England and Wales County Court (Family)

(In accordance with the judgment of the President given on 22 August  the judgment which follows has been redacted to omit all proper names part from those of the mother and the father and Doncaster MBC. That apart, it is an accurate transcript of Judge Jones’ judgment.)

IN THE SHEFFIELD COUNTY COURT                   

IN THE MATTER OF THE CHILDREN ACT 1989

IN THE MATTER OF

 

 

 

 

 

 

BETWEEN

 

 

DONCASTER M.B.C                                          Applicant

 

and

 

VICTORIA HAIGH                                              1^st Respondent

 

and

 

DAVID TUNE                                                      2^nd Respondent

 

and

 

Child X                                                                3^rd Respondent

(By her Children’s Guardian)

 

 

 

 

                                 

 

 

 

 

 

 

 

JUDGMENT

 

See also: Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam) (22 August 2011)

This case concerns Child X, who is now aged 7. X’s parents are Victoria Haigh (whom for the purposes of this judgment I will call "the mother") and David Tune (whom for the purposes of this judgment I will call "the father"). X's parents were married on 19th May 2003 and separated and divorced in 2005.

 

Between 2006 and 2009 X was the subject of protracted private law proceedings until in August 2009 the Applicant Local Authority, Doncaster Metropolitan Borough Council, commenced care proceedings under the Children Act 1989.

 

In January 2010 HHJ Robertshaw conducted a lengthy fact-finding hearing, giving judgment on 29th January) and, thereafter, making X the subject of an interim care order, which has been renewed to date, with an interim care plan for X to be removed from her mother's care and placed with the paternal grandmother, Margaret Tune, where she remains.

 

HHJ Robertshaw has now retired from the Bench and so X's case comes before me for final hearing. I adopt and rely on the Judgment and the Findings made by HHJ Robertshaw which have not been the subject of challenge and so will form the basis upon which the court now proceeds.

 

The history of the matter is set out in the Judgment and in the Opening prepared for this hearing by counsel for the Applicant Local Authority. The father first applied for contact with X as long ago as April 2006 and in August 2006 overnight staying contact was ordered by the court. On 8th December 2006 a penal notice was attached to the contact order and on 20th December 2006 the mother applied to suspend contact because X had allegedly made disclosures of sexual abuse against the father. At the beginning of January 2007 the father applied for residence. Since that time there has been a pattern of the father’s contact being suspended following allegations of abuse, investigations undertaken and contact resuming once the investigations proved inconclusive.

 

Fact-finding hearings were arranged on more than one occasion and, indeed, at a court hearing in July 2008 the mother appeared to accept that the father had not sexually abused X and, in due course, an order was made for shared residence. However, at the beginning of 2009 a Prohibited Steps Order was made on the father's application to prevent the mother relocating within the jurisdiction and shortly thereafter and again in June 2009 the mother alleged that X had made further disclosures of abuse against the father. Finally, at the beginning of July 2009 X herself made disclosures, firstly to a social worker and then in video recorded interviews. Consequently, the local authority became involved and the fact-finding hearing took place in January 2010.

 

The facts as found by HHJ Robertshaw are helpfully set out by counsel in a separate document. They are also summarised by X's Children's Guardian, in his final report.

 

Put shortly, the learned judge found that the father had not sexually abused X at all nor had he behaved in a sexually inappropriate way towards her, that allegations of sexual abuse were first made by the mother and not by X, these were false and the mother knew them to be false. In 2009 X was coached by the mother to make a false allegation of sexual abuse against the father which originated in the mind of the mother. As a result of inappropriate pressure and prompting, X came to make and believe the allegations. The mother used allegations of sexual abuse manipulatively as part of her irrational and long-standing hostility to contact which she sought to obstruct.

 

In consequence of his findings, the Judge found that X had suffered, and was at risk of suffering further, significant emotional harm.

