A Father v A Mother & Ors [2025] EWHC 2464 (Fam)

[2025] EWHC 2464 (Fam)Case No ME22P00646Date 26 September 2025
IN THE FAMILY COURT AT MAIDSTONE
Before
RECORDER SAMUELS KC
Between
A FatherApplicant(1) A MotherRespondent(2) A, B, C and D (BY THEIR CHILDREN’S GUARDIAN JO WHITNELL)Respondent
The Applicant appeared in person, assisted by his McKenzie Friend for in personHarry Simons, counsel instructed by Beck Fitgerald Solicitors for First RespondentLauren Baker, solicitor from the Patrick Lawrence Partnership LLP for Second RespondentsJames Sharpe, counsel instructed by the Local Authority, Kent County Council.Hearing Hearing date: 17 September 2025
JUDGMENTE (Children: S.37 Direction)Recorder Samuels KC sitting as a Deputy High Court JudgeThis judgment was handed down remotely at 4.30 pm on 26 September 2025 by circulation to the parties or their representatives by email.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children 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.
[1]These are long running private law proceedings concerning 4 children: A aged 12, B aged 10, C aged 8 and D aged 4. Their father is referred to throughout this judgment as ‘the father’. Their mother is referred to as ‘the mother’. This case has been before the Court of Appeal on the issue of costs, Re E (Children: Costs) [2025] EWCA Civ 183.[2]The issues at this hearing were a) whether I should direct the local authority, Kent County Council, to complete an investigation into this family and file a report, pursuant to s.37 Children Act 1989 and b) whether I should make an interim care or supervision order pursuant to s.38 Children Act 1989. On 17 September 2025 I heard submissions from all parties on these issues. At the conclusion of the hearing I informed the parties that I had decided to exercise the Court’s powers to direct an investigation under s.37 and to make interim care orders in respect of all 4 children under s.38. I reserved judgment setting out my reasons for so doing. This judgment was sent out in draft to the parties on 22 September 2025.[3]By way of background, on 3 July 2024 I handed down an extensive fact-finding judgment, having heard six days of evidence and submissions. The conclusions that I reached were as follows:(1) The father was aggressive and threatening towards the mother in the course of their relationship and after it ended. This behaviour includes threats of violence towards her, threats to damage their home and throwing a bottle to the floor and a glass at a door.(2) The father pressured the mother for sex on occasions during the marriage. He threatened to look elsewhere for sex and his infidelity in December 2021 brought the parties’ marriage to an end.(3) The father kicked B on the foot in anger on at least one occasion.(4) Neither parent has made sufficient effort to protect the children from their marital discord. The mother has not attempted to shield them from her own anxiety about and dislike of the father.(5) The mother has behaved in an alienating way towards the children by expressing an ongoing pattern of negative attitudes and communications about the father which had the potential or intention to undermine or destroy the children’s relationships with the father.(6) I did not find the mother’s allegations of rape or sexual abuse of the children against the father to be proved.[4]The allegations that I found not to have been proved were of the most serious kind. The mother had alleged that the father had raped her and that he had physically and sexually abused A, B and, to a more limited degree, C and that he had enabled other men to sexually abuse A and B.[5]In relation to the accounts of abuse given by the children I said this:
“I did not find A or B’s accounts of the sexual abuse perpetrated by their father or by other adult men to be convincing. There was a lack of experiential detail and at times I wondered if they were recounting events they had been told, had dreamed or had fabricated rather than real events. There were significant inconsistencies between accounts and between their accounts and what the mother reported them as having said.”
[6]Towards the end of my judgment I said the following about each of the parents:
“183. The allegations of sexual abuse against the father, if true, would have required a degree of co-ordinated planning with other adults, sophistication and the ability to manipulate the children to secure their silence. The impression I formed of the father was that he is not a sophisticated person. It is unlikely in my view that his extensive sexual abuse of his children, if it occurred, would have remained hidden for so long. 184. The mother has convinced herself that the father sexually abused her children. Secure in her belief that the central allegation is true, she has pressed relentlessly for other professionals to accept her perspective and act accordingly. When they have not acted or, not acted in the way that she has wanted, she has redoubled her efforts. She has, in my judgment, pressured her children to ‘start talking’. She has convinced them that the father is a bad person and that he poses a danger to her and to them. The father’s actions in attending the property and threatening the mother, once seen by the children or relayed to them, have reinforced that view.”
