B e f o r e :
|- and -
|SALFORD CITY COUNCIL
Crown Copyright ©
District Judge Relph :
a) At this juncture I will deal with the father's earlier application that I should recuse myself from this case. That application was heard by me in October 2016 and opposed by both the children's Guardian and the local authority. I considered the father's application very carefully at the time and gave a short extempore judgement. On balance I felt that this was a case where there have been so many hearings and applications that in the children's best interests there should be judicial continuity and so it has proved as will become evident within this judgement.
b) I also have the benefit of access to the earlier case files which I dealt with and which I have reviewed with a view to compiling an accurate chronology of the proceedings. I have found this review to be necessary due to the father's assertions and contentions within all aspects of his evidence that certain issues and matters have been presented as fact within these proceedings but consideration of the earlier case papers and evidence demonstrates that this is in fact at best inaccurate and misremembered and at worst a misrepresentation of what was going on before. This is where judicial continuity has been essential in this case.
The applications before me are;
a) An application by the father to discharge the care order
b) An application by the father to revoke the section 34(4) order confirmed by me on 12 March 2012 and again in 2014 following a three day contested hearing.
c) The Guardian makes an application under section 91of the Act to restrict further applications to the court without the permission of the court for the balance of the children's minority.
I have considered the extensive case papers. I have heard oral evidence from;
i) The key social worker
ii) The father
iii) The Guardian
i) The father- asks that the court either discharge the care orders so that the children may return to his care in a structured way or in the alternative that he be granted direct contact with his children and that he should be able to see his children individually and that the section 34(4) is discharged.
ii) The local authority - opposes the father's applications and contends that the care orders should remain in place to protect the children's welfare best interests and that the section 34(4) should be maintained. The local authority supports the making of a further section 91 order as applied for by the Guardian.
iii) The Guardian's position is that he also opposes the father's applications and recommends that they be dismissed. The Guardian has also issued an application under section 91 preventing further applications by the father during the remainder of the children's minority.
i) Chronology and narrative of the proceedings before the court
ii) The Law
iv) Welfare checklist
v) Analysis and conclusions
Chronology and background
– 2008 There is an issue between the parties as to when they separated on the mother's case they separated in 2007 and on the father's case 2008. In 2007, A the eldest child would have been about five, B the middle child would have been about three and C the youngest child would have been about two years of age. Save for a short period of four months around 2008 the children have not lived with their father. The children went on to live with their mother within the wider community until their removal in November 2011 for approximately another three years. The mother was of no religious persuasion and was white British.
to 2009. Following the separation of the parents there are private law proceedings where both parents made allegations and counter allegations against each other. There was an application for a non-molestation order where the allegations from the mother were that the father subjected her to controlling behaviour and was harassing her. The father did not accept the allegations made and undertakings were given. The orders included exclusion areas. In July 2009 a residence order was made in favour of the mother.
The mother's circumstances had by this time deteriorated significantly the local authority initiated care proceedings in respect of all three children who were made subject to interim care orders although they remained at this time in the mother's care.
October 2010 - during the course of the care proceedings both parents were psychologically assessed as were the children. The father was assessed by Dr Brian Stanley within the original care proceedings. The report was not challenged and remains relevant and illustrative - within interview the father expressed the following views –
"Early on in the interview the father emphasised the discriminatory aspects of the proceedings. He said to me these are black children that had been removed from the black community for no other reason than the fact that the people who have done this are white xenophobic ignorant and racist and use the court system to get away with it" – there is no mention of the children being raised within the Muslim faith.
