P v C & Ors [2018] EWHC 693 (Fam)

This judgment was delivered in private. The judge has given permission for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No MA16P50182

[2018] EWHC 693 (Fam)

Venue IN THE FAMILY COURT AT THE ROYAL COURTS OF JUSTICE

IN THE MATTER OF THE CHILDREN ACT 1989

IN THE MATTER OF S (A boy: born [on at date in] 2004) & N (A girl: born [on at date in] 2005)

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

Date 28 March 2018

Before

MS JUSTICE RUSSELL

Between

PApplicant

C1 st Respondent

S2 nd Respondent

N3 rd Respondent

Ms Seema Kansal (instructed by direct access) for C

P (the children’s father)(in person) for in person

Ms Linda Sweeney (instructed byAFG Law) for 2 nd Respondent

Ms Katy Rensten (instructed by NYAS) for 3 rd Respondent

Ms Magdalen Case (instructed by the Legal Department) for local authority who were invited by the court to take part in the hearing

Hearing Hearing dates: 19 th February to 23 rd February 2018

Judgment

The Honourable Ms Justice Russell:

Introduction

[1]This is the second judgment in private law proceedings which concern two children, S (a boy, now fourteen; born on [on at date in] 2004) and N (a girl, now twelve; born on [on at date in] 2005), and child arrangement orders (CAO) under the Children Act (CA) 1989 section 8. The court has also been asked, by the children’s guardian, to consider making a supervision order pursuant to s 31 of the CA 1989. Their parents are separated and the children live with their mother (C) in England. They are of dual heritage; their mother is British and their father (P) is Swedish. In April 2017 this court handed down a judgment following a fact-finding hearing. It was concluded, on the basis of the findings made, that the two children had suffered significant emotional harm as a result of their mother’s behaviour. This judgment concerns their welfare, and future orders in respect of the time they are to spend with their parents.

[2]C’s claims that S had been physically abused by his grandmother during the summer of 2016 were rejected, as were the claims that N had made well-founded complaints of bullying by her father. In fact, as the court found, both children had been deliberately influenced by their mother who was determined to bring the children’s contact with P to an end. Indeed, she had succeeded in stopping all contact with P from the end of their summer holiday in 2016 until the hearing before the Spring or Easter holiday in 2017. Both children made complaints about the behaviour of the paternal family, and, at the time of the previous hearing, they were adamant that they did not want to go back to Sweden at all. They appeared to be wholly rejecting their father, their Swedish relations and that half of their own heritage.

[3]Both the children were represented by counsel through the guardian at that time, and their guardian, in her written and oral evidence, described visiting the children at home, to introduce herself and explain her role; the guardian’s own shock and concern about the level of antipathy demonstrated at the suggestion they should resume contact in Sweden was palpable when she gave her oral evidence. Both children had, vehemently, said to their guardian that they did not want to see their father or ever to visit Sweden again. Up until the summer of 2016, the children, with apparent enjoyment, had been spending most of their school holidays in Sweden with their father, paternal grandparents, relations and friends. They also spent weekends with P in England. There had been social services involvement in this case, prior to the hearing in the Spring of 2016, partly as a result of C seeking to use the authorities to bring contact to an end. There had been numerous applications over the preceding past seven years in respect of the two children; some included very serious allegations made by C, most of which have been investigated by the authorities in Sweden and in England which were unsubstantiated.

[4]The findings made in the previous proceedings can be found in my judgment reported under the neutral citation number

[2017] EWFC 23

; and I shall not set them out here again. After the findings were made contact resumed, almost immediately, and the case was referred to the Anna Freud Centre (AFC) for assessment of the children and their (two) families and further assessments were carried out by the local authority. The local authority and the guardian, unsurprisingly concerned about the children’s apparent alienation from their father, their paternal family and their Swedish heritage, considered that it was likely to be necessary, in their best interests, to move them to live with P in Sweden. The AFC filed its report in September 2017 and recommended the immediate transfer of residence to Sweden. I shall return to their recommendations later.

[5]The case could not return to court immediately for hearing, as there was insufficient judicial time available to list any substantial contested application, and the question of whether N should be separately represented had now arisen as it was obvious that she would not agree with the guardian’s recommendation. The court was, and remains, keenly aware that N, who has always worked hard at school, was due to start her secondary school education in a highly sought after selective school near her home in England: this achievement forms an important part of N’s self-image and identity and was not to be taken lightly. In any event contact had resumed and continued to take place in accordance with the court order. The children spent the week before the hearing in February 2018 commenced (half-term) in Sweden. In addition, the children have been supported by direct work with their allocated social worker, Ms Clark and a family assistance worker.

Parties’ positions and representation

[6]As he did before, P applies for the child arrangements order to be changed, and for S and N to live with him in Sweden; it is his case that the children will suffer further harm, caused by their mother, if they are not moved to Sweden to live with him. For the first time, when giving his oral evidence, P advanced a case that the children would be at risk of physical harm (as well as emotional harm) if they were not moved, although no such allegations were made in his written evidence. P again chose to remain unrepresented and appeared in person before me, his mother, G (who had been joined as an intervener in the fact-finding hearing), attended court with him and acted as his McKenzie friend. C is represented (by Ms Kansal on direct access). C opposes P’s application; it is her case that she has come to a realisation of the harm she has caused the children and will seek and engage with appropriate therapy to ensure that she does not indulge in her damaging and abusive behaviour in respect of the children’s contact with their father and paternal family.

[7]S remained represented by counsel (Ms Sweeney as before) through his guardian. Although older than his sister, S is on the autistic spectrum and attends a special school, he is not considered to be Gillick competent by his solicitor. S has told his guardian that he does not want to be removed to live with his father in Sweden. N is separately represented through NYAS by counsel (Ms Rensten). N does not want to move to Sweden, but she does want to have contact with her father and to go to Sweden during school holidays, and to spend weekends with P in England during term-time.

[8]The local authority attended court and were represented by counsel (Ms Case). The social worker, and Team Manager, Ms Clark was present through the hearing. By the time of the hearing in February 2018, Ms Clark and the local authority had changed their position: they no longer supported a move to Sweden and sought a Family Assistance order to continue to support the family in England. The guardian, too, in her final analysis no longer recommended that S and N be moved and recommended that the court make a supervision order in favour of the local authority to support the children should they remain with their mother.