[7]On 8 October 2024 I was invited by the father (at that time represented by solicitors and counsel) to a) make an order under s.37 Children Act 1989 directing the local authority to undertake an investigation of these children’s circumstances giving consideration, amongst other matters, to whether the local authority should issue proceedings applying for a care order or supervision order and b) make an interim care order under s.38(1) Children Act 1989 or, alternatively, an interim supervision order.[8]The LA had recently completed a report, dated 9 September 2024, pursuant an earlier s.37 direction. In that report, the then allocated social worker, ‘SW1’, expressed concerns that the children had been alienated and coached by their mother. However, the mother had told him that she was willing to comply with court directions and accepted the findings made. She was willing, she said, to work with the local authority to reduce the emotional impact on the children of her coaching and “help the children eventually understand that they have not been sexually abused by their father, and that she is willing to promote contact”. The local authority recognised the need to understand whether this was ‘disguised compliance’ and to assess the ability of the mother to change the false narrative the children had been given and to promote contact with the father. SW1 also noted that a court directed psychological assessment of the family, by Dr Gomes, was underway and would inform the local authority’s plans for these children and how best to reintroduce the children to their father. He said, “If during this process [the mother] creates barriers to this being undertaken [reintroducing the children] or undermines this process and causes further harm to the children, then the local authority will re-consider issuing care proceedings…”. At the conclusion of his report he said, “should there be any further concerns in relation to the children being coached, negative comments being made about their father by their mother or any form of parental alienation, the Local Authority will reconsider commencing Court proceedings…”[9]In the interim, pending receipt of Dr Gomes’ report, the local authority planned to support the children under a Child Protection Plan and the Pre-Proceedings process.[10]In submissions on 8 October 2024, the local authority said it would be premature to make decisions now about the need for public law orders, when Dr Gomes’ expert report would be available in a few weeks’ time. The Guardian at that time agreed with this approach. She said that what would then need careful consideration would be the recommendations that flowed from Dr Gomes’ report and how effectively those recommendations could be implemented.[11]A transcript of my judgment is available, prepared because I was also asked to consider the issue of costs on that day. In Re E (Children: Costs) [2025] EWCA Civ 183 (above) the Court of Appeal allowed the father’s appeal against my determination that there should be no order as to costs from the fact finding hearing, ordering the mother to pay half of the father’s costs, not to be enforced without leave. The Court of Appeal noted that these were already long running proceedings and that the father had incurred legal costs of £75,000 “without so far obtaining any order for contact”.[12]Dr Gomes reported on 14 November 2024. She recommended “a systemic intervention with a focus on family relationships”. This was to start with sessions with each parent separately working towards joint sessions with both parents. In parallel a therapist was to work with A and B, and possibly C, “to identify dissonance in their thoughts about their father”. The work with the parents would be “extremely important” with “ongoing assessment of whether [the mother] can address her attitude towards contact and the degree to which she is supporting and promoting contact, otherwise this intervention is likely to be unsuccessful”. This intervention would work in tandem with directions for contact by the court. The timescale for that treatment would be approximately 3 or 4 months. It would likely need to be sourced privately.[13]The local authority, helpfully and proactively (at that time), agreed to “[take] a lead on undertaking the recommendations that Dr Gomes proposes”. The detail of this is set out in SW1’s statement to the Court of 17 January 2025. He said at that time in relation to the mother that, “it is essential she is providing a consistent positive message to the children about promoting family time with their father. At present I feel there is some evidence that she is promoting family time…. If this does change and it is found that [the mother] is contributing to the children not wanting family time with their father once the family therapy has started, then the local authority will need to consider issuing care proceedings in respect of the children”. He recommended that an updated parenting assessment be undertaken following 3 months of family intervention “to assess [the mother’s] future capacity to promote contact with their father and reduce emotional harm to them”.[14]On 12 December 2024 D had his first contact session with his father. This was supported by SW1 who describes in some detail what happened. D was clinging to his mother and reluctant to go with SW1 into the room with his father. After about 20 minutes D was successfully encouraged to come into the room with his father. He ran out a few times but eventually settled and “had some very positive time with his father”. SW1 also supported a second session of contact on 18 December. On that occasion D went with him straight away and he “had a very positive time with his father”. SW1 praised the mother for enabling D to be calm enough to see his father. Equally, I have no doubt that the presence and positive input of SW1 helped to ensure that the contact was successful. SW1 then outlined his work to encourage C to see her father. She had initially expressed some interest in seeing her father but SW1 (with the mother’s support) had been unable to persuade her to do so. He suggested that any further attempt should await the family intervention. In total SW1 attended 5 sessions of direct contact between D and his father, which continued to go well, before then stepping back content that the relationship was well established.