England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT AT LIVERPOOL
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF S (A boy: born 13th January 2004) & N (A girl: born 23rd December 2005)

		Liverpool Civil and Family Court 35 Vernon Street, Liverpool, L2 2BX
		11/04/2017

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Honourable Ms Justice Russell:

Introduction

1. These are private law applications concerning two children, S (a boy of thirteen; born on 13^th January 2004) and N (a girl of eleven, born on 23^rd December 2005), under the Children Act (CA) 1989. Their parents are separated and the children live with their mother in England. They are of dual heritage; their mother is British and their father is Swedish. This judgment concerns the complaints made by the children about physical abuse and bullying by their paternal grandmother and father when they have been spending time with him in Sweden.
2. The complaints centre on the allegations made by S that he was physically abused by his grandmother during the summer of 2016. N complains of bullying by her father. Both children complain about the behaviour of the paternal family and are adamant that they do not want to go back to Sweden at all. Their father (P – the 1^st Respondent) applies (by an application dated 16^th December 2016) for a child arrangements order that the children live with him in Sweden and spend time with their mother, step-father and half-siblings in England. Their mother (C- the Applicant) applies (by an application dated 7^th December 2016) for the previous child arrangements (contact order) to be discharged. There have been numerous other applications over the past seven years in respect of these two children; some of these have included very serious allegations made by C, most of which have been investigated by the authorities in Sweden and in England. None of them has been found to have any substance.
3. In respect of this application by C, findings are sought that the paternal grandmother physically harmed S by grabbing his left arm and swinging him round in an unwitnessed incident during a holiday in Sweden in August 2016; and that P has failed to protect S from his grandmother's behaviour, and has bullied the children. It is alleged that prior to that incident, in late December 2015, S suffered a "fracture" to his elbow while sledging in Sweden, and that P failed to ensure that S received any or adequate medical assistance and treatment. In addition, there has been reference to an incident at Manchester Airport in May 2015, when P came to collect the children to take them on holiday, during which the police were involved. N has, in the past, complained to her mother that children visiting her at her father's home have involved her in sexual play on more than one occasion. C's case is that the children are not adequately parented or safe when visiting their father, in addition to which they both say that they do not want to see their father or to visit Sweden again.
4. P and his mother G (the paternal grandmother) deny all of the complaints and allegations made against them. P seeks a change of residence and relocation of the children to Sweden to live with him as he says that is the only way they can maintain a relationship with him. G has been joined as an intervener to these fact-finding proceedings. They both appear in person before this court and have chosen to remain unrepresented. The children are represented by counsel (Ms Sweeney); as is C (by Ms Kansal).

Background and history

5. The applicant C (aged 37) is English and met P (aged 42) when they were both travelling in New Zealand in 2002. They returned to Europe and lived together in Sweden where they married in 2004. The children were born in Sweden, S in 2004 and N at the end of 2005. The marriage was short-lived and by the end of 2006 their relationship had ended. In 2007 C unsuccessfully claimed for damages for assault by P in the Swedish courts; P was to tell the family court reporters in Sweden that as a result he was fearful of being alone with C because she might repeat her accusations against him.
6. At the end 2007 there was an order for shared residence and care of the children in the former family home made by the Swedish court. Both parents were seeking a court order that the children live with them; P in Sweden, C in England. An investigation was carried out by the child welfare authorities who reported to the court, recommending custody be granted to P. This report was prepared almost ten years ago and no longer has direct relevance to the matters that I am asked to consider and decide in 2017. Nonetheless it was a thorough report and their conclusion as to the poor relationship between the parents; "Communication between the parents in the current situation is virtually non-existent, which affects [S] and [N] in a negative way" is an accurate reflection of a situation that has persisted until the present day. S's learning disabilities were already apparent and it seems there was a provisional diagnosis of Asperger's syndrome.
7. In November 2007 divorce was granted and the Swedish Court (by a majority decision) awarded custody to the children's mother with substantial visiting rights to their father. C was granted permission to move to England with the children and they have lived here since, albeit visiting their father in Sweden regularly. P unsuccessfully appealed this decision. Under the terms of the order C was to pay for the children's travel to and from Sweden and P was to cover the costs of his travel, accompanying them. In October 2008 C stopped paying the children's travelling costs. In December 2008 C contacted a domestic violence service in England complaining of harassment by P. In 2009 she stopped contact taking place altogether, a state of affairs that continued until March 2010 when an order was made by Mrs Justice Parker in much the same terms as those of the Swedish Court.
8. The order of Mrs Justice Parker was made as a result of P bringing proceedings to register and enforce the Swedish order in England. The children's contact with their father resumed. In May 2010 P stopped paying maintenance for the children, a decision about which he has never given a satisfactory explanation. In June 2011 S was assessed in respect of his educational need and found to be autistic. It is an accepted fact that S is on the autistic spectrum; he has a statement of Educational Needs prepared in 2012 and reviewed annually since. Since he moved to secondary education he has attended a special needs school. He has a literal approach to life and an especial need to feel safe and secure in his surroundings. N is an intelligent girl who has attained a high level of scholastic achievement; she has managed to get a place in a highly sought after local secondary school which she is due to move to in September 2017. I shall return to the children's individual needs in due course; keeping in mind throughout the welfare checklist as set out in s1 of CA.
9. Although contact continued to take place until August 2016, the relationship and communication between P and C remained very poor, characterised by mutual antagonism at best; at worst, harm is deliberately being caused to these children by a refusal on the part of their parents to reach some level of cordiality to enable reasonable communication with each other. It would be crass to suggest that the children are anything other than detrimentally affected by the poor relationship between their mother in England and their father in Sweden. Sadly, the documents filed in the case reveal persistent and repeated attempts by C to disrupt and/or stop the time the children spend with their father.
10. It would be virtually impossible for these children to fail to pick up on their mother's hostility towards their father and her disapproval of their spending time with him. Whatever findings this court is able to make will not bring the case to an end as it is in the interests of the children that they are able to resume their relationship with their father and their paternal family with whom (on their own accounts) they have spent many happy times in the past. At its height, if the court accepts that S's ABE interview is an accurate version of events, it appears the child was accidently injured by his grandmother when she became angry with him; he does not give any detailed or accurate description of any other incident. S says his father was not in the house and does not say that he complained to his father about the incident. The allegations of bullying made by the children about their father and the parental family are noticeably bare of any detail or description.
11. What will remain of concern, whatever the findings, is their vocal rejection of their father, their Swedish family and their refusal to go to Sweden again. They are, after all, half Swedish and need this side of their heritage to play a beneficial part in their lives, so as to construct both a wholesome and positive self-image and self-esteem.
12. In the meanwhile, the children's English family life had substantially altered and grown in size. C met her present husband WC in 2008 and they began cohabiting in 2010. They married in September 2012. Their son [L] was born in July 2013 and their daughter [J] in June 2016. C is presently on maternity leave and is undecided about returning to work. There is no evidence before this court that there have ever been any concerns about either L or J and there are no concerns about S and N at home in England; where they appear to be well looked after and are settled into school and their own routines. Nonetheless these two children have another part to their family and it is their right to be a part of their Swedish family. It is worthy of note that, that this was another instance of C failing to keep P informed; both when she and the children began cohabiting with WC and later when they married; she should have done so.

The proceedings

13. As alluded to above, these particular applications arose out of the complaints of S following a summer holiday in Sweden in 2016. Some of the history of the proceedings prior to these applications has been set out above. After the order made by Mrs Justice Parker in March 2010, in May, P stopped paying child maintenance. In 2012 C made a further application to vary the contact order saying that there should be no contact at all. She had referred the case to the police regarding unspecified threats from P; which resulted in another MARAC (multi-agency risk assessment conference) in January of that year. No action was taken as a result of the MARAC. The case returned to court and was referred to Cafcass: a report was prepared, and a hearing took place and on 25^th May 2012 Mr Justice Peter Jackson refused C's application to vary the contact order (C was no longer seeking a total cessation of contact). The children had told the Cafcass officer that they enjoyed being in Sweden and missed their "papa". N told the Cafcass officer that, "Mummy is kind of cross at Papa having to see us."
14. In his judgment, the judge found that C's attitude towards contact and the stipulations she made about P's care of the children were "patronising and unnecessary" and rejected her assertions that P put the children at risk. He described as regrettable the fact that C had "quite deliberately" decided on the arrangements for the children's schooling, in particular for S, without consulting their father. This criticism of C's behaviour and the judge's comment that "this must change" have gone unheeded and ignored by C over the past, almost five, years. P was unaware, until he heard it in court, that N had gained a place in a prestigious local secondary school. Despite the fact the court order included an undertaking from C that she inform P in writing of any intention to move the children's schools she failed to do so in respect of N, and as such could be considered to be in contempt of court; more to the point, in terms of C's behaviour, history has repeated itself.
15. The continued attempts to besmirch P's character by C, which were also noted by Mr Justice Peter Jackson in 2012, have also been a repeated aspect of C's conduct. In order to do so, when the case was before the court in May 2012, C had taken pictures of the children's genitalia, to show inadequate hygiene. C claimed that she was told to do this by a social worker, something the judge said that he very much doubted, and there is no evidence that she was ever told to so. In the course of this hearing C claimed that she had stopped the children seeing their father or even talking to him, despite a court order being in place, because she had been told to do so by social workers. This was subsequently denied by the social.
16. Before Mr Justice Peter Jackson, and for the first time, C made extremely grave, and unsubstantiated, claims against P, including that he had raped her while in Sweden. During the hearing, she said he tried to kill her. There was no evidence to support her allegations. His judgment dealt with what were apparently further unsubstantiated claims made by C which lead to her being assessed as at high risk following the MARAC, but, there was no evidence to justify the assessment before the court. The Cafcass analysis carried out by a very experienced officer of the Cafcass High Court Team, John Power, was that C's application should be dismissed and that the children should continue to see their father regularly and frequently. He considered C's allegations to be ill founded and, in essence, malevolent or ill-motivated. The Cafcass officer, sensible of C's apparent over-anxiety, suggested she seek professional help; a suggestion she rejected. Mr Power said that C had done everything in her power to excise P from the children's lives. Mr Justice Peter Jackson considered, at that time, that C was capable of moderating her hostility towards P; sadly, it seems, this has not proved to be the case.
17. In 2012 P was pursuing C for damages for the costs for contact, and the court found in his favour. It ordered P to cover all the costs of contact which were to be set against any payments he may have to make for maintenance. P was seeking an order that the children travel by air unaccompanied. The Cafcass officer and the children's schools expressed concern about this given their ages and S's vulnerability; as did C. The court did not grant P's application for unaccompanied , and it was, given their ages and S's difficulties, more than a little premature. In this P demonstrated a lack of insight of the children's feelings, and an over-pragmatic approach to S's ability to cope with new or potentially difficult situations.
18. The children were to spend time with their father as set out below.