Background and history

[9]As set out in my previous judgment C, now aged 38 is English and she met P now aged 43, when they were both travelling in New Zealand in 2002. They returned to Europe and lived together in Sweden where they married in 2004. The children were born in Sweden, S in 2004 and N at the end of 2005. The marriage was short-lived and by the end of 2006 their relationship had ended. In 2007 C unsuccessfully claimed for damages for assault by P in the Swedish courts. At the end of 2007 there was an order for shared residence and care of the children in the former family home made by the Swedish court. Both parents were seeking a court order that the children live with them; P in Sweden, C in England. An investigation was carried out by the Swedish child welfare authorities who reported to the court; it recommended custody be granted to P. At the time the poor relationship between P and C, which was described as “virtually non-existent”, was considered to one of the problems faced by the children; it is a problem for them that continued and has persisted to the present. S’s learning disability was already apparent and there was a provisional diagnosis of Asperger’s syndrome.

[10]In November 2007 divorce was granted and the Swedish Court (by a majority decision) awarded custody of the children to their mother with substantial visiting rights to P. C was permitted to move to England with the children where they have lived since; not without difficulty, S and N have visited and stayed with their father in Sweden regularly. P unsuccessfully appealed the decision of the court in Sweden. One of the many problems in this case is an underlying dispute regarding financial provision for the children; C was to pay for the children’s travel to and from Sweden and P was to cover the costs of his travel in accompanying them. In October 2008 C stopped paying her share of the children’s travelling costs. In May 2010 P stopped paying any maintenance for the children, as I observed previously, this remains a decision about which he has never given a satisfactory explanation. Although he does pay for all the children’s (and his) travel to and from Sweden, and bears the cost of contact in England, the level of financial support he provides for his children does not extend beyond contact.

[11]In June 2011, S was assessed in respect of his educational needs and found to be autistic. S is on the autistic spectrum; he has had a statement of Educational Needs prepared in 2012 and reviewed annually since. Since he moved to secondary education he has attended a special needs school. As I observed in my first judgment, S has a literal approach to life and an especial need to feel safe and secure in his surroundings. N is an intelligent, diligent scholar and a high achiever, as is seen by the place she has gained in a highly sought after local secondary school which she started in September 2017. She is rightly proud of her achievements and is ambitious for her future (she talks about studying medicine), which she sees as being contingent on her remining at her English school. She has a circle of friends in England and extracurricular activities which are important to her. N is, of course, reaching an age when friends and what goes on outside her home is of increasing importance and relevance to her development. I shall return to the children’s individual needs in due course; keeping in mind throughout the welfare checklist as set out in s1 of CA.

[12]Since April 2017, after a break of some ten months, the children have resumed contact with their father both in Sweden and had monthly weekends staying with him in England. Sadly, C’s father, from whom she had been estranged died suddenly at the beginning of October 2017. The children had been in contact with their maternal grandfather as he had provided support for P’s contact to take place in England. C was reconciled with her father before he died. This bereavement was one that was felt by P and his mother as they each had their own friendship and relationship with the children’s maternal grandfather. This sad event has thrown into greater relief the dysfunctional relationships within C’s family, which in turn, may be seen to provide some explanation for her behaviour regarding her own children’s contact with their father.

[13]The children have spent time with their father provided for by the CAO which continued to remain in force. During the school term they spend the last weekend of each calendar month, in England, with P. During the school holidays they spend time with P in Sweden, this including their half-term holidays. They stay with P for 4 consecutive weeks from the first day of the summer holidays; for 1 week, each Christmas holiday to alternate Christmas week and New Year; for 1 week, each Easter holiday to alternate Easter; and for each half term for 10 consecutive days. P has to pay the travel costs of all contact. In addition, they have Skype contact, twice a week, each Tuesday and Friday at 18:00 GMT; and telephone contact each Monday, Wednesday and Thursday at 18:00 GMT with the parent with whom they are not staying.

[14]As I observed in my previous judgment the relationship and communication between P and C has continued to remain very poor, and is characterised by mutual antagonism at best. That harm has been caused to the children by their mother, is no longer in dispute, but it also remains clear to the court that the children continue to be detrimentally affected by an inability on the part of both their parents to reach some level of cordiality to enable reasonable communication with each other. Nonetheless, as observed by the social worker Ms Clark, in her oral evidence to me, the contact has resumed and taken place with little input from social services; something that could not have happened without positive action and some communication on the part of P and C.

[15]In her oral evidence C told me that, since April 2017, she has made some efforts to improve communication with P by sending him some emails containing information about what the children had been doing (something that she had singularly failed to do in the past). P, in turn, and on his own admission, is sceptical about the motivation behind her attempts and continues to complain about the content of the emails and says that he is not kept informed. While his scepticism is understandable, given the history of the case, the fact that the emails have been sent and have contained straightforward information about what the children have been doing is a considerable change to the situation that prevailed when this case was last before the court for a full hearing in early 2017. P was able to bring himself to say, however, that the emails he received latterly were acceptable to him, the main difference seemed to be that, unlike the earlier, there was information about what the children were going to do in the following weeks, as well as what they had done.

[16]Naturally, the more P is aware of what is happening in the children’s lives the more relevance his conversations via electronic-video will have for the children themselves and the more relaxed and enjoyable for P and the children when that video contact takes place. P complained in the past, and still complains, that while the children enjoy pretty much unrestricted contact by Skype or other video communication with their mother and family in England while they are on holiday in Sweden, his video contact which takes place twice a week when they are at home in England is stilted and the children do not engage with him to the same extent. His oral evidence was that he although he believed that the children were now able to speak to him unhindered or monitored without their mother or any other family member being present, the children were not interacting with him for very long (about 10 minutes or so) in the way he would like and expect. The fact that S and N now have unimpeded and frequent video contact with their father is another improvement, if not transformation in their contact with him since the fact finding hearing next year.

[17]It is more than likely that there are several reasons why the children do not interact with their father as he would wish and expect. P lays the blame squarely at the door of C, but, while there is no doubt that she has affected their view of their father, the children are bound to be affected by other matters; they are after all children, and will not always to be as interested in talking to P as he is in talking to them. They are, for example, simply likely have other things they want to get on with and do. It is the experience of those of us sitting in the Family Court that children are easily distracted by other more immediately interesting (to them) things, and that parents often find their children’s concentration on talking to them disappointing and even hurtful. It is not realistic or reasonable for P to expect the children to ignore what is going on at home and to concentrate exclusively on their video contact with him.

[18]Since April 2017 the children continue to live with their mother, her husband (and their step-father (WC) and their two younger siblings, a brother (L) who was born in [on at date in] 2013 and their sister (J) who was born in [on at date in] 2016. As before, aside from the considerable concerns raised about the emotional and psychological wellbeing of S and N caused by their mother’s persistent attempts to alienate them from their father, there is no evidence that there have ever been any concerns raised about any other aspect of either child care or well-being at home in England and none at all about the care of L or J. S and N are physically well looked after and are well settled into their own schools, their own routines and actively participate in extra-curricular activities outside their home. They both have their own friends and attend social events in their own right.