[15]The matter returned before the Court on 17 March 2025. At that hearing, there appeared to be some uncertainty about the work proposed by the local authority and whether that would meet the requirements set out by Dr Gomes in her report. The local authority had identified a clinical therapist, ‘Z’, to work with the family. At my suggestion, the local authority convened a professionals meeting which took place on 9 April 2025, to ensure there was alignment between the work recommended by Dr Gomes and the work proposed by Z.[16]SW1 filed a further statement on 22 April 2025. The Court was informed that the professionals meeting had agreed that Z’s work was suitable and would commence on 28 April 2025, with therapeutic input from CAMHS to be considered if there was any escalation in the identified behaviour from A, who had been exhibiting concerning behaviour and expressing suicidal thoughts. B had been exhibiting similar behaviour and thoughts. The Court was informed that a new social worker, SW2, had been identified in place of SW1. At a hearing on 24 April 2025 I recorded the agreement between the parties that D would see his father for two hours on alternate Wednesdays. I relisted the matter on 18 July 2025 which would allow almost 3 months of therapeutic work with the family.[17]On 17 July 2025 Z filed an interim report of his work with the family. He said that the plan to reintegrate the father into the children’s lives “was not working”. He identified 4 factors contributing to this: the children being unaware of key information, the children being exposed to inappropriate information, a lack of boundaries in the mother’s home “leading to enmeshment, parentification, and adverse effects on the children’s mental health” and A and B avoiding conversations about their anger and beliefs regarding past events. The dynamics he had identified were delaying progress and causing emotional harm. The children’s experiences and behaviour that he identified were extremely concerning. He expresses concern about A’s and B’s mental health and the sibling relationships.[18]On the same day, SW2 filed a statement. She expressed concerns about B’s influence on the family and that he could be unkind and controlling of his siblings. She was troubled by his influence on the family narrative about the father. On one visit, B was unhappy with a discussion and so encouraged D to swear at SW2 and told him verbatim what to say. He broke a toy that the father had bought for D. She said that she had become increasingly worried about B’s relationship with his mother, with themes of control and manipulation and co-dependency. She had discussed with B what might happen if the mother formed a new relationship and B said that “if that was to happen, he would not allow that person to detract [the mother’s] attention from him and his needs.” This co-dependence led to lack of boundaries and rules. She said: “it is my professional opinion that [the mother] is utilising this narrative of the children having significant mental health needs, risk of self-harm, and risk of suicide, to reinforce to the children themselves, and to professionals, the severity or harm and impact [the father] could pose. It is my professional opinion that [the father] is not likely to pose the children harm and there is currently no evidence from D’s contact that this should be a factor of consideration.[19]SW2 said that although the mother verbalises that she is promoting the relationship between the children and their father, “her actions do not support this”. She was not sharing the father’s photographs with the children, but simply putting them in a box for the children to access if they choose to. The mother was not in agreement with the sharing of information with the children about the father’s family. SW2 expressed a concern that what the mother says to the children when professionals are around may be different from what she says when they are not there. The mother is, in her view, “superficial” in her commitment to future contact between the children and their father. It had become apparent that the mother had told the children they could not go on holiday because this would not be agreed by the father or the Court. This was clearly untrue, the issue of holidays had never been raised by the mother and there are no restrictions on her ability to have holidays with the children.[20]The plan was for Z’s work to continue until September 2025. SW2 said that “whilst there are emerging concerns there is still work to be done with the family and that the children require stability and consistency within their care, whilst Z attempts to complete his therapeutic sessions.” D’s contact with his father had progressed to unsupervised time and for 3 hours each week. The older three children remained resistant to contact. In the work that had been undertaken with C the professionals had been unable to identify any clear reason why C would not want to see her father. As a result, the agreed plan was to move towards a further attempt to restore contact between C and her father, with Z’s help.[21]At the hearing on 18 July, the level of concern about the mother and the children was so high that the Guardian again invited the Court to make a s.37 direction and to make interim public law orders under s.38. That application was supported by the father but opposed by the mother and the local authority. The local authority said that such a decision would be premature whilst Z was working with the family and could only properly be made once his work had been completed. On balance, I agreed with the position adopted by the local authority. A timetable was put in place whereby Z would complete his work with the family, would provide his final report by 29 August 2025 and the local authority would by 12 September either a) have issued public law proceedings or b) filed and served a statement setting out why it had decided not to do so. I relisted the matter for a 2 hour hearing on 17 September 2025.[22]During the hearing on 18 July, the mother raised questions (for the first time it appears) about Z’s suitability to undertake the work that he had commenced in April 2025 and whether he had seen the Court’s judgment. Those issues are set out in the pre-amble to the order from that day. I anticipated, and encouraged, that the mother’s concerns would be properly investigated. I did not anticipate that this would prevent any further progress with the family over the summer period.