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Cite as: [2015] EWFC 40
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IN THE FAMILY COURT SITTING AT LEICESTER
CASE No LE15CO0121
Neutral Citation No. [2015] EWFC 40
Before His Honour Judge Clifford Bellamy
sitting as a Judge of the High Court
(judgment handed down on 15th May 2015)
Re N (A Child: Interim Care Order: Interim Removal)
This judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.
Mr Jonathan Sampson for the Local Authority
Mr Alun Jenkins for the mother
Miss June Rodgers for the father
Mrs Margaret Styles for the child
JUDGE BELLAMY:
1. On 11th February 2015 Warwickshire County Council (‘the local authority’) issued care proceedings in respect of a young boy, N. N is almost 8 years old. His parents are JLM (‘the mother’) and GLM (‘the father’). The purpose of this interim hearing has been to consider whether N should be removed from the care of his parents.
Background
2. In 2010 the father issued an application for a shared residence order. The issues in the case were complex, not least because of the impact upon N of the mother’s religious beliefs and practices. She is a Jehovah’s Witness.
3. Those proceedings came on for final hearing in August 2011. I made a shared residence order. I also made orders restricting the extent to which the mother should be able to involve N in the practice of her religion. My judgment is reported as Re N (A Child: Religion: Jehovah’s Witness) [2012] 2 FLR 917. That judgment sets out the relevant history of this family up to August 2011.
4. In September 2013 the father issued an application to vary my earlier order. He was prompted to make that application by what he considered to be the mother’s breaches of that order. As the application has progressed the reasons why the father issued that application have become relatively unimportant. Of greater importance is the impact on N of the ongoing conflict between his parents, a conflict which has continued to focus on the mother’s religious beliefs and practices.
5. The father’s application was listed for final hearing on 17th and 18th November 2014. In a report prepared for that hearing the Children’s Guardian, Fiona Dean (‘the guardian)’, recommended that the local authority be required to undertake an investigation under s.37 of the Children Act 1989. At the pre-hearing review I invited the local authority to attend and be represented at the final hearing, an invitation which was accepted. I also made it clear to the parties and that if persuaded to make an order under s.37 I would also consider whether it was appropriate to make an interim care order on the basis that N should be removed from the care of his parents and placed in foster care.
6. I handed down judgment on 27th November – Re N (A Child: Section 37; Interim Care Order) [2014] EWFC 53. I made an order pursuant to s.37(1) of the Children Act 1989 requiring the local authority to undertake an investigation of N’s circumstances. I also made an interim care order under s.38(1) with an indication to the local authority that N should be removed from the care of his parents and placed in foster care.
7. At the time of the hearing in November 2014 the local authority’s investigations were at an early stage. On the basis of the limited investigations the social worker had been able to undertake I was informed that this was not a case which she would normally have raised with her manager with a view to taking protective measures. The local authority was not then in a position to form an assessment of risk and was not then recommending removal. Nonetheless, the local authority indicated that if the court made an interim care order on the basis that N should be placed in foster care it would co-operate. A foster placement had been identified. N would be able to remain at his current school. The local authority proposed that each parent should have supervised contact with N once a week, after school.
8. Having announced my decision to make an interim care order, the mother applied for permission to appeal. I refused her application. I granted a short stay to enable the mother to seek relief from the Court of Appeal. The mother applied to the Court of Appeal for the stay to be extended and for permission to appeal. The stay was extended. On 5th December 2014 the permission application was considered on paper by Lord Justice McFarlane. The application was refused. It is appropriate to set out the reasons in full. McFarlane LJ said that,
'1. There was ample evidence upon which the judge was entitled to conclude that the child was suffering harm as a result of the ongoing hostility between the parents and because his mother had immersed him in her religious beliefs and practices.
2. By implication the judge found, and was entitled so to hold, that the interim threshold criteria in s.38 were satisfied.
3. The evidence and his findings also entitled him to hold that the need to protect N’s emotional wellbeing was such that he was in need of immediate protection.
4. In the circumstances the evidence and the judge’s findings entitled him to make an interim care order and such an order was justified for the reasons given in the judgment.
5. With respect, the argument that the judge was required to find specific religious practices that were harming the child before he could seek to protect him is misplaced. The evidence in the case supported a finding that it was emotionally harmful for this 7 year old child to be immersed in the mother’s religious beliefs to the extent that the evidence plainly established was the case.’
9. The mother sought an oral hearing. That hearing took place before McFarlane LJ on 14th December. Although counsel for the father attended on a noting brief, the court only heard submissions from the mother’s counsel, Mr Alun Jenkins. There has been no transcript of the judgment given on that occasion. Permission to appeal was granted. I am informed by counsel that the ground upon which permission to appeal was granted was not a ground that had been advanced on behalf of the mother.
10. The court ordered that the stay of the interim care order made on 27th November should continue until the hearing of the appeal. No date was ever fixed for the hearing of the appeal though notice was given that it was floated for hearing on 3rd or 4th March – almost 3 months after permission to appeal had been granted. Not surprisingly, by then matters had moved on.
11. On 26th January 2015 the local authority filed its report under s.37. As a result of its initial investigations the local authority came to the conclusion that it did not at that stage support the removal of N from his parents. However, the author of that report went on to say,
'10.3 In order for Children’s Services to be confident that N’s immediate and future well-being is safeguarded it is felt necessary to initiate Care Proceedings and complete the necessary assessments within the Public Law arena. Children’s Services will be seeking an Interim Supervision Order at the initial hearing and will be closely monitoring the progress of the family via a Child Protection Plan.
