England and Wales Family Court Decisions (other Judges)

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: C (CHILDREN)

		The Law Courts Quayside Newcastle upon Tyne NE1 3LA
		17th June 2014

1. THE JUDGE: This is the second substantive judgment I have given in private law proceedings concerning two young boys: L, born on 21^st November 2003 (aged 10); and J, born on 10^th November 2004 (aged 9). Their parents are M (who is now 29) and F (aged 30). MGM is the maternal grandmother of the boys. On 11^th February 2008, L and J were made subject of special guardianship orders in favour of the SG at the conclusion of care proceedings concerning the two boys. The SG are SG1 and S2. F and SG1 are adoptive brothers. SG1 is married to SG2 and they also have a daughter, AL, now aged 18.
2. On 26^th February 2014 I gave judgment at the conclusion of a hearing to determine an application made by the SG for permission to relocate permanently with L and J to Australia. The judgement given on 26^th February 2014 has been transcribed and is in the court bundle at E79 to 98. This judgment must be read in the context of that judgment as a whole, even though I will refer to it and record passages from it in the course of this judgment.
3. I give this judgment at the conclusion of the hearing of an application made by M, supported by F, MGM, and the Children's Guardian (CG), Gaynor Taskas, for a prohibited steps order to prevent the SG moving from the Sunderland area to Northampton. It is therefore an issue of internal relocation. As I stated in my judgment on 26^th February 2014, the question of relocation to Australia could not be seen in isolation from the other proceedings which had been before the court concerning the children since the special guardianship orders were made and ongoing issue relating to contact between the children and the birth family, particularly their mother, father, and maternal grandmother. Those issues are similarly relevant to this application. I also recorded in that judgment the very strained relationships, at best, between the SG on the one hand and the birth family - the parents and maternal grandmother - on the other. As will be seen in the course of this judgment, those relationships have not improved.
4. For the purposes of this judgment, I will repeat paragraphs 8 to 16 inclusive from the judgment I gave on 26^th February 2014 as providing the background to the case.

8. Care proceedings were issued by Sunderland City Council in respect of L and J on 21^st March 2007. The boys had been in M's care but had experienced inconsistent and neglectful parenting, as a result of which they had been cared for within the extended family for periods. In February 2007, L and J were placed in the care of the SG, where they remained. The SG were joined as parties to the care proceedings. The Local Authority did not support placement of the children with either of the parents. During the course of the care proceedings, assessments were undertaken of the SG as well as a maternal aunt and uncle. Although both assessments were positive, placement with the SG was preferred because of their parenting experience.

9. On 11^th February 2008, the care proceedings concluded with the making of the special guardianship orders by consent. An interim contact order was made which included provision for contact with M, F and the extended maternal family. The order provided for contact to take place on two weekends out of four. It appears that difficulties emerged in relation to contact soon after the special guardianship orders were made.

10. A final contact order was made on 29^th October 2008 providing for M and F each to have monthly contact for two hours supervised by the SG, with supervision to continue as long as the SG considered it necessary. The order provided for the extended maternal family, including MGM, to have contact not less than four times a year supervised by the Local Authority.

11. By autumn 2009 there were difficulties in the contact arrangements for L and J and the parents. There is no agreement between the relevant parties about the circumstances of this. A chronology of contact prepared by M's solicitor records that F's contact was terminated or suspended by the SG in October 2009 and that they reduced M's contact to once every two months in November 2009. For their part, the SG's case is that F failed to attend contact and that the contact with the maternal family was undermining the children's placement with them.

12. In April 2010 F issued an application for variation of contact. The SG were then seeking a cessation of the contact with the extended maternal family. M issued an application in relation to her contact seeking enforcement and, it appears, variation of the order dated 29^th October 2008. A CAFCASS report was ordered on the question of contact which was duly prepared by Ged Hennessey, family court advisor. On 22^nd December 2010 an order was made by consent providing for M to have contact four times per year with a potential for an increase to six times a year and for F to have indirect contact with the prospect of a progression to direct contact. The issue of contact with the extended maternal family was considered at a further hearing on 17^th January 2011. MGM and the maternal aunt and uncle were joined. Ged Hennessey was directed to file a further report.