Dr Stanley opines; "Mr C's personality profile displays significant elevations in narcissistic personality traits, although any formal diagnosis would require further assessment. [my emphasis]
The cardinal features of this personality style include an air of conviction and self-assurance. They are able to express their thoughts easily and have a natural capacity to draw attention to themselves. They expect others to recognise their special qualities and some individuals display narcissistic traits can, come across well to others. This personality style has many positive attributes and is usually question of degree and context how their behaviour is viewed by others. Such individuals typically view themselves as being competent and effective. They appear self-assured confident and outspoken. They tend to describe themselves as being assertive energetic self-reliant strong and realistic. As I have indicated it is largely question of degree and context whether these characteristics come across as being positive or challenging. More negative perceptions of such individuals may include their superficiality flippancy and that they project a sense of entitlement. They are likely to emphasise how capable they are even perhaps belittling those who refuse to acknowledge the image that they are trying to protect. In Mr C's case his intellectual and verbal ability is clearly being driven by his personality style and I do not think that this is working to his advantage.
Although he is an articulate and logical his manner can quickly change into verbal hostility. Narcissistic individuals do have a tendency to view their social environment as a competitive place. They feel they have to fend for themselves to function. As a result they tend to be far more assertive than the average person. They tend to emphasise their rights more than others and this can easily develop into an entitlement mind-set. This can further escalate into repeated conflict and as a result they develop a general mistrust or suspicion of others. Although this basic personality style can alienate others, narcissistic individuals tend to respond to this with indifference. This personality style is often perceived by others as one of arrogance and egocentricity. I'm afraid that this is highly likely to occur in Mr C's case."
During the care proceedings the local authority sought to assess the father in terms of him being a potential carer for the children but the father withdrew his cooperation and so the assessment could not move forward. Two contact session were arranged by the local authority in March 2011 an incident took place between the father and contact officer. The allegation which has always been denied by the father is that he assaulted the contact officer. The incident was witnessed by all three children. It was at this point the local authority sought permission to refuse contact under section 34 (4). No direct contact took place between the father and any of the three children for a significant period of time following that incident.
A final care order was made in favour of Salford City Council on 19 March 2012. The interim section 34(4) was also confirmed on that date. There is no question but that the application and order were properly made and that the father had ample opportunity to challenge the making of the orders.
The recordings on the face of the order are relevant given all the arguments that the father puts forward within all his recent documents and evidence which are factually incorrect;-
paragraph a - recites the evidence upon which the court based its decision including the social work assessments, the psychological assessments and the psychiatric assessment in relation to the mother and the Guardian's report.
Paragraph b recites- that neither parent required the authors of any of the reports to attend court for the purposes of cross examination or to challenge the conclusions of those reports.
Paragraph C recites - that the mother expressed her wish to care for the children but recognised at present that she is unable to care for them. To that end she did not actively oppose the making of the final care order and has expressed strong wish that the children remain in their current placement which is meeting their needs.
Paragraph D recites- that the father does not actively oppose the making of the final care order. However he is keen to ensure that direct contact between himself and the children in the future is explored with the children and is kept under regular review. Furthermore, he is anxious to ensure that the children's cultural needs are met and he does not consider that their current placement is meeting their needs.
In terms of the father's contact with the children the local authority is not recommending any direct contact take place between the children and their father. It seeks that the section 34(4) remains in place continue to be of the view that they do not wish to see their father at present, although child B has said she would like to see her father in the future. The local authority will continue to facilitate letterbox contact once per month. The frequency of indirect contact will be reviewed and contact generally will be reviewed at each LAC review
Paragraph F- set out the fact that the children were engaging in therapeutic work with starlac and that the children's relationship with their father and their wishes and feelings regarding direct contact will form the basis of this work. Should the children decide that they wish to have direct contact with their father then given there will be an expectation that Mr C engages with the children social worker to assess the level of risk given Mr C's assault on a member of staff. If direct contact takes place this would need to take place in a contact centre with two members of staff supervising. Any direct contact will be dependent upon Mr C signing a written agreement and demonstrating a capacity to cooperate with the local authority.
There are additional recordings. It is important perhaps note that the mother was fully supportive of the children's placement at the time and this remains the children's placement. She believed that the placement did meet the children's needs including their cultural needs, the father did not and does not. It is also important to note that whilst there is reference to the children's cultural needs there is no mention or complaint in terms of the children's religious needs and this is significant.