i) During the school term on the last weekend of each calendar month (in England).

ii) During the school holidays, including half-terms, for 4 consecutive weeks from the first day of the summer holidays; for 1 week, each Christmas holiday to alternate Christmas week and New Year; for 1 week, each Easter holiday to alternate Easter; for each half term for 10 consecutive days (all such contact outside the jurisdiction of England and Wales). P was to pay the travel costs of all contact.

iii) Twice-weekly Skype contact each Tuesday and Friday at 18:00 GMT; and telephone contact each Monday, Wednesday and Thursday at 18:00 GMT.

iv) When with their father

19. In addition, there were Prohibited Steps Orders (PSO) that neither parent was to photograph S or N for evidential purposes or to "record" a concern as to the child's welfare. Neither parent was to record any conversations between child and parent; or the child and any other person. C was prohibited from causing either child to be assessed, physically, medically or for the purposes of education without written notification to P in advance. It would seem, as can be seen below, that C has not adhered to this PSO.
20. In December 2013 C said that N was complaining of sexual behaviour from girls who were visiting her at her father's house to play. C referred this to the police in February 2014; she went further and said that P was involved. The investigations of the Swedish police found no basis for these allegations (as set out in the judgement of Her Honour Judge Newton in June 2015). C said that N had repeated these complaints to her in August 2014; P says that he dealt with matter by speaking to the children's parents. In any case the matter was not taken any further by the police, and it is not been repeated by N during the recent investigations.
21. On 22^nd May 2015, there was an incident at Manchester Airport involving the police and at the outset of a ten-day contact visit that ended up not taking place. On 10^th June 2015, C wrote to the court and said that she would not facilitate further contact. P issued an application for enforcement on 18^th June 2015. The case came before Her Honour Judge Newton on 26^th June 2015; she gave her judgement on 29^th June 2015. The judge found C to be a "wholly unconvincing" witness and found that she did "not value the contribution of P to the lives of the children and would much prefer to get on with her life with her new husband and baby without the intrusion of contact arrangements." The judge was astonished (as was I, as on P's evidence this has continued) to learn that the children were sent to contact in the clothes they stand up in with nothing else with them, not even a toothbrush or a book, or a toy. Her Honour Judge Newton did not accept C's "florid" evidence of the children complaining that they did not want to see their father. The judge said, presciently, if the children did express such views the most probable explanation is their understanding of her hostility to the father and their desire to please her as their primary care-giver.
22. The judgment sets out the incident at the airport in May 2015 and rejected C's explanations. Her Honour Judge Newton found that C arrived at the airport far too late for a comfortable handover to P and had contrived a scene when the children, unsurprising, became upset, and their father, who was anxious he would miss their flight, grabbed at N to try to get on the plane. C tried to proffer this court a different explanation from that which she had given the judge in June 2015, namely that it was the Bank Holiday traffic that held them up. To this court, in her written evidence, and to the social workers investigating S's complaints in 2016, she repeated her story that a Police Protection Order (PPO) was issued despite the fact, as the judge had made clear in 2015, no such order was issued. The judge found that the circumstances which had led to the police involvement at the airport were "instigated" by C. I remind myself that C is the children's mother and to deliberately put them in such an unpleasant situation so that contact could not take place, was antipathetic to their welfare.
23. Moreover, her insistence (before the court in June 2015) that the PPO had lasted the entirety of their aborted holiday, and to try to utilise it as a reason why the children's holiday with their father could not go ahead, meant they could not go with him was a deliberate lie as a PPO lasts 72 hours (see s 46 (6) CA 1989) another attempt to misreport what was told to her by the police and use the actions of persons in authority to justify her own actions. As I have said, C repeated this in her statement to this court dated 13^th December 2016. This conduct of C, when she had attempted to seek professional "support" to justify breaches of the contact order, is something she has repeated in these proceedings, when she has sought to rely on the fictitious advice of a social worker as a justification for suspending all contact in the face of the order from August 2016 until she finally made an application in December 2016. Again, in June 2015, C was urged to seek professional help to deal with her inability to cope with the children's contact with their father.
24. On 29^th December 2015, whilst on holiday in Sweden, S injured his elbow sledging. The circumstances which arose in respect of this injury (which was not serious and had no lasting effect on S) on S's return to England, are instructive and illustrative of C's reaction to an accidental injury received by S whilst with his father. The day after his return to England, on 4^th January 2016, C took him to the local hospital. He was examined and the diagnosis was of a possible distal humeral fracture. He was found to have no bruising, some soft tissue swelling and moderate tenderness on palpation, with some limited restriction on his ability to fully flex or extend the limb. S was discharged with a collar and cuff, simple analgesic and referred to the fracture clinic, where no fracture was found or diagnosed. Despite this both C and WC continued to say in their evidence to this court that S had had a fractured elbow; indeed, WC described it as such in the statement he prepared and signed during the currency of this trial. Of great concern to this court is the fact that S now believes that he suffered a fracture and that his father failed to get him the medical assistance he should have done. The medical evidence and opinion does not support this finding; nonetheless this is what S believes and it is what he told the police in his ABE interview which took place on 30^th November 2016.
25. In April 2016 C complained to the police alleging (according to the police record CRS filed with this court) that P had been in her house while she was away for the weekend and that he had been sitting outside watching. When the police followed up her complaints, C then said that P could not have been in the house as he did not have keys. The log and incident was closed as it was presumed P had returned to Sweden. The police records have several references to "unspecified threats" made by P in respect of the children and herself. None have ever been specified and the allegation remains unsubstantiated.
26. In June 2016 C and WC's younger child was born. The children (S and N) went to Sweden for 4 weeks in July 2016 and returned on Friday 19^th August. They were met at the airport by C and WC at about seven in the evening and driven home. According to S, in his ABE interview, he told his mother in the car at the airport when they got back that his paternal grandmother had hurt him. According to Dr Mahmood, who saw him on 22^nd August 2016, C told him that S had been asked by his step-father about the bruises and he had said it was the paternal grandmother that had caused it by holding him too tight and pulling him. C gave no description of how the complaints about the bruises she had seen on Friday evening did not come to light until Sunday evening in her written evidence. This evidenced, filed by C in support of her case, was notable not only for failing to deal with S's complaints to her in any detail, but also for once more seeking to implicate professionals in her decision not to return the matter to court as soon as she had decided to suspend the children's contact, as she said she had been "advised" to cease all contact.
27. There was then a total absence of any communication between C and P; she did not inform him of what was going on or tell him that she had reported allegations to the police and social services. The social worker charged with carrying out a s47 (CA 1989) investigation, Ms Blackham, tried to contact P but failed to do so because of international barring on the local authority's communication systems. She has since apologised to P. The children were not made available for Skype contact, in breach of the court order and C did not make any application to the court to suspend contact. P had to contact S's school in September 2016 to find out if the children were alright. The school sent an email which made no reference to the allegations; indeed, P was given the impression S had enjoyed his holiday.
28. In October 2016, the children were supposed to be joining their father for half term holidays. P made an application to the court to enforce the orders and the matter was listed on 26^th October 2016 before Her Honour Judge Newton. C did not attend. At court P and the Cafcass officer then allocated to the case, Peter Curran, attended court (C has since made a complaint about Mr Curran) and were present when the judge made orders for contact to take place over half term in the Canaries to celebrate G's 70^th birthday. P gave undertakings to be present when the children were with their grandmother. The case was listed before Her Honour Judge Newton on 13^th December 2016.
29. Meanwhile the investigations by the police and social services took place. The children were seen at home by Ms Blackham and the interviewing officer from the police; S was not interviewed at that time. The ABE interview took place on 30^th November 2016, three and a half months after S had returned from Sweden. During this period S was in the sole care and control of his mother and had no contact with his father at all. C complained to the Independent Office of Judicial Complaints and informed the court, by email, that she was seeking transfer of the case to another judge, away from Her Honour Judge Newton. On 1^st December 2016, the court made an order of its own motion recording the above and various other emails from the parents. C did not make the children available for monthly contact in England (G would not have been present and it would have taken place at the maternal grandfather's home) and had not facilitated any Skype contact. The case was to be listed before Mr Justice McDonald on 19^th and 20^th December 2016.
30. By an application dated 7^th December 2016, C, finally, applied to the court to discharge or vary the order of Mr Justice Peter Jackson. The application contained an assertion that social services had "concluded all contact with [P] and his extended family in Sweden should cease immediately for the physical, emotional and psychological well-being of the children." This is a substantial exaggeration of the position of the local authority as presented to this court.
31. The case came before Mr Justice McDonald who had Ms Blackham and DC Holton-Pinder (the interviewing officer at court); he did not have an opportunity to hear evidence and there was insufficient court time to hear all the necessary evidence in the case which had not been prepared for a trial of the issues. There was a case management order, dated 19^th December 2016, made which provided for the evidence to be filed and for the attendance of the relevant parties at court. The case was listed before me, sitting in Liverpool.