13. On 6^th September 2011 a family assistance order was made for 12 months providing for Ged Hennessey to continue his work with the family. By this time, J had stopped attending contact. The order recorded the intention to arrange a family group conference during the currency of the family assistance order. In January 2012, Ged Hennessey wrote to the court requesting a review hearing due to difficulties that had arisen in relation to the family group conference. He had then been made aware of the SG's intention to emigrate to Australia.

14. By early February 2012, the SG had approached the Local Authority seeking support for funding of their legal fees to pursue adoption applications in relation to the boys. Once that application for funding was approved they gave the Local Authority notice of their intention to adopt L and J.

15. Directions were given on 20^th March 2012 for the SG to file position statements in relation to their planned emigration to Australia. On 5^th June 2012 the SG raised the issue of the adoption applications in respect of L and J. On 12^th June 2012 MGM's application for leave to apply for a residence order was filed. The case then came before a deputy district judge on 2^nd August 2012. His order recorded that, in addition to the applications already filed, M and F were also intending to make applications in relation to their contact. He referred the case for directions before a circuit judge.

16. It was in these circumstances that the case came before me for the first time on 24^th August 2012. My order recorded the various applications then before the court and which were anticipated: the adoption applications and MGM's application for permission to apply for a residence order had been issued; applications by the SG for permission to remove from the jurisdiction, together with contact applications from M and F were anticipated. My order recorded that MGM did not pursue her application for permission to apply for a residence order in circumstances in which the SG had confirmed they would not move to Australia without L and J. She nonetheless had a clear continuing interest in the proceedings and was therefore joined as a party.

5. Paragraphs 19 to 30 of the judgment of 26^th February 2014 set out in detail the relevant events relating to the adoption applications and the circumstances in which the applications were withdrawn on 1^st May 2013. In essence, the report of the jointly instructed psychologist, Estelle Louw, had supported the proposed adoption which would then have allowed the SG to emigrate without the court's approval. The plan of adoption was also supported by the social worker, Nicola Reed, who completed the Annex A reports. The proposed adoption and emigration were opposed by the birth family. The CG's final analysis opposed the adoption but supported the then emigration. When Estelle Louw attended court to give evidence on the second day of the hearing (after I had heard oral evidence from SG1), she informed the parties that her recommendation had changed following her reading of documentation filed since her report, particularly the CG's report. Estelle Louw had erroneously understood the relocation was dependant on adoption. She no longer supported the adoption.
6. It was in these circumstances that the adoption applications were withdrawn, but the SG made it clear that they intended to pursue relocation to Australia after undertaking work recommended by the CG and supported by Estelle Louw. Although I had not heard oral evidence from SG2 at that time, I was told she was extremely distressed about the withdrawal of the adoption applications, which was reflected in the evidence I heard from her in December 2013 and is recorded in my judgment of 26^th February 2014 at paragraph 30.
7. At the hearing in December 2013 I heard evidence from SG2 first. My judgment (at paragraph 51) records her evidence that she had recently come to understand the importance of the birth family and the proper role that she and her husband had as SG. Her evidence was much more conciliatory than her statement had been or her reported account to the CG. She spoke of weekly contact until their proposed move to Australia to develop relationships further and thereafter weekly Skype of up to three hours a time. SG1's evidence was similarly positive. He was referred to his evidence given in April 2013, recorded in some detail in my judgment of 26^th February 2014, that there was no benefit in the contact between the children and the birth family. He said he was wrong at the time that he gave that evidence.
8. Paragraph 53 of my judgment records the CG's evidence that, at meetings with the SG on 23^rd and 26^th November 2013, they were advocating that direct contact should reduce and stop as soon as possible if they were given permission to relocate, even though they were contemplating months or even years before a move might take place. They told the CG that they believed continuing direct contact would be unfair on the birth family. The CG questioned the reliability of the SG's changed position in the light of the dramatic nature of the change and the circumstances in which it had come about. The CG said she was shocked and astonished by SG2's presentation and evidence. The hearing was adjourned from December 2013 to January 2014 to allow me to hear evidence from Nicola Reed at the request of the SG. The circumstances in which I took this decision are set out in my judgment of 26^th February 2014.
9. Paragraphs 56 to 58 inclusive record the circumstances of a meeting between the CG and SG on 14^th January 2014, in particular what was described as SG2's angry and confrontational behaviour. Paragraph 59 refers to an email produced by the SG, sent by SG2 to the children's school on 13^th January 2014, which I found once again adopted a negative tone in relation to contact between the boys and the birth family.
10. After setting out the legal framework in relation to the application for permanent relocation out of the jurisdiction I said this, at paragraphs 66 to 68 and paragraph 70 in my judgment of 26^th February 2014:

66. The SG have demonstrated a longstanding antipathy towards contact. This is seen throughout the chronology of the proceedings after the special guardianship orders were made. I have not revisited the disputes in relation to this contact going back now many years. There is, however, a wealth of evidence of their attitude to contact since CAFCASS became more closely involved which highlights their negative approach to contact and their desire to limit or stop it. I accept the evidence of the CG in relation to this. I do not accept the SG's assertion that CAFCASS has been biased against them.

