IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A CHILD "J" (a Minor)
Bridge Street Manchester |
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B e f o r e :
____________________
The Father |
Applicant |
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- and |
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The Mother |
1st Respondent |
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- and |
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"J" (A Child) via his guardian Zile Ngwenya |
2nd Respondent |
____________________
The mother was unrepresented
Anthony Theakston of Bromleys Solicitors for the 2nd Respondent
Hearing date: 28 June 2022
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Crown Copyright ©
Recorder Hesford:
INTRODUCTION AND THE APPLICATION TODAY
THE BACKGROUND AND THE FATHERS ORIGINAL APPLICATION
CHRONOLOGY OF THE COURT PROCEEDINGS
RELEVANT RECITALS:
- AND UPON the respondent mother stating to the Court today that she has already advised the child that the applicant father may not be his biological father and that he would not be seeing him again,
- AND UPON the respondent mother stating to the Court today that she is opposed to paternity testing for the child,
- AND UPON the Court ordering paternity testing as detailed below and expressing to the respondent mother that she should reconsider her position and seek legal advice if possible,
- AND UPON the Court advising the respondent mother that should she fail to comply with the direction for paternity testing, inferences may be drawn as to the child's paternity in any event,
RELEVANT PARTS OF ORDER
- 6. The testing for paternity shall take place as follows:
a. Solicitors for the applicant father shall select an accredited tester and make arrangements for an appropriate sampler to obtain samples from the respondent mother and the child by no later than 16:00 on 29 September 2021.
b. The respondent mother must make herself and the child available for samples to be taken as directed by the sampler by no later than 16:00 on 29 September. For the avoidance of doubt, the sample does not need to be collected at the respondent mother's home address.
c. At the time the samples are obtained the respondent mother must provide to the sampler a copy of this order and photo identity.
d. The sampler must send the samples to the nominated tester by 16:00 on 6 October 2021.
e. The tester must send the written test report to the court and to the parties by 16:00 on 20 October 2021.
THE URGENT ISSUE OF INTERIM RESIDENCE
THE GLOBAL PSYCHOLOGICAL REPORT
• The Mother 'had presented an overly positive impression of her psychological development and current functioning' that she 'faked good' and that she lacked 'openness and frankness' (page 272)
• "I also have concern that the mother would be likely to consider that her views and opinions were correct and should be accepted and acceded to. Consequently, she would be likely to expect her child to accept and accede to wishes and demands. This could please a child in a difficult position if the children did not hold the same views as the mother and I have concerns that a child in that position would struggle to hold their own views given the strengths and intensity of the views held by the mother. As a consequence, I would have concerns that a child in that environment could experience emotional harm and have their lived experience misrepresented/denied. Consequently, I would have concerns the mother may struggle to recognise and respond to her child's emotional needs and have difficulties prioritizing those needs above her own. I have a concern that, given her tendency to form short-time fractious volatile relationships, she would struggle to provide a secure and stable home environment". (page 277)
• "It was apparent throughout the interview with the mother she presented the father as a violent and aggressive individual who had sexually harmed the child. There did not appear to be any clear evidence that what she had stated was accurate. However, she maintained that perception of events was correct and that others had misrepresented the child's experiences and minimised potential concerns regarding the father. Consequently, I formed the opinion that, whilst it was apparent that the father would be able to promote contact with the mother, I would have concerns that the mother, despite her protestations to the contrary, would struggle to promote the father as a parent to the child". (page 278)
• In addition, Dr Alwin comments: "Unfortunately, I did not form the same opinion with the mother and consider she would struggle to promote contact with the father and appeared to struggle to recognize the child's need to form and sustain a relationship with both parents". (page 280)
• "I have concerns the mother has attempted to manipulate the child to make false negative statements regarding his father. I consider this to be evidence of the mother attempting to prevent the child from having contact with his father, which would constitute parental alienation". (page 280)
• "In respect of the mother's ability to engage therapeutically to improve her understanding and acceptance of the professionals' concerns, ability to change; unfortunately, I have concerns that the mother would not engage in such a process and, consequently, have concerns that at the current time she would struggle to make the beneficial change required for her to be able to provide safe and consistent care to the child". (page 283)
• "In my opinion there was no indication the father had acted in a manner that would put a child at risk of physical or emotional harm. There was no indication the allegations made by the mother were supported by medical and social services professionals and there was every indication that when the father was having contact with the child he was seen to provide effective care to the child. However, I have concerns the mother's presentation of events and her evident fixation upon the child having been sexually harmed by the father, despite information to the contrary, would indicate she was acting in a manner that could cause the child emotional harm". (page 281)
• "I consider the father would appear to have worked constructively with professionals over time and to have demonstrated he could provide appropriate care to the child. There does not appear to be any clear indication of any risk he could pose. However, I consider the father would benefit from engaging in a psychological therapy to address his interpersonal issues, most notably his tendency to be intense and erratic" (page 283).