The order goes on to recite the contact arrangements between the children and their mother and the maternal family. Threshold criteria were agreed and the matter proceeded before the court on an uncontested basis. Both parents were legally represented both during the hearing and during the course of the proceedings.
In June 2012 the case was allocated to the present social worker. She has now been the allocated social worker for the three children for almost 5 years.
On 6 January 2013 the mother died. Members of the maternal family have had monthly contact with the three children in the four years since the mother's death.
The father filed an application under section 34 of the children act for contact to the children. Within the application the father stated that he wished "in due course of them to be returned to my care" the application was treated as an application to discharge the care orders and as an application to discharge the section 34 four application.
In January 2014 a contested hearing took place over three days when the court heard from the local authority the father and the Guardian in respect of the father's application. The Guardian Mr Delahunty undertook an independent review and assessment of all the children's circumstances.
There is a full judgement in relation to that application. The following is however relevant;-
"from all the evidence I have heard and read, I cannot see that there really has been a significant change in the father's circumstances since the order was made in 2012 and I am satisfied in this case that the local authority does need to continue to share parental responsibility, and so for all the reasons that I have given I'm going to refuse the father's application to discharge the care order. In terms of the section 34 four application, I think the father must understand that this is a permissive order. It is not an order for no contact. The real key to progress in terms of contact lies very much in his hands. I do not believe and accept the Guardian's evidence that indirect contact is a waste of time. The letters from the children are a real cue to the father that he can take up from and build a relationship and there has been indeed a lost opportunity between July and today. We could have been very much further down this road but the father has chosen not to engage in the children's conversation. He almost seems determined to have a conversation with the children on his terms and I am satisfied that he has sufficient intelligence to know the difference between the two. The concern I have is that this is a reflection of the father's personality.…… All of this I'm afraid is very much in the father's own hands and I would hope that following this very difficult hearing and this lengthy judgement which is far longer than I intended he will have the opportunity to go away and reflect. It is very much in his own gift to progress this but it is very much up to him. He talks about drawing a line in the sand. Rather I would say that following this hearing the local authority and the father can embark upon matters and have a fresh start: that they will be able to cooperate and discuss matters respectfully with each other and that neither party can dictate to the other what should happen. There has to be one conversation between the children and the father and one conversation between the local authority and the father it is up to him. He must accept that he must moderate his behaviour notwithstanding his frustrations and feelings and he must not say inappropriate things to the children in contact."
At paragraph 72 the judgement reads "I accept what the Guardian says and I think the father needs to be very careful. I think we are still at a point where progress is possible …….and there is a window of opportunity but it may be the children will change their minds and I think the father needs to grasp what may be the last opportunity to improve and progress his relationship with the children but I am satisfied that the local authority is addressing this issue appropriately and that they will need the section 34(4) in place to continue to regulate the contact and to promote the children's best welfare"
An order was also made under section 91 of the children act 1989 for a period of two years. This meant that the father could not make any application in respect of the children during this period without the leave of the court.
30 May 2014 the father's appeal in respect of the January 14 order was heard by Her Honour Judge Eaglestone. The father did not seek to appeal the refusal to discharge the care order. He did seek leave to appeal the decision of the court to grant an order under section 91 and the refusal to discharge the section 34(4). The father's application permission for leave to appeal was refused.
Following the appeal the father presented a further application to the court and on 10 November 2014 the father's application for permission to issue a further application for contact was refused.
However, in the months following the contested hearing in January 2014 the father did take up the olive branch and wrote regularly to the three children. He wrote about once a fortnight. These letters were handwritten and included photographs but .ped in July 2014. Father contends that he continued sending letters but these were not delivered to the children that position is not accepted by the local authority. The reasons for ceasing to write to the children remain unclear.
In March 2015 meeting took place between the father and the local authority discuss the contact arrangements the meeting was attended by the team manager and the independent reviewing officer. The father was accompanied by a solicitor and an advocate and he signed a written agreement in respect of contact arrangements following that meeting.