[23]It has been quite difficult to understand what then happened. The local authority did not either issue public law proceedings or file its statement by 12 September. Belatedly, the local authority sought permission on 16 September to file its statement by 4pm that day.[24]The statement was sent to the court from SW2 at 2.52 pm on 16 September 2025, the day before this hearing listed at 10 am. It is clear from that statement that no further work was undertaken by Z. The local authority had decided “to place the therapy on hold whilst further enquiries were undertaken”. I was told that (shortly before the statement was filed) a decision had been made not to continue with Z’s work and that “the local authority will not be looking to replace this”. No adequate explanation is provided as to why it took the local authority almost 2 months to make that decision.[25]The statement from SW2 sets out a significant change of position by the local authority. It is said that the local authority has weighed carefully the potential harm that could result from the removal of the children from the mother’s care and has decided that removal would be detrimental to their welfare. There did not appear to have been any shift in the mother’s compliance with efforts to restore the relationship between the children and their father. SW2 expresses ‘regret’ about the “parental alienation” shown by the mother and expresses “sympathy” with the father, but says that removal could result in further trauma for the children. The local authority would be unlikely to find a placement suitable for all 4 children, so separation would be necessary. Their plan was to support the children in being “permitted to live their lives without ongoing involvement from either the court or the local authority”. A and B would have access to therapeutic intervention from CAMHS. The local authority would “step down” its involvement to a ‘child in need’ intervention followed by case closure once the work with CAMHS had been completed. It was said that the children had appeared calmer and less dysregulated once the work with Z had ceased.[26]It is difficult to understand from the statement what if any, direct work was undertaken with the family between the two hearings in July and September. There is a disturbing account of a further attempt to reintroduce C to her father. That attempt could not have been supported, as originally intended, by advance work to be undertaken by Z. There does not appear to have been any social worker present when that was attempted. The account of what happened is brief and appears to have been provided by the parents. C arrived covered in a blanket at D’s contact with his father. The father tried to engage with her, unsuccessfully. On a second occasion the mother reports that C attempted to jump out of a moving vehicle to avoid seeing her father. It is troubling that the parents were left to manage that situation unsupported.[27]SW2 reports that A continues to have anxiety and low mood. He does not want to work any further with Z although he has said he would like support from CAMHS. He says he wants to be left alone without any further social work intervention. B continues to struggle with his mental health and says that his work with Z has not helped this. He reports having panic attacks. He sees his mother as the only person who protects him, considers what he needs and promotes his best interests. C is avoidant of discussions in social work visits and will often leave the room or refuse to engage. D is young and impressionable, and remains easily influenced by his older siblings. He speaks positively about his time with his father, but SW2 is concerned that A and B’s views about their father will impact on his emotional wellbeing. The local authority remains concerned about the mother’s parenting style and believes she is not emotionally invested in supporting a relationship between the children and their father. Her relationship with her children is described as “somewhat unhealthy and dysfunctional”. The local authority had discussed with the mother extending D’s contact to overnight but the mother was reported not to be in agreement with this.[28]SW2 concludes:
“The Local Authority has considered the children’s attachment and relationship to their mother, the emotional harm caused to them since the start of these proceedings, and the future emotional harm that could be caused to their identity, by them not having a meaningful relationship with their father. The Local Authority has also had to consider the length of these proceedings and the little change that has been achieved across almost four years in terms of the children’s views about [the father]. The Local Authority was of the view that by funding therapeutic input and assessment, we would gain better insight into the children’s needs, the family dynamic, and that this would help professionals explore and understand the emotional harm caused. The Local Authority is of the view that the therapist was able to do this, however due to the concerns raised since, the therapy has ceased, and the views and any recommendations cannot be wholly relied upon.”
She invited the Court to “give due consideration to ending the private law proceedings based on the length of time they have been ongoing with little change, and the ongoing emotional harm this is causing the children”.[29]Mr Simons, in his position statement filed in advance of the hearing, joined forces with the local authority in urging the Court to bring these proceedings to an end. He says, “It is not clear what further court hearings are likely to achieve at this stage and the Court is therefore invited to consider the approach proposed by the local authority as being in the children’s best interests on balance.”[30]The father’s position coming into this hearing was set out in a statement dated 11 September 2025. He is distressed by what he had read about his children who appear to lack structure, boundaries and respect. He does not believe he will ever be able to have a meaningful relationship with his 3 older children whilst they remain in their mother’s care. The mother’s behaviour makes it very difficult for them to co parent. When they separated she told him he would never see his children again, and her words continue to haunt him. He asks the Court to ensure that his relationship with D continues to develop and that his relationship with his 3 older children is rebuilt.