 

The local authority's final care plan proposes that X should move over the period between now and Christmas to the full-time care of the father, with ongoing, regular, supervised contact to the mother under the auspices of a full care order to the Applicant Local Authority.

 

The father supports the local authority plan, as does counsel for X. The mother strongly opposes the plan and argues that the case should be further adjourned with X remaining with her paternal grandmother under interim care orders while work is carried out as recommended by the jointly instructed Chartered Psychologist..

 

I have carefully considered all the papers in the court bundles and have heard evidence from the social workers, the mother and the father and the Children's Guardian.

 

Findings have already been made for the purposes of s. 31 (2) Children Act 1989 and therefore, at this stage of the proceedings the welfare of X is paramount and I have directed myself in accordance with the relevant factors set out in the welfare checklist at s.1 (3) Children Act 1989, in particular, the harm which X has suffered and is at risk of suffering, her needs, and the capability of each of her parents to meet those needs.

 

I heard first from the social worker who became involved in X's case at the end of June 2010. Sadly she was taken ill during the course of cross-examination and was unable to complete her evidence.  As she is now off work long-term with extreme stress and anxiety and is not medically fit to resume her evidence, the local authority called a service manager, to give evidence. Her responsibility for X's case was limited to the period between June and mid-September 2010 when she was responsible for endorsing the care plan.

 

She noted the very positive contacts between the father and X and expressed the view that the mother would not facilitate contact with the father if X were living with her and, indeed, there would be the likelihood of further allegations and therefore further emotional harm to X.

 

The Service Manager confirmed that she felt it was important for X to continue to have contact with the mother. She was referred to recent difficulties with contact and said that the local authority would try to help the mother to manage contact better. It will look to build on recent contacts which have been activity-based although not all contacts would take that form. It is intended that mother's contact will remain twice weekly.

 

She has no concerns about the standard of care which the father would provide. She told me that the father has fully co-operated with the local authority and she is content that he can meet all of X's needs. She is satisfied that he will facilitate contact between X and the mother and she agreed that his contact no longer needs to be supervised.

 

In the Service Manager's view, co-parenting of X by the mother and the father is not currently a viable proposition. She could not see the benefit or utility of the Parent-Child Game approach suggested by the psychologist since this appeared to address parenting styles and behaviours. 

 

I heard evidence from the social worker involved with the family between December 2009 and June 2010. He was tendered by the local authority for cross-examination by counsel who appears on behalf of the mother. Her questioning focused on the arrangements for contact between the mother and X following her removal into the care of the paternal grandmother together with the response (or rather, as the mother suggests, the lack of it) to her concerns.

 

The social worker confirmed that when X was placed with the paternal grandmother the local authority's approach to the contact arrangements with both the mother and the father took account of the Judgment and Findings of HHJ Robertshaw. The mother was not allowed telephone contact with X as it was not felt to be in her interests that the mother should have any unsupervised communication with her which might be emotionally abusive.

 

The Social Worker told me that he felt that the amount of communications of all types that he received from the mother was unreasonable (as counsel put it, she is a "prolific e-mailer") although he accepted that she was genuinely concerned about X. He told me that he replied to as many e-mails and texts as he could.

 

Despite agreeing at the outset to provide the mother with monthly reports he did not, in fact, do so because he felt that he was in such regular contact with her that any such reports would have been repetitious. However, he conceded that he did not tell the mother directly that he would not be providing them.

 

He accepted that the mother needs to feel that she is being listened to and said that her views were not totally ignored and she was not sidelined.

 

I then heard from the jointly instructed expert, a chartered psychologist. She was instructed in this matter on 1st March 2010 and her initial report is dated 30th April. Once this was received the parties wished to put further questions in writing to her. Thereafter, at the hearing on the 22nd July, having given careful consideration to the position statements filed on behalf of each party, I indicated that the work recommended by the psychologist was not currently required for the purpose of the proceedings but that the court would consider any application for further assessment made by any party.