67. It is clear from the evidence of the SG that they have wanted to be and consider themselves to be the boys' parents. This appears to have played a significant part in their desire to restrict the boys' contact with the birth family. I have taken account of the evidence of Nicola Reed about the progress she has noted through her work with these SG since September 2013. I do not question what she says about the sessions she had undertaken with them and the responses she reports she has received from them whilst undertaking this work. This is, however, only one part of the picture. It must be seen in the context of the evidence overall. The evidence of the CG, which once again I accept, is of a continuing resistance to ongoing contact up to and including a meeting with the SG at the end of November 2013. This is, in any event, reflected by the tone of their statements dated 13^th November 2013 and in the recent email from SG2 to the school in January 2014.

68. I was not persuaded that the dramatic shift in the SG's approach to the issue of contact with the birth family, as stated in their evidence in December 2013, can be relied upon as genuine. The extent of the change - a complete volte-face from the views they had expressed only a matter of days before and which had not been indicated in any way before they each gave evidence - raised significant questions about the extent to which it could be relied upon. Moreover, SG2's behaviour since - in terms of her email to the school and her behaviour during the CG's visit to the SG in January 2013 - seriously undermines what was said in their evidence about their new-found understanding (said to have developed in the weeks before the hearing in December 2013) of the significance of the birth family to the boys.

70. The withdrawal of the adoption applications left only the issue of emigration. I have concluded on the evidence I have read and heard that a very significant motivation - if not the most significant factor - in the proposed emigration to Australia is to move the boys away from the birth family and thereby to bring about a cessation in the direct contact and restrict the involvement of the birth family to limited indirect contact at best. I therefore find that the proposed emigration is motivated, if not entirely then substantially, by the SG's desire to exclude the birth family from L and J's lives.

11. At paragraph 73, when considering the impact of refusal on the SG, I concluded that:

A significant part of their disappointment would result from the thwarting of their desire to dramatically limit, if not end altogether, the relationships L and J have with their birth family.

In paragraph 75 I concluded that, if the family were permitted to move to Australia, there was 'a real prospect that all forms of contact would end'.

12. In paragraph 78 I reached these conclusions in respect of the boys and their relationships with the SG and the birth family:

For each of the boys, however, I am satisfied and find that their contact with their parents and maternal family is a positive and beneficial experience for them. L and J are undoubtedly part of and see themselves as part of the SG's family. They also understand themselves to be part of the wider family and have important and beneficial relationships with M, F and MGM.

I concluded that the children's welfare interests were not met by the proposed relocation and I refused the application.

13. During the course of the written and oral evidence at the hearing in December 2013 and January 2014, the possibility of a move from the Sunderland area had been raised in the event that an application to relocate to Australia was refused. This was addressed in paragraph 38 of my judgement where I said as follows:

A possible alternative plan has emerged during the course of the proceedings should permission to remove the children from the jurisdiction be refused. During a conversation with the CG, SG2 indicated an intention that the family would move to the south of England (it appears in fact to be the Midlands) to be closer to her family and also to curb further applications from the family as a result of the distance and cost implications. Surprisingly, during the CG discussion with the SG it was apparent to her that SG1 was not aware of his wife's plan. This was not disputed by the SG in their evidence. This alternative plan apparently remains an option they would consider if they are not given permission to emigrate to Australia. Once again, SG1 is evidently less enthused about this possibility than his wife.