Evidence

32. In addition to the written evidence filed in these applications, which I have read, I have heard the oral evidence of P and C; as well as that of the author of the s7 report (as ordered by Mr Justice McDonald on 19^th December 2016) the social worker, Ms Clark, Ms Blackham, who prepared a s 47 report, the children's paternal grandmother G and the evidence of S from a DVD of his ABE interview with the police which took place in November 2016. I have heard the expert evidence of Dr Mahmood, consultant paediatrician.
33. S's ABE interview. It is C's case that S told her that he had been injured by his paternal grandmother when he returned from a 4-week holiday with his father in Sweden on Friday 19^th August 2016. S was taken by his mother to see the GP on the following Monday. S was interviewed by DC 2999 Holton-Pinder at Preston on 30^th November 2016. By then S had been seen by a social worker (Ms Blackham) and by the police officer in a jointly at home, and he had spoken to another social worker (Ms Clark) on at least three occasions. S was clearly upset and distressed at times during his interview; he also displays anger which is apparently directed towards his paternal grandmother and father.
34. S told the police that his dad was out and that his grandma was looking after him and his sister; his grandma swung him round into the bathroom to clean his teeth. He said he wants her to go to prison because she does it a lot when he is there. He doesn't want to go to Sweden because they don't look after him when he is there. He said his dad was out at a party down the street and his grandma was looking after him. She had used a mean, nasty, angry voice and swung him round. S physically demonstrated what he said happened on the police officer; when he did so he was upset, breathing heavily. During the interview, which took thirty minutes, S told the police officer that no-one else had seen what happened although his sister (N) and grandfather were in the house. He was clear that it had happened when his dad was out of the house at a party.
35. S told the police officer that he had told no-one at the time and had told his mum when "was in the car going out of the airport with …in England, with my mum and my dad, my brother and my sister and my baby sister, it was there yeah." He said that his grandma had done this "loads of times, when I go over, like, 30 times she's done it". He told the police that she had grabbed him and "swung me like a semi-circle".
36. S went on to say that his left arm had been "broken, fractured it" and that they "had not gone to the hospital to it, they just gave me a heat pack, it didn't help". He complained that they "don't give us any fruit or veg at dinner time." This is an unusually health-conscious complaint from a young teenager and, it must be said, sounded more like a repeated complaint of an adult than a heartfelt complaint of a child. He repeated, when asked, that his bone had been fractured. S displayed both upset and anger during his interview; he said did not want his father punished but wanted his grandmother to go to prison. Given that his mother is so readily receptive to complaints about the paternal family it is most unlikely that if his grandmother had hurt him often before, as he claimed in his interview, that S would have felt unable to tell his mother it was happening, so that it is unlikely that he had had any cause for complaint in the past.
37. Although S repeated the allegation of being grabbed at the top of his arm and swung around in a semi-circle more than once, he added little by way of detail regarding this alleged assault, other than that which is set out above. He described where it took place saying it had occurred outside his bed-room; on what I take to be the upstairs landing of the house. He said it had hurt and he had said so "ten times". He said he had wanted to get a glass of milk and his grandmother had stopped him and told him to brush his teeth.
38. There is be more than one possible reason for S's undoubted anger and distress; he could be angry and distressed with his grandmother because she had hurt him. He could be angry and distressed because he has felt that he had been obliged to give a version of events which he knew not to be truthful, or wholly truthful. He could be distressed and angry because he has been placed in an impossible situation and has been forced to take sides. This court is aware that it is clear is that S believes that he suffered a fracture to his left arm after Christmas 2015; and that he was denied medical attention; in fact, this is simply not true but it is a repetition of an allegation made by his mother. I can only conclude that S now believes his mother's story it to be the case as it is what he told the police officer in interview. C has repeatedly exaggerated the elbow injury and, in another deliberate attempt to call in to question P's parenting of the children, has suggested, time and again, that S was denied appropriate care. The medical evidence before this court does not support her case; unfortunately, she has repeated it so often that S has now come to believe it himself. To this complaint he has added that at the time (December 2015) his grandma had manipulated his arm and hurt him; this was something that he had not complained of before, certainly not at the time. Had he done so I have little doubt it would have been used by his mother as a complaint against the paternal family in January 2016.
39. S's evidence, in interview, was that he told his mother that he had been injured by his grandmother driving from the airport. In this C says S must be mistaken (or presumably not telling the truth) because he did not tell her but WC, and that was not until Sunday evening. C told me that S often mixes up days and times, but that he seldom mixes up places or where things happened and I accept her evidence. If this is the case, then S clearly told the police that his grandma had grabbed his arm at his dad's house when his dad was a party down the street. It is the evidence of P and G that this could only have been on 6^th August 2016. The unchallenged medical evidence of Dr Mahmood is that it is highly unlikely that the bruises would have had the appearance they did when they were seen on 22^nd August 2016 if the incident which caused them had occurred over two weeks previously; namely on the 6^th August 2016. In his S made some other generalised complaints about bad treatment and bullying by his father none of which he particularised; he said his dad bullied N and his grandma bullied him but did not give any details at all of what form this bullying might have taken.
40. N's complaints. N has said that she does not want to go back to Sweden or to see her father or paternal family. She says she is bullied but was apparently unable to give any details and, when pressed by the social worker, Ms Clark, just became upset. It is reported that she is unable to say anything positive about Sweden and her Swedish family, at all. This wholly negative stance which N has now taken is of great concern to the court and to her guardian. I am unable, and am not asked, to make any finding in respect of N's complaints.
41. P's evidence. P gave evidence on the 2^nd day of this hearing. He told me he had reread the evidence which he had filed, and produced some additional evidence to refute C's case that the children did not like visiting Sweden, were not happy there and did not love their Swedish family. He produced the records of Skype messaging which, he said contradicted C's claims that the children did contact when they were in England and had proper, uninterrupted Skype contact and that showed that when did contact their mother whilst in Sweden he allowed them to speak to their mother for a good length of time. He produced pictures of the children in Sweden which he had taken for them, and which he said were evidence that they were happy there and enjoyed their time with their Swedish family and friends. While they were simply snap-shots of a split-second of time, they were, as their guardian observed, lovely pictures of the children seemingly enjoying themselves very much when on holiday with their family in Sweden.
42. P has shown real commitment to spending time with the children and maintaining a relationship with them over the years and has kept up a high level of contact in difficult circumstances and in the teeth of considerable opposition, and, indeed, antagonism from his ex-wife. He has been described as brusque in the past; certainly, he is much more down-to-earth and no-nonsense than C in his approach to parenting. His previous insistence that the children should fly unaccompanied did not, in the view of this court, meet with S's needs and could not work where parents are so adrift in their approaches. Nonetheless the court was left with the impression of a devoted parent and loving father, whose attitude to parenting offered the children an opportunity to run more freely and to experience the physicality of play to the full.
43. P's application for the children to be moved to live with him in Sweden, in the face of their very vocal opposition, at first seemed unrealistic and insensitive to the children's wishes and feelings; but in his oral evidence, particularly in response to questions from Ms Sweeney, counsel for the children, it was clear that he was very well aware of the professional support that would have to be given to the children before, during and after such a move. It was his case that the only way that the children could have a relationship with both their parents was if they lived with him.
44. Much of P's evidence about the children and what he says they had told him which emerged during his oral evidence was absent from his statements. Allowing for the fact that P was not legally represented, this is unsurprising. P told the court that he believed his mother when she told him that she had not hurt S; whilst this is also unsurprising he gave the impression of having sought an explanation and it is clear that he did confront her about it; he did not reach a forgone conclusion. P described the children's Skype contact taking place when they were with their mother in England and when they were with him in Sweden. In Sweden, he told me they "Skyped" from upstairs in his house and that he left them to it as he believed that the children should have privacy when talking to their mother. He said he had explained this to them, and that it was in contrast to when they Skyped him from England when C (and the other children) were invariably present, their conversations were interrupted and curtailed, something else would be happening or they had to have their meal. I accept his evidence about the Skype contact. I do so in part because it is a fact C has complained about P's parenting for years and it is more likely than not that she would not trust him when he spoke to the children and would remain in the room, or look for reasons to cut the conversation short.
45. P described S after a Skype session when he had been speaking to his mother whilst in Sweden when S had come downstairs very distressed and upset. S had given the Scout's salute (S is a keen Scout) and said words to the effect, "I swear, Papa, that when I am old enough I will leave and come to live with you in Sweden for ever…" I accept P's evidence about this incident. P described to me, as he had before to Her Honour Judge Newton, that the children are sent with nothing more than the clothes they stand up in; this evidence was supported in her evidence by his mother G. G described the children's travelling clothes as being called "mother clothes", they were not to be cleaned and were kept separately for the children to return to England. I accept the evidence of P and G as what they told me is in keeping with C's attitude to the children being with their father. She is entirely unsupportive and extremely unenthusiastic about this contact (as can be seen from the history set out above); it is more likely than not that she has failed to provide the children with their favourite clothing and comforting toys or objects in her overwhelming desire to undermine contact.
46. P told the court that after S hurt his elbow sledging on 29^th December 2015, he treated it at home and had monitored the boy to see how badly he had been hurt. P described S as showing little effect from the injury and said S had continued to play and use the arm. S had gone back outside shortly afterwards and taken part in a snowball fight; squeezing snow into balls and throwing them. Two days later, on New Year's Eve, S was climbing on a climbing-wall using both arms to no ill effect and without any apparent pain. P told me he had been trained in first aid and had (correctly) assessed that the arm was not broken. I accept P's evidence that S had been able to use his arm and did so while he continued to play energetically and to enjoy himself; as P said to the court, children who play get bruised.