10.4 …If assessments indicate that N remains at risk of significant harm then it may be necessary to explore alternative permanent care arrangements outside of his parents’ care.’
12. The local authority subsequently issued these proceedings. The mother applied for her appeal to be withdrawn. That application was granted.
13. Although the mother did not attend the hearing in the Court of Appeal on 14th December 2014, through her counsel she gave four undertakings. On 2nd February the mother personally repeated those undertakings to this court. By her undertakings the mother promised,
(i) Not to take N to the Kingdom Hall or any other religious meeting of Jehovah’s Witnesses.
(ii) Not to talk to N about religion or about the Jehovah’s Witness organisation or about her faith.
(iii) Not to allow N to go on the jw.org website or to provide him with any religious DVDs.
(iv) If N tries to discuss religious matters with her, to tell him that the court has indicated that it would prefer she did not discuss such matters with N for the time being.
14. Upon issuing these proceedings, in compliance with Family Procedure Rules 2010 Practice Direction 12A, the local authority filed a threshold document indicating the basis upon which it asserts that the threshold set by s.31(2) of the Children Act 1989 is met. That document relies upon three key findings made in my earlier judgments, asserting that,
'1. N has suffered emotional harm due to being exposed to the ongoing conflict between his parents.
2. N has suffered emotional harm due to his immersion by his mother in her religious beliefs and practices, with the intention of alienating him from his father.
3. Neither parent has been able to meet and prioritise N’s emotional needs’
15. Both parents have filed responses in which they accept that the s.31(2) threshold is met. The father accepts the three grounds set out in the threshold document. The mother accepts grounds 1 and 3. She does not accept ground 2. In her response she says that,
‘[It] is not accepted that N has been harmed by immersion in the religion of the Respondent Mother. She does not accept that she has introduced N to her religion with the intention of alienating N from his father. Notwithstanding His Honour Judge Bellamy found that to be the case, but the Mother does not accept that.’
16. On issuing these proceedings the local authority also filed an interim care plan in which it sought an interim supervision order. Notwithstanding the contents of its threshold document the local authority’s care plan raises a question concerning the extent to which the local authority itself accepts either the court’s findings concerning the impact upon N of the mother’s religious beliefs and practices or the court’s assessment of risk. The opening paragraph of the interim care plan states that,
‘It is evident that for a significant period of time the parents have failed to prioritise N’s needs above their own and have been unable to effectively shield N from experiencing their own negative emotions about each other. Although the father remains concerned about N’s alleged indoctrination into the Jehovah’s Witness father I am more concerned about the impact of the parental acrimony on N’s sense of safety, security and sense of himself.’
17. On 2nd February 2015 the local authority sought an interim supervision order. The parents did not oppose the application. At the November hearing the guardian had supported the making of an interim care order on the basis that N should be removed from the care of his parents and placed in foster care. At the hearing on 2nd February the guardian acquiesced in (it would be inaccurate to say ‘consented to’) the making of an interim supervision order. It was clear that she still had significant concern that N’s emotional welfare was continuing to deteriorate.
18. As my last judgment makes clear, my decision to make an interim care order was primarily informed by the evidence of Mr Paul Livock, a Chartered Psychologist and Chartered Scientist, and that of the guardian. Although the guardian had acquiesced in the making of an interim supervision order, by March she had again become sufficiently concerned by N’s presentation to request that there be a contested hearing to enable her to seek to persuade the court that his emotional safety required his interim removal into foster care.
19. On 12th March I gave full case management directions including listing the case for an interim hearing on 24th, 28th and 29th April. I also gave permission to obtain an updating report from Mr Livock.
Evidence from N’s school
20. Since September 2014, N has been a pupil at the X Junior School. Ms C is a learning mentor at the school. She has kept in close contact with both the local authority and the guardian in respect of her concerns about N.
21. On 9th December Ms C e-mailed the guardian as a result of concerns surrounding what she describes as ‘a strange conversation’ she had with N following a referral from his class teacher. She says that in this conversation N ‘depicted imaginary as being real’.
22. On several occasions during January and February N was reluctant to leave his mother and come into school despite his mother’s encouragement. On one occasion he said, ‘I do not want to go to Dad’s’. On another he said that he does not trust anyone. Ms C reports that on 26th February N had been distraught and was refusing to leave his mother. He said that he could not be with people who didn’t believe in Jehovah ‘and that he did not want to go to Daddy’s because he…was not a Jehovah’.
23. In addition to showing distress at separating from his mother at school, N is also reported as having made comments which raise concern about the conduct of both of his parents. On 15th April Ms B, another learning mentor at N’s school, e-mailed the guardian to inform her that during a school trip N had said that he had ‘had a chat with Daddy last week and told me that “he (Daddy) said he doesn’t care about me” and that although he was ‘going home to Daddy’s…he doesn’t “deserve” to go there if Daddy doesn’t care about him’. On 24th April, Ms C e-mailed the guardian to say that N,
‘wants to know why Mum has asked Dad to collect him from school on a couple of Wednesdays when Daddy is mean. I have discussed “mean”, I believe it is when dad has argued with Mum. He has stated Dad does not hurt him physically. N said Mum has said to him “If I was you I wouldn’t want to go there because he is mean”.’
24. Mr Livock reports that in his discussions with Ms C she had informed him that
‘N’s beliefs seem to be his main preoccupation. In a Religious Education lesson, N had deliberately cut up teaching materials. Ms C told me that N had showed a Jehovah’s Witnesses website to a colleague and he seemed to, “shut down if things don’t accord with his beliefs”…Ms C said that she viewed N as “one of the most worrying children in our school. He presents as a very confused boy”. She identified N’s singular focus upon Jehovah’s Witness beliefs as impinging significantly upon his relationship with his school: “In my opinion, it’s affecting his life.”’