[31]The Guardian repeated her view, as set out in July, that the time has come for public law orders to be made. The Guardian was perplexed about the difficulties that had arisen with Z given that both parents had agreed to his work in advance and it had been approved by Dr Gomes who had confirmed that his planned work was in line with her recommendations. The Guardian was concerned to note that no further alternative work was being recommended so it is unclear what the local authority’s plan is to progress contact for A, B and C with their father. The Guardian remains “very concerned” about the children’s emotional welfare. No progress had been possible with the older 3 children, even with indirect contact, which she attributes to the lack of support from the mother. A professionals’ meeting planned for 3 September 2025 to discuss the situation had been cancelled by the local authority and not rearranged.[32]At the commencement of the hearing on 17 September I invited all parties to consider whether there was to be any application to adjourn the hearing. Due to the late service of the local authority’s statement, the parties’ positions had crystallised only shortly before the hearing. I was concerned to ensure that there was a fair process at this hearing and, in particular, that the mother had a proper opportunity to consider and address all the options before the Court. Those options included, as I said, the making of a s.37 direction and an interim care or supervision order under s.38. After some time for consideration, Mr Simons confirmed that the mother did not seek an adjournment of this hearing, and no other party applied for an adjournment.[33]I explored with Mr Sharpe and Mr Simons what exactly they were inviting me to do. Both readily accepted that I could not summarily end the proceedings at this hearing. Both accepted, when I raised the point, that Dr Gomes had been given no opportunity to comment on the work undertaken by Z and its premature conclusion. They invited me to list the matter at some future date for a ‘final hearing’. Dr Gomes would need some time to consider the up-to-date position (probably needing to see the adult parties again and possibly the children), the parties would need to file statements and the Guardian a final analysis. Any such final hearing would therefore be many months away. In the interim, there was no clarity as to what if any work would be undertaken with the family. The local authority proposed that CAMHS should be engaged. However, no meeting had yet taken place to consider what services they could offer or within what timescale. Any such service was likely to be targeted towards supporting A and B with their mental health. SW2 had proposed ‘stepping down’ the local authority’s involvement. Neither the local authority nor the mother were able to suggest any alternative outcome to a final hearing other than terminating the proceedings.[34]Ms Baker on behalf the Guardian invited me to invoke the Court’s powers under s.37 and s.38 Children Act 1989. S.37, “Powers of court in certain family proceedings”,provides that:
“(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances. (2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should— (a) apply for a care order or for a supervision order with respect to the child; (b) provide services or assistance for the child or his family; or (c) take any other action with respect to the child. (3) Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of— (a) their reasons for so deciding; (b) any service or assistance which they have provided, or intend to provide, for the child and his family; and (c) any other action which they have taken, or propose to take, with respect to the child. (4) The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.”
[35]S.38, “interim orders”, provides that:
“(1) Where— (a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or (b) the court gives a direction under section 37(1), the court may make an interim care order or an interim supervision order with respect to the child concerned.”
[36]It is common ground that these provisions enable the Court to make interim public law orders at this hearing alongside directing the local authority to undertake a further s.37 investigation. Mr Sharpe readily conceded that, in the local authority’s view, both the threshold criteria under s.31(2), and therefore the interim criteria under s.38(2), are met. These children have suffered and continue to suffer significant harm through their mother’s parenting style and her alienating behaviour. She continues to fail to support a relationship between these children and their father.[37]It is also common ground that the Court is not limited to the making of one s.37 direction for each set of proceedings. Where the court is satisfied that the local authority has either not complied with a direction under s.37, or has failed to conduct an investigation that meets the court's concerns, the court may extend or renew its direction under s.37 (Re K (Children) [2012] EWCA Civ 1549, [2013] 1 WLR 1538). It was argued in Re K that the use of repeated directions under s.37, and associated interim care orders under s.38, “amounted to impermissible pressure upon the local authority to initiate care proceedings and to exercise its parental responsibility in a manner that accorded with the judge’s views, rather than those of the social workers. An application under s.31 Children Act (for a care or supervision order) can only be made by a local authority or authorised person. So parliament has entrusted the local authority, and not the court, with the role of determining whether or not public law proceedings in relation to a child are to be issued.”[38]McFarlane LJ, as he then was, said at paragraphs 31 and 32:
“31. In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child's circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court's ability to utilise the s 37 jurisdiction to 'one shot' in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists 'where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made'. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings. 32. In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge's exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court's concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure thus: '[The court] cannot require the local authority to take proceedings. The limit of [the court's power] is to direct the authority to undertake an investigation of the children's circumstances.'”