Direct contact took place between the father and the street children under the supervision of the local authority. This was the first direct contact between the father and the children since March 2011 a period of approximately four years. Further meetings took place between the father and the local authority in September 2015 and March 2016.
On 4 December 2015 a further application from the father was heard. The father was represented at the hearing. The father had the opportunity to present written evidence to the court at that time which he did. Having considered matters the father's application for permission to present a further application was refused.
In January 2016 father wrote to further letters to the children. On 9 April 16 a further direct contact took place between the father and only two of the children. The eldest child a chose not to attend.
Since the contact in April 2016 all three children have consistently stated that they do not wish to have direct contact with their father.
July 2016 the father filed an application for a child arrangements order respect of the three children which effectively acts as an application to discharge the care order . throughout these proceedings it has been clear that the father seeks to discharge and in of the care orders and removal of the section 34 order.
The standard of proof is the civil standard of the simple balance of probabilities no more and no less.
Contact with a child in care – the general proposition is that subject to the duty to safeguard and promote the child's welfare a local authority must allow reasonable contact between the child in care and his parents and certain others. This is the basic position which obtains in every case in default of a court order to the country. There is a duty to promote contact between children in care and their families save in exceptional particular circumstances.
Any application under section 34 of the children act is a substantive application in which the court is determining a question with respect to the bringing up of a child and consequently the court must decide the issue by making the child's welfare its paramount consideration.
Wherever a local authority seeks to refuse to allow contact between the child and in a parent or other interested individuals the local authority must make application to the court for permission to refuse contact to that named individual. It is imperative to note that an order made under section 34(4) of itself does not deny contact it simply authorises the local authority to do so it is permissive in nature it is not mandatory. Accordingly if the local authority changes its view in terms of contact an order under section 34(4) of itself does not prevent contact taking place. Such orders should only be made where matters are so exceptional and the risk so is severe that contact must be .ped.
In the context of article 8 ECHR severing ties between the child and parent can only be justified in very exceptional circumstances as it is a very drastic thing to interfere with contact between a parent and child and there must be compelling reasons demonstrated to justify an order under section 34 four. Any order must be proportionate in relation to the circumstances of the case.
Applications to discharge care order –
Section 39 of the children act 1989 deals with applications to discharge care orders. Any person with parental responsibility for the child may make the application and in deciding the application the court must apply the principle of the paramountcy of the child's welfare and have regard to the matters on the statutory checklist (section 1 (3) of the children act 1989). The burden of showing that the welfare of the child requires revocation of the order is on the person applying for the discharge.
In considering any harm which the children has suffered or is at risk of suffering the risk to be considered will normally focus on recent harm and an appraisal of current risk conclusions reached at an earlier hearing will be of marginal relevance and of historical interest only, but earlier conclusions may be examined afresh in the light of new evidence.
Applications pursuant to section 91 (14) of the children act 1989 – on disposing of any application for an order under the children act 1989 the court may make an order under section 91 of the children act that no application for an order under the children act 1989 of any specified kind may be made with respect to the children concerned by any person named in the order without the leave of the court.
Any application under section 91 must be considered alongside the principles set out in section 1 of the children act 1989, the welfare of the children is the paramount consideration. The power to restrict applications is discretionary and in exercising its discretion the court must weigh in the balance all relevant circumstances and an important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and be heard and the power should therefore be used sparingly and should be the exception and not the rule.
It is only in suitable cases and on clear evidence where the welfare of the child requires it that such orders should be made, even though there was no past history of unreasonable applications. In cases where there was no past history of unreasonable applications the court would need to be satisfied that the facts went beyond the commonly encountered in terms of the need time to settle to a regime ordered by the court and the all too common situation where there was animosity between the parties adults and/or local authority and that there was a serious risk that without the imposition of the restriction the child or primary carers will be subject to unacceptable strain. Although a court might impose restrictions in the absence of a specific request subject to the rules of natural justice allowing a party to be heard that should indeed be the exception.
Any restriction imposed may be imposed without limit of time - but the degree of restriction should be proportionate to the harm it was intended to avoid and a without notice order should not be made of than in exceptional cases and absolute prohibition on making an application could not be ordered under section 9114 but only an order made on the under the inherent jurisdiction of the court.