25. In her written evidence Ms C says that recently N,
‘has presented as anxious, confused, distressed and distracted. This has impacted directly on his learning capabilities. He appears pre-occupied and slow to engage with the learning activities and social elements within school. On many occasions he does not wish to leave his Mummy when he arrives at school. At this point he has stated that he does not want to go to his Daddy…there can be challenges during some religious lessons as N has very clear beliefs about Jehovah which seem to challenge him about his learning of other faiths. He has a very small friendship circle consisting of one or two main friends’.
The updated psychological evidence
26. Mr Livock’s updating report is dated 27th March. The report is based upon a further meeting with N at school and discussions with Ms C. Mr Livock has not met with the parents again but intends to do so before completing his final report.
27. There are two aspects of Mr Livock’s report that are of particular concern. One relates to N’s feelings towards his father. The other relates to the continuing impact of religious beliefs. Both give rise to concerns about his emotional welfare.
28. With respect to concerns about N’s feelings towards his father, Mr Livock records that,
‘5.9 I told N that I wanted to talk about his feelings at the moment. N said that he’d already spoken with, ‘a lady - and another lady’ about this. I told N that I understood that he had been upset in school recently. N said, ‘Daddy’s really mean to me. I love Mummy more than him.’ I asked N what he meant by ‘mean’. He replied, ‘he blames me when it’s not my fault. I don’t love Daddy at all.’ I reminded N that he had said that he would tell me why he thought that he was a ‘bad person’. N said, ‘because I made the biggest mistake of my life.’ I asked N if he would tell me about his ‘mistake’. N said, ‘I told Daddy that I love Mummy more than him. It’s a secret. I’m not supposed to tell him. It was the biggest mistake of my life.’ N said that he was a ‘bad person’ because he had not kept the ‘secret’.
5.10 He continued, ‘I wasn’t supposed to tell him. He forced me to say it.’ I asked how his Daddy had ‘forced’ him. N said, ‘because we had a chat. I want to be happy and because of the BM [‘big mistake’] I can’t be happy for the rest of my life. If I lived at Mummy’s every day that would never have happened. It’s because he has chats with me.’ I suggested that it was normal for fathers to talk to their sons about all sorts of things. N said, ‘I liked to chat with Daddy – until that happened. I will just be sad for the rest of my life.’
5.11 I asked N what had made him tell his Daddy that he loved his Mummy more. N said, ‘He asked me why I was sad and I told him. I shouldn’t have told him. It’s supposed to be a secret.’ N added, ‘I want to live with Mummy and not see Daddy. Ever.’ I asked why he had said this. N replied, ‘If I lived with Mummy, I wouldn’t have to have chats and no one would mention what I’d said – the BM.’’
29. With respect to the impact of religious beliefs, Mr Livock says,
‘5.14 I asked N if, as I had been told, he had cut up the materials that the class was using to complete an exercise about the Crucifixion story. N said that he had. I asked him why he had done such a thing. N said, ‘because nobody’s telling the true stories about Jehovah. It’s a big fat lie. Jesus didn’t die on the cross – he died on a big tall stick. That’s what the Bible says. I said that I thought that I remembered from my reading of the Bible that Jesus dying on the cross was mentioned several times in different accounts. N replied, ‘the person who wrote that Bible made that up. Bethan (?) wrote our Bible.’ I asked who ‘Bethan’ was. N seemed to correct himself and said, ‘That’s where our Bibles come from.’ I asked who wrote the Jehovah’s Witnesses’ Bible. N said, ‘Witnesses. They get messages from Jehovah and they put that in the Bible.’ I noted that when N spoke about the Cross and the non-Jehovah’s Witness Bible, he presented as contemptuous, grimacing somewhat theatrically.
5.15 I asked N what he hoped would happen in the future. He said, ‘I want the Judge to make me and Mummy worship Jehovah again and live with Mummy forever and never see Daddy again.’
30. In his letter of instructions, Mr Livock was asked to indentify ‘the problems in relation to N’s recent presentation’. In his report he says that,
‘6.17 In my view, N is experiencing two major difficulties that are not new: his continuing disposition to assert his religious views; and his difficulty in reconciling the differences between his father’s approach to parenting and that of his mother.
6.18 In paragraph 11.25 of my first addendum report, I commented that it was possible, ‘that as the curriculum becomes more detailed and complex, N may find that some aspects of his participation in learning may be at odds with his – and/or his mother’s beliefs’ I was concerned to learn of N’s cutting up of teaching materials and his justification of his actions that the lesson had been based upon a, ‘big fat lie’
6.19 In my first addendum report N stated his desired outcome as, ‘Make me live with Mummy every day, for ever and ever – and not Daddy.’ (paragraph 10.14)
His response five months later has moved from ‘never’ living with his father, to never seeing him again. This would seem to be a continuation of the process of N comparing his father’s home with its rules and competition with other children for his father’s attention, with that of his mother, who reaffirms his acquired religious beliefs and offers exclusive attention. The ‘problem’ in this case is his parents’ apparent inability to work together to make clear to N that he is loved and valued in both settings.’
31. The problems are readily apparent. The difficulty is deciding how best to deal with them. In his oral evidence, Mr Livock was at pains to make the point that there are no ‘risk free’ options. Allowing the present arrangements to continue, changing the amount of time N spends with each parent or removing him from the care of his parents and placing him in foster care all carry risks.