[39]In Re M (intractable contact dispute: interim care order) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636 Wall J, as he then was, considered the use of s.37 in a case where the mother had made false allegations that the father had physically and sexually abused the children and then had refused to obey contact orders. He said that one method of addressing such dispute was through the use of the s.37 process. In such circumstances the court should spell out the reasons for making the s.37 order very carefully. In that case, Wall J did not make any public law order. He accepted (as do I) that it is for the local authority to decide whether to initiate proceedings.[40]The use of s.37 was recently considered by the Court of Appeal in Re E (A Child) [2025] EWCA Civ 470, [2025] 3 WLR 85. The issue in that case, different to the situation here, was whether the court had power to make orders under s.37 and s.38 in relation to children who were not subject to the proceedings before the court. In deciding that there was no such power, Baker LJ again emphasised that the court cannot force a local authority to start proceedings. At paragraph 90 he said that where a court is considering whether to make an interim care or supervision order, the court must (as it would need to do in a conventional interim application) “consider the factors in the welfare checklist in section 1(3) of the Act and evaluate the proportionality of the proposed interference with article 8 rights, having regard to the principle that the court must always adopt the least interventionist course consistent with the child’s welfare.”[41]In Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431 the Court of Appeal discussed the respective roles undertaken within proceedings by the local authority and the court. At paragraph 96 of his judgment Ryder LJ set out the circumstances in which the court could ‘force upon’ a local authority a more draconian order than was asked for:
“[96] In Oxfordshire County Council v L (Care or Supervision Order) [1998] 1 FLR 70, Hale J held that cogent and strong reasons were required to force upon a local authority a more draconian order than that asked for. She considered three possible reasons in a judgment that deserves a full reading (and which was expressly approved by this court in Re T (A Child) (Care Order) [2009] EWCA Civ 121, [2009] 2 FLR 574, per Sir Mark Potter P). In summary, they were: (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) she held that (at 76): ‘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.’”
[42]Then, at paragraph 101, Ryder LJ said:
“The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the s 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations. None of this strays into the impermissible territory of seeking to bind the local authority’s care planning and review processes once a full order is made. If a local authority makes it clear that it will not implement a care plan option about which evidence has been given and which the judge prefers on welfare and proportionality grounds, then in a rare case it can be subjected to challenge in the High Court within the proceedings. If and insofar as the local authority is of the opinion that it needs to change a care plan option approved by the court once the proceedings are complete, it is entitled to do so and must do so in accordance with the processes laid out in the regulations. If it does so without good reason it will risk an appropriate challenge including on behalf of the child after a referral from an IRO to Cafcass or a Welsh family proceedings officer.”
[43]As Mr Sharpe rightly identifies, Re W was a case where the Court of Appeal was considering the respective powers and duties of the local authority and court in the context of making final orders and the duty to file a care plan under s.31A Children Act 1989. Nonetheless, as highlighted by Baker LJ in Re E above (paragraph 93), “effective child protection requires untrammelled co-operation between all agencies.”[44]In his submissions, Mr Sharpe robustly defended the position adopted by the local authority. The local authority had undertaken its internal decision-making process and had reached its concluded view, based on its involvement with the family over some considerable time and the decision-making process that had already been undertaken. When pressed, Mr Sharpe conceded that the local authority could change its mind, but described that outcome as “highly unlikely”. He maintained that position despite conceding that the local authority was yet to hear the Court’s view or the reasons that lay behind it and had not consulted in any way the Guardian or the Court appointed expert Dr Gomes before reaching its decision. In summary, the local authority position was that the time had come to make long term welfare decisions for these children. The two options considered were ‘stepping down’ the local authority’s involvement or removal of the children from their mother. Removal, as identified by SW2 in her statement, would require placement in foster care, with strangers, and likely separation. This would impact on the older children’s mental health and would not be likely to change their views about their father. This would be against their views. A supervision order would provide nothing for the children that is not already happening. The local authority would not therefore be offering any additional support or services should an interim supervision order be in place. The balance in the local authority’s view fell firmly in favour of their recommendation that “the private law proceedings now cease, with a view to the children eventually closing to children’s services”, as set out in the penultimate paragraph of SW2’s statement.

Analysis

[45]The parties separated in January 2021. The father’s application for a child arrangements order was issued on 24 May 2022. I handed down my fact-finding judgment on 3 July 2024. These children have not had a proper relationship with their father for almost 4 years.[46]At each hearing until the present one, the local authority has attended court with a plan, a plan that was working towards the restoration of a relationship between all of the children and their father. Although progress has been slow, it has been possible to see incremental steps towards that goal. The commencement of direct contact between D and his father was achieved successfully. Both the agreed therapist Z and the then social worker SW1 undertook intense work with the family to support D’s contact, to plan for the reintroduction of C to her father and to challenge the false narratives held by A and B. As part of that work the mother’s support and engagement was being tested and assessed. The local authority made it very clear up to July that active consideration was being given to the issue of proceedings should the plan to reinstate contact fail. At the hearing on 18 July I was urged not to make a s.37 direction, or to consider making public law orders, because the work being undertaken by Z had not been completed, and the local authority was committed to continuing its work with the family. There was no suggestion at that hearing that the local authority was thinking in terms of ‘stepping down’ its involvement or recommending that the proceedings should be brought to an end without any further progress being made towards reestablishing the relationship between the children and their father.