IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A and B :
B e f o r e :
| Re A & B (Parental Alienation by the Non-Resident Parent)
Ms June Rodgers (instructed by Dawson Cornwell) for the Respondent Mother
Mr Femi Ogunlende (instructed by Eskinazi & Co) for the Respondent Father
Ms Angela Gaff (of Covent Garden Family Law solicitors) for the Respondent Children A & B by their Children's Guardian.
Evidence: 22 November – 9 December 2021 (9 days)
Final Submissions: received by 20 December 2021
Draft Judgment circulated on 7 January 2022
Judgment handed down on 14 January 2022
Crown Copyright ©
(1) Attachment No.1 – the draft letter to A and B, which Ms Gill has agreed to consider before it is finalised. I also invite the advocates to consider it. It is an important document and if there are any proposed amendments to the wording, I will consider them;
(2) Attachment No.2 – my threshold findings (following the format of the Local Authority's "Amended Final Threshold Document");
(3) Attachment No.3 – my threshold findings (following the format of the Local Authority's "Threshold Facts Not Accepted Document").
(1) what is the type of harm that might arise;
(2) what is the likelihood of it arising;
(3) what consequences would there be for the child if it arose;
(4) what steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did.
(1) The Local Authority must prove any fact it wants to rely on.
(2) In proving any fact, the legal test is the balance of probabilities. In other words, "more likely than not."
(3) Where there is a dispute of facts, it is either proven or it is not. The court cannot sit on the fence and say it might have happened.
(4) Any findings must be based on evidence. Findings must not be made on suspicion or speculation.
(5) The court has to consider the evidence in the context of all other evidence. The court should not consider a piece of evidence on its own.
(6) All the evidence is admissible notwithstanding its hearsay nature, including Local Authority case records or social worker chronologies, which are often second or third hand hearsay. However, the court should bear in mind that such evidence is hearsay and give it the weight it considers appropriate.
(7) The court can consider written evidence even if the person who writes that evidence does not come to court. However, the court has to remember that if someone does not come to court, that person cannot be asked questions if their written evidence is disputed. Also, the court cannot see that person to assess and decide whether they are telling the truth or not. The court has to decide how much importance they will give to that sort of written evidence.
(8) If a fact is in dispute, the best evidence is primary evidence.
(9) The expert's job is to provide an opinion. The court's job is different. The court decides the case. The expert does not decide the case.
(10) The evidence of the parties is important. When a party or witness gives oral evidence in court, the court has a chance to assess whether that person is telling the truth. The oral evidence has to be considered against all the evidence and I remind myself of the fallibility of memories and/or oral evidence. The content, consistency and probability of oral evidence has to be considered against all the other evidence. As Peter Jackson LJ recently said (20 September 2021), although "no judge would consider it proper to reach a conclusion about a witness's credibility based solely on the way that he or she gives evidence", in family cases "a witness's demeanour may offer important information to the court about what sort of person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable": Re B-M (Children: Findings of Fact  EWCA Civ 1371.
(11) The court has to remember that if a witness lies about one thing, it does not mean that they lie about everything. People lie for lots of different reasons. They might be embarassed, they might think it makes them or their case look or sound better and so on.
(12) The Local Authority has to show that significant harm, or the risk of significant harm, is caused by the parent's care of the child or that the child is beyond parental control.
(13) Any delay in a decision is likely to be against the best interests of a child.
(14) The child's welfare is the court's paramount consideration.
(15) The court should not make an order unless it is better for the child to make an order than to not make an order.
(16) Any order should be the least interventionist order that meets the child's welfare needs.
(17) The court must apply the welfare checklist set out in section 1(3) of the Children Act 1989. The children's wishes and feelings must be considered but they are not determinative.
(18) Where the court is looking at the different options for the child, the court must not knock out any options and see which one is left standing. The court has to consider all the realistic options side by side. The court has to balance them against each other. The court has to look at the advantages and disadvantages in each realistic option and decide which option is best for the child.
(19) Parents and children have Article 8 rights to a private and family life. The court can only interfere with those rights if it is necessary, proportionate and in the best interests of the child. The need to safeguard a child's welfare justifies interfering with the parents' and the child's Article 8 rights.
(20) In respect of an application for an adjournment of the final hearing/final decision, the guidance is set out in Re S A Child  EWCC B44 (Fam). Commitment to making necessary changes, ability to maintain that commitment and ability to make the necessary changes within the child's timescales have to be considered.
(21) Care proceedings should conclude within 26 weeks. That statutory period can be extended but any extension must be justified and the length and effect of delay must be considered from the child's perspective.