An order under section 91 may be appropriate where there have been repeated applications but that is not the sole criterion. Any order must be supported by full and carefully set out reasons and orders of such duration should only be made in respect of cases at the egregious end which merit the strongest degree of protection for the child. The court should only make such orders after full consideration of the evidence and of all submissions. It is wrong in principle except in exceptional circumstances to place a litigant in person in the position of having to confront the making of a section 91 order at short notice. An application under section 9114 should be issued in advance and supported by evidence unless there are urgent or exceptional circumstances. It is not appropriate to make a section 91 order simply to achieve a breathing space where this may be achieved by simply allowing a settling period for the order to work itself out.
The father is an angry and frustrated man and he wants the professionals involved in the case to be brought to account for what he describes as the abduction of his children and makes a range of allegations and accusations against every professional (including perjury) involved in the case he expresses himself as outraged that proceedings have not been taken against the social worker by way of committal proceedings and/or arrest for perjury, defamation of character and theft. These are but some of the allegations he makes and has made over a significant period.
He loves his children and wishes to be involved in their lives. He wants to see his children and be a parent. He sees writing letters to the children as destructive. He is adamant that numerous letters have been sent (he says over 67 letters have been sent) which have simply not been delivered to the children including gifts of money, which he alleges has been stolen. The father is adamant that he continued writing letters up until December 15 and that these had simply not been passed on to the children.
The father was clear that he felt that direct contact is the only way to progress the case. He contended that he should be seeing the children and going out together. He wanted to see the children individually. He told the court that he had tried indirect contact and that this had been mismanaged by the social worker and that in the modern era contact could take place in a more imaginative way by way phone calls and Skype et cetera that is if the children were not to be returned home. He told the court that he was prepared to do anything to get his children out of this foster placement which he believed was destroying them. He was adamant that the end objective of the local authority was to end his relationship with his children and that the local authority in his view have not tried to promote his contact with the children. He alleges that the local authority's actions towards him have been vindictive and malicious. He denies being confrontational within any meeting. He complains bitterly that he has simply been ignored.
He believes that his children have been alienated by the actions of the local authority and that as a result of the local authority actions the children have started to in his words internalise that alienation. He believes that the children have reached a point where they think he does not care about them and that he has no intentions of ever walking away from his children.
He believes that he has been ignored and that is views are not taken into account - when it was suggested to him that repeated applications had an impact on the children the father's response was vehemently given "are you completely insane I will not abandon my children I can't do that"
The father accepts no personal responsibility for the children's circumstances when they were received into care or for his current predicament.
There are inaccuracies within the father's evidence which he stridently asserts [incorrectly] as fact which I do need to deal with as it represents a distortion and misrepresentation of the proceedings as a whole and what has actually occurred and it is in this regard that judicial continuity has been important in this case. It is clear that certain allegations presented as fact have not simply been misrepresented but in certain circumstances have been fabricated and invented by the father.
There is evidence before the court that the father simply refuses to accept any information which does not accord with his strongly held views and wishes. An example of this is that during the directions hearing in October 2016 the father sought a report or some form of evidence from Barnardo's as to the work they were undertaking with his children. At that hearing I directed the local authority to provide information from Barnardo's and in default to explain why it was not possible to produce such information. The father was adamant that a report existed from Barnardo's that it had been withheld from him and that he wished to witness summons the workers from Barnardo's to come to court and give evidence. The social worker in her evidence indicated that there was no formal report – all she had have ever had was some informal feedback from Barnardo's.