 

The psychologist told me that the mother still does not accept the findings made by HHJ Robertshaw and believes that the court got it wrong. In her opinion both parents are capable of meeting X's needs.

 

She agreed that the Bene Anthony Family Relations Test simply provides a snapshot and she is not providing a diagnosis of an ambivalent attachment between the father and X and, indeed, she notes that the father's relationship with the X is a positive one.

 

The psychologist told me that the mother believes that the father sexually abused X and that, in her view, over the past few months the mother has become more and more desperate. She confirmed that the work which she recommended in her report of April 2010 was not aimed at getting the mother to change her view but would assist her in moving on and give her support. She said that one advantage of the Parent-Child Game was that it would be helpful to the mother to see that X is safe in the father's care and this would provide the mother with reassurance.

 

It is the psychologist’s view that the mother is unable to change without help and that, if X were placed with her, she would not agree to the father having unsupervised contact.

 

In examination in chief she told me that she was not saying it would be wrong to place X with the father and went on to tell me, in terms, that she supported the local authority’s plan. In doing so she referred to what she called the "extraordinarily protracted process" under which a line needed to be drawn now for X's sake.  However, when she was asked by counsel to explain, for the mother's benefit, why it was that she was now supporting the local authority’s plan, the psychologist told me that she did not in fact support the plan and that, if X could remain with her paternal grandmother (which, apparently, she understood was not an option) then she stood by the recommendation she had made in April 2010.

 

She said that she would not be the person carrying out the recommended work. She could not say when the work would start or how long the work would take. She suggested that once six sessions had taken place with each parent there could be a review and, if progress had been made, there should be a total of 12 sessions with each parent in all.  She did not anticipate that any such "progress" would include an acceptance by the mother of unsupervised contact between the father and X. She accepted that attempts in 2008 to get the mother and father to parent together had failed. She also confirmed that therapy of itself would not change the mother's view but suggested that the Parent/Child Game would address "behaviour change."

 

She confirmed that she had said none of the things which the mother there reports her as saying.

 

The mother presented as very distressed when giving her evidence to me. She described the period since January 2010 when X was removed from her care as the worst time of her life. She felt like she had committed a major crime and was serving a prison sentence. She said that she has received "intense therapy" (about which the court does not appear to have any details) which brought her back from despair.

 

She complained that she was not allowed to speak freely to X at contact and that she had not been helped to "move on". She confirmed that X believes that she is returning home to her because she has told X this even though (as she accepted) she has been advised not to say this to X. She said that she felt that, as X was already distressed, there was no reason not to do so.

 

The mother complained that the local authority had not followed "procedures" properly and she was concerned that on the first day of the hearing no one had raised the possibility of X returning to her care prior to the work suggested by the psychologist being carried out.

 

I heard brief evidence from the father. He said he would undertake any work which would benefit X and improve the contact between her and the mother. He was sceptical of the mother's ability to change and could not see how the work suggested by the psychologist could assist X at the present time.

 

Finally, I heard from the Children's Guardian. He said that he had no faith in the mother being able to participate honestly in any further work, particularly as she had, in the past, shown herself to be manipulative. He reminded the court that he has been involved with X’s case, both as a Children and Family Reporter in private law proceedings and as Children's Guardian in the current care proceedings, for over three years since the autumn of 2007.

 

He was quite clear that X herself does not need therapy and was concerned that she was being asked to be involved in the Parent-Child Game with the dubious prospect that the mother would alter her fixed idea that X has been abused by the father. He noted that the court has been advised that the mother does not suffer from any psychiatric disorder or condition and expressed himself to be pessimistic about the future, confirming that he was satisfied that the mother had indeed been listened to by numerous professionals.

 

He felt that X was now ready for a final decision to be made about her future and it would be a mistake not to make that decision now. He saw no reason why X could not now make a successful move to the full-time care of the father who, in his view, has behaved throughout in a sensitive and caring fashion towards X.