14. My judgment on 26^th February 2014 concluded by recognising that my refusal of the application to relocate to Australia was not an end to the matter - there were remaining issues in relation to contact and the likelihood of further work to be done. After the hearing I heard submissions as to the appropriate way forward. I directed position statements and the case return for a directions hearing on 31^st March 2014.
15. A position statement filed by the SG recorded their distress at the decision in relation to their proposed move to Australia and particularly the negative impact on SG2 - that she was not sleeping, she was low and had been referred for counselling. Their position statement indicated their intention to move to Northampton to be close to SG2's family, following which they proposed contact with the birth family four times each year, 'as in the current contact order', before and after a move. Following a move, they proposed that two visits would take place in the North East (with the children transported to and from the North East by the SG in one day) and that two visits should take place by the birth family travelling to see the boys in the Midlands.
16. At the hearing on 31^st March 2014 I was told that the family and CG were considering an application to prevent a move and possibly in relation to the children's placement and/or legal status. The position at that stage was unclear, not least in relation to the Legal Aid funding for any such applications.
17. By the time the case came before me on 23^rd April 2014, M had issued an application seeking a prohibited steps order to prevent the proposed move to Northampton. At the hearings on 31^st March and 23^rd April 2014 I was required to determine issues in relation to the interim contact pending a final hearing. This was a further reflection of the poor relations between the SG and the birth family and their reliance on others, in particular CAFCASS and the court, to resolve their differences.
18. A contested hearing was listed before me on 2^nd June 2014. I gave directions for the parties to file statements and reports as appropriate. At the hearing on 2^nd June 2014, I heard evidence and submissions over three days. I was then away from Newcastle for some time and I give judgment today, 17^th June 2014, which has been the first available opportunity to do so.
19. During the course of the hearing I heard oral evidence from SG1, SG2 and the CG. No party required M, F, or MGM for cross-examination and I saw no need to hear oral evidence from them. The SG, M and the CG were all represented at the hearing by the same counsel who represented them at the hearing regarding the proposed relocation to Australia. F and MGM have appeared as litigants in person at this hearing. Their cases coincide with that of M and Miss Callaghan, who represents M, was able to put forward a case on behalf of the birth family in those circumstances.
20. Once again, this application cannot be seen in isolation of the contact and other issues. It is also necessary to address a number of developments since I gave judgment on 26^th February 2014.

The SG's Response to my Decision

21. On their own account, they have taken the refusal of their relocation application very badly. This is particularly so in the case of SG2. In her statement dated 24^th March 2014, SG2 said she was suffering from low mood and disturbed sleep. She said she had seen her GP and had been referred for counselling. In her statement dated 2^nd June 2014, SG2 said she has been diagnosed with depression and prescribed antidepressants. In her oral evidence, she said she has been on antidepressants since March 2014. She said she had previously been prescribed antidepressants but at a lower dose. She agreed that her depression was said to be likely to be a reactive depression. I did not receive any medical evidence in relation to this. SG2 has had an initial appointment with a mental health practitioner. Her first appointment for further support is not to take place until October 2014.
22. In her oral evidence, SG2 said she hasn't slept well for years, to the extent that she now falls asleep on the couch during the evening and then cannot sleep at night. She and SG1 both said the boys are aware of her distress and are concerned about her. Throughout her oral evidence, SG2 was very tearful. At one point, during cross-examination on behalf of M, she became extremely distressed, so that I felt it necessary to take a break in the proceedings to allow her to compose herself.
23. The CG's report in relation to this hearing and her oral evidence described her difficulty in arranging a meeting with the SG. She said that SG1 initially told her that SG2 did not want to meet. A meeting finally took place on 29^th May 2014 in the late afternoon/early evening, which was the only time that the SG were available. The CG described SG2 as quickly becoming emotional and somewhat volatile. SG2 did not accept that she was volatile but did accept that she was emotional. SG1 agreed with the description of his wife's behaviour in the CG's report, that she was 'increasingly distressed and erratic'. The CG said that SG2 once again revisited historic incidents in the same way as she had before and she referred to the court's decision refusing relocation to Australia as based on lies and bias. It is agreed that SG2 only remained for part of the CG's visit to the SG. She was present for about 40 minutes, following which she left saying she had chest pains. SG2 said in her evidence she could not remain any longer because of her distress, she got herself a drink of water and then went to bed. SG1 continued the meeting for a further lengthy period, described by the guardian of exceeding an hour.
24. During the course of her meeting with the SG, the CG recalls SG1 referring to his "hatred" of the birth family. He ultimately accepted in cross-examination that he used this term, but said that he told the CG that the birth family and he and his wife do not like each other. He said that relations between them will never improve.
25. It is evident from the written and oral evidence that SG1 has been, and remains, very worried about his wife's wellbeing. He clearly stated that she is his first priority. On a more positive note, SG2 accepted that she has continued to work fulltime as a payroll manager, a job she has had since 2012. She also continues to be involved with J's rugby team (rugby being a longstanding passion of hers), although she did say that is less able to undertake the fundraising activities and some other responsibilities as she previously had.