[19]Meanwhile, as we have seen, contact was re-established almost immediately after the court handed down its judgment in April 2017. As the local authority said in written submissions, supported by the evidence of their social worker, within a matter of weeks, the children went from being distressed and crying at the suggestion of contact with their father to staying with him once more, seemingly without complaint, and with minimal intervention on the part of the local authority. It is inconceivable that this would, or could, have happened without the active support of their mother. Unsurprisingly, contact did not resume “where it left off”. The tenor of the children’s relationship with their Swedish family has, according to P and his mother, altered and is much more strained than it was before. It is fair to say, on the basis of his own evidence, that P finds his relationship with N difficult at times. It is more likely than not that N’s relationship with P would have altered, whatever happened in the past, as she approaches adolescence. There is a perception expressed by both children, that P has an easier and more active relationship with S. This is something that was already evident before contact was stopped for the period between August 2016 and April or May 2017.

[20]Notwithstanding their mother’s role in any disaffection felt by both children towards their father and his family, it is more likely than not that their relationship with P will have been influenced by their expressed wish to remain living in England. They are, and have been aware, that where they will live in the next years of their childhood is a decision that is to be made, in due course, by the court for most of the time during which contact has been reintroduced. They are also aware that their father wants them to be moved to live in Sweden. Nonetheless, as P has described in his evidence, N has managed to maintain a relaxed enough relationship with him to send WhatsApp messages when she has wanted to change the time of a video call. He also described a recent occasion when he and N went shopping, just the two of them, and how much she and he enjoyed it.

Law

[21]As the children know, and should know, the decisions that the court has to make are about where S and N should live and go to school for the remainder of their minority. That decision is based, in English and Welsh law, on the welfare of the children, by virtue of s 1 of the CA 1989, and it is their welfare that is my paramount concern; I must have, and I do have, the welfare checklist contained in s 1(3) CA 1989 in the forefront of my mind. The court will make child arrangement orders (CAO) under s8 of the CA 1989 (as amended) setting out where and with whom the children will live, what contact they will have with the non-residential parent and any other arrangements for contact, such as video-communication by Skype, Facetime or other means; and other methods of electronic communication such as WhatsApp, including, of course phone calls.

[22]In the event that it is decided that S and N remain living with their English family, which is the recommendation of the local authority and the guardian, on balance, they have also recommended that there is either a Family Assistance Order (FAO) pursuant to s16 of the CA 1989 or a Supervision Order under s 31 CA 1989. Any decision in respect of CAO is subject to the provisions of the CA 1989 and the Children and Families Act (CFA) 2014.

[23]The children are parties to the proceedings. Their wishes and feelings are a factor that the court is required to take into consideration when considering their welfare as provided for by s1(3) (a) of the CA 1989. This has been described in Family Court Practice [2017 Ed. At 424] as a statement of fundamental principle by which the court must ensure that the child is given the opportunity to be heard (see Re D (A Child) (international Recognition)

[2016] 2 FLR 347

, CA). The wishes and feelings of children are not, of themselves, the determinative factor in the court’s decision, as welfare of each child is the priority. In this case there is some dispute about how reliable the children’s expressed wishes are because P, and the authors of the AFC report say that the children are reflecting what they know to be the views of their mother. In reported cases concerning children’s objections in Hague Convention cases the Court of Appeal has reminded judges that there should be a straightforward analysis of the question and that an over-intellectualised approach is to be avoided. The wishes and feelings of a child, of which objections are a part, are questions of fact to be analysed by the court: Re F (Child’s Objections)

[2015] EWCA Civ 1022

[24]I am mindful of the United Nations Convention on the Rights of the Child, as well as the provisions of the CA 1989 and keep in mind each child’s right and need for a relationship with both of their parents as in this case. In ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

;

[2011] 2 AC 166

. Lady Hale in considering article 3(1) of the UNCRC said:

“[23] …… In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.”

The children’s wishes and feelings

[25]The children have both expressed their wishes and feelings to the guardian. They have also told the social worker and the family assistance worker (who has been working with them) that they do not want to move to live in Sweden with their father. This will necessitate a consideration of the root causes of their wishes and feelings and whether they can be considered to be reliable having taken into account all of the various factors at play, including the extent of the influence their mother has on what they have told these independent witnesses.

[26]It is a striking fact, to which the court must pay regard, that the children went from expressing what amounted to an abhorrence of contact with their father to staying with him. As was observed on behalf of their guardian within “[a] mere two weeks [of the judgment]they were able to discuss matters relating to their father in a calm and rational manner as well as being able to identify positive aspects about him and about Sweden and the time they spend there. They were able to state their acceptance of the idea of indirect contact as well as accepting the idea of direct contact in the near future” It was rightly submitted, on behalf the local authority that the court could conclude that there was something of an immediate change in the mother’s approach following the fact-finding judgment as it was coupled with “a more or less immediate change” in the demeanour of the children following judgment. Moreover I find that, it has provided an indicator, at least, that work in the form of therapeutic intervention could start with C and was now much more likely to be successful.

[27]As the social worker, Ms Clark, said in her evidence this was a dramatic change which provided confirmation of the fact that the children’s views had been and were influenced by their mother, but it had also allowed for purposeful work to be carried out and completed with the children. The social worker described her own observations of contact (some of which occurred after the AFC report had been completed) and told the court that she had seen that the children were able to be relaxed in the company of their father and obviously enjoyed being with him. She told me that she was reassured by the fact that N, in particular, was relaxed enough to challenge him and be difficult in the way a child approaching adolescence should be. It is of concern to the court that the AFC has seemingly dismissed this practical and real demonstration of a change in C’s position regarding contact. All too often in cases where the court encounters intractable hostility on the part of one parent, stretching over a period of years, there is little, if any response to the judgment and no resumption of contact, still less of regular staying contact overseas.

[28]It is in cases where contact has completely or virtually ceased, and where children are unable to express anything positive about the non-residential parent and are deeply resistant to all contact that the court would be driven to consider a change of residence. In this case, not only has contact resumed, but the “alienating” parent has demonstrated her willingness for contact to take place, has provided the children’s father with up-dates and information to an extent she never has before, has encouraged and allowed regular video-communication every week, has agreed to participate in therapy for herself and has allowed work for the children with the family support worker and social worker, and, has agreed to the children being referred to CAMHS.

[29]The court has been urged to reach conclusions about what is in their mother’s mind and how genuine she is in her assertions that she will support contact and the children’s relationship with their father wholeheartedly from now on; it is not possible for a judge to read a person’s mind and there is a need to make as objective an assessment as possible. This court will rely on the evidence before it including, of course the oral evidence of C. There will be no over-analysis of what is in someone’s mind; judges and courts must avoid the temptation to seek to penetrate a person’s psyche, rather than reaching a decision based on the evidence of their actions.