32. Mr Livock remains concerned about the adverse impact upon N of the mother’s religious views. He remains of the opinion that N is too young to be capable of rational philosophical argument concerning faith issues. Rather, it is the case that N has taken on board what he has been told. If it were the case that N had simply been involved in the mother’s religious practices then that may not have been a problem. However, the problem is that N has been told that what Jehovah’s Witnesses believe ‘is the only way’. In his opinion it is likely that N is still being positively instructed in his mother’s religious beliefs.
33. In Mr Livock’s opinion, there are no signs of improvement in N’s presentation. Indeed, he expressed concern about what he described as the ‘incremental deterioration’ and ‘downward trajectory’ in N’s presentation. In his opinion, there needs to be fundamental change. Continuation of the status quo will not achieve that change. The incremental deterioration in his emotional state will continue. The longer it continues the more likely that it will prove to be enduring. N will become increasingly alienated from his father and it is unlikely that that will be capable of being reversed.
34. Although Mr Livock has not seen the parents again since preparing his original report, he has read the reports of their therapists. The parents have not made as much progress as he had hoped. It is likely that progress will continue to be slow. There are some signs of improvement in the parents’ relationship with each other, and I return to that issue later in this judgment. However, their progress is not at a rate that will lead to positive change for N.
35. Mr Livock said that he hasn’t changed his opinion since his earlier report. N needs to be removed from the care of his parents. He said that in order to motivate the parents to make a genuine change rather than the incremental changes that have occurred, there needs to be a hiatus. That will give a better chance of a positive outcome for N. Removal needs to happen immediately. N needs to be placed with experienced foster carers who are able to deal with his emotional difficulties. He needs to remain at his present school.
36. On this occasion, as in November, I found Mr Livock’s evidence to be measured and persuasive. He is an impressive expert witness.
The local authority’s evidence
37. Ms O’H is the allocated social worker. Ms O’H became the allocated social worker after the hearing in November. She is the author of the s.37 report and of the local authority’s interim care plan. She has also prepared two written statements and has given oral evidence. She is about to take maternity leave. The case will need to be re-allocated to a new social worker. That will be the third social worker that N has had to engage with in the six months since the local authority became involved in the life of this family.
38. The history of conflict in the parent’s relationship with each other and their different parenting styles have clearly had an adverse impact on N. That is accepted by the local authority. The local authority’s position concerning the impact of N’s immersion in his mother’s religious beliefs and practices is rather more opaque.
39. It is the opinion of Mr Livock and the guardian that N’s immersion into his mother’s religious beliefs and practices has caused and is continuing to cause him emotional harm. If the social worker accepts that to be the case (and the evidence strongly suggests that she does not) it does not appear to cause her to be unduly concerned. In her written evidence she says,
‘Although the father remains concerned about N’s alleged indoctrination into the Jehovah’s Witness faith I am more concerned about the impact of the parental acrimony on N’s sense of safety, security and sense of himself’.
Of even greater concern is that, contrary to my express findings in November 2014 and paragraph 2 of the local authority’s own threshold document, the social worker goes on to say that,
‘The father’s therapist has made reference to his progress being dependent on the Court’s continued agreement that N is at risk of religious indoctrination, I do not fully support this notion and although I hold some concerns about the complexity of the information that N has regarding his religion I do not find that his belief system is alienating him from his friends, family or daily activities.’
40. Contrary to the evidence of the guardian, the social worker appears to be of the opinion that the mother is developing insight into the impact on N of her religious beliefs and practices. She says that the mother,
‘remains clear in her wish for N to share her religious belief and she sees no reason why N cannot be a Jehovah’s Witness and enjoy a relationship with his father. The mother has shared with me her belief that she was doing what was right for N but having heard the information provided to the Court the mother appears to have an understanding that elements of her approach have been unhelpful to N’s development.’
41. It is in the light of opinions such as those that the social worker comes to the conclusion that placement in foster care would not be in N’s best welfare interests and would be likely to cause him significant harm. She says,
‘It is my view that any significant change to N’s living arrangements at this time could be severely damaging to N’s emotional development and have a significant impact on N’s entire future, therefore agencies need to be clear that all avenues have been explored before this option is taken…
…in the immediate short term, placement outside of his parents’ care is likely to have a significant impact on N’s anxiety levels and his daily functioning as he makes attempts to process what he is experiencing whilst also trying to please those who are caring for him. N’s academic performance is likely to dip and school are likely to witness behaviour previously unseen from N as he works through the significant range of emotions he will be feeling…
An interim Care Order could be made without removing N from the care of his parents, however neither parent has demonstrated that they are unable or unwilling to exercise their parental responsibility appropriately therefore it does not appear necessary for the Local Authority to share parental responsibility and make N subject to the Looked After Child process at this time…’
42. By the time she gave her oral evidence the social worker had had the opportunity to read Mr Livock’s addendum report and the guardian’s updating report; she had also had the chance to listen to Mr Livock’s oral evidence. Despite all of that, there appeared to be little change in her views with respect to the impact upon N of his immersion into his mother’s religious beliefs and practices.
43. The social worker considers that the mother’s undertakings to the court are themselves having an adverse impact on N. Not being allowed to pray with his mother is a difficulty because he has done it in the past and ‘it is part of his identity, part of who he is’. N thinks that Jehovah ‘will be mad’ with him for not praying. She said that the Jehovah’s Witness beliefs are ‘intrinsically part of who he is’. In her opinion ‘we need to give certain things a go’, by which I took her to mean that there ought to be some relaxation in the scope of the mother’s undertakings.