47. I accept his evidence for when S was examined in England it was clear from the medical notes that he had only moderate pain when pressure was applied. S obviously told C about his elbow as soon as he got back to England, for he was taken to the hospital for medical attention the next day. There is nothing to indicate that he was in pain or complaining of pain from the medical evidence filed. It is telling that C's reaction was not to reassure S and support what his father had done, but, instead she chose to treat the boy as if he had suffered a much more serious injury than the one he had, in fact, sustained. The emotional and psychological import of her reaction remains to be properly assessed.
48. P case was that he was certain that S had not suffered the bruising in August 2016 whilst in his care, as he had seen him without a shirt or t-shirt the night before (S sleeps in his underwear when in Sweden), and that the injury had been caused after his return to England at home with his mother. He said that they had not seen so much of G as they usually did because her husband (the paternal grandfather) had been seriously hurt and unwell and she had not stayed with them or they with her because of this. P said was sure the only night G could have been there as described by S in his ABE interview was on 6^th August when he (P) had gone to a neighbour's birthday party.
49. P described some of what they had done during the children's visit; this included the last day of the holiday, when they went to see his sister to celebrate her birthday. They had also gone to a water park in Uppsala where the children went swimming and there were various other activities. P was asked questions by the children's counsel about his application for the children to come and live with him. He said that he would "definitely need help here and in Sweden …need professional help. The children are in such a difficult place…" He repeated that they would need professional help. If there was a decision that the children should not have contact with his mother; he would abide by any decision of the court. P said that he and his mother were two separate people who live separately and should be treated separately. He did not believe that there should be no contact in the long term with G "but short term definitely."
50. P said that he believed his mother and that she had not hurt S. He told me he had not seen any bruises on S arm before he returned to England on 19^th August and that he believed it had happened in England. He said that S was lying when he said that his grandmother had hurt him. P said that it was easier for S to say it had happened when he was with his father, "It is hard for him…it is easier to say because he doesn't live with me. He (S) tells me that if he does not start by saying [to his mother] 'I don't want to stay with you, I will be punished.'"
51. It is clear from the evidence of C that P has not been included in many of the decisions that C has made about the children. This was an issue when the case was before Mr Justice Peter Jackson who told C she must keep P informed (as can be seen from the court order). P told me that he did not know N had been put forward for and passed the necessary test for at the school she has a place to attend in September 2017. I accept his evidence which, in any case, C did not refute or challenge. P described to me how, by chance, he was able to attend S's school and see him get a diploma at the end of the summer term. P was visibly pleased and proud when he gave his evidence, saying "It was great [S] got a diploma – it was great to be there – [S] saw me! The teacher and the head-teacher told me to wait and invited me into the school and asked me for cake in the staff-room… They told me not to give up and to keep seeing S." I accept his evidence and that the school and S's teachers were aware that he had had difficulties in being involved in his son's life.
52. P told me that both S and N have friends in Sweden; N had three girl friends in particular and that she had been happy with them and that they had sleep-overs at each other's houses. S had two particular friends who lived nearby, although one had moved away with his mother in the past year. P said that S had always said to him that P was half-Swedish and half-English. S loves his grandfather, who had been a chef; S loves cooking with him and his grandfather was trying to teach S family recipes. N loves her aunt and tries to "…steal the attention of my sister, she is very close to her." Overall, P impressed me as a witness; he was calm and polite, thoughtful yet firm. There can be no doubt he cares deeply for his children and his descriptions of them both and their relationships with members of his family were vivid and heart-felt. I accept his evidence about the children enjoying their holidays with him in Sweden; they are in keeping with what they have said to the Cafcass officer in the past. I accept that the two children loved their Swedish family and were happy staying with them.
53. Dr Mahmood's evidence. Dr Mahmood's evidence was entirely straightforward and matter of fact. He said that he had taken the history from C which was given in the presence of all four children. The history given by C, as noted by the doctor included the repetition of allegations of domestic and sexual abuse of N, and that S had fractured his arm and that the paternal family had not taken him for any medical treatment. He was asked, by counsel for the mother if she had, filled out a form and not told him the history verbally, but the doctor said that C had not been required to fill out a form; that it was not his practice and that she had told him the history when the children were present. Dr Mahmood's evidence was that the bruising he saw was likely to have occurred within in the past two or three days, at most, but he was punctilious in pointing out that bruising is not possible to date accurately. He could say that it was very unlikely to have occurred as long before as the 6^th August 2016. His written note was that the marks and bruising were consistent with the story S had given and was non-accidental in origin.
54. Dr Mahmood was asked about the injury to the elbow. He brought a letter to court from the fracture clinic confirming that there was no fracture. Dr Mahmood did not criticise the way that P had dealt with the elbow, by applying a compress and monitoring the child. He considered it to be appropriate and within the range of reasonable responses from a carer. There is no independent medical or other professional evidence to support C's case that P neglected to get S proper or adequate medical care. The court is concerned that, far from being relieved that the child did not suffer a fracture, both C and WC have persisted in describing the relatively minor injury that S had in January 2016 as a fracture. No regard was given, by C or WC, what the effects on S may have been from the way they have chosen to deal with a minor injury which happened when he was sledging on holiday with his Papa; at the very least it will have gone some way to undermine his trust in his father.
55. As to Dr Mahmood's opinion evidence in respect of the causation of the bruising; it is just that, opinion evidence, and was based only on the history given to him by C and his mother. He was not given any alternative explanation nor was any other scenario or potential cause for the bruises ever put to him. As such his opinion evidence forms only part of the entirety of the evidence before this court and must be put in the context of the evidence as a whole.
56. Evidence of the social workers. Ms Clark and Ms Blackham both gave oral evidence in respect of the reports that they had prepared. Their evidence in respect of the facts was limited as they did not witness the circumstances in which S sustained the bruising in August 2016. In keeping with good social work practice both approached what the children had said subjectively, as if they were telling the truth. Not only must the court take an objective approach it must do what the social workers both told me that they had also done, which is to keep in mind that the background to the case is one where there has been longstanding conflict over contact about which the children are, to quote Ms Clark, "acutely aware".
57. In her report Ms Clark said that she considered there were two hypotheses, that the children are at risk in their father's care or that they are "being influenced by a third party and that contact is being purposefully obstructed." She reasoned that whatever the outcome of this trial it is likely that the children are being subject to experiences that she considered to be detrimental to their well-being both in the short and long-term. It was her professional opinion that P was not a significant risk to either S or N. In relation to the second possibility Ms Clark observed that C had "clear views in respect of the children and associated issues with contact. It is made clear through [her] own assertions and behaviour that she does not support contact with [P]". C's statements that she had promoted contact were "questionable given her attitude to such matters…" and that it was notable that because of the timing of the assessment and the fact that contact was not permitted, observations of C's efforts in promoting contact would be limited and based on her reported examples. Ms Clark observed that C had gone to some effort to "seek advice and share her concerns around the risks associated with contact with P and in respect of stopping contact." It was her view that "…it is considered that [C's] concerns are without justification."
58. Ms Clarks observations echo those made in this judgment; in her efforts to stop contact she has repeatedly attempted to recruit professionals and child-protection agencies to support her case by purporting to report what C says the children's views. As Ms Clark said whilst C says she is representing the children's views her efforts "are reinforcing negative feelings about contact for the children and thus generating doubt and confusion that is in fact influencing the children's wishes and feelings in regard to contact." Ms Clark said that if the court found C's concerns were unjustified then targeted work with her would need to be considered.
59. It was difficult, if not almost impossible, for the social workers to work with the children or explore their views, wishes and feelings given the level of distress they exhibited when the subject of contact was broached. As Ms Clark put it "work around wishes and feelings had been difficult as the children present [as] distressed and this prevent[ed] detailed work and exploration of the issues being completed." Ms Clark concluded that there was "sufficient evidence to state beyond reasonable doubt that there has been some influence which is reflected within the children's views, wishes and feelings."
60. Neither Ms Clark nor Ms Blackham, when questioned, supported C's case that they had advised or told her that she should stop all contact and that she should do so as a proper exercise of her parental responsibility. This is not in their respective reports and they denied telling her so; they both said that C was advised to take legal advice and return the matter to court. As Ms Blackham said the local authority and the agency which she worked for were well aware that there was an order of the High Court in place in respect of contact; and, although she supported a suspension of contact when she was herself at court in December 2016, I accept her evidence that she had not advised C to stop contact unilaterally.
61. Ms Clark did not give evidence to the effect that either N, or more significantly S had been "coached" or rehearsed in what they told the police and other professionals; rather, as she was at pains to point out in her report, she was of the opinion that they had been influenced in their views. The marked distress (they have been crying and upset) observed in these children when the topic of contact and visiting Sweden is broached is of considerable concern to those that have attempted to work with them. Ms Clark utilised the Cafcass parental conflict tool to assess the children and based her conclusion that the children had been influenced by a third party on the outcome of her assessment. It is obvious that the children have been offered nothing in the way of support or reassurance at home with their mother when it comes to contact with their father; on the contrary N has been aware, since she was a small child, that her mother does not like her seeing her father. I can only conclude that the third party in question is their mother.
62. Ms Blackham prepared a s47 report (dated 12^th September 2016) and a Children and Family Assessment (CAFA) also in September. Both S and N became upset and cried when asked about contact. They both said that they do not want to go there. S said he was scared of his paternal family, his father and his grandmother, mostly his grandmother. He was very upset, crying and had to be reassured. As with Ms Clark, Ms Blackham was careful to record, and was aware, that the background to the case was also of one that had "been heard in court over a prolonged period, and that decisions had been made …that the children were to have contact with their father, including weeks at a time in Sweden…"