 

He has no issue with the local authority’s Care Plan in relation to the timetable for rehabilitation (the father's contact having already been increased and is now taking place in the home setting) and for ongoing contact with the mother. He felt that the court has all the information it needs to make a final order now.

 

He was concerned that the mother had been overtly distressed during some of the contact sessions and that X had been obviously aware of, and upset by, this.

 

He said that the mother has been X's main attachment figure and, although he does not support 1:1 work, he does feel that the mother probably needs some help in addressing practical issues, such as her behaviour during contact, so that, in the future, this can be a positive and happy experience for X.

 

I turn now to set out my findings. Having carefully considered the oral and written evidence I have had no difficulty in reaching my decision. This is a very sad situation and one cannot but feel sympathy for all those family members caught up in it, in particular, X, who has been the blameless subject of years of court proceedings and acrimony. I have no doubt that X loves both the mother and the father and that they, in their turn, love her. However, the starting point for the court's deliberations must be the findings made by HHJ Robertshaw in January 2010 which the mother remains unable to accept (as confirmed in her final statement , still maintaining that the father has sexually abused X in the past and remains a risk to her for the future.

 

The mother’s stance has of course severely circumscribed the arguments which could be deployed on her behalf and counsel  (who put the mother’s case fully and in a measured and realistic fashion) conceded as much in argument, accepting that the mother had to "grasp at any straw" in presenting her case.

 

The "straw" grasped by the mother is the apparent lifeline presented by the recommendations and conclusions of the psychologist, although it was clear from the mother’s evidence that, while apparently conceding that X should remain in the paternal grandmother's care while the proposed work is carried out, she sees no reason why X should not be returned to her care immediately as, indeed, she herself told X and has stated in writing on more than one occasion recently.

 

I have given careful consideration to the reports and the oral evidence of the psychologist. . I found them unimpressive and unpersuasive. Her recommendations would appear to derive from her fixed view that X’s overwhelming need at present is "for the conflictual situation between her parents to be resolved and for them to be able to parent her together."

 

I find that conclusion, while of course a very proper aspiration, to be unrealistic at the present time, not least because, although, as she confirmed, she has received all the papers which are before the court, The psychologist appears to ignore, or give only little weight to, a number of concerning features of the case.

 

This is a mother who has been found to have caused her daughter emotional harm by the making of repeated false allegations of sexual abuse which she knew to be false at the time she made them and, subsequently, to have coached X into making a false allegation which she knew to be untrue. She has also used those allegations manipulatively in the context of the family proceedings relating to X. Further, the psychologist was unable to categorically say that X does not believe that she has been hurt by the father.

 

The mother has continued to make it clear (including to the psychologist herself) that she does not accept the findings of the court nor resile from her position that the father represents an ongoing risk to X.

 

Over several years the mother has made a number of allegations against the father with the result that X has been subjected to four medical examinations, police interviews and had numerous contacts with professionals. Despite the court's findings, the mother accepts no responsibility for this state of affairs, complaining, instead, of the local authority’s "negligence", that her treatment has been incredibly harsh “with no one really explaining the reasons why". I'm quite satisfied that this intelligent woman knows exactly why X was removed from her care in January 2010 and why professionals continue to take the view that X would suffer further emotional harm if rehabilitated to her.

 

In addition, sadly, while professing her concern for X’s well-being, the mother consistently prioritises her only needs over those of her daughter.

 

A review of the contact records reveals occasions on which the mother has displayed distress at contact in front of X who has clearly been affected by this. Contacts between the mother and X have not always been positive and it has, on occasion, been necessary to suspend the mother's contact temporarily. The concerns felt by the local authority in relation to the mother's contact with X were discussed with her towards the end of August 2010 and the court bundles reveal several breaches of the three contact agreements referred to by the guardian in his evidence.