44. So far as the impact of parental conflict on N is concerned, the social worker accepts that this is causing N ongoing harm though she appeared not to accept that the impact of the emotional harm N has suffered has got worse since November. She reported that the day before she gave evidence N had said to her not simply that he wanted to spend more time with his mother but that this would mean that her happiness would be ‘absorbed’ into him and he would have ‘more happiness’ to give to his father because his father is angry and it is his (N’s) responsibility to make his father happy.
45. The social worker does not accept the guardian’s assessment that the parents have made only slow progress since the hearing last November although she accepted that ‘it would appear that there is work still to be done’ with the mother.
46. On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.
The local authority’s interim care plan
47. The local authority’s interim care plan is dated 10th February. The court had not then taken the decision to list the matter for a hearing to enable the court to consider the interim arrangements for N’s care. Directions for such a hearing were given by the court on 12th March. Although those directions did not include a requirement for the local authority to file an updated interim care plan the directions did require the local authority to file a statement ‘in respect of N’s interim placement’.
48. Compliance with that order came in the form of a written statement by the allocated social worker. In a section headed ‘Placement Options’, Ms O’H said,
'2.1. When Children’s Services completed the Section 37 as requested by Court I was required to consider if it was necessary for N to be removed from the care of his parents in order to protect him from the emotional harm he was experiencing. At the time I was of the view that removing N from his parents would be more damaging than supporting N to remain in the shared care of his parents whilst assessments and work was completed.
2.2. Since this assessment was made I have met with the parents and professionals regularly through the Child Protection process and visited N at home and at school. I remain concerned about the parents’ interactions with each other and their understanding of the concerns within this case, however I do not believe that the harm N is experiencing requires immediate separation from his parents to protect him from this harm.
2.3. The need for immediate separation is the test that needs to be met if a change of care arrangements are to be agreed prior to a final hearing. The most recent report from Mr Livock discusses the need to consider alternative care provision if the parents are unable to reconcile their differences and present a united front with regards to parenting N; Mr Livock does not assert that N’s current presentation is so concerning that immediate separation is required.
2.4. It is my view that the parents need to continue to work with the agencies involved to explore their individual and collective difficulties, within the clearly defined timescales already agreed, in order to effect change in their situation. The successfulness of this change can then be tested via further assessments and a decision about separation from the parents can be made based on full and detailed assessments.
2.5. Providing this additional time also allows assessments of family members to be completed ensuring that if the final decision is that N should be removed from the care of both of his parents then all alternative options, including foster care and family members, have been considered and properly assessed.’
49. The purpose of this hearing was not simply to consider whether there should be an interim care order but whether N should be removed and placed in foster care. I was concerned, therefore, to be informed by the social worker that (contrary to the position last November) not only has the local authority not identified a suitable foster placement but that she did not know what action the local authority would take if the court were to make an interim care order. That, I am told, is a matter managers will consider if that should be the outcome of this hearing.
The mother
50. In his first report in May 2014, Mr Livock said,
‘I [have] referred to the impasse created by the positions that each parent has taken regarding their son. I would suggest that each needs to explore ways in which they can change their thinking (and hence, behaviour) in their collaboration over arrangements for N’.
He recommended that both parents should undertake cognitive behavioural therapy (‘CBT’). He advised that,
‘With commitment and full engagement with the therapeutic process, it is possible that evidence of sustainable change might emerge within 3 - 6 months after the commencement of therapy sessions. It is usual that contact with the therapist would be maintained in order to identify any need for “booster” sessions and potentially, this would extend the timescale in order to ensure that change was consolidated and embedded.’
51. Both parents accepted that recommendation. Both identified appropriate therapists. The mother agreed with her therapist that she would undertake six hours of CBT. The final session took place in November. In a report dated 20th February 2015, the therapist makes it clear that the mother had made little progress. She says that,
‘it is my belief that the mother is cognisant to the influential effect that her behaviours exert on her son’s emotional and intellectual development and that she is taking small steps to actively change her behaviour in her daily interactions with her son and the father…In my experience any cognitive and behavioural changes are hard won and can often take considerable time to be achieved; this process often extends significantly pas the end of a CBP [cognitive behavioural psychotherapy treatment period]…However, I am disappointed that the mother did not contact me in December 2014 or January 2015 for the proposed monthly CBP booster sessions, I am however, aware that there are some financial constraints and perhaps this may have been an underlying consideration…
In my view the mother is struggling to come to terms with some of her long standing core beliefs, that incorporate her own self-view, her world-view and the possible effects that these components may be influencing her interactions with significant others.
It is therefore not surprising that therapeutic change has been slow for the mother however, this does not imply that change is…impossible and in my opinion is slowly occurring…’
52. Since that report there has been an enforced change of therapist. Work with the new therapist has only recently begun. Progress continues to be slow. The mother said that she ‘hoped’ that CBT is helping. She was not able to identify any particular areas of progress. However, that is not to say that she has not made any progress. I have observed her in court over the course of this three day hearing. She has sat next to the father. There has been a warmth between them that I have not seen at other hearings. They are taking steps to repair their broken relationship. As well as undertaking CBT they have also recently begun to attend Relate. There are signs of progress which need to be encouraged.
53. Although the mother said that she accepts that N has been affected by the conflict between herself and the father and by their different parenting styles, there appears to be little evidence of any developing insight into the emotional harm that N has suffered. That is particularly the case so far as concerns the impact of her religious beliefs and practices. In her most recent statement the mother says that,
‘The question is whether there should be a relaxation of the moratorium on religious involvement and I would like to be able to take N to the Kingdom Hall once a month. I believe that N misses going there and to be able to pray at mealtimes. This is a simple grace for the food and I will continue to refrain from any further discussion about religion in accordance with my undertakings.’