• Dr Milson is very clear that the child is suffering emotional and psychological harm: "his current presentation is that he has not been given emotional permission to speak positively about his father because of the environment in which he lives where there remains ongoing hostility towards his father in the form of his mother's belief system and, I believe, his older sister also. It is evident from the assessment of Dr Alwin that mother still holds highly negative views of the father which have not altered and the ability of her to promote the relationship with the father is significantly limited. The child's presentation is in line with this formulation as his mother is of the primary emotional importance to him and he is in my opinion well aware of mother's feelings towards father and well aware of his sister's feelings towards his father and may not be able to hold on to any positives he may feel or remember". (page 285)
• "I believe the child is starting to develop a negative view of his father simply by being exposed to negative views from others in relation to his father. In my opinion the child's current view of his father is not entirely of his own making (ie. from his own negative memories and experiences), it is the consequence of ongoing negativity from within the family". (page 285)
THE SECTION 37 REPORT
• "It is a significant worry that the mother is continuing to report that the child has been sexually harmed by his father, despite the investigation from K Children's Services finding no evidence of this and the initial allegation reported to have been made by the mother and not directly from the child. It is a worry that the child is potentially being led to believe that he has been sexually harmed and this could have a significant impact upon his emotional wellbeing and his mental health in the future". (page 364)
• Ms Cottam opines that "The allegations against the father have been made in order to alienate the father after he has questioned the child's Birth Certificate and wanting to be named on this to enable him to have parental responsibility." (page 365).
• Ms Cottam also confirmed that 'the mother has not been honest with the social worker on a number of occasions and this includes the reasons for moving to [present location]' (page 365)
• "The Local Authority shares the concerns of Parental alienation from the mother towards the father and given the mother's fixation on the sexually harmful behaviours she believes the father has carried out and not being able to accept the outcome of the investigations completed by professionals that she is not in a position at this current time to positively support a meaningful relationship between the child and his father and that this contact would not be consistent and will not progress. It is acknowledged that Parental Alienation is likely to cause significant emotional harm to the child and will not allow his identity to be positively supported." (page 366)
• "the father does not pose a risk of harm to the child and there is no evidence to suggest this". (page 366)
• "The father has been impacted up on emotionally by the allegations made against him, however, it is felt that he is in a position to be able to support positive contact between the child and the mother and that he would support this in the best interest of the child. It is clear from information that has been gathered and shared in regards to the father that he had a significant role in caring for the child; the paternal family were an active part of the child's life and the father was very supportive of the child's education and has his best interest at heart. The Local Authority are of the view that that the emotional harm and parental alienation enforce the right to request a change of care of the child's primary caregiver; and it should be considered for the child to return to [ ...] to reside with his father full time and contact between the child and the mother to be supported. The child needs structure, stability, family and support and to reside in an environment where he can thrive and not witness domestic abuse or parental alcohol use.
THE LAW
• It is important to note that the welfare provisions in CA 1989, s1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court's authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as "last resort" or "draconian" cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s1 (3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child's welfare needs."
(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.
(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower ('reasonable grounds') threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child's physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.
(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation."
"The test is whether the child's safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation."