 

Within the last two months, the mother has directed abuse towards workers in the presence of X, causing her considerable worry and, very recently, the mother had to be written to because she was seeking inappropriately to influence X and discuss matters relating to the proceedings). There are recordings of other efforts by the mother to influence X and to manipulate her feelings while prioritising the mother's own.

 

The mother is someone who is quite prepared to be untruthful, as when she records the views apparently expressed by the psychologist in their meeting (which The psychologist completely disowned) and also, in the context of court proceedings, with her apparent acceptance in July 2008 that X had not been abused by the father which she now disowns, accepting that she said this (despite the fact that this was not her view) because she was afraid of losing X.

 

Despite this background, her description of the mother's position as "entrenched" and her impression that the mother has “unfinished business”, the psychologist nevertheless recommended that the case be further adjourned for work to be done with the family "for them to be able to parent her together".

 

Even if that were to be an achievable aim (which would appear to be unlikely given the evidence presently before the court), I cannot see how the recommended Parent-Child Game could bring this about.  I have a letter from futureminds providing information about this approach. It is couched in general terms and is not specific to the needs of this family and, in particular, the mother. It would appear that the aim of the Game is to develop a more positive relationship with the child and reduce any frustration or stress. It focuses on the building of a positive, warm and unconditional relationship between carer and child and is said to have "had some excellent outcomes in terms of parents’ child management skills, children's pro-social behaviour and the quality of the parent-child relationship".

 

The psychologist was unable to persuade me (or indeed the Service Manager and the Children's Guardian) of the relevance of this piece of work and how it would deal with the difficulties presented by this case.

The psychologist acknowledged that the work she suggests would not bring about a change in the mother's view that the father has sexually abused X and, therefore, presents a current risk to her. However, she said it would assist the mother with her own needs and give her support and reassurance. I confess that I am unclear as to how the Parent-Child Game would bring this about since it would appear (put shortly) to aim at improving the quality of the parenting provided to a child. It also seemed to me that, when the mother spoke in her oral evidence about wanting to be helped to "move on", she had no understanding of what that meant (although she clearly did not intend it to involve her changing her mind about the father having sexually abused X) nor indeed how the recommended work might assist her in this.

 

Although the psychologist makes this recommendation, she would not be the person carrying out the work. I, therefore, have no evidence from the therapist who would be involved as to whether, on initial assessment, s/he felt that the mother could be worked with, when the work could start, what the timescales might be, what the prognosis for a successful outcome would be and what might amount to a successful outcome in this case since the psychologist accepted that, even after six sessions, she would not expect the mother to change her view of the threat which the father posed or, if X were in her care, to be prepared to allow the father to have unsupervised contact.

 

I also found it difficult to place reliance upon the evidence of the psychologist as it was, at times, contradictory (for example, in relation to whether or not she was making a diagnosis of an ambivalent attachment between the father and X (which she denied) while she justified her change of position from, in her evidence in chief, supporting the local authority’s care plan (which she clearly understood) to, in cross examination by counsel for the mother, reverting to her original recommendation by suggesting that she had not understood the options for X which were currently available.

 

It seems to me that her assertion that both parents are equally capable of providing good care for X, while no doubt true in relation to her basic physical and other needs, ignores the court's findings of January 2010, the emotional harm caused to X by the mother and the obvious risk which she continues to pose given her present attitude. Finally, it seemed to me that the psychologist was so concerned that at all costs there should be engagement in the Parent-Child Game, whether or not it was appropriate in this case, that, despite the clear need for 1:1 work with the mother on her own difficulties, she was of the view that such work was unnecessary provided the Parent-Child Game work was undertaken.

 

The Children’s Guardian first addressed the psychologist's report and her recommendations in his position statement of July 2010 when he argued against the work proposed being carried out.  I also have his views in his final report and his oral evidence. I accept and rely on the Children's Guardian's conclusions with regard to the psychologist's reports and recommendations which mirror my own.