54. In her oral evidence the mother confirmed that in the past she and N have had evenings when they would discuss religion. She referred to ‘family worship evenings’. Although this is the third time the mother has given evidence over the last four years it is the first time she has mentioned ‘family worship evenings’. These would occur once a week. They would last between 10 and 30 minutes. The ‘worship’ comprised discussion and watching DVDs. I doubt that this has been the full extent of her engagement of N, within the home, in matters of religion. When challenged the mother said, ‘Maybe I didn’t realise how deeply he was taking my views on board’. Given that she has read three reports from Mr Livock, four reports from the guardian and two judgments of the court it beggars belief that she did not appreciate that he was taking her views on board ‘deeply’.
55. Although the mother said that she doesn’t know why N keeps saying that his father isn’t going to Paradise she accepts that she has shared with N the Jehovah’s Witness beliefs about Paradise. Indeed, when challenged by Mrs Styles on behalf of the guardian, the mother accepted that what N believes about death and Paradise is what she has shared with him – ‘his views come from me’. It is clear that N is now deeply anxious about his father not going to Paradise. ‘Maybe I didn’t explain things well enough’, the mother said. There is an alternative view and that is that she has explained these things to him all too clearly.
56. The mother does not want N to be placed in foster care. She believes that the present shared care arrangements should continue. If the court disagrees then she would prefer to see N spend more time with his father than for him to be placed in care. She is agreeable to the local authority arranging for a Family Group Conference.
The father
57. The father, too, has engaged with CBT. He says that he has attended over 20 sessions. He has developed an understanding of the need for therapy. In a recent written report his therapist says that he believes ‘that there has been sustained progress on the issue that first led to the recommendation for CBT’. He goes on to say,
‘Whilst I realize that the case has entered a new phase, with different agencies involved in how the case goes forward, I make the point here that the father’s ability to progress in therapy particularly surrounding relationships which are significant for N, has to date been contingent upon his perception of N’s protection from what the father perceives as a threat.’
58. The father says that he understands the need to present the mother to N in a positive light. He has been trying to build bridges with the mother. He believes they are getting on better. They are able to talk comfortably face to face. They are attending Relate. The mother has allowed him to Skype N when he is staying with her. They are able to communicate with each other by text messaging and by phone. They have gone together to N’s swimming lessons. He is making a genuine effort to improve their relationship.
59. However, there are other aspects of the father’s evidence which highlight the fragility of the progress. In his written evidence he says that although the mother claims to have honoured her undertakings to the court he believes that ‘she has circumvented this’. The father notes that the mother says she does not feel she has caused N emotional harm. He says that that ‘could mean I can’t trust everything she says’. They may be communicating better but there is clearly much work still needed on rebuilding trust.
60. The father’s position concerning N’s immediate future is that he does not believe the shared care arrangement can continue in its present form. ‘I don’t think leaving things as they are is an option’ he said. He proposes that the present equal sharing of N’s time between two homes should change so that N spends most of his time with him. He does not want N to be placed in foster care. He believes that that would be very difficult for him and that his emotional stability would deteriorate. In his opinion, placing N in foster care is a very high risk strategy.
The Children’s Guardian
61. On 6th November 2013 I made N a party to the private law proceedings and appointed a Children’s Guardian for him. The Cafcass officer allocated to the case is Fiona Dean. She has been involved in this case continuously for the last 18 months. During that time she has met with N on around 25 occasions. She is well placed to come to a professional opinion concerning any changes in N’s presentation during that 18 month period.
62. The guardian has prepared four written reports. The first three were prepared in the course of the private law proceedings. Her most recent report, dated 17th April 2015, was prepared for this interim hearing. During the course of the hearing in November 2014 the guardian changed her position, coming to the view that it was appropriate for the court to make an interim care order on the basis that N should immediately be placed in foster care. I accepted both her evidence and her recommendation.
63. In her most recent report the guardian describes the changes in N’s presentation since the hearing in November 2014. She says that,
'21. N’s presentation has deteriorated since I have known him over the last 2 years. His views have changed from wanting to see both parents to only wanting to live with his mother. When he speaks about his mother, he now also includes Jehovah in this. He will now describe himself as a Witness and will say this is the only thing that makes him really happy. He is very focused upon the beliefs, stating he does not wish to celebrate birthdays and is clear that every other faith is wrong. N is very preoccupied about not being able to attend the Kingdom Hall and feels he is a bad Witness. He is also fearful of what will happen to him, his father and other family members who are not Jehovah Witnesses.
22. Over the last 10 months N has changed from being a happy, smiling, friendly, enthusiastic and caring little boy who used to love being in school. He is now a very confused, angry, unhappy, troubled little boy and whilst he can still be enthusiastic and entertaining, there is a very evident underlying sadness and anger in his presentation.’
64. The guardian accepts that that deterioration has taken place against a background of some modest progress in the parents’ own relationship. However, she regards that progress as ‘fragile’. She acknowledges that so far as the father is concerned, as a result of cognitive behavioural therapy ‘there is some genuine progress being made’. She is less positive about the mother’s progress. Although she notes that the mother has responded positively to the improvements in the father’s communication style, overall she detects little change in the mother since the hearing in November 2014. She says that the mother,
‘was completely unable to identify anything that she did differently and was unable to explain what impact her own parenting had had upon N’s distress…I believe she is quietly resistant to change and does not believe her behaviour has in any way impacted upon the emotional abuse N is continuing to experience.’