[47]My difficulties with the plan for the children now advanced by the local authority are as follows:(1) No explanation has been provided as to why, if Z can no longer be supported as a therapist for the children, an alternative therapist cannot continue that work.(2) The local authority has made no attempt to include the Guardian or Dr Gomes in their decision-making process. The Guardian was proposing to attend the professionals meeting fixed for 5 September, but that was cancelled by the local authority and not rearranged.(3) The local authority appears to have stepped down its involvement already following the hearing on 18 July. That stepping down resulted in the misguided attempt to reintroduce C to her father, without any of the direct work planned in advance or any social work support for the contact sessions themselves, as provided initially by SW1 when D was reintroduced to his father. It is hardly surprising in those circumstances that the proposed reintroduction was unsuccessful. The local authority appears now to accept ‘defeat’ rather than reassessing, with professional advice, whether and how a successful reintroduction of C to her father could be achieved.(4) The local authority tacitly accepts that D’s contact with his father will be difficult to sustain in the longer term given the pressures he is likely to face at home. No plan is in place to support that contact against such pressures. When the mother opposed extending that contact to staying contact, the local authority took no positive step to address that issue. I was told by Mr Simons at the hearing that the reason for the mother’s objection was that she asserted that the father’s living accommodation was unsuitable (because of lodgers at the property). Even if that correctly sets out the reason for her objection, the local authority had not attempted to visit the father’s property to assess this for themselves and set out no plan to do so. Thus, the mother’s block on the progression of contact was simply accepted at face value by the local authority.(5) There is no plan to address the issue of indirect contact between the 3 older children and their mother. SW2 had noted that the mother’s commitment to contact was “superficial” and although the mother verbalises that she is promoting the relationship between the children and their father, “her actions do not support this”. She was not sharing the father’s photographs with the children, but simply putting them in a box for the children to access if they choose to. The mother was not in agreement with the sharing of information with the children about the father’s family. The local authority again appears to accept that the mother can just block the progression of indirect contact, if that is her wish.(6) The only future work proposed by the local authority is with CAMHS, work that is yet to be agreed or timetabled and appears centred on addressing mental health issues with A and B rather than any of the wider issues concerning their false narratives or their mother’s alienating behaviour.(7) The local authority does not plan to address any of the concerns identified about the mother’s parenting of her children. The earlier criticisms of her, as set out by Z and SW1, appear to have been set to one side. No wider consideration has been given to the risks to these children’s emotional welfare of being brought up by their mother, even aside from the issues concerning the father. As a result, there is no plan to address the issue identified by Z of the children being exposed to inappropriate information and a lack of boundaries in the mother’s home “leading to enmeshment, parentification, and adverse effects on the children’s mental health”. Equally there is no plan to address themes of control, manipulation and co-dependency identified by SW2 in the relationship between B and his mother.(8) The local authority has not considered the potential benefits to the children of sharing parental responsibility with the mother, short of removal. As ‘looked after’ children they would benefit from enhanced support and services, together with greater monitoring and oversight. Had the children been looked after it would have been inconceivable that the local authority would have delegated to the parents alone the important step of preparing for and then implementing C’s proposed reintroduction to her father. Active involvement at this time could support D’s continued contact with his father and its extension to overnight stays. It could be used to plan how C could then be reintroduced to her father. It could be used to address the significant parenting issues addressed as above. It could be used to support indirect contact.(9) The local authority has not considered whether it might be possible for D, or possibly D and C, to move to the care of their father. The local authority has looked at the children as a unit rather than individually.[48]It is appropriate, therefore, to invite the local authority to think again about this family and whether it is now necessary for them to initiate public law proceedings. I have, as a result, decided to make a direction under s.37. I have also considered, separately, whether it is necessary and proportionate to make interim public law orders and, if so, what order bearing in mind the importance at all times of the Court taking the least interventionist approach so as to respect this mother’s Article 8 rights and the Article 8 rights of the children.[49]The local authority concedes that the interim threshold is crossed, in that there are reasonable grounds for believing that these children have suffered, or are likely to suffer, significant harm attributable to the mother’s parenting. That harm is emotional harm arising not just from the false narrative and alienating behaviours of the mother, but also the dysfunctional, enmeshed parental relationship, the lack of boundaries in the home, the poor mental health exhibited by A and B and the aspects of control, manipulation and co-dependency between the mother and B. I find that the interim threshold criteria are amply satisfied in this case.[50]In considering what, if any, orders to make pursuant to s.38 the Court must have regard to the paramountcy principle and the welfare checklist. The Court must go on to evaluate the proportionality of the proposed interference with the parents’ and children’s article 8 rights, having regard to the principle that the court must always adopt the least interventionist course consistent with the children’s welfare.[51]A (12) and B (10) maintain the false narrative that they have been sexually abused by their father and by other men, at the instigation of their father. As such they wish to be left alone, and do not want to be subject to any local authority involvement, still less to be ‘looked after’ by the local authority. C (8) has not recounted any direct experience of being sexually abused and has at times shown an interest in developing a relationship with her father. On other occasions, however, she is drawn into the narrative promoted by A and B. D (4) clearly enjoys the time he spends with his father and would not want that relationship to be curtailed or ended.