ADDITIONAL ANALYSIS
• Mother has failed to engage with alcohol services in relation to her alcohol use and has been discharged from Achieve. The alcohol testing within these proceedings in February 2022 showed chronic and excessive use of alcohol. There is no evidence of change or sustained abstinence;
• Mother has continued to engage in a relationship with Mr L . which was abusive, the police evidence shows blood spatter at the house arising from a reported incident of domestic abuse. She seems to be unaware of the risks to her children including the child she has with Mr L;
• Mother does not work honestly or openly with the professionals examples being her unsubstantiated accusations of the psychologist lying, her failure to work with the Local Authority regarding the Child in Need Plan, her complete failure to engage with DNA testing such that a declaration of paternity was made due to non-attendance; her refusal to undergo DNA testing to the court. At best she shows disguised compliance, at worst dishonesty
• Her continued suggestions to the child and others that he has been the subject of sexual abuse by the father which she then denies making on occasions (Eg Dr Alwin, she alleges she did not say this and he lied)
• The recent information that the mother is moving house again to a different (and not local) area, disclosed not by the mother but following the Social Worker having seen a for sale sign outside her current property, no notification given to any party or the court of her plans she informed the Social Worker during the preparation of the S.37 report that she was remaining in the local area
• The lack of disclosure to the Social Worker and Guardian that she has previously had a child placed away from her care
• Her assessed complete inability to promote a relationship with the child's father and the influence she continues to have over his thoughts and wishes and feelings
• The emotional presentation of the child as set out in the psychological assessment. It is fortunate that despite the mother's efforts, the child has, as yet, not shown signs of being fully alienated against his father
• The Local Authority are of the view that that the emotional harm and parental alienation enforce the right to request a change of care of the child's primary caregiver; and it should be considered for the child to return to [ .] to reside with his father full time and contact between the child and the mother to be supported. The child needs structure, stability, family and support and to reside in an environment where he can thrive and not witness domestic abuse or parental alcohol use.
• The Local Authority is incredibly mindful that given the concerns identified in regards to the mother's behaviour in the psychological report that a slow reintroduction for the child back to his father's care could potentially be disrupted by the mother due to the negative views she holds of the father.
CONTACT
INTERIM ORDER AND DECISION
Change of Residence
1. The child shall move to the Applicant Father's care on 28 June 2022 and shall be taken to the Applicant father's home by S Children's Services on 28 June 2022.
2. The First Respondent Mother shall deliver up the child to the Social Worker Joanne Cottam and/or Janell Wilkin, or any other officer or agent of S Children's Services and shall not take any step which might frustrate the transfer of the child to the Applicant's Father's Care on 28 June 2022.
3. The First Respondent Mother shall not attend the child's school after 12noon on 28 June 2022 and shall not take any steps, whether by herself or through any third parties, to collect the child from school on 28 June 2022.
Order Against the Child's School
4. The child's school ([ ] Primary School) shall release the child to Social Worker Joanne Cottam, or any other officer or agent of S Children's Services, forthwith.
5. The child's school ([ ] Primary School) shall not release the child to the First Respondent Mother on 28 June 2022.
The Police
6. The Chief Constable of [ .] Police and the Chief Constable of [ .] Police shall, if asked, facilitate the child's change of residence, and move to [ .], on 28 June 2022.
7. The Chief Constable of [ ] Police and the Chief Constable of [ ] Police shall, if necessary, apply for a recovery order under Section 50 of the Children Act 1989 in order to facilitate the removal of the child from the First Respondent mother and the change of residence to the Applicant father.
Child Arrangements Order
8. The following child arrangements shall apply. This child arrangements order supersedes and replaces all previous child arrangements orders and agreements relating to the child:
a. The child shall live with the Applicant father until further order
b. Contact between the child and the First Respondent mother shall be suspended until 9 August 2022.
c. After 9 August 2022 the Applicant Father shall make the child available for contact with the First Respondent mother for any contact that Cafcass or [ .] Social Services consider appropriate. All such contact must be facilitated/supervised by . Social Services.
Prohibited Steps Order
9. The First Respondent mother must not remove the child from the care of the Applicant father or any person or institution (including any nursery or school) to whom the Applicant father has entrusted the child's care, nor instruct or encourage anybody else to do so.
Change of School
10. The child shall change school. The Father shall identify a new school in [ .] and register the child at that school forthwith.
11. The chosen school shall not cancel, reject or pause the child's registration (and/or place) on the basis of any communication or representation(s) from the Mother.
12. The Father shall give the Mother the details of the new school.
Change of GP
13. The child shall change GP. The Father shall identify a new GP for the child and register the child with that GP forthwith.
14. The chosen GP shall not cancel, reject or pause the child's registration on the basis of any communication or representation(s) from the Mother.
15. The Father shall give the Mother the details of the new GP.
Change of Dentist
16. The child shall change dentist. The Father shall identify a new dentist for the child and register the child with that dentist forthwith.
17. The chosen dentist shall not cancel, reject or pause the child's registration on the basis of any communication or representation(s) from the Mother.
18. The Father shall give the Mother the details of the new dentist.
Recorder Hesford 30.6.22