65. In his first report, Mr Livock had recommended that N undergo play therapy. By March the local authority had identified Ms S as an appropriate play therapist. On 12th March I ordered that the local authority should file and serve a report from Ms S by 5th June. At the time I heard evidence in April that therapy had still not commenced. In her oral evidence on 28th April the social worker said that play therapy would begin ‘in the next couple of weeks’.[1] Whilst the guardian welcomes that development she is also of the opinion that play therapy will not address N’s underlying issues.
66. The guardian has considered whether N’s problems may be ameliorated by increasing the amount of time he spends with one or other of his parents. She discounts that possibility. She says that,
'28. If N were placed with his father for longer or completely, he would resent his father and this relationship would breakdown completely. The father is likely to get angry with N and this would affect everyone in the household. N does not want to live there. N wants to live with his mother.
29. If N were placed with his mother for longer periods or full time, he would continue to be immersed in her belief system, her views and her parenting. The mother has not progressed in respect of necessary changes. In addition, she does not perceive a need to. Although the mother clearly dotes on N, he would continue to be alienated from his peer group and from eclectic learning in order to do what pleases her.’
67. Like Mr Livock, the guardian believes that it is likely that N continues to be exposed to his mother’s religious beliefs and practices. In her opinion it is unlikely that N would continue to be as focussed on religious issues if the mother had complied with her undertakings.
68. The guardian does not support a continuation of the status quo. Her position now, as last November, is that N needs to be removed and placed in foster care. She says,
'30. If the status quo remains, N’s (sic) will experience further emotional harm. It is therefore my view that N needs to be removed from both parents’ care for a period of 12 weeks and placed with experienced foster carers. He should remain at his current school where he is known and his contact with both parents should be supervised fully by the Local Authority. Whilst it will initially be very upsetting for him, with the right support it will provide an opportunity for him to be freed from torn loyalties and ongoing attempts at pleasing both households. The parents need to continue with the therapeutic work in the hope that sufficient changes will have been made for the Court to make a permanent decision about N’s future.’
69. Although she agrees with Mr Livock that there are no risk-free options, she is in no doubt that the greatest risk is to leave N where he is. She accepts that if placed in foster care N will experience some initial distress. However, it is her belief that once that has subsided he is likely to feel relief. Placing him in a neutral environment will give him a period of respite. Leaving him where he is will mean that he is likely to continue suffering emotional harm.
The law
70. Section 38(2) of the Children Act 1989 provides that a court
‘shall not make an interim care order or an interim supervision order…unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2).’
71. If that threshold is met (and in this case there is common agreement that it is) the approach to determining what interim order, if any, should be made is set out in s.1. N’s welfare must be the court’s paramount consideration. In determining where N’s welfare interests lie the court must consider each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order it shall not make an order unless satisfied that to do so would be better for the child than making no order at all. In other words, the intervention of the State must be proportionate. The court must also have regard to the Article 6 and Article 8 rights of N and of both of his parents and must endeavour to achieve an outcome which is both proportionate and in N’s best welfare interests.
72. In deciding whether interim removal is necessary and proportionate, the court must also have regard to recent case law which gives guidance on that issue. It is clear from the authorities that the court should only sanction the removal of a child from the care of his parents at an interim stage in care proceedings if the child’s safety (using that term to include both psychological and physical elements) requires his immediate removal and that removal is proportionate in light of the risks posed by leaving him where he is.
73. In determining whether removal is necessary and proportionate, on behalf of the local authority Mr Sampson submits that there must be a holistic analysis of the evidence in the manner described by the Court of Appeal in Re B-S (Adoption: Application of s 47(5)) [2014] 1 FLR (hereafter Re B-S).
74. In Re B-S the Court referred with approval to a passage from the judgment of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 at paras 49-50:
‘In most child care cases a choice will fall to be made between two or more options, The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
The linear approach…is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’
75. The impact of the decision in Re B-S on adoption practice is well-known. Such was the level of misunderstanding of that decision that a year later the Court of Appeal gave further guidance. In Re R (A Child) [2014] EWCA Civ 1625, Sir James Munby P said this:
"The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified." …
76. In the case with which I am concerned I am not, at this stage, being called upon to consider what final order may be in N’s best welfare interests. I am only concerned with the interim arrangements for N’s care. Only at final hearing, when all of the evidence is available to the court, will it be possible for the court to undertake what the President has referred to as the ‘elaborate processes’ required by Re B-S. At this interim stage the court is not required to evaluate competing options and determine, in a global, holistic way, which option best meets N’s long-term welfare needs. The court’s primary task today is to consider whether N’s safety requires his interim removal from the care of his parents and as part of that process also to consider whether removal is necessary and proportionate. That, too, requires a welfare evaluation though not an evaluation of alternative placement options but an evaluation of the alternative risks of harm if the court does, and if it does not, require that N should be removed and placed in foster care. This is a different exercise from that which the court must undertake at final hearing.
Discussion
77. In my judgment of 27th November 2014 I undertook a welfare checklist analysis. It is appropriate to update some parts of that analysis in the light of the further evidence now before the court.
78. Section 1(3)(a) requires the court to consider N’s wishes and feelings (considered in the light of his age and understanding). Whereas at the time of my last judgment N was saying he wanted to spend more time with his mother and less time with his father, more recently he has said that he does not wish to see his father at all. In my judgment in November 2014, I said (para 72) that I was ‘confident that the mother has manipulated N to such an extent that I cannot be confident that the wishes and feelings he expresses are authentically his own.’ Nothing I have read or heard at this hearing causes me to consider it appropriate to revise that assessment. I remain concerned that the wishes and feelings expressed by N are not authentically his own.