63. N was crying and said that she did not want to go to Sweden as her father "bullies" her; when asked how she became more upset and was unable to give any further details. She said that she was scared and does not want to go to Sweden again. When asked, she said her father was "not nice" and became more upset. She said that he only talked about himself and bribed them saying they would not get "DS" if they did not Skype him. That was the apogee of her complaints. She made no reference to anything else, but did say that P was not there when it is alleged S was grabbed by her grandmother. In this N was, I find, quite careful to make clear her father was not involved in the incident. The difficulties that the social worker had in engaging the children would have been considerably exacerbated by them being seen at home with their mother in the house, if not present for some of the time in the same room. This is not a neutral setting and would not have assisted in helping the children to speak to anyone independently.
64. The distress and fear was seen to be genuine by the social worker. If there is no basis for it; and there is no evidence that N has been bullied at all as even she cannot give any example of bullying; then either they genuinely believe themselves scared or they are putting it on. If their mother has manipulated, allowed or encouraged them to feel scared and fearful of their father it is an act of real cruelty and emotionally abusive. Their seemingly total rejection of Sweden and their Swedish heritage is something they have both expressed and there is no evidence or indication that C (and by extension WC) have made any attempt to instil or encourage pride in them of that half of their identities. This may cause longer-term psychological harm and is also emotionally abusive.
65. C's evidence. The children's mother gave evidence on the 29^th March 2017. Although she was now represented by counsel she had previously been acting in person and her statements had been prepared without legal advice and assistance. I asked her about her husband and her family as she had not dealt with that in her written evidence; I have set out some of what she told me above. Additionally, missing from her evidence was any detail about how and when the allegations concerning S's bruises came to light. S arrived back in the UK at about seven o'clock in the evening on the 19^th August 2016, yet over two days were to go by before he was taken to the doctor or for medical attention. Going by her previous reaction to S's slightly swollen elbow in January 2016 it is remarkable that no action was taken by C on Saturday morning, if she had, as she said the bruises had been seen on Friday evening. I reject her evidence of an insouciant approach to any such injury seen on S when he returned from staying with his father; on the contrary her previous reaction when S had hurt his elbow was to take him for medical attention the next morning.
66. C's written evidence consists mainly of a diatribe of repeated complaints about P's conduct, most of which are no longer at issue before this court; even if they were, she would be incapable of proving them as there is no evidence to support her many allegations. I have already made references to C's repeated allegation that S's elbow was fractured. Dr Mahmood brought a letter from the Orthopaedic Directorate to S's GP to court dated 18^th January 2016 from a clinic held on the 12^th, written by Dr Lixenfeld. It said that the x-rays taken showed "elevated fat pad sign without any obvious bony injury." It goes on "clinically there is already a very good range of left elbow movements with forward flexion but slight reduction in extension with very little discomfort or tenderness." (My emphasis.) S had been wearing a collar and was told to wean off it and refrain from sport for 3 weeks. From the outset, it should have been plain to this mother that her child had suffered a pretty minor injury. There is no evidence, whatsoever, that she was ever told either that it was a fracture or that it was serious, yet she has encouraged and allowed S and N to believe that not only was S's arm broken but that their father did not look after him properly and that S should have gone to hospital.
67. It is notable that the "fracture" to the left elbow was not a finding sought on C's behalf in the closing submissions of her counsel. The continued allegation that P did not seek appropriate medical assistance was not supported by the evidence of Dr Mahmood who, as I have said, carefully explained to the court that carers or parents could have dealt with the minor injury to S's elbow either by rendering first aid and monitoring the injury at home or by taking the child to hospital. As the guardian pointed out in her evidence, carers may well decide not to take a child to A & E if it is not apparently necessary as it would avoid a likely long, stressful wait in a hospital. The fact that there was little to be seen (there was no bruising only minor soft tissue swelling) and that S had almost unrestricted movement in his left arm raises questions not only about the wisdom and necessity of taking him to be treated, but also the motivation behind C's decision to do so. The message she gave S was clear and he, equally clearly, picked it up. Moreover, it is evidence of her likely reaction to any injury sustained by S which is visible on his return from Sweden.
68. To explain the delay of over two days in taking S for treatment for his bruises C gave oral evidence which had not been in either of her two statements; and, unlike P, she was represented. C said that the extent of the bruising was not seen by either her husband or herself until Sunday evening when S and WC had been playing a game involving sitting in each other's chairs. WC had then seen the bruises and pressed S for an explanation, whereupon S broke down and said it was his grandmother who had caused it. Both C and WC gave very similar evidence about the circumstances in which they say they found out that S bruises had been caused by G. The fact is that this important evidence only emerged during this hearing.
69. In their evidence both C and WC said that they not only did they not see the full extent of the bruises Sunday evening; they had not asked S about the bruising. They both said that they had approached the cause of the bruises in a relaxed manner as, they both suggested, "accidents will happen" and that S did not like to be asked lots of questions. It is likely, and I accept, that S does not being liked questioned, but it is very unlikely, given the history of this case, that he was not asked repeatedly asked questions about how he came to have a bruised arm on his return from holiday. If the bruising had become more extensive or visible over the weekend that suggests that either it had occurred just before S left Sweden (perhaps when he was swimming or playing in Uppsala the day before he left Sweden) or that it had occurred shortly after he arrived back in England on the Friday. If S's mother had seen any bruising on the Friday evening I do not accept that she would have left it at that; she would have kept asking S questions until he responded with an explanation she found acceptable. It is more than likely that she would have framed her questions in such a way as to suggest that P and/or his family were at fault.
70. C's oral evidence in respect of her reaction to S's bruising was not simply not credible. Her antipathy towards P throughout was palpable; I found her evidence in respect of the children's contact with their father to be particularly telling; she was utterly unable to give one instance of when she had been happy for S and N to have contact with their father. During her oral evidence, she at first denied having stopped contact previously (in 2009/10) and only accepted that she had done so when reminded by counsel for the children. C was at times almost petulant when being asked questions and she was frequently evasive and dissembling; even when she spoke about the children her evidence lacked the spontaneity and warmth of P. That may well have been because she found giving evidence difficult but it was of concern to the court that she appeared to be so single minded that she was not able to put the children to the forefront of her mind.
71. When she was asked about the letters that the children had written to the judge (they were presented at court to Mr Justice McDonald) she said she did not know how they had thought of doing so. C said she had been upstairs and that they had just done it by themselves. I find this hard to accept; not only is S unable to write a letter (his was written by N) it is highly unlikely that he would have thought of doing any such thing on his own. This would mean that N had thought of and arranged it all. I do not accept that she did so; it was much more likely that their mother orchestrated the letter writing and then presented it to the court as something that had occurred to the children of their own volition. The contents of the letters are not childlike. This manipulation of her children is a further example of C's inability to consider the children's welfare before her own need to control events and eliminate their father from their lives. She is teaching the children to fear their father and to lie about their feelings for them. I found C's evidence as to the circumstances in which S came to tell WC, and then her, that he had been injured by his grandmother in Sweden is neither reliable or credible.
72. WC's evidence. Very late in these proceedings WC produced a statement in support of his wife's case. An application was made by counsel, on instruction, on the 4^th morning of this trial for a statement to be filed and for WC to give oral evidence. The statement was produced overnight by WC, brought to court on the morning of 30^th March 2017 and given to counsel who did not, she told the court, draft it, nor was she involved in its drafting. It was prepared after the oral evidence of P, G and C as well as that of Dr Mahmood and the social worker Ms Clarke had been given to the court. I considered it necessary and appropriate to warn C that the manner in which this evidence came to be filed was likely to affect the weight that could be given to WC's evidence produced at this late stage of the proceedings.
73. WC has been at court throughout to support C, and no issue can or is to be taken with his presence. Nonetheless, it is not credible to suggest, as he did in his oral evidence, that they did not discuss the case, the evidence that had been given and the progress of the proceedings in court, at court, on their journey to and from their home each day, and at home each evening and night in the privacy of their room. In essence, WC was called to corroborate C's oral evidence, evidence which she had omitted from her written statements, about how and when S came to tell C and WC that his grandmother caused his bruises to his upper arm. I can accept that WC did not see the bruise on S's arm while he was driving the car on Friday on the way back from the airport. I cannot accept that nothing was said or done about it then, still less that they did not discuss it that evening and did not ask S about how the bruising had come about when they arrived at home, or at all the next day (Saturday).
74. As counsel for the children observed in her closing submissions "it beggars belief" that C and WC did not discuss the evidence the mother had just given to the court that night after court when WC's evidence was prepared. C and WC say that S, who finds it easier to do so, physically demonstrated what had happened with his grandmother; if his mother was present, as she now choses to tell this court, why did she not tell any professional as soon as she was able that she was present when S "acted out" what had happened to him, or give evidence to that effect, or put it in her statement? It can only be for the simple reason that he did not do so at the time that it is claimed he did, namely on the evening of Sunday 21^st August 2016. It is more likely than not that C and WC collaborated on his statement to this court and in all the circumstances I can give his evidence little weight.
75. The court has been asked by counsel for the children's guardian to consider whether there was "a concerted effort on the part of C and WC to put a scenario in the mind of the child which was not there before." I return to the evidence concerning S's elbow injury. The decision both C and WC took to deal with the minor injury to S's elbow in the way that they did; and their constant repetition of the fiction that his elbow was fractured and that he had been denied adequate medical assistance calls into question their ability to put S's interests first. Moreover, it gives lie to their assertions that they take a relaxed and easy approach to bruises and minor injuries. The effect that it has had on S is that he now believes himself to have suffered a broken arm, this can be seen in his ABE interview; the evidence before this court is that they have contrived to influence S before when it comes to injury that has been sustained on holiday in Sweden.