(1) Melanie Gill (on 22 and 23 November 2021), expert psychologist who assessed the parents and the children;
(2) Dr Malcolm Bourne (on 23 and 24 November 2021), expert psychiatrist who assessed the parents and the children;
(3) Judi Lyons (on 25 November 2021), independent social worker, who assessed the mother's and the father's parenting capacity;
(4) VK (on 25 and 26 November 2021 and recalled on 3 December 2021 to deal with the gift and place of worship incidents on 24 November and 27 November 2021 respectively), the allocated social worker;
(5) the mother (on 26 November and 1 December 2021);
(6) the father (on 2 and 3 December 2021);
(7) the Guardian (on 9 December 2021). This was an additional trial day (Day 9).
Final hearing format
(1) For the father, 2-3 years of therapy with XX, a schema therapist who speaks the father's language, at a cost of 120 Euros for 45 minutes;
(2) For both parents in the future, but not now, Video Interaction Guidance ("VIG") with both parents, at a cost of approximately £2,500 per parent;
(3) For the whole family, 6 months – 1 year of specialist family therapy with MM, a therapist who speaks the father's language, at a cost of £85 per hour;
(4) For the mother, EMDR therapy with YY, at a cost of £135 per hour;
(5) For the children, child and adolescent psychotherapy with ZZ at an approximate cost of £85 per hour.
Dr Malcolm Bourne
57. Dr Bourne questioned some of the children's language and ideas including A's description of the mother being treated "like she deserved" [E220]. A did not recall saying that but did say that the mother "doesn't deserve to have such a nice person like my dad." Dr Bourne wondered what child conceptualises what a parent deserves. He questioned A's reference to tax credits in the context of contact and said that it showed very adult orientated thinking. He also considered A's use of the word "influence" [E627] to be an adult concept and said that none of these sentences could be considered in isolation. Dr Bourne considered that A was reflecting the way the father talks about the mother and described A's statement about what the mother deserved to be striking for a child. Dr Bourne was concerned by A's extreme feelings and the severity of some of the statements attributed to A, including the wish to set the mother on fire, hit her with a machete and so on. In A's email dated 7 April 2021 [L43], A expressed A's hatred for the mother, the schools, the local authority, the doctors, the judges, the police, the Guardian and said that if they all "get out forever from our life … it will be fine." Those views fitted in with Dr Bourne's assessment of A absorbing the father's viewpoint and polarised view of the world.
The Children's Guardian
Findings of Fact
Was the father abusive towards the mother during their marriage?
Has the mother physically abused the children?
Has the father told the children what to say or influenced them in respect of what they say and do?
Has the father influenced the children in their behaviour towards the mother?
Has the father influenced the children in their dealings with professionals?
Has the father given A access to documents and information that A should not have seen/known about?
Has the father passed secret messages and items to the children when he should not have?
Has A influenced B?
Do the numerous photos provided by the father in these proceedings show the entire picture?
Are either of the children competent to instruct their own solicitors?
What can the father now do to help his children?
The Realistic Options
Long term foster care
Final Care Order now or Adjournment
Other necessary orders
Barnet Family Court
14 January 2022
Draft letter to A and B (observations invited from trial advocates and Ms Gill).
Dear A and B,
I write this letter to both of you because I want you to know that I am saying the same thing to both of you.
As you know, I have been reading and listening to a great deal of evidence and information about you, your mother and your father. It is clear that you have both had very difficult experiences since your parents separated. You both need time and space to recover. Your family needs to rebuild. Being part of a family means having a healthy and proper relationship with both your mother and your father. At the moment, neither of you have that. All the adults, including your mother and father, want that to change.
You have wanted me to know what your wishes and feelings are. I promise you that I know what they are. Several people, including [the Guardian], Ms Gaff, your mother and your father, have told me what they are. You have also told me what they are through your emails A, your diary B and through your "How it looks to me" Cafcass documents (I read them both). At this hearing, your father told me that I know everything there is to know about your wishes and feelings. I have listened to them and taken them into account and I have listened to you through others. Your voices have been heard.
It is important for you to understand that because you are still children, it is not fair or right for you to be making decisions that have really important lifelong consequences for you. That is why adults have to take responsibility for those decisions. You probably know that what a child wants is not always what a child needs. My job is to look at what you need and what is best for you. I have to decide what is best for you even if that is not what you want.
I am now sure about what is best for you. That is for you to stay living where you are, with your foster carers, away from your parents and not having contact with them for a while. That is so that you have a break from all that has been going on. Once you have had a break, you and your parents are going to start therapy but not all together at first. I have explained to your parents what I think should happen and why. They both agree that for a while they should leave you alone and in peace. They both agree that for a while they should have no contact with you and you should have no contact with them. That is important to give you a break and a chance to settle where you are. That does not mean that they are not thinking about you or that they do not love you. They are doing this because they know that it is best for you and they want family life with all five of you to be better. They both want you to go back to being children and to not worry about the problems between them. They are going to try to sort those problems out so that life can be better for all of you.