The Prospect of Foster Care

26. In about March 2014, SG1 accepts that he spoke to the Local Authority social worker, Nicola Reed, by telephone and asked about the procedure should the boys need to go into foster care. In his oral evidence, SG1 said he asked how quickly they would be moved, what he needed to do, and who he needed to contact. He and SG2 both say they had not spoken about this before he made the call and she did not know he had made the call until after it had happened. They both say she was very angry with him when she found out about it.
27. The CG said that, during their meeting on 29^th May 2014, SG1 discussed as a very real possibility that the children's care arrangements may be terminated if he and his wife were prevented from moving as they wished. The CG said that when she discussed the issue with the SG together it was said to be a probability rather than a possibility.
28. SG1 gave oral evidence first. He was asked in examination in chief about this and he said the probability was the boys would have to leave. His position shifted thereafter during the course of cross-examination. At times he maintained this position and at other times he said the boys would not be placed in foster care. He was, however, consistent about two things: first, that his wife was his priority and if the boys had to be placed in foster care to protect her wellbeing then he would take that step; and second, that it would be devastating for the boys were that to happen.
29. SG2 gave her evidence after her husband. Her evidence was generally more consistent throughout about this: that the prospect of the children's placement in foster care, should the family not be permitted to relocate, was and is a very real one. She said she had made reference to this in her own draft statement in March 2014, but the passage had been removed before the statement was filed as she couldn't say definitively what she and SG1 would do.
30. SG2 said that she is afraid of losing the boys or of them being taken away. She said the CG said this after the hearing in April 2013 when, as she put it, "We lost the adoption". In her evidence, the CG denied ever mentioning foster care for the boys. She said that there was a conversation at the end of 2012 when the SG asked what the options could be if contact was not promoted and she said she explained the range of options, including a possible change of residence in extreme cases. I accept the evidence of the CG in relation to this. The SG agreed that their daughter, AL, has been very upset at the prospect that they may give up the care of the boys and is unhappy at their stance in relation to this.

The Boys

31. The CG met with the boys at school on 13^th March 2014, with the SG's consent, to discuss the court judgment. In advance of doing so, the CG spoke to Miss Fenwick, the boys' support teacher, on 10^th March 2014. Miss Fenwick reported that the school had not observed any adverse impact from the decision. She said that J had said he was "disappointed" and L had said he was "not really bothered" about going to Australia. This accorded with what SG1 had told the CG during a telephone conversation which also took place on 10^th March 2014. He said the children had accepted the decision and that, "The boys are just the boys". In contrast, during that conversation SG1 reported his wife's significant distress and considerable tensions at home and in their relationship.
32. In the light of the information the CG had received from SG1 and from Miss Fenwick about the boys' reaction, she said she was surprised by the views the boys expressed to her in the meeting that took place on 13^th March 2014, just three days later. She sets these out in paragraphs 4.2 to 4.5 of her report at D373 to 374 in the following terms:

4.2 I visited the children in school on 13^th March 2014 with [the SG's] consent. On this occasion the children were spoken to together and were happy to engage with me. They were already aware of the court outcome an indicated that, "Mam, dad and AL were upset about it". J stated, "We want to live near Auntie S" and "the court made the wrong decision". J stated, "It's [M's] fault" whilst L questioned, "Why does [M] want to stop us from moving to Australia?" The children were provided with an age appropriate explanation of the court's decision, although requested I "Tell the judge it was the wrong decision". However, they understand that they will continue to reside in the UK. J stated, "The court people are on [M's] team", although he did not appear to understand who the 'court people' are.

4.3 L advised they are now intending to move to either Nottingham or Northampton. He stated, "Contact is just not that important to us". When clarified further, both children indicated they were "not bothered" "about seeing 'them" (the birth family). It was reflected that the children had previously enjoyed time with their birth family and both L and J were able to recount positive memories/activities they had enjoyed. Both children were aware of forthcoming arrangements and indicated they were looking forward to going swimming with their father, nana and granddad. L described enjoying his family watching him play football and J again described a wish for birth family members to watch him play rugby on Sundays.