76. I have concluded that I am unable to rely on WC's evidence. Furthermore, I find that given the history of this case and as one of the children's care givers in England, the evidence is that WC cannot be relied on to support their contact with P, or to intervene when they children's relationship with P is being undermined by their mother.
77. G's evidence. The paternal grandmother gave her evidence on 28^th March 2017. She told the court that she is now retired but still involved with her previous work as a specialist accountant on a consultative capacity (this has relevance to her evidence regarding the alleged inflicted injury to S in August 2016). In her oral evidence G appeared to be very fond of her grandchildren and of her family. In the summer of 2016, she told me, she saw S and N somewhat less than she had before; they would normally take a trip away and rent a house or cottage for a week during the summer holidays. There were two reasons why she did not spend as much time with the children; the first was that her husband, and the children's grandfather, had been seriously ill after breaking his neck in May 2016, his mobility and memory have been affected. The second was that she was working on the end of a project on the restructuring of local authority taxation and finance for the Swedish Government; she spent several days at the end of the children's holiday in consultations in Stockholm. As a result, she was more aware than normal of when she actually spent time with her grandchildren. She told me that she had to be at home in the evening to look to her husband's needs.
78. G said that she was sure that the only time she had been there alone with S when he was brushing his teeth before bedtime when his father was out of the house, in the way S described, was on 6^th August 2016. She gave cogent reasons for her evidence, explaining in some detail what had been happening during the summer following her husband's accident, in respect of her work and what had previously been the norm when the children visited. G told me it was the only evening she had been there around the children's bed-time. She had checked the date, which was on a calendar in her house – that she was going to where her son lives to look after the children in the afternoon and the evening. They went to the house, made dinner and waited for P to return from the neighbour's party. S had even gone to see his father at the party and was away for about ten or fifteen minutes. G said that she had later checked the date with the neighbour whose birthday they were celebrating (the neighbour has confirmed this in writing to the court but not in a notarised statement). G said she had checked with him in person as he had been buying her car so they had been in contact at the beginning of November.
79. G went on to describe previous summer holidays when they had been away together in Sweden, but told me that they were not able to do that this year. G said that she had seen the children about two or three times each week in 2016, in previous years she would have seen them about every other day. She said that in the last week of the children's holiday she had not seen them very much as she had to work in Stockholm (on the end of the local government taxation project) but that she had seen the children again on the 13^th August in Uppsala and again on the 18^th August, the day before they left, when they had all been at her daughter's house to celebrate her birthday, which fell on the following day, but they had chosen to celebrate while the children were still there. The family, apart from P, had said good-bye to the children in person that day as they were returning to England. She told me that after the children returned to England on the 19^th August her son had heard nothing, at all, from them and "[S's] father did not know if he was alive or dead…" G was evidently distressed as she told me this evidence.
80. G very firmly denied having harmed her grandson. She said that hitting children (and any form of corporal punishment) had been illegal in Sweden since 1966 and that hitting children was an anathema in Swedish society; it was unacceptable. G said that she had watched the DVD of S's ABE interview and that she felt he was "really upset and you can see it." G said that she couldn't believe that it was true and pointed out that the DVD was made three and a half months after S had arrived back in England. G was adamant that the only time she had been looking after the children when their father was out of the house and when it was around bed-time so S would have been brushing his teeth was 6^th August. On the other occasions when she saw the children she and her husband had left to be at their home in the evening. G told me she had not seen any bruises on S at all during the time he was in Sweden.
81. G told the court that she could not remember "anything especially at all" about the evening of the 6^th August. She did not remember S saying he wanted milk, as he had said in his interview. The children had been playing computer games and her husband had been watching the Olympics on television. It was still light when her son came home at about nine and still light as they drove home; they had to drive carefully as animals run out onto the road. They left soon after P came back. G said that it was quite an ordinary evening. She did not remember any incident like the one described by S in his interview. She would not have been telling S what to do, why should she, she said when the children were old enough to get ready for bed themselves. She would not have told S to go to sleep. She said, "I am not taking care of the children. [P] takes good care of the children himself." When asked she said "I hardly ever lose my temper – it is better not to – being angry all the time; that must be horrible."
82. G told the court about the children and her relationship with S; she said could not recognise S on the DVD from the child she knew, "… that is why I am so worried. It looks like he has come up with a story …I don't know it came up …I haven't heard him [say these things]. He has never said he wants me to go to prison; he has not said anything like that he has just said [to me] 'I want new Lego.'" G said that S had been very proud of himself when they had visited Legoland before and he had persuaded her to go on a carousel with him, knowing she did not like it, but that she had done it for him. G said she had been to the airport when the children visit on every occasion but one; that S used to phone her directly as soon as they landed before he reached the arrivals area. When S was in his father's home she would go into his room and he would be playing with his computer on the bed; when she sat next to him she would bump her head on the upper bunk and he decided he would help his grandmother by hanging his bicycle helmet on the door for her. She said, "I think we are good friends. We go fishing." G said she could see S was really angry on the DVD but did not know why he should be and told me she really didn't know why.
83. G first became aware of the allegations made against her at the hearing on 20^th October 2016 (which C did not attend) through Mr Curran (of Cafcass). She had accompanied her son as he was unrepresented to act as his McKenzie friend. Prior to that hearing neither of them had heard of any allegations (P had been unable to reach his children and the only contact had been via the school). They had discussed the allegations at the time, of course, she said as it was "a massive thing to hear". She had returned to Sweden straight away to finalise arrangements for going to the Canaries to celebrate her 70^th birthday. The children were supposed to be coming and they had booked a holiday at a water-park as a big treat for the children.
84. A part of G's evidence which stood out was her observations about C, which she made quite dispassionately and without any outward sign of malice but with some regret. G told me that C "always has to have someone to hate." As an example, she gave her daughter (S and N's aunt, of whom they were hitherto, very fond). G had arranged a holiday for the family in the Canaries for her 60^th birthday in 2006 and C would not go if the children's aunt was there. G said C chose to go to England, as G said "I cannot not choose my daughter." Currently C is estranged from her own father and will not see him. G told the court that the children always came for their contact "empty-handed". They have the clothes they stand up in which P is not allowed to wash, which they call "mother-clothes". P has to buy clothes, books, toothbrushes, everything for when they are in Sweden. I found G to be a thoughtful, intelligent and insightful witness. She clearly loves her grandchildren and she, P and the rest of the family do a great deal to ensure that the children have happy and enjoyable visits to Sweden. I accept her evidence about the 6^th August and that she did not look after the children on any other evening whilst their father was out of the house.
85. Guardian's evidence. The guardian's evidence about her only meeting with the children was illuminating. Most children are naturally curious about their guardian, if nothing else, but the children reacted almost violently to her visit. As she said, N made it clear that she just wanted the guardian to go. The visit, which was intended to be an initial introductory one, to introduce the guardian to the children and to introduce the idea of indirect contact, took place at their mother's home. The guardian had brought with her the pictures and notes sent by the paternal family. In their guardian's estimation, the pictures were lovely and the notes entirely appropriate loving notes from members of the children's family in Sweden. The guardian described the reaction of the children, S in particular to be, to use her word, "extreme" to her showing them "lovely photos and letters". S became distressed and read and tore up each letter and the photos having made sure he showed them to N first. He said he would like to burn them. When asked why, he said that he believed his father and his paternal family were lying by trying to prove they cared for him when they did not. They were, he said, trying to get them over to Sweden again, which he did not want. N was equally clear that she did not want to see her paternal family again.
86. When their guardian told them she thought it was sad that they did not ever want to visit Sweden again because they were half Swedish, the children said they wished they were not half Swedish. They told the guardian that they did not want her to visit again for a long time. She has not seen them since. The guardian told me that the children's reaction to the photos and letters was the most extreme she had seen in her experience as both a social worker and guardian. She said to me that she had seen children who had been very seriously abused by the parents who often exhibited conflicted feelings unlike the reactions of these two children to their parent and their Swedish family; there was, said their guardian, absolutely a wall put up. The children did not even think of their other country or align themselves with that country but, as she said, it was part of each child's identity; the position that the children were in, whatever the cause, must be causing them significant emotional harm.
87. With hindsight, and knowing that the maternal home was not a neutral venue, she thought perhaps she should have seen them elsewhere and she had considered seeing them at school, but that she had not intended it to be her only contact with the children. The guardian said she was open to the possibility that their mother was over influencing the children. In answer to questions by counsel for C, the guardian said that the letters she had delivered were very general and very appropriate letters and that she did not consider it appropriate to deliver a message saying sorry from P or from G. S had reacted in an extreme manner to the whole situation, while N was very quiet and would rather the guardian just left. The guardian, in keeping with the current orthodoxy, accepted what the children told her as the truth. She told me that it is her view that S himself believes it to be true and she found the situation upsetting on the children's behalf. Although she did not know the reason for the children's distress and there was parental conflict theirs was an extreme reaction.
88. After the hearing the guardian has watched a little video recording on the paternal grandmother's phone of N reading to another child (her cousin) in Swedish from a Swedish book. It is C's case that the children do not speak or understand much Swedish and that N cannot read it. This video would seem to suggest that she is lying or deluding herself about N's linguistic abilities. Undoubtedly, N will be losing that skill and that her mother will be doing nothing to ameliorate that loss.

The Law

89. These are private law, CA proceedings principally concerned with arrangements for two children following their parents' separation and divorce; as such they are subject to the provisions of the CA 1989 as amended by the Children and Families Act (CFA) 2013. This case was listed for finding of fact on two allegations made by C, the bruising to S's arm in August 2016 when he was staying with his father and, secondly, did his father (P) neglect to treat an injury sustained by S when he was sledging whilst in his care in January 2016. P made an application in September 2016 to enforce the existing CAO and then later a subsequent application to re-locate the children to live with him in Sweden. The children have had no contact at all with P since 19^th August 2016 when they returned from Sweden, but C did not make any application to vary the CAO until 7^th December 2016; she opposes P's application to remove the children from her care to live with him in Sweden.
90. As applications under the CA are civil proceedings the burden of proof falls on the applicant who brings the case; in this case both parents have brought applications. The applications of C, for all contact between S and N and their father to cease, are based on findings which she seeks in respect of the allegations of physical abuse of S by the paternal grandmother. The standard of proof is the civil standard; the balance of probabilities as set out in the seminal case of Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 14 (see further below).
91. The court is concerned with the welfare of these two children and as such its principle concern is the children's welfare. The paramountcy principle as set out in s 1(1) of the Children Act (CA) 1989 applies to the applications before this court and to this end I have in mind the welfare checklist contained in s 1(3). In addition to the application for child arrangement orders under s8 of the CA 1989 (as amended).
92. The standard of proof in all cases involving the welfare of children is the balance of probabilities as set out by the House of Lords in the case of Re B (Care Proceedings: Standard of Proof), confirmed by the Supreme Court in Re S-B (Children) [2009] UKSC 17. In addition, the court has in mind the amendments to section 8 of the CA, brought about by the CFA 2014, and that section 1(2A) now includes the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further that child's welfare; but, the presumption is subject to the requirement that the parent concerned may be involved in the child's life in a way that does not put the child at risk of suffering harm. Section 1(2B) of the Act defines 'involvement' as meaning involvement of some kind, either direct or indirect, but not any particular division of a child's time. This case the applicant/mother says that it is not safe for the children's father to have further involvement with the children as she says is a risk to the children's safety both of physical harm.
93. As C is seeking a continued suspension of contact, I have reminded myself of the judgment of the Court of Appeal given in Re J-M (A Child) [2014] EWCA Civ 434 in particular to paragraphs [23]- [25], which set out some guidance where the Court is considering making an order for no direct contact as follows:

i) "The welfare of the child is paramount;

ii) It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living;

iii) There is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact;

iv) Excessive weight should not be accorded to short term problems and the court should take a medium and long term view;

v) Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child's welfare."

94. Further to that guidance I have in mind the need to ensure that any decision reached must be compliant with the obligation under the Human Rights Act 1988 s6 (1) not to determine the application in a way which is incompatible with Art 8 rights that are engaged, and is consistent with the principles outlined by Lord Justice Munby (as he then was) in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [2011] 2 FLR 912. European case law (by which we are presently bound) emphasises the positive obligation to respect family life as set out by the Court of Appeal in Re F [2015] EWCA Civ 882.
95. In Re M [2013] EWCA Civ 1147, the Court of Appeal allowed a father's appeal against a judge's order for no contact in circumstances where he sought unsupervised contact as a disproportionate response, where the circumstances of the case related primarily to the safety and emotional stability of the mother; while this case relates to the physical safety of the children it also concerns their long-term emotional and psychological well-being and has some application in this case. It is necessary that any decision of the court is proportionate in terms of the children's long-term wellbeing as well as their immediate needs.
96. The court is mindful of the United Nations Convention on the Rights of the Child, the children have been joined as parties to ensure that their voices were independently heard, and I keep in mind, too, each child's right and need for a relationship with both of their parents in this case. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, Lady Hale in considering article 3(1) of the UNCRC said that:

[23] …… In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.'

97. The emphasis in a case such as this must be the need to safeguard the welfare of the children. It could be said to be better and not in the children's best interests for there to be a continuation of these already prolonged private law proceedings, as this will only create further anxiety and instability for them and lead to further conflict between C and P, indeed this approach has a statutory basis following enactment of the CFA 2014; but, to bring these proceedings to an end, particularly given the history and background to this case, which includes repeated attempts by C to stop the children spending time with P, will effectively bring an end to the possibility of S and N having any kind of relationship with their father and the Swedish side of their heritage. There is absolutely no evidence that C would promote a positive image in respect of that part of these children's lives and background with the absence of any contact.

Conclusion and findings

98. The lives of both children have been marred for most (in N's case nearly the entirety) of their lives by the abject failure of their parents to treat each other with respect and common courtesy. The combination of P's down-to-earth, no-nonsense approach towards C and C's hyper-anxious approach towards P have not helped and they have become more and more distrustful and antagonistic in their dealings with each other. It would not be accurate to describe C as sensitive, or even over-sensitive, except in relation to herself; she has shown a complete lack of sympathy, little or no empathy and offered her children no support in respect of their emotional needs which includes a need to love their father, to enjoy his company and to spend a happy time in Sweden with their Swedish family. There is no evidence before this court that C has ever considered the effects of her behaviour on their long-term future emotional well-being, self-esteem and sense of identity.
99. There is evidence C has continuously repeated unsubstantiated allegations throughout these protracted proceedings and that she has done so in front of the children; she did so when giving a history to Dr Mahmood. It is more likely than not that she has repeatedly done so in front of the children at home. I find that C has repeated the story about S's "broken arm" so often that S believes it himself and so he repeated it to the police, when he was interviewed. In fact, C over-reacted to a minor injury to S's elbow sustained during play and deliberately set out to use it to try to build a case against P. There is no objective evidence or opinion before me on which I could base a finding that P failed to get S appropriate medical assistance or treatment in December 2015. I accept P's evidence that S continued to use his arm without pain or ill-effect and that he continued to use his arm whilst playing until his return to England in January 2016.
100. There is no doubt that S was seen by Dr Mahmood with bruising to his left arm on 22^nd August 2016. I accept his evidence about the limited ability to age the bruises, nonetheless he was of the view that whatever caused them could not have occurred on the 6^th August 2016, which was the only date on which G had the care of S when his father was out of the house, as he described to the police. I accept the evidence of both P and G in respect of that evening. N did not report anything to the contrary. I accept G's evidence that she did not observe any bruises to S's arm or body before he left Sweden as I accept the evidence of his father.
101. It is possible that S hurt his arm whilst playing just before he left Sweden, perhaps on the 19^th August and that nothing was seen prior to him getting on the plane to go to England. If C saw any bruising in the car, then it could have been bruising developing from some unidentified or forgotten accident that had occurred shortly before. It would not have been as a result of the incident complained of by S in his interview as his grandmother had only seen him at his aunt's home the previous day and S made no reference to that in is ABE interview; the previous occasion G had spent time with S was on 13^th August some nine days before he saw Dr Mahmood. The evidence does not support the paternal grandmother as having caused the bruising seen by Dr Mahmood on 22^nd August as described by S in his interview.
102. S said that he told his mother about his grandmother when he was in the car going out of the airport and C says she saw some bruising then; so, it remains a possibility that S had some bruises to his arms. If he did so and did not, or more likely, was not, able to explain how he got them to his mother it is more likely than not that she would have continued to press him for an answer. Given her previous over-reaction to S's elbow injury there can be little doubt that she would have continued to question the boy and it is very likely that she would have at the very least implied to him that the bruises must have been caused by P or as a result of his negligent care. I have little doubt that because of the years of antipathy and hostility S has seen and heard from his mother aimed at his father S would be well aware that blaming his father was what his mother wanted to hear. S must know that is what she wanted him to say and that he implicated his grandmother in order to exculpate his father. Once he did so there would have been no turning back as his mother would have believed she had found the excuse she wanted to stop contact taking place.
103. It is also possible that the bruises occurred after S returned on Saturday 20^th or on Sunday 21^st whilst engaging in horseplay with WC. Ironically WC bashed his own arm against the witness box when demonstrating what had happened on the Sunday evening. I do not think it likely that either C or WC deliberately hurt the child themselves to manufacture this story as they would have required S to go along with it, but it is likely that if S got hurt that weekend any injury that occurred would have been added to the complaint. It is more likely that S sustained a minor injury that neither he nor anyone else noticed before he left Sweden or even during the journey, which did not become apparent until later. His mother noticed in the car coming from the airport as S, C and WC said and I accept that evidence. After that she then did not relent until S had given her the response she wanted; and which he would have known she wanted. It is very likely that, just as she did with the elbow injury, she then repeated and embellished whatever S may have said; albeit that he had done so to please her and to stop the distress he would have felt on repeated questioning. It is more likely than not that by the time S came to be interviewed over three months later the version of events acceptable to C was the accepted version within the family in England and what S had come to believe himself because it was easier.
104. I do not think that S was "lying "in his interview, rather I think he is telling the truth as he now believes it to be and as he believed it to be at the time he was interviewed. His distress and his anger are genuine but the root cause is not the complaints he has made to the police, rather it is caused by him being placed in an impossible position by his mother. It is much "safer" for him to direct his anger at his grandmother. It is notable and of relevance that both children have been careful not to implicate their father in this alleged incident when G was supposed to have hurt S.
105. It is of note is that WC's evidence was more measured than C's when it came to giving a description of P delivering the children to C at Manchester Airport. He had not dealt with it in his written statement. C sought to paint a picture of an uncaring father who dropped his children off without a word or loving farewell to them and without checking they had been safely met by C and WC. WC said that the drop-off was quick as he believed that P had to get the turnaround flight back to Sweden. He said that P and the children exchanged a few words and that P looked around to check that C and WC had seen the children before turning to get back on the plane. I accept WC's evidence. I find that C was lying about this scenario; at best, she sees what she wants to see and retains that memory, but more likely she is being deliberately disingenuous and not only ignores the inhibiting effect of her presence on P and the children, but deliberately seeks to malign P in her evidence as she has done throughout. I have kept in mind that witnesses and parties may lie for many reasons, some of which are not easy to discern, and the fact that a witness has lied about something does not mean they have lied about everything; but, in respect of C all of her evidence is intimately bound up with her case and the lies she has told have all related to the version of events which she seeks to promote.
106. I find that C has never wanted contact to take place and has constantly and repeatedly tried to stop or undermine the time the children spend with their father. Her antipathy towards P and the children's contact with their father has been so blatant and long-standing that that her six-year old daughter told a Cafcass Officer about it in 2012. The children are, I find, well aware of their mother's attitude and hostility and they have been so for many years. Finally, by manipulating her children, C has achieved what she has always wanted and stopped contact with their father. She has done so either because she cannot help herself or because she had quite deliberately set out to expunge their father from their lives. These children have suffered significant emotional harm as a result of their mother's manipulative actions; aided it would seem by WC; he has certainly taken no steps to prevent it.
107. The fact is that these two children have been emotionally abused by their mother. They are unable to contemplate the Swedish half of their own identity and exhibit such distress when asked about Sweden or their father that the professionals who have spoken to them since August 2016 have recommended to the court that the children will need expert help in order to rebuild their relationship with their father, their extended family and their Swedish heritage. Before August when the children were spoken to they were able to tell the Cafcass officer that they enjoyed seeing their father and spending time in Sweden but by August 2016 after years of experiencing their mother's hostility they did what children in such situations often do, they chose to take sides in order to escape from the conflict, and, as is invariably the case they chose the parent with whom they lived. They will need assistance to be able to revert to their previously expressed desire to see their father and spend time with him.
108. It is likely that C, who is more experienced than most as a litigant in person, did not return the case to court immediately in August 2016, as she knew she should have done and was advised to do, because she had not found the previous decision of the family court to her liking. C then sought to build professional support to justify her suspension of contact. The court is driven to conclude that she was likely to have ensured that the time elapsed was used to engender the alienation of each child from their father and the Swedish half of their identity. What she has done will have caused significant emotional and likely psychological harm to both children. S is a vulnerable child because of his autism, but it is not possible for this court to conclude that the harm caused to him is the greater, as N is an intelligent girl who is more likely to be aware of what is going on and of what her mother is contriving to do in undermining her relationship with her father. S too was aware of his mother's stance. I accept the evidence of P that S complained to him after talking to his mother on Skype during the 2016 summer holiday in Sweden and on other occasions.
109. I accept the recommendation of the guardian and social worker, Ms Clark, that to move the children precipitately and without preparation would be extremely distressing for them and probably cause further damage. Their father accepts that it would be very difficult for them to move, and that they, and he, would require professional support. That there would be appropriate professional and psychological support in available Sweden cannot be a matter of dispute; there are good schools, some of which are English medium, and it is more likely than not that an appropriate school place could be identified for both children, but none of these resources have yet been identified or put in place.
110. The fact that N has achieved well at school and gained a place at a good school is an matter that I take into account, but it must be weighed against the likelihood of long term psychological damage caused to her by the continuing influence of her mother on her ability to form and maintain relationships (other than ones her mother approves of), and to have a healthy and positive view of one half of her own heritage and background. Education is a matter that I must have in mind by virtue of the s1 CA welfare checklist, but, N is only just to move to secondary education and it would not do irreversible damage to her education to move schools again later particularly if she was then able to attend school against the background of a more positive and inclusive home-life. As the Court of Appeal said in J-M, too much weight should not be given to short-term problems and the court is to take the medium and long-term view.
111. There is no evidence that P has caused either child any harm and there is no reason for them to be scared or frightened of him; the fear they express has been induced in them by their mother. Contact is to resume as soon as arrangements can be put in place for the children to receive independent professional support. The local authority has knowledge of this case and in light of the court's findings regarding the significant emotional and likely psychological harm being caused to them they are to prepare a s37 report by 8^th May 2017; this is to include consideration of whether the children should be removed from their mother's care and placed in foster-care to enable them to re-build their relationship with their father and their Swedish heritage. It is overwhelmingly in their best interests that they are able to resume their relationship with their father.
112. The court will order that immediate steps are to be taken to start work with the children for direct contact to take place with their father; in this the court is following the recommendations of their guardian and the social worker who assessed their case. At present, any work with the children should not take place at their mother's house. Unless their mother can demonstrate that she can put into reverse the damage she has done, and she will need assistance to do so before the matter returns to court, active consideration will be given in respect of removing the children with the aim of their relocation to live with their father. They will have to move to live with their father in order to meet their needs and in the best interests of their long-term welfare.
113. P has demonstrated considerable commitment to his children, travelling to and from Sweden many times each year. There is no evidence that he and his family have sought to undermine the children's relationship with their mother, or any of the decisions she has taken without consulting P. It is the view of this court that P would be better able to promote contact and the children's relationship with their mother and maternal family. P has a good relationship with the maternal grandfather and contact could resume there in the first instance; before the court gives final consideration as to the children's long-term location.
114. This is my judgement.