79. Section 1(3)(c) requires the court to consider the likely effect on N of any change in his circumstances. In my November judgment I said that (para 76) ‘One thing is clear from the professional evidence before me, and that is that something needs to change and it needs to change now.’ Sadly, notwithstanding the modest improvement in the parents’ relationship with each other, nothing has changed for N since that last hearing. The local authority does not propose that there should be any change for N in advance of the final hearing in August. The guardian seeks to persuade the court that N should be removed from the shared care of his parents and placed in foster care. That was her position last November. I acknowledged then, and do so again now, that removal is not a risk-free option. Removal would be likely to be painful and distressing for N; although the guardian is of the view that that pain and distress is likely to be short-lived and be replaced in time by a feeling of release, in my judgment the latter is more speculative than the former.
80. Section 1(3)(e) requires the court to consider any harm which N has suffered or is at risk of suffering. In my last judgment I came to the conclusion (para 81) that N ‘has suffered emotional harm as a result of the ongoing hostility between the parents and because of the way the mother has immersed him in her religious beliefs and practices. I also accept the evidence of Mr Livock, again supported by the guardian, that for so long as the present arrangements continue N will continue to suffer harm and the greater that harm will be.’
81. I am doubtful that the social worker agrees that N has suffered emotional harm as a result of being immersed in his mother’s religious beliefs and practices or that he has continued to suffer such harm since that hearing. Although she makes some concession to the possibility of future harm if the parents’ relationship does not continue to improve I did not get the impression that she has the same level of concern as that registered by Mr Livock and by the guardian.
82. The clear evidence from Mr Livock and from the guardian is that since the hearing in November 2014 N has continued to suffer emotional harm and that unless something significant changes he will continue to suffer significant harm. Their view is that the cause of that ongoing harm is both the conflict between and different parenting styles of the parents and N’s immersion in his mother’s religious beliefs and practices. I accept their evidence on this issue. I am in no doubt that N has suffered, continues to suffer and is likely to continue to suffer emotional harm as a result of those issues.
83. Section 1(3)(f) requires the court to consider how capable each of N’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
84. The father has made some modest progress since the hearing in November 2014. I have no doubt that that progress has in large measure been the result of the CBT which he has engaged in and which he continues to engage in. He appears to be committed to therapy and to recognise the benefits it is bringing. However, his recent evidence suggests that he is still prone to criticise the mother even for relatively small matters. Change is a work in progress.
85. The mother, too, has made some modest progress. In her case it appears that that progress is not so much to do with the CBT (with which her engagement lacks conviction) but a response to the changes made by the father in the way he approaches her. In her case, too, change is a work in progress. The guardian is absolutely clear that there are no signs that the mother has insight into the emotional harm she has caused N by immersing him in her religious beliefs and practices. Having had the opportunity to hear the mother give evidence for a third time, I agree with the guardian’s assessment on this issue.
86. There remains an issue about the extent of the mother’s compliance with the undertakings she has given to the court. In my last judgment I said that (para 87) ‘I am satisfied that I have the power to regulate the mother’s exposure of N to her religious practice and beliefs. However, I am not satisfied that such restrictions would be capable of being policed. Enforcement would be difficult. There is a risk that such restrictions would amount to little more than judicial posturing.’ The Court of Appeal was prepared to accept undertakings from the mother. Within these care proceedings I have accepted the same undertakings. However, the point I made concerning the problems of enforcement has come to pass. A finding that the mother has breached her undertakings would expose her to the risk of proceedings for contempt. The standard of proof applicable to contempt proceedings is the criminal standard. Whilst I well understand why both Mr Livock and the guardian are concerned that the mother has breached her undertakings there is no evidence that would justify a finding to the criminal, or even, in my judgment, to the civil standard of proof that the mother has, in fact, breached the terms of her undertakings.
87. What, then, is to be done? For the local authority, Mr Sampson accepts that there are real concerns which justified the commencement of these proceedings. If the court considers that the local authority needs to share parental responsibility then the local authority would be content. However, the local authority does not support removal into foster care. It considers that separation is likely to cause N emotional harm. Separation from his parents will not assist N in developing a sense of identity. What this family needs is support. Furthermore, the local authority has not been able to identify any suitable foster home within reasonable travelling distance of N’s school. The local authority will consider an appeal if an interim care order is made on the basis that N should be removed and placed in foster care.
88. For the mother, Mr Jenkins accepts that removal is the single issue for determination. The mother does not support removal. She would prefer that N spends more time with his father than that he be placed in foster care. Mr Jenkins queries whether it is likely that N will suffer further harm if he remains in the care of his parents pending the final hearing in August. Removal into foster care would be likely to cause N harm. Removal would also cloud the assessments that are taking place.
89. For the father, Miss Rodgers, too, submits that removal is not appropriate. If it is the court’s view that something needs to be done now then foster care is not the solution. The appropriate way forward is to increase the amount of time N spends with his father.
90. For the guardian, Mrs Styles submits that N is not safe where he is. Placement with the father is not a realistic option. N should now be removed and placed in foster care.
91. I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.
92. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
93. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
94. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
95. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?
96. In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:
97. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
98. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
99. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.
Conclusion
100. At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care.
[1] The court was informed on 13th May that there is still no date fixed for the commencement of play therapy. There appears little prospect of the local authority being able to comply with the requirement to serve a report by the play therapist by 6th June.