4.4 L and J were aware that decisions are now required in respect of the time they spend with their mother, father and wider family members. They wish for a further visit to be made to school once future arrangements have been determined. J wished for me to advise the court, "It's not mam who stops us going to contact", whilst L would wish for me "To tell the judge it was the wrong decision".

33. In her oral evidence the CG said she was struck by the very different presentation of the boys. She said she had not heard such negative views from them previously about contact. She said these statements were out of context and that the children struggled to put them in context. She described their statements as "very unusual" for the boys. When the SG were asked about the boys' statements, they both said that it has been very hard to disguise their emotions at home. They said they think it is likely that the boys have overheard conversations between them. SG1 said, "We aren't going to accept it and roll over, we are going to have that negativity to people". Despite their discussion about the case and its outcome, on their own accounts they have not read the transcript of the judgment I gave on 26^th February 2014, setting out in detail my reasons for refusing their application. The CG said that they were adamant in their discussions with her that they would not do so as they believe it to be wrong.

Contact

34. The background I set out earlier in my judgment records the high level of contact set at the time the special guardianship orders were made in 2008. Contact was then to take place two weekends out of four with the birth family. Contact reduced over time. In 2010 there was a defined order for direct contact with M four times a year; F was having indirect contact only with the prospect of a progression to direct contact.
35. Following the hearing before me in April 2013, and from May 2013, it was agreed that CAFCASS would be involved in the facilitation and supervision of contact to provide an independent overview. J had not been attending regularly at that time. It was hoped to encourage his attendance and to progress F's contact to direct contact in accordance with the children's then wishes. Both of these goals were achieved. Since the end of 2013 contact between the boys and the maternal family has been unsupervised. M's contact takes place during MGM's contact and is supervised by her. More recently, MGM has also taken over the supervision of F's contact. Contact has been taking place every eight weeks with the birth family.
36. My judgment in February 2014 recorded the volte-face in relation to contact at the hearing in December 2013. The SG moved from a plan of indirect contact following the hearing, to extensive direct contact and much more extensive indirect contact following the proposed emigration. I have already recorded the conclusions I reached about this. I have also made reference to the ongoing contact issues which have required my determination at two directions hearing since I gave judgment on 26^th February 2014. Despite those directions, the differences between the SG and the birth family were such that in relation to the arrangements for contact in March 2014 meant that the contact did not take place.
37. Statements filed by the SG in March 2014 proposed contact with the birth family four times per annum 'as in the current contact order'. This of course is a reduction from the current level of contact as it has been taking place. The proposed contact before a move to Northampton was for one day and between 11.30am and 7.00pm for all the family, with the time to be divided between them as agreed by the birth family. Following the proposed move to Northampton, the SG advocated the same frequency and duration of contact. Two visits each year would take place in the North East, with the SG transporting the boys both ways within one day, and two visits in Northampton, with the birth family travelling for contact at a community venue. They also propose indirect contact with cards and/or gifts for the boys at birthdays, Christmas and Easter, and opportunities for the birth family to buy school photographs.
38. MGM's statement, dated 2^nd May 2014, proposed a fortnightly cycle of contact to include F's contact if the children were to remain in the North East, alternating between one visit with contact on a Saturday only between 11.30am and 5.30pm and the second visit with contact overnight from Saturday at 11.30am to Sunday at 5.30pm. MGM proposed an incremental arrangement in relation to holiday contact, initially for limited days of contact but leading to ultimately two weeks holiday contact in the summer, a week at Christmas and Easter, and alternate half terms.
39. M's statement, dated 9^th May 2014, set out proposals for more extended contact but in a different manner to the proposals of her mother. She proposed monthly contact in the North East which in due course would move to overnight between Friday and Sunday. She proposed holiday contact for two weeks in the summer, overnight on Boxing Day, a week at Easter, and a proportion of the half terms (if the boys were not otherwise away). If the children were to move, M proposed contact in the school holidays. F's statement, dated 6^th May 2014, proposed that contact should move from alternate months for two hours to monthly contact for five hours, with a review of the need for supervision.
40. The CG's report, dated 30^th May 2014, concluded that the proposed move to Northampton should be prevented by the making of a prohibited steps order. She recommended the boys should have staying contact monthly with the MGM from Friday to Monday in the North East or Friday to Sunