be removed, and had that this had caused her to reflect on the father’s position. She told me that there needs to be “some peace and stability for the family; we are all exhausted”. She added that she was “worried about M1’s mental health. I want her to get the chance her life back”.

[54]She took issue in general terms with the evidence of W and X. She said that she found it difficult to read the statements of Y and Z; she felt that there was much there which was not true. She said that she had not seen them for quite a while. She thought that they had reasons for making things up, though told me that they had seen them on 7 September 2013, and “everything seemed fine”.

[55]She told me that B would be made available for contact with the men on 16 December. She agreed with the contact order set out above. She agreed that A should have contact with the fathers if this could be arranged by the social worker. She said that she would actively support B to go from and return from contact. She said that she would encourage A.

[56]She told me that indirect contact had taken place last month; the fathers had sent a ‘Legoland’ advent calendar for B; chocolates for the mothers; a book about planets for A; and a letter for A from the fathers. B was happy with the present. A felt that a book about planets would have been more appropriate for a younger boy. She told me that she and M1 asked both girls to write a note, and they did. They accepted that they should write notes.

[57]M2 told me that she agreed with the local authority’s care plan; there was nothing, she said, which she would not ‘sign up to’. M2 confirmed that the social worker can see the children on their own, when and where necessary. She said that she would be happy to be guided by the social worker about referrals to CAMHS and otherwise. She had said that she was prepared to work with the social worker.

Discussion

[58]The threshold having been crossed for making a Part IV order, the decision on placement is to be governed now by the principles contained in section 1(1) of the Children Act 1989 when read with section 1(3). My analysis of the checklist factors in my July 2013 judgment applies with similar force now.

[59]Placement of these, like any, children outside of their natural family, with substitute (i.e. non-family / foster) carers, is only justifiable on an interim aswell as a final basis where it is demonstrated to be “necessary” in the sense of that word recently used by the Supreme Court in Re B

[2013] UKSC 33

[2013] 1 WLR 1911

. That is to say I would need to be “satisfied that it [is] necessary” to direct substitute care before I could endorse such an arrangement and only then would I do so where it would be “in order to protect the interests of the child”. By "necessary", I mean (to use Lady Hale's phrase in para 145/198) "where nothing else will do".

[60]I have had regard in this hearing once again, and as before, to the

Article 8 Convention

Rights (ECHR) of the children, and of the parents, conscious of the imperative to respect their private and family life. In reaching a decision about possible removal of the children from their home, my assessment of the mothers’ ability to discharge their responsibilities towards the children has to take into account the assistance and support which X County Council is proposing to offer. (§28) (Re B para 105).

[61]I am very conscious that before I can make a decision of the seriousness of that proposed here, “there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.” (emphasis in the original) (§34) Munby P in Re B-S

[2013] EWCA Civ 1146

: per Ryder LJ in Re S, K v The London Borough of Brent

[2013] EWCA Civ 926

(Ryder LJ).

[62]This obligation falls also on the court.

[63]The particularly striking character of this case is that each factor weighing in the scales on both sides of the argument has an immensely high value. The powerful reasons for removing the children, and for allowing the children to remain in their home, have a comparable worth. The arguments for and against removal have already to some extent been canvassed in the July 2013 judgment, and I adopt the reasoning set out there, without repeating it. I am satisfied, as I was then, that removal of the children from their home would be ‘devastating’ to them; on the other hand, leaving them in an emotionally harmful environment (i.e. their current home) could be, for different but potentially equally powerful reasons, contrary to their interests.

[64]The Guardian indeed confirmed that her earlier opinions about the impact on the children of removal are of equal force now; she acknowledged that removal “would be extremely distressing for them” and agreed that it would be “traumatic… very, very difficult for them”. She accepted that it would be emotionally destabilising for them, and that this is “deeply concerning”. In this respect, the Guardian had not in my judgment under-estimated or devalued the impact of the change in the children’s circumstances.

[65]In my assessment, while the Guardian was entitled to hold a heightened level of concern about the children, she had failed in advising on the way forward at this juncture, to undertake the balance-sheet analysis of risk of harm as rigorously as in her previous advices to the court. She had been perhaps overly influenced by the troubling information which had emerged since the last hearing, and had allowed herself to believe that the tipping point had been reached without conscientiously cross-checking her reasoning by reference to the countervailing factors relevant to removal; it appeared to me that she had allowed the potentially serious allegations to cloud her previously clear thinking.

[66]I use the word ‘allegations’ in the previous paragraph advisedly, because I have not made any findings about this newly disclosed material; the Guardian was not entitled to assume that the information was either wholly or even partly true. It seemed to me that the Guardian had fallen into error in treating the new material as indeed ‘true’. She had described in her oral evidence there being a “consistency to the allegations”, to X being “no nonsense” – both indicators that the Guardian had assumed the material to be accurate. Ms Jones has suggested that the new information ‘chimes’ with which she knows from the history.

[67]While it may not have been inappropriate for the Guardian to make some evaluation of the new material in order to assess risk, she had plainly done so without taking the fundamental step of speaking with the mothers directly about this information. I for my part readily acknowledge that the new information, if true, lends considerable weight to the concerns about life in the mothers’ household, but I remind myself that:(a) I myself have not had the opportunity to test these accounts; the ‘complainants’ (as I shall call them) have not given evidence;

(b) Some of the concerns raised are quite historical;

(d) There is no evidence that these complainants have had access to the home in the recent past; indeed it is said that they have not had such access;

(e) There is evidence that Y and Z saw M1 and M2 as recently as early-September, and had not indicated any concern (this meeting is referred to in the F’s statements: “[M1] was not in a good way… she said she felt she had no say in the court hearings and decisions”);

(f) W and X are currently engaged in a civil dispute with M2 in relation to their jointly shared business.

[68]While I accept entirely the Guardian’s view that it may well be beneficial to the girls to be offered respite from the environment at home which has become (at the very least) increasingly stressed, I do not believe that the coercive powers of the court under Part IV should be deployed for the purposes of facilitating respite care as such. In this respect, I have had regard to the fact that no alternative family placement has at this stage been identified for the girls, as the Guardian herself had hoped for. Removal would have to be to strangers, i.e. to foster care. This in my judgment would have serious implications for the well-being of the girls, being wholly contrary to their ascertainable wishes and a serious interference with the family life of the girls and of the women.

[69]It was rightly acknowledged by all parties that social service supports in the past have been directed towards the issue of contact rather than to supporting the well-being of the children more generally. Now the focus of concern has been rather differently drawn. I felt that the emergence in this case of this social worker has been a positive influence. She has demonstrated an ability to work with the children already.

[70]As to these supports offered by social services, it seemed to me that:(a) There is a significant value for these children in there being more direct, focused, support for their current placement, rather than exclusive focus on the single issue of contact;

(b) It will be greatly in the interests of the children for them to undergo some life story work, so that the children can glean a better sense of their heritage and family relations;

(c) The children will benefit from some independent support from a professional worker (i.e. the social worker); although the Guardian considered that the girls may need more expert assistance, it is notable that the social worker believes that she has started to develop a relationship with the family and specifically the girls;

(d) A family Group conference is to be held imminently; such a meeting has been held in the past but with limited (if any) benefit. Such meetings are generally particularly effective in making safe plans for children, involving members of the wider family network; they are often helpful in assisting social services to divert children away from the care system. It is now apparent there has been a low level of understanding in the wider family about the problems which has existed in M1 and M2’s relationship, and of M1’s mental health; there plainly need to be better access to the supports of the family;

(e) There has been limited community based support to assist the family in coping with the management of M1’s mental health, the couple’s relationship (domestic abuse), and the dynamics of the couple generally. While casting some doubt about the efficacy of social work intervention, the Guardian acknowledged that hitherto no structured work has been done, and time had come for this to be remedied.

[71]I reject the submissions made on behalf of the fathers that the care plan contains no more than “token gestures” and “token services” and is “not fit for purpose…” (per Mr Tolson); I am disappointed by this approach. The fathers had actively supported the section 37 direction, but their response to the proposed intervention, which in my judgment is creative, sounds a little peevish.

[72]It is agreed (including by the Guardian) that the social worker has engaged well with the mothers, and she does have a good understanding of the issues in the case. It was accepted across the piece that more active social work is now being proposed with this family than it has ever been before. Although the Guardian did not feel that the supports were sufficiently robust, when pressed, her principal complaint was that XCC’s proposal omitted psychiatric or psychological assessment of the dynamic of the adult relationship between the mothers. This point, as will become apparent, may not in fact be controversial if the children are to remain at home.

[73]Looking at the issues overall, I accept in broad terms the comments of Dr. Berelowitz to the effect that only if “the current care of the children is clearly not good enough, and cannot be remedied” then a move to foster care becomes “potentially justifiable”. There are serious questions about the current care; but I am not satisfied on the evidence at present, that it cannot be remedied with active and enthusiastic social work intervention.

[74]The well-being of M1 has been a concern throughout this case. As the events surrounding her planned journey to this hearing reveal, she remains immensely fragile. If the consequence of removal of the girls were to be deterioration in her mental state, this would be likely to create in the children heightened levels of emotional distress. Moreover, the girls would inexorably link the two events (removal and deterioration) and there is force in the point that they would potentially blame the fathers for this; this would be counter-productive to the endeavour to rebuild their relationship.

[75]I have obviously had regard to the views of A, and of her sister B. Having met with A, I have been able to confirm that which I had gleaned from professional assessments her vulnerability in her current family situation, and I bear this in mind. I have had regard, albeit not viewed as decisive, to the risk that if A were to be removed, she would react against this placing herself at harm.

[76]The Guardian accepted that if A’s views on placement are ‘overridden’ this would be likely to have a “detrimental effect on her” (XX Kelly). That said, it seems to me that A’s mental well-being is a possible casualty of the situation, whichever decision is made.

[77]I discerned in the Guardian’s evidence that so equipoised was the balance that it took not much to tilt her reasoning marginally against removal; in evidence-in-chief she revealed that she was “not sure whether removal would be worse for them than by them remaining where they are”. Later when asked by Ms Green whether the parties should now be “giving [the situation, specifically involving the support of the social services] the best shot now”, she acknowledged that “possibly” they/we should.

[78]Finally, I felt that insufficient (if any) thought had been given to the issue of post-removal contact between the girls and the mothers, on the Guardian’s proposals. The Guardian’s recent report is silent on this issue; it was not raised in her evidence on chief. Satisfactory contact between the girls and their mothers would be vital to ensure the success of a placement. Phone contact would not be likely to compensate for the lack of personal contact – particularly given M1’s mental ill-health and communication difficulties; there was force in the point that the girls would be most worried about the mental state of M1’s mental health.

[79]Finally, and I discuss this more fully below, there is some movement in relation to contact. B has expressed some interest in seeing the fathers, and has felt able to express herself to the social worker positively about them. It seems to me that this first, albeit tentative, but importantly willing step towards resuming contact may be retracted if I were to impose a radical (and from B’s point of view unwelcome) change in her living arrangements. Paradoxically, I am not at all sure that the contact would necessarily happen if I moved B now to foster care.

Placement: the Order

[80]In reviewing the options, I have followed the approach advocated by the Court of Appeal in Re G (A Child)

[2013] EWCA Civ 965

at [44], by considering "which set of arrangements for the child[ren]'s future care are to be endorsed by the court's order … by affording paramount consideration to the child's welfare (the welfare evaluation)". This is a classic case in which adopting the ‘linear approach’ to decision-making could, it seems to me, lead to the wrong result – per [50]: “The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare”.

[81]I was conscious that if I had felt that the local authority’s care plan failed to meet my expectations, I could have asked the local authority to reconsider it. In fact, I have concluded on a fine balance that I agree with the local authority, and that it is neither necessary nor proportionate at this stage to remove A and B from their home. I am not satisfied that the harm experienced in the home situation is necessarily of greater magnitude than the harm which would arise if the children were to move. Further, and significantly, I consider that at this stage I shouldgive GBR an opportunity to work with the family, with a view to achieving(a) an improvement in the overall emotional well-being of the children, and

(b) contact between A and B and the fathers.

[82]I wish to make clear that I wholeheartedly reject the submission on behalf of the fathers, and repeated in oral submissions by Mr Tolson, that the court is essentially discriminating in favour of M2 on grounds of gender by not taking a more radical course.

[83]I had considered carefully whether I should make an interim care order at this stage, while leaving the children placed at home. In my final analysis, and again only on a fine balance, I decided against doing so. While conscious of the differences between a care order and a supervision order (for discussion of this see §47 & 48 of Re W

[2013] EWCA 1227

), I accept the need for caution before foisting upon this (as any) authority an outcome for which it does not contend. Indeed in Oxfordshire County Council v L (Care or Supervision Order)

[1998] 1 FLR 70

Hale J indicated that “cogent and strong reasons” would be required before doing so, and only then when it is demonstrated that such an order is necessary for one of the following reasons(i) the power to remove a child instantly without any prior judicial sanction and to plan for the child's long term placement outside the family,

(ii) the necessity to share parental responsibility with the parents and

(iii) the necessity to place duties on the local authority towards the child. As respects (ii) Hale J had held that: "A care order would be warranted where there was reason to suppose that the parents would not accept the advice and guidance of the local authority as to the way in which they should be meeting their parental responsibilities. In that situation the parents could not be allowed to be the only people with those responsibilities”.