[30]Child Arrangement Orders. In deciding on what arrangements are to be in place for these two children, as I have said, the court’s paramount consideration is the welfare of each child; although S and N are siblings their needs are different. I repeat, in respect of the child arrangements and other orders under the CA 1989 the court’s paramount consideration is welfare of the child as provided for in s1 of that Act. In addition, and as a matter of fact, these children have a right to a family life which goes beyond their relationship with their mother and their father. They live with WC and their two younger siblings; it is not disputed that S and N enjoy their life at home with those other three members of their family; nor that this would, self-evidently, constitute a right to a family life pursuant to the Human Rights Act 1998 and

Art 8 of the ECHR

[31]Supervision and Family Assistance orders. The guardian has recommended that the children remain living at home with their mother, stepfather and siblings with a supervision order in place to monitor their mother, and to ensure that adequate resources are put in place to provide therapeutic intervention and treatment for C and for the family as a whole; and that the local authority have a duty to bring the matter back to court should the social work team and other professionals consider it necessary. The court can only make a supervision order if it is satisfied that the threshold set out in s31(2) CA 1989 is crossed. There is no dispute that the children have suffered significant harm as set out in the judgment of the court handed down in April 2017; and, in the words of the statute, that the harm suffered was attributable to their mother’s care not being what it would be reasonable to expect a parent to give them. The local authority does not object to a supervision order being made but submit that a Family Assistance Order (FAO) would be more appropriate and result in the same level of support, monitoring and intervention.

[32]Both orders would require the local authority to make an officer available to advise, assist and befriend either any person named in the order (FAO) including the child. A supervision order, however, places a duty on the supervisor to (s 35 (b) CA 1989) take such steps as are reasonably necessary to give effect to the order and (s35(c)) to consider whether or not to apply to the court for its variation or discharge if the order is not wholly complied with or if it may no longer be necessary. I shall return to this later in my judgment.

Evidence

[33]Expert evidence and opinion. The court has heard the evidence of several professionals who have assessed the children’s welfare and made recommendations to the court. They were: Ms Clark, the allocated social worker, who has worked directly with the children and supervised the work undertaken by the family support worker; Ms Henry, social worker, who co-authored the reports of the AFC; Dr Shahnavaz, who prepared the reports with Ms Henry; and the children’s guardian, who has now met the children on several occasions, and who has a well-developed and long-standing knowledge and understanding of their needs.

[34]There are two notable features of the case which are pertinent to the weight that the court can give to the evidence of the guardian and Ms Clark. Their guardian has spent more time with these two children than many guardians do, or are able to, in most private law cases and has been able to assess them and their family relationships over a period of time when there was no contact with their father, through the reintroduction of contact and subsequently as contact has continued to take place. Similarly, Ms Clark (and the local authority) have allocated an unusually substantial amount of time and resources to this private law case. Their intervention has been both timely and proportionate; as the guardian said in her oral evidence, Ms Clark has demonstrated real commitment to the case and to the children. The time she has spent with the children and the work she has carried out directly or in a supervisory capacity up until the hearing allows the court to place some considerable weight on her opinion and assessment of the children and their welfare.

[35]By contrast the two professionals from the AFC had not seen the children for many months prior to the hearing in February 2018 and their report prepared in September 2017. Both gave evidence, and Dr Shahnavaz had the advantage of hearing Ms Henry’s oral evidence before she gave her own evidence to the court. It was submitted on behalf of the children that the evidence of Ms Henry might have been considered to be “over dogmatic” by the court; I agree with that submission. Ms Henry did not waver from the recommendation made by the AFC that the children should be removed from their family, and in particular from their mother at once and placed in Sweden despite their expressed views to the contrary. She also adhered to the recommendation that all future contact with their mother, their immediate family in England was to be supervised for a period of two years.

[36]When asked about the likely immediate and long-term effects on each child, Ms Henry was able to accept that the children would both be distressed but was unable to explain to the court how this distress, and in Natalie’s case resentment and anger were to be contained and managed, in respect of a forced removal in the first place and by her father as her resentment built in the aftermath of that removal; much less how any detrimental effects on, for example, her education were to be managed. Her evidence to the court was that there was no research available or evidence on which she could rely as to the long-term effects of a forced removal on children. Thus, while the effects on children who have been alienated from one parent by another are documented and understood, to some extent at least, there is nothing on which to base any assertion that to move children against their expressed will and wishes provides better outcomes.

[37]While it is accepted by the court that there are excellent support and welfare services in Sweden, the fact that both the children are unfamiliar with living in Sweden as their base and experiencing daily life there and have not been integrated into Swedish society in any capacity other than as visitors (albeit regular visitors) has been palliated in the approach of the AFC. As has the effects on the children of engineering an almost total break with their maternal and English family. On the face of the recommendations this would lead to a reversal of the alienation, this time sanctioned by the court. The local authority and the guardian, who had initially supported the children’s removal from their mother’s care, expressed concern from the outset at the recommendation by the AFC for the drastic reduction in any contact between S and N, their mother, step-father and younger siblings.

[38]Neither Ms Henry nor Dr Shahnavaz could provide the court with any workable proposals of how the contact was to be arranged and supervised, and by whom, for a period of two years. It is telling that P did not support this recommendation either. Overall, I found Ms Henry’s approach to her evidence to be obstinate and lacking in depth; nor did she demonstrate the reflection I would have expected in a professional witness dealing with the long-term effects on children of such drastic change in their lives, particularly when they are seeing their father, staying with him, sharing regular video calls and expressing their desire to go on doing so.

[39]The oral evidence of Dr Shahnavaz was, as submitted by counsel for the guardian, more nuanced than that of Ms Henry. Dr Shahnavaz had had the advantage of listening to the oral evidence and cross-examination of her colleague, and, perhaps as a result, her evidence was more reflective. When asked about her knowledge and experience of change of residence for children who have been subjected to parental alienation she told me that she had seldom recommended a change of residence and, although it was recommended more often than it had been in the past, neither she nor AFC had ever recommended removal to a placement in a different country before in a case such as this so that this decision was unprecedented.

[40]While Dr Shahnavaz accepted that there would be significant loss for the children, and that they would suffer significant distress, she was unable to explain in any or sufficient detail how this would affect the children in the long term, nor how N’s resentment about being removed from her school and her social circle would be managed. She agreed with the guardian that the loss to the children of their home, their mother, their siblings, their school and friends and their step-father would be very significant; particularly when the AFC is recommending supervised contact until the children are aged 14 and 16 respectively. Unlike Ms Henry, Dr Shahnavaz acknowledged that during the six months since she had seen the children, their social worker and their guardian had observed an improvement in the children’s presentation that had taken place in the intervening period. She was able to recognise too that C had experienced the judgment of the court followed by the shock of the AFC’s recommendations, which may have been sufficient to change her thinking, but said that only time would tell if C was paying lip service to a change in attitude.