The court case has now come to an end. Once you have had some space and time to settle down where you are, your therapy will start. I hope it goes well for you. Everyone wants it to. A – it is a good idea if you now stop emailing people about this case, especially because it has now ended. B – you do not need to carry on writing your diary as you have been told to do. You both need to concentrate on feeling better about yourselves, about your mother, your father and your family as a whole. You are a family of five and both of your parents are part of your family and part of who you are. The adults (including your social worker, your foster carers and your therapists) are going to look after you and help to make things better for you.
I enjoyed seeing the photos of you all and I wish you both the very best in the future.
Barnet Family Court
"Suffering or at risk of suffering harm":
(a) The children have absconded from their home on at least one occasion in the early hours of the morning and on one occasion have gone to stay with their father for 27 days. The children's actions placed themselves at risk of significant harm.
(a) During a social work visit on 06.02.2020, A talked about "wanting to kill [themself]";
(b) The school have reported that A suffers from abdominal pain and makes frequent visits to the toilet, because of the stress and A's current situation, due to the present circumstances, the GP has also confirmed that the abdominal pain reported by A is because of anxieties and stress.
(c) School describe B as withdrawn and quiet.
(d) A admitted to the social worker that A is unable to manage A's emotions or actions when A is around A's mother and A says that A will kill A's mother or set fire to A's mother whilst she is asleep.
(e) On 11.06.2020, during a social work visit with father, B was completely overwhelmed and distressed. B presented as so upset that B was unable to speak or show any physical reaction, other than to freeze. A reported " this is what [B] does when things get too much for [B]" .
a) Findings made as set out in Attachment No.3 (paragraph 5)
b) On 04.02.2020, B's therapist reported that both B and A talked about running away, because they are upset that they are not having contact with their father. B told B's therapist that B's father would question B about the information B shares during the sessions.
c) On 11.07.20 during a visit, the social worker observed the father to say to the children "tell [the social worker] how happy you were when you lived with me for 27 days." The father held on to the children and said to them, "tell [the social worker] about your mother and how she lies and mistreats you". A and B were visibly distressed and father kept saying things such as "do you see what they are doing to us".
d) Findings made as set out in Attachment No.3 (paragraph 6)
"Beyond Parental control':
A and B have assaulted their mother on more than one occasion and the severity of the attacks against the mother are escalating.
a) On 13.03.2020, the mother reported that B punched her in her tummy and A made insulting comments, calling her an 'Idiot, donkey, makak, mongrel', and throwing a metal hanger at her. A also threatened A's mother by picking up the bread knife and saying '[A] would get a Machete and smash it over her head'. A threatened to 'smash' her if she touches anything on A's desk. The social worker reports that A admits to all of these incidents and shows no remorse for A's comments or actions.
b) In April 2020, the mother reported that A pointed to a tree of fire and said that A wished that was A's mother. A has also told A's mother that A is "going to set fire to her in her sleep and that if she was dead then [A] and [B] could live with their father".
c) On 16.06.2020, the Mother reported that A had pushed her, causing her to fall over the arm of the sofa and land on the small of her back. B was present at the time. Mother says that A was furious and was shouting and swearing, calling her " a [XXXX], idiot and a donkey". The mother had to call a neighbour to try and diffuse the situation. The children report that they "hate" their mother and they "wish she was dead".
d) A in particular, has full control of what happens within the family home and A's physical and overpowering presence is such, that it is difficult for B or the mother to challenge A without the situation spiralling out of control.
e) On 19th October 2021 Mother had to spend over an hour convincing A to take a shower after 11 days of not showering. A slapped Mother on the forehead, hit her arm hard when she was sitting at the table eating dinner. A went to do a slow-motion fake punch in the mother's face and ended up giving a light punch on the mother's mouth. A also called her a "bitch" [C132].
f) Both children argue and fight, causing injury to each other, by way of scratch marks and bruising, the mother is unable to stop the children from fighting or injuring one another. [C133]
g) When the mother attempted to discipline A by removing A's game console, for fighting with B, A retaliated by aggressively pushing the mother and man-handling her; holding onto her ankles.
h) On 27.10.21, A lost A's temper after being asked to take the rubbish out, A swore at the mother and called her vulgarities. A pushed the mother causing her to lose her footing. A then became angry, alleging the mother interrupted the game A was playing on A's phone and went into the hallway, picked up a screwdriver and started poking it into the Mother's upper legs.[C134]
Threshold Findings also made by the Court in HHJ McKinnell's Judgment dated 14 January 2022:
"Suffering or at risk of suffering harm":