[84]It seemed to me that potentially (ii) and (iii) apply to the situation here; there is certainly an argument for the local authority sharing parental responsibility for the children. However, I am prepared to accept at this stage the assurance from M2 that:(a) she accepts the contents of the filed care plan of the X County Council in respect of the children;

(b) she will fully co-operate with the X County Council in the implementation of its care plan, and will accept directions from them in that regard (even if not at this stage explicitly agreed by her);

[85]I understand (from counsel for M1) that she welcomes the assistance of X County Council, and has indicated to her lawyers her agreement to co-operate with the care plan placed before the court.

[86]I have therefore drawn back from imposing such an order. Moreover, as Ms Hughes pertinently observed, there is a value in placing the primary responsibility for the facilitation of contact on the mothers (under a section 8 order) rather than on the local authority (section 34).

[87]However, if the mothers’ co-operation wanes or is found wanting (and/or for other reasons the local authority considers that it needs to share parental responsibility), I have an assurance from the social worker that she will restore the proceedings forthwith before me (on notice to the parties) to pursue an application for an interim care order.

Interim contact

[88]As indicated above, there is, finally, some chink of light in relation to contact. B is to see the fathers on Monday 16 December 2013. I am pleased by this development and reject the fathers’ cynicism (expressed in submission by Mr. Tolson) that the visit has been deliberately arranged so as to precede a treat organised by the mothers. I believe that B is viewing this visit rather as a reconnaissance, re-familiarising herself with a home which (as I have seen from many photographs) she has ostensibly enjoyed visiting in the past.

[89]The Guardian and the social worker appeared to have a broadly similar approach to the mechanism for the contact; namely that B should be collected and taken to the fathers’ home by the social worker; the social worker should remain throughout and take her back at the end of the contact.

[90]The Guardian and social worker also spoke with one voice about contact going forward. There should be further contact; this should be arranged by the social worker (who will be in a position objectively to gauge the success of the 16 December visit)

[91]The Guardian, at my request, offered advice to the fathers about this contact – not to swamp B, to be welcoming of her, and stay (in discussion) on neutral topics such as school, her interests, her violin playing. This is vitally important. I was concerned by their apparent lack of appreciation of the fragility of the current proposal for the resumption of contact when they submitted, through leading counsel, that I should order weekend staying contact forthwith.

[92]The mothers also need to play their part to make contact work. They have to support the contact, both before and after the event. A may well be upset by B seeing the fathers, and this may impact on B. To deal with this constructively is the responsibility of the mothers, in particular M2.

[93]The fathers argued that I should direct weekend contact straight away (indeed even for this forthcoming weekend); I was urged not to prevaricate, and to reject an incremental approach to the re-introduction of the contact arrangement. This seemed to be in contrast to the position which they had adopted in earlier discussions with the Guardian: “a carefully handled reunion would melt away B’s resistance”, and in their position statement of 26 September 2013 (“scope for supervised contact … test the resistance…”). Frankly, I was dispirited by this approach. In my judgment, it reflected a perturbing lack of realism and insight on the men’s part; their position seemed to ignore the delicacy of the situation, and B’s needs. Social work with the fathers to help them to moderate their expectations is urgently required.

Further directions

[94]A further case management hearing will take place on 20 December; at that point, I shall consider the suggestion that the mothers should be assessed by a psychiatrist or psychologist. There was some indication from M2 that she would agree such an instruction, but understandably wanted further information before finally committing herself.

[95]I have been, and doubtless will be again, strongly urged by the mothers to bring the proceedings to an end; A explicitly asked me herself to do so. I accept that it is in the children’s interests that final decisions are made sooner rather than later. Indeed, statute enjoins me to bring proceedings to an end without delay (section 1(2) CA 1989). The ‘clock’ is now ticking in the public law process which should be completed within 26 weeks.

[96]I can give no prediction or guarantee about precisely when or how these proceedings will end (as I explained to A directly), but this will not be until the well-being of the children is secured. [END]