[41]The court has to deal with the evidence before it which is, as alluded to previously, that the children’s attitude to contact with P has shifted so significantly that they now accept and welcome their contact with him; their volte face must be in large part due to their mother having given them permission and encouragement to go to and enjoy contact. The successful intervention of the local authority is an indicator of compliance in the future, for previously, as I found, C only “worked with” social workers in an attempt to recruitment to her cause; which was to stop contact with their father. Dr Shahnavaz agreed that there is no research on the outcome for children removed in this situation. In answer to a question she told me that the “ideal” would be for the children to remain living with their mother, provided she had successfully engaged in, and responded to, therapeutic intervention; and provided the court found that there had been a genuine change in the children’s mother’s approach to contact and to the need for her (C) to have therapeutic intervention.

[42]It was Dr Shahnavaz’s professional opinion that the children could remain safely with C and have a relationship with P with, what she estimated would need two years, professional support, separate and bespoke therapy for C and family therapy. She and the court were told that a possible and local provider known to the guardian and the local authority has been identified and approached, and was ready and willing to take the case on in respect of the former and, in respect of the latter it would be available from CAMHS. The local authority will support any family referral.

[43]Overall, I was, and remain, unconvinced by AFC’s report and their recommendations. In addition to the reservations set out above regarding the content and tenor of the evidence of Ms Henry in particular, the lack of knowledge and experience of the long-term effects of children of this age being moved to live in another country undermined the credibility of the recommendation. Moreover, it would seem that they are recommending that the children’s relationship with their father is to be given priority and ascendancy over their relationships with their mother, step-father and younger siblings; at least for the next two years. This amounts to a deliberate severing of close ties and any form of normal family relationship and begs any number of questions about the effect of this on the children themselves, what explanation they are to be given and what they are to gain from this experiment (for that is what it is), never mind the effect on their family in England. There seems to be a punitive element, towards C in particular, to the course of action proposed by the AFC. There was no assistance forthcoming from either Ms Henry or Dr Shahnavaz about how the mechanics of two years supervised contact was to be resourced or provided. In law it is a gross interference with the family lives of all six individuals unsupported by cogent evidence.

[44]C’s evidence. I find as a matter of fact C’s written and oral evidence was markedly different in form and substance from the evidence she gave before and during the fact-finding hearing when I had concluded that “C’s written evidence consists mainly of a diatribe of repeated complaints about P’s conduct, most of which are no longer at issue before this court; even if they were, she would be incapable of proving them as there is no evidence to support her many allegations.”

[45]Later in my judgment I found that, her antipathy towards P throughout was palpable; I found her evidence in respect of the children’s contact with their father to be particularly telling; she was utterly unable to give one instance of when she had been happy for S and N to have contact with their father. During her oral evidence, she at first denied having stopped contact previously (in 2009/10) and only accepted that she had done so when reminded by counsel for the children. C was at times almost petulant when being asked questions and she was frequently evasive and dissembling; even when she spoke about the children her evidence lacked the spontaneity and warmth of P. That may well have been because she found giving evidence difficult but it was of concern to the court that she appeared to be so single minded that she was not able to put the children to the forefront of her mind.”

[46]C’s written evidence, whilst at times defensive, was markedly different and on the face of it, accepting of the judgment of the court. It is, of course, more likely than not that her evidence would have a marked element of self-service; as counsel for the guardian and S put it her evidence needs to be taken with a pinch of salt. I found that her oral evidence was markedly different, not only in substance, but in tone. Gone was the petulant evasion and dissembling, C answered the questions she was asked. C said that she recognised the need for her to change, she gave a coherent explanation for why she recognised that need by explaining that she had come to realise on reading the judgment, the harm which she had done the children, She accepted that she had, indeed, caused them significant emotional harm. C explained to the court that she had then gained further insight when her father became ill and died unexpectedly; she related her own actions to those of her mother who had prevented her from having a relationship with her father, and how, not only she had come to regret the loss of that relationship, she could see the detrimental effect on her own actions regarding her children. She discussed this in her oral evidence in an open manner and, as I have observed, was willing to answer questions about what she had done and why she had done it without any evasion.

[47]C apologised directly to P, from the witness box, several times, including when he was cross-examining her. Ms Sweeney, in her submissions, criticised C for having failed to apologise to P prior to the hearing and for not apologising to G (the paternal grandmother) at all; the suggestion was that the apology was largely cynical and cosmetic. Having listened to, and assessed witness over many years I found C’s repeated apologies to be the most fulsome I have experienced; she made them directly to P and did not even try to make them to me. It is not easy to apologise in court and to do so several times and without any demurral is something that rarely happens in court, even, perhaps especially, when warranted. There was nothing to suggest that C’s apologies were anything but genuine, particularly when taken within the context of her evidence as a whole and her actions in respect of the resumption of contact.

[48]Similarly C expressed regret at her past behaviour and did so several times while explaining why she thought that what she had done was wrong. She told me that she came across parental alienation awareness day after the judgment was handed down in April (parental alienation awareness day is held on the 25th April each year) and it was that that had started her realisation of what she had been doing to her children. This had been followed by the report from the AFC and her father’s illness and death. C said that she had decided to seek some counselling but that she now realised and accepted that she needed therapeutic work; she told me she was committed to undertaking therapy; but was, unsurprisingly, concerned about meeting the costs. She told me directly and unequivocally that she accepted the court’s judgment and that she had caused her children emotional harm.

[49]As submitted on behalf of the local authority, while there is a strong incentive for C to say whatever is necessary in order to keep the children with her, there is some evidence to support the proposition that she is not merely paying lip service to the need for change but that there has been a growing realisation for that need over time. In C’s first statement after the fact-finding judgment which was dated 5th May 2017, and predates the AFC’s report so cannot have been motivated by it, she sets out at length about what she is doing to promote a positive view of P to the children; although it is silent as to any clear acceptance of the conclusions of the judgment.

[50]Turning to the social worker’s evidence, which a significant piece of objective evidence before the court, it has been and is supportive of a change in C’s behaviour and her willingness and ability to change and support the children’s relationship with their father. In her written report for the court following the judgment, which was dated 4th May 2017, C is reported as expressing a willingness to do anything that is required, but with what the social worker described as lack of any “internal acceptance” of the judgment. Ms Clark’s concern was, and remains, without such “internal” acceptance of the harm that she has done, which I take to mean an absence of actual insight, any changes in C’s actions would be superficial and seen to be such by the children, who would continue to get the message that their mother did not really support contact or their relationship with their father.