 

I have carefully considered the papers. They make rather depressing reading. The mother appears to be convinced that she is the only person in the right and everyone else involved with her and her family are in the wrong. As recently as 6^th September 2010 (as noted by the Guardian) she wrote in an e-mail that she had made her decision and that no amount of therapy would change her opinion on something she did not believe in. She accuses the Guardian of bias and the local authority of negligence and, as recently as 8^th November of “tyranny, scare tactics and bullying methods”, none of which do I accept.

 

I am satisfied it would not be in the best interests of X to delay making a final decision in this case for further work to be done, whether with the mother or with X and her father. In the light of the findings of HHJ Robertshaw and all the evidence before this Court there are no good reasons why there should be any further delay in X moving to live permanently with her father who, I am satisfied, is fully capable of meeting all her needs including that for ongoing contact with the mother.

 

I am equally satisfied that it would be contrary to X's best interests to move either now or in the foreseeable future to the full-time care of the mother, given the harm she has already caused her daughter and the harm which she would be likely to cause her if X were placed in her care.

 

I believe the mother does need help and she would be well advised to seek it out. It is a measure of the degree of concern which the local authority feel in relation to the mother's ongoing direct contact with X that, unusually, despite intending to place X with the father, they nevertheless seek a full care order. It is, in my view, vitally important that this order is actively worked by an allocated social worker, particularly over the next few weeks, when the rehabilitation plan is to be put into operation. Equally, the mother's contact with X must be kept under close scrutiny to ensure that it is meeting X's needs while, at the same time, every effort should be made for X's sake to improve the quality of the contact. In this regard, the local authority needs to exercise its parental responsibility to assist the mother in understanding the local authority’s concerns about the quality of some of her contacts with X over the past few months and to provide her with appropriate guidance, help and support so that these sessions can foster a healthy, beneficial and positive relationship between mother and daughter. This may, in the future, require referrals to specialist resources which the local authority must actively seek out if X's welfare requires it and I would expect the ongoing Review process and the Independent Reviewing Officer to keep this issue under close and active scrutiny.

 

I invite the mother to consider my judgment carefully with her legal advisers. I do not believe that my decision will come as any surprise to her but I ask her to take time to reflect on the reasoning behind it. Her intransigent response to the court's findings in January 2010 and her intemperate reaction to the local authority’s involvement have provided her with little room for manoeuvre in the context of these proceedings. I have no doubt that she cares for X deeply but she is demonstrating little insight into X’s real needs and is failing to prioritise these over her own. If she continues on her present course she runs the risk of alienating her daughter and permanently damaging their relationship. That would be a great loss for X (as everyone, including the father, acknowledges) and I hope it is a consequence which the mother, on further reflection, will seek to avoid.

 

Accordingly, I accept and rely on the final report and recommendations of X’s Children's Guardian and, in the light of the findings made in January 2010, the evidence presently before the court and my own findings, I am in no doubt that the only order which will meet X’s welfare needs, both currently and for the foreseeable future, is a care order which I make in favour of the Applicant local authority and I approve the care plan which has been put before me.

 

For the sake of completeness, I acknowledge that the application engages the ECHR Art. 8 rights of the adult members of the family and of the child and inevitably involves an interference with the right to respect for family life. I have applied the paramountcy test and the checklist at s.1 (3) Children Act 1989  and I am satisfied that the orders I am making  are in accordance with law, necessary for the protection of the child's rights and proportionate.

 

This judgment will be handed down at the Family Hearing Centre at Sheffield on Monday 22nd November when I will deal with any consequential orders or directions and any requests for amplification or clarification. I note that it is the intention of the Children's Guardian to communicate, in an appropriate fashion, my decision to X.

 

The judgment will not be read and accordingly, subject to any obvious errors, represents the authorised text of the judgment.

 

 

 

 

 

 

PETER H.F.JONES                                     22^nd November 2010