[52]All 4 children have an emotional need to develop full and enduring relationships with each of their parents. They need to be protected from developing and maintaining this false narrative about their father. They need to have their mental health needs met and the issues around their mother’s alienating behaviour and her role in promoting the false narrative needs to be addressed. They need to have healthy functional relationships with each of their parents, free of issues of enmeshment, parentification, control and with proper boundaries set for their behaviour. Each child needs to be able to form a relationship with their father without influence from the other children.[53]No immediate change of circumstances is planned for these children. I acknowledge that the local authority does not propose to separate the children from their mother at this time, whatever order I make. That decision firmly and properly rests with the local authority unless and until it puts a care plan for removal before a court. I accept, in any event, that any care plan for removal would have been inchoate at the present time in that it would be unclear where they would be moved to.[54]These are children in their formative years with an opportunity at the present time to develop a relationship with their father. It is noteworthy that they lived with their father and their mother until 2022.[55]The significant harm that these children have suffered is set out above. If these issues are not addressed now then it is likely that all 4 children will grow up to believe, falsely, that A and B were sexually abused by their father and by other men. It is likely that their mental health will deteriorate, as has the health of A and B, without significant mental health input that challenges the narrative rather than just accepts it to be true. Without further input, the mother’s dysfunctional parenting style may continue to place all 4 children at risk of emotional harm.[56]By way of balance, it is important to note that the children, particularly A and B, may respond negatively to further social work involvement. They wish to be left alone. The difficulty is that such an approach stores up greater problems for each child as they grow into adolescence and then as young adults. The issues arising from this case need to be addressed now if they are ever going to be.[57]The assessments to date raise no issues with the father’s ability to meet D’s needs during contact. My understanding is that the local authority (and the Guardian) support the move to staying contact for D with his father. There are significant issues raised as to the mother’s ability to promote with the children a positive relationship with their father. Her support to date has been superficial and she has not engaged fully with indirect contact. There are real concerns that her presentation is different when there are professionals involved as opposed to when she is on her own with the children. Her more general parenting ability has been criticised by the local authority, particularly in relation to B. The parent / child relationships are said to be dysfunctional, with insufficient boundaries, and there are aspects of her relationship with B that are concerning. It is not for a 10 year old boy to dictate to his mother whether and with whom she can form relationships.[58]In this case the range of powers available include the power to make interim care orders to enable the local authority to share parental responsibility for the next 8 weeks. The local authority has said that the making of an interim supervision order would have no practical impact on the support or services that it would provide to this family over that time. It would not enable the local authority to share parental responsibility for these children.[59]Mr Sharpe was clear in his submissions that the local authority had already undertaken the necessary balancing exercise in deciding not to issue proceedings and as to the services it was willing to provide to this family. A s.37 direction alone would not achieve anything of substance for this family, because the local authority had already reached its conclusion. Nor would an interim supervision order. No enhanced services would be made available to address the substantial issues highlighted above in connection with contact and the mother’s parenting of her children. Eight weeks on, the local authority would, in all likelihood, repeat the same analysis as previously articulated and relied upon. This family would be no further forward in addressing the significant issues that have beset them.[60]In my judgement, the sharing of parental responsibility by the local authority at the present time, for the next 8 weeks, will bring the following benefits to this family and these children:(a) The contact between D and his father will be properly monitored and supported. The local authority would be actively involved in decision making about whether D should start to spend overnight stays with his father.(b) The local authority would have a duty to promote direct contact between C and her father. Rather than just accepting the failure of the unsupported attempt to reinstate contact, the local authority would be under a duty to consider whether a further attempt should be made, how that attempt should be planned for and undertaken, and to support the attempt should it take place.(c) The local authority would have a duty to promote indirect contact between the children and their father. Rather than just accepting the mother’s decision to place the father’s communications in a box, the local authority would be empowered to advise and challenge the mother’s decision making.(d) The local authority would be under a duty to support the provision of services to the family, including the proposed mental health support from CAMHS. The local authority would need to consider what other services it could provide, including whether Z’s role should be undertaken by another therapist.(e) The local authority would be under a duty to continue to assess and monitor the mother’s parenting of the children, including the impact of what it describes as the enmeshed, dysfunctional relationships.[61]Furthermore, it would send a clear message to the local authority to rethink their plans and to consider the concerns set out in this judgment, the concerns articulated by the Guardian and the necessity of obtaining input from Dr Gomes before any final decisions are reached.[62]In the highly unusual circumstances of this case it seems to me that an interim care order is a necessary and proportionate interference in the Article 8 rights of this family. It represents, in my judgement, the least interventionist course consistent with the children’s welfare. It will not involve interim separation of the children from their mother, because that is not the local authority’s plan. It will however ensure that the local authority shares parental responsibility for each of these children over the next 8 weeks. What happens then will be an open question for consideration at that time.