[51]The AFC concluded, after their assessment of, and interview with, C in August 2017 that there had been no acceptance of the judgment and that the prognosis for change was very poor. One of the difficulties in relying on the contents of their report, however, is the reported speech of the interviewees (including the children) is lifted from an interview and reported without the context of the questions that had been asked. C accepted in her oral evidence that she was still very defensive during the assessment process, and it is not possible, from the report for the court to analyse with any accuracy, whether, and if so what, steps were taken to ameliorate, any defensiveness which might have been masking a greater ability to accept her faults than was immediately apparent. Defensiveness at least initially, is to be expected, particularly after being found to be at fault, and one would expect professionals to take it into account.

[52]As was submitted on behalf of the local authority it is understandable that it would take some time for C to accept the judgment. C admitted to having being convinced that she was completely right in respect of many of the facts and issues about findings made against her; as counsel for the local authority said, part of the change that was required of her was an acceptance that she had been completely wrong, which is not an easy thing for anyone to do. The fact is that C was, by the time this matter came to court in February 2018, saying things which are completely different from that which she had said in May 2017 to the social worker and in August 2017 on being interviewed at the AFC.

[53]It is, of course, for the court to assess her credibility and C’s oral evidence, as I have said, was markedly different from the evidence she had given previously. She was not defensive and did not dissemble. She gave credible explanations for why her position had changed and for her need to change personally. It is probable that the judgment coupled with the reports and assessments of the AFC and the local authority shocked her into greater reflection; when the death of her father and the realisation that she was repeating a pattern of behaviour that had led to her estrangement, rejection and loss of a paternal relationship in respect of her own children is added it is a plausible explanation for both the change in her behaviour and her desire to change herself.

[54]The evidence of Ms Clark and the guardian. The guardian and the local authority remain concerned that C has calculated what she has to say in order to prevent her children being removed from her care. P, and his mother, are convinced that that is precisely what she has done. In her report and oral evidence Ms Clark was able to give reasons for some optimism that the change was genuine by pointing to changes on the ground she had observed, particularly in the way the children spoke about their father, the fact they look forward to contact and express appreciation of their Swedish heritage, which they clearly value.

[55]In her oral evidence Ms Clark described those changes as “phenomenal”. Those changes could not have occurred without the positive intervention and participation of C and as such amount to evidence that demonstrated that C has done what she says she has done and has taken action to enable the children to rebuild and maintain a healthy relationship with their father. Moreover contact was resumed at the same level as it had been previously with minimal intervention by the local authority. There was, and this is telling as it is so often the case, no attempt, at all, by C to resume contact incrementally or stall the resumption of contact at the frequency and extent set out in the court order.

[56]I have made reference to both the guardian’s and Ms Clark’s evidence throughout this judgment and do not intend to rehearse it all in detail. Both witnesses are clear that there is a great deal more work to be done with C and the children and Ms Clark told me that she cannot confidently say C has made a change that will prove to be sustainable, but that C has reached a position where she has realised the need to change and is open to change through individual and family therapy. The latter is necessary because trust and communication between both the parents need to improve hugely before they can co-parent effectively. To ensure that C does not resume her past conduct and to provide support to the family Ms Clark has told the court that she and the local authority will remain involved and continue to work with S and N and their parents. Ms Clark is to be highly commended for her commitment to this case and to the children.

[57]Ms Clark’ s clear view is that continuing court proceedings are not helpful to the children or in the interests of their welfare. It is her opinion, shared by the guardian, that the proceedings are inhibiting the children themselves (rather than their mother) from permitting their relationship with their father and paternal grandmother to repair and improve as they are both acutely aware that things that they say and do are reported and that interpretations will be put on their words and actions in court. In other words the children are worried that they will be moved to Sweden and cannot fully relax and enjoy their contact with P and their Swedish family the way they used to. This has been observed by both P and his mother, but unlike their social worker, they lay the blame entirely at C’s door. The social worker believes that further work and therapeutic intervention is required but that it must take place outside and away from court proceedings. To this end both she and the guardian have asked the court to make a s91(14) order prohibiting the children’s parents from returning to court with any further applications without the court’s prior permission.

[58]In essence Ms Clark’s analysis and her considered recommendations are finely balanced, but in her professional judgment C has the ability to change, and although it has not been tested by the passage of time she considers that it is in the children’s best interests to remain living with their mother. She considers that the risk of C reverting to past behaviour can be managed with continued local authority intervention and support, to which, as I have already said, she is committed. I find that her cautious optimism in respect of C’s ability and willingness to change is well-founded on the evidence to which I have already alluded. Ms Clark and the children’s guardian both recommend the continuation of the current arrangements if the children remain in England.

[59]P’s evidence. While is to be expected that P remains unconvinced by C’s apparent change in behaviour and approach, he has not been able to get past his evident anger and resentment at her past behaviour, and to consider that the children may be capable of expressing any autonomous and independent views. This raises questions about his ability to deal with their behaviour on being moved against their will to live with him in Sweden. They would, it is accepted be very distressed, in S case he is also likely to be confused and disoriented at being permanently removed from the settled routine centred around a school which he clearly loves. N will be resentful and angry and will not take at all kindly to being moved from the school she worked so hard to get into. P was unable to contemplate any deleterious effect on N’s educational process on being moved to an entirely different system of education, possibly in a different medium, even when pressed. Nor did he show any insight into how her resentment and anger may, in turn, affect her ability to access education and reach her potential. His only response was to say that the Swedish education system is excellent. This court has no reason to question that system, and no-one has sought to do so; but as P failed to recognise that is not the question before this court, the question is whether it is in the best interests of these children to move them with all the repercussions for them individually that such a move will inevitably bring.

[60]While his rejection of any possibility of change in C is understandable it is also apparent the focus on C and her shortcomings by the AFC in particular has led to a lack of scrutiny of his abilities to manage a huge change for these children. It is more likely than not that for N, at least, it would be a fairly explosive situation if she is moved to Sweden against her will.She will be angry about her father’s insistence that she had been expressing her own opinion and that she is not much more than the mouthpiece of her mother. The fact that he could not see why the guardian and the social worker were justifiably worried about the unpleasant and inappropriate way RF (the maternal aunt whom he has recently come to know) wrote about N gave rise to concern on behalf of this court that in fact he shared some of her negative views about N which would impact on his ability to deal with her sensitively if she were moved to live with him against her express wishes to the contrary.