However, from the papers supplied by the father at the outset of this three day hearing it is clear that Barnardo's have in fact communicated directly with the father setting out their position .On 9 September 2015 they wrote to him and indicated that "the children identify themselves as having no religion and describe themselves as mixed race British. Barnardo's accept that "this is a snapshot of how they perceive their identity at that point of time. They explain that "although the father may not share that view that Barnardo's would be always be guided by the voices of the children in terms of our advocacy work", a second letter again addressed to the father sets out their role and how they wish to protect their work with the children. They wanted the children to be able to be confident that they could speak clearly openly and honestly to their workers about their wishes. "There is a risk that if they become aware that the detail of their conversations are disclosed to others that they may be less inclined to speak to us as they will be concerned about causing upset to their current carers, their social worker or yourself" - they go on to provide the father with a summary of the information provided by the children indicating that the children had enjoyed the contact that they'd had with the father and would like a similar session to be arranged like the first one that they would prefer staff to be present not having seen their Father for a long time there was no complete agreement about future contact but there was consensus that all the children would like a similar contact to be arranged as before i.e. in the contact centre..
The final communication from Barnardo's was dated 13 January 2017. That document is clear on its face as to Barnardo's role and involvement - "as Barnardo's involvement with the children has been solely limited and related to the delivery of advocacy services for them we do not consider that it would be ethically appropriate for us to provide a statement and are therefore seeking the court's further consideration of this request. We have advised Mr C of our position and have previously advised him of the rationale for nondisclosure in relation to confidentiality and information sharing. Should you require any further details to inform your decision making on this matter please do contact me directly" it is perfectly clear from this information that Barnardo's role in the children's life has been a therapeutic one and as such they contend that it would be inappropriate for them to provide any report or statement for the court proceedings. Their response could not be clearer and has been made on more than one occasion over a period of time, nonetheless the father pursues his position regardless.
Having considered these documents and particularly the last communication dated 13 January 2017 I refused the father's request for a witness summons and rescinded the direction as to disclosure.
I have set this out in detail as it amply exemplifies father's habit of not accepting information which is given to him which he may not wish to acknowledge or accept and to continually pursue avenues of enquiry where the information is already available to him or as I described it in my previous judgement does not meet his agenda. He simply does not listen to information which he does not wish to hear. He consistently describes any responses to his queries as "facile".
There are specific matters which I need to deal with are as follows;-
- The assertion that there are ongoing police and CPS investigations in relation to these matters and the documents presented to the court ostensibly from both the police and the Crown Prosecution Service when clearly these are documents created by the father.
- The issue in relation to the children's religion and religious upbringing.
- The issue in relation to the father's involvement with the children's school and his recent actions in terms of contacting them and its impact upon the children.
Police investigation; As regards the father's evidence of a police investigation and enquiry being undertaken by the CPS, this is contained in two incoherent communications received by the court from the father, the first on 16 November 2016 and the second on 9 December 2016. These documents have been disclosed to all the parties. The first communication which comprises five pages opens "I am a serving police officer outside of Manchester with the rank of detective inspector I have been asked to provide clarification upon any criminal allegations…." the communication continues by way of a tirade of complaints and allegations against all professionals past and present in terms of violations of the right to fair and impartial hearing, incriminating and false evidence being provided by the social worker, allegations of misappropriation of funds by the father's previous solicitors. There are allegations of defamation and theft. Within the body of the text the father goes on "as an experienced police officer I have investigated rape murder manslaughter fraud and armed robbery and establishing the facts regards allegations of the applicant being a victim together with his children of an offence motivated by hatred is transparent… The father complains that there has been a three-day hearing arranged when he feels it is contempt proceedings which should have occurred in November 2014 and December 2015. It continues "I have discussed this with the Crown Prosecution Service the clarification and given an ex parte hearing was applied for and not given to the applicant I would state solicitors have like pigs at a trough been taking legal aid with no regard to making representation effectively a gagging order was effectively in place against applicants who were acting on the idea of good faith…" It goes on "the Crown Prosecution Service state…"
The welfare checklist
The ascertainable wishes and feelings of the children in the light of their age and understanding
Physical emotional and educational needs
The likely effect of any change in circumstances
Age, sex, background
Any harm which the children has suffered or at risk of suffering
How capable each parent is of meeting the children's needs
The range of powers available to the court
Assessment and conclusions
District Judge Relph
31st January 2017.