[61]I did not accept P’s evidence, at all, that S actually wants to go and live in Sweden with his father despite what S has told everybody else. While I accept that it is likely that S has said something along those lines to P it is also likely that he did so in response to P and because he loves his father he would wish to please him. I have no doubt that S likes being in Sweden and with his father and his family there. By common consent S enjoys a more relaxed and seemingly fruitful relationship with P, than N, but this is most likely to be because S is a less-complex personality. He is obviously a very loving and sweet child. It is on his repeated expressions to independent witnesses that this court can place the greatest reliance and place the greatest weight. These are professional witnesses (Ms Clark, the family support worker and the guardian) trained and experienced in working with children to whom S has always said he wants to remain in England living with his family here; he has said so in vehement terms and told the guardian to tell the judge this is what he wants. I find that it is more likely than not that S is expressing what he believes to be his own views and that the expression of those views is in large part based on his own wishes and feelings. S is fourteen. In less than four years he will have reached the age of majority. I keep this in mind when reaching any decision about S; as I do the need to treat with some respect what he is saying.

[62]In the first judgment I said that “P has shown real commitment to spending time with the children and maintaining a relationship with them over the years and has kept up a high level of contact in difficult circumstances and in the teeth of considerable opposition, and, indeed, antagonism from his ex-wife. He has been described as brusque in the past; certainly, he is much more down-to-earth and no-nonsense than C in his approach to parenting. His previous insistence that the children should fly unaccompanied did not, in the view of this court, meet with S’s needs and could not work where parents are so adrift in their approaches. Nonetheless the court was left with the impression of a devoted parent and loving father, whose attitude to parenting offered the children an opportunity to run more freely and to experience the physicality of play to the full.”

[63]I have little doubt that P’s parenting style suits S better than it does N, but, again, I was impressed by the steps he has taken to try to improve his relationship with her. P has in the past demonstrated unrealistic expectations and insensitivity regarding the children and their needs such as when he pursued applications for the children and S, in particular, to fly as unaccompanied minors/children. In his oral evidence he, perhaps understandably, emphasised the negative aspects of the children’s contact with him, which made it difficult for the court to assess the true extent and reason behind any problems during contact; it was clear, from his evidence, but also that of his mother and the social worker, that S and N have been happy and enjoyed contact with him much of the time.

[64]I found P’s expectations of N’s behaviour and interaction with family and friends, to be somewhat unrealistic. He complains she spends too much time in her room; she is a twelve year old girl and this is, surely, a perennial complaint from parents of twelve year old girls. It is of concern that he is reading more into normal pre-adolescent behaviour than there is, as it is likely create a problem about and for N that does not, in fact exist. Similarly, P expressed concern about N not keeping up with her Swedish friends, and losing interest in one of them; again this raises a concern that he is has unrealistic expectations of N and her interaction with girls that she was previously friendly with not to mention reading too much into what is a normal situation; girls fall out and fall in with their friends at this age; children grow up and change. None of this is particularly significant on its own but the import of his evidence about N, when taken in its entirety, is indicative of P seeing N as problematic and the more difficult child which would not bode well for P’s ability to handle the change in her life he seeks to bring about.

[65]The fact is that P is determined to place the blame for all difficulties he sees in all that the children do and say on C. In my judgment in 2017 I said, “[m]uch of P’s evidence about the children and what he says they had told him which emerged during his oral evidence was absent from his statements. Allowing for the fact that P was not legally represented, this is unsurprising.” Given that P is now experienced in litigation and that was drawn to his attention in my previous judgment, it was not acceptable for him to raise in oral evidence for the first time allegations that the children are at physical risk from their mother. Not only did he do so he failed to ask C about it when she was giving evidence, he didn’t raise it with the social worker or the guardian.

[66]P then told the court, for the first time in his oral evidence that S had told him he had been forced to write a note to the court dated 28th November 2017 in which he threated to harm himself if he was moved to Sweden. Not only was this raised in evidence for the first time P failed to put it to the social worker or the guardian in cross-examination despite claiming in his oral evidence that he had told the guardian and Ms Clark about S having made the allegation to him. P had apparently raised the question of S being “pushed” – but not forced - to write the letter in an email to the social worker; but he did not raise it with the guardian. Had he done so, it is I find most unlikely that he did so and that both professional witnesses did nothing about it when they were told and failed to mention it in their written evidence.

[67]It is I find, having seen and heard the social worker and the guardian give evidence and having considered the time and care they have demonstrated about the children in this case, not credible that P told them he believed the children were at risk of physical harm from their mother that they failed to act on the information, much less to record it. I have no alternative but to find that P lied to the court in his evidence in respect of what he told the guardian or social worker. I cannot find that S told P what he claims he did, as there is no evidence to support his assertion, and it is more likely than not that if S had told P that he had been forced to write the letter by his mother and stepfather P would have raised the matter at the time to advance his case.

[68]Moreover, as counsel for S points out, P had been in touch with RF (who clearly has an axe to grind when it comes to her sister C) from around October 2017. The letter came about after then and the last sentence in it appears to read "I don't know why my auntie is sic pertraying [sic] my mum". S could only be aware of the views of RF by being exposed to them which could only come about when he was in P’s care. It is clear to see why P personally would find RF sympathetic company, as she validates his negative views of C, but he shows little or no insight into the effects of her evident distaste for their mother on the children. It is questionable, at the very least, whether it was in the children’s best interests to be exposed to RF and her views of C. If S, as is likely, told his mother about RF, she might well have seen RF’s behaviour, and with some justification as RF is her sister, as being a betrayal, coming as it did shortly after the death of her father. S may well be reflecting is mother’s reaction to RF’s views.

[69]As was submitted on behalf of the guardian an important factor regarding the contents of S’s note is to underline again the need for professional support to repair relationships. It also raises questions about P’s judgment as a parent in exposing the children to further inter-familial conflict. As counsel for S submits on his behalf and that of the guardian, P is not perfect, nor does the court expect him to be. P’s commitment to a full relationship with his children cannot be faulted but it would be tragic if that relationship were to be severely undermined, if not permanently damaged, by the children seeing him as the person who took them away from their family and life in England against their wishes. The guardian reiterated that while P says that S wishes to go to Sweden that is not what he has said to his guardian and it is certainly not what N wants to do on a permanent basis.

[70]The paternal grandmother (G) gave evidence again. She is clearly saddened and very much hurt by what has happened in the past and is no more inclined or able to trust C than P is; it is understandable that they are both so distrustful of C’s words. G had been the subject of very hurtful, nasty and unfounded allegations and has missed having significant events in her own and her grandchildren’s lives properly marked. Nonetheless I found her evidence in respect of the children’s contact in Sweden helpful and illuminating. She described how N seemed to be unable to enjoy herself and was holding back from doing so; this underlines what the social worker said about the need for the children not to feel they are caught up in unresolved court proceedings. I do not accept that this is all at the behest of C but agree with Ms Clark that some of the children’s perceived self-restraint is because they know that the father and grandmother want to have them removed to live in Sweden.

[71]N’s behaviour, I was told, is at times discourteous and rude but in doing this, N is testing the boundaries which is, in fact, a positive sign as children only do this when they feel secure enough to do so. It is clear too that G and P are struggling to know what to with N at times. Having said that, when taken in the round, G’s evidence about the children’s contact was more positive generally than that of P and her description of N’s continued good relationship with her paternal aunt was a pleasure to hear; as was the description of the children cooking with their grandfather. In fact G related numerous examples of positive and happy times, and while both P and G were obviously concerned about the children’s ability to let themselves go and be at home, what G told me about what they were actually doing and the children’s interaction with their family in Sweden disclosed more positives than negatives. I keep in mind too, that both P and G, naturally and understandably, were giving evidence with a view to achieving the children’s removal to Sweden.

[72]However disagreeable or challenging N’s behaviour is at present it is nothing to what it will be like if she is acting out at being made to move against her will. Both P and G point to Swedish social services as the answer, but while I have no doubt they would be able to access professional help, I consider that their reliance on that support is more than a little naïve and betrays a lack of insight or understanding about how the children would both feel and the behaviour that they would be faced with and have to conclude that the evidence is that P and his family would struggle to contain N. The resolution for the behaviour of a deeply distressed and angry teenager cannot be simply left to social services however good they are; such a step would inevitably pathologize the child which cannot be said to be in her best interests. Neither P nor G were able to demonstrate any examples or details of the difficulties that are likely to arise with S and N individually other than to say they knew it would be difficult and really hard work.

[73]Statement of maternal aunt RF. P filed and served a statement from C’s sister RF, the contents of which were of such concern to the guardian that she expressed concern about the children having contact with their maternal aunt. The court shares the guardian’s concern; the statement was written in a deeply vindictive tone and included personal criticism of N describing her controlling and purporting to assess N’s maturity and intellectual ability in derogatory and negative terms. On paper at least, RF was apparently keen to describe herself as gaining ascendancy over N during contact with P; I remind P that N is a child and RF is the adult. Nonetheless she described N’s relationship with her father in positive terms. The resentment and dysfunctionality within C’s family was given further illumination. Some allegations that C had physically abused S many years ago were raised for the first time. It made for unedifying reading.

[74]P did not call on RF to give evidence. None of the other parties, in particular the guardian and the local authority considered that her evidence would assist the court in the decision it has to make regarding the children’s placement. I do not make any findings in respect of the statement except to observe the fact of its existence and its content gave rise to legitimate concerns on the part of the guardian and the local authority as to the suitability of RF to play any role in any future contact arrangements. Any suggestion that she should do so would require further investigation and assessment by social services, in the first instance.

Discussion and conclusions

[75]In this judgment I have set out the evidence and my analysis of it above. I have the competing interests of the parties in mind but have put the children at the forefront. The children’s guardian and the local authority have concluded that whatever C actually thinks or feels she has demonstrated that she is likely to be able to put her own feelings to one side and extend to the children the emotional permission to relax into and enjoy an enduring relationship with their father. There is independent evidence that she has already begun to do so based on the children enjoyment of contact and their father’s company. To move the children would, as the guardian says, result in multiple losses which they would be forced to face, against their wishes. The loss of their mother, their home, their schools and all that goes with them, their friends, the activities and social life and their siblings and step-father. Given that contact, including video-communications, has been fully resumed and aspects of it have actually improved; such as the children’s being brought to the airport in good time, the cessation of any oversight of Skype or video contact; and the risk of M’s back-sliding reduced by the supervision of social services, I can find no good reason why on balance it is in the children’s best interests to move them.

[76]The children have both expressed their wishes and feelings clearly and repeatedly to independent witnesses. I do not accept P’s assertion that that they are merely acting as mouthpieces for their mother; neither does the guardian or the social worker. In fact I consider that it is demeaning to these children to suggest that they are incapable of independent thought at their ages and with their individual abilities and qualities. As Ms Sweeney put it bluntly, the children cannot be dragged to Sweden against their wishes; as she said, if they are how on earth could their distress and consequential behaviour be coped with in the short or medium term? I agreed with the guardian’s assessment that such a placement would face a high risk of breakdown; and that it would be more likely than not to lead to a decrease in the children's ability to fulfil their potential. It is P who would be blamed for their loss.

[77]Having considered again the welfare checklist and considering as I must the children’s wishes and feeling I have concluded that the children should remain in England living with their mother and their family here. Contact will continue to be as set out in the court order. N will have to understand and accept that the court considers that her relationship with her father and her Swedish family must be given priority. As she gets older I expect that she will be able to negotiate some changes to the regime if there are special events at school or with her friends which coincide with contact visits; but for the present the time spent with her father and her paternal must come first.

[78]There will be a supervision order as it better fits with the need for the local authority to return the case to court if it is necessary to do so. Furthermore, it emphasises the seriousness of the findings in this case and is proportionate to the level of harm caused to the children in the past by their mother. There is a level of compunction in law that is absent from a FAO which is both necessary and proportionate given all the circumstances of the case. Nonetheless the court does not mean or intend any criticism of the local authority and would like to extend its gratitude and appreciation of the time and resources allocated which are considerably beyond the norm for a private law case.

[79]The guardian and the local authority have asked that the court make an order pursuant to s91 (14) CA 1989 as being in the best interests of the children by ensuring that the case cannot be readily returned to court by their parents. That underlines the need for a supervision order, placing the onus on the local authority to return that matter to court if C does not maintain and support the children in their relationship with their father. I apply the approach in considering applications under s91 (14) CA 1989 as set out by the Court of Appeal in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage)

[1999] 2 FLR 573

and in numerous decisions since which approve and follow that approach. The court must carry out a balancing exercise between the child’s welfare and the right of unrestricted access of the litigant to the court. The jurisdiction of the court to restrict applications is discretionary and I have weighed in the balance all the circumstances of this in the exercise of that discretion.

[80]There is be a s91 (14) order because the children need to know that neither of their parents can commence any further litigation without the permission of the court. The case will remain reserved to me. The evidence of the guardian and social worker, set out above, is that the children need to be free of litigation to be able fully to benefit from the time they spend with their father; and, that to lift that burden from them will assist them to enjoy their time in Sweden and with their Swedish family without feeling that their behaviour is to continue to be subjected to oversight and interpretation. The way is clear for a swift return to court by the local authority should it be necessary.

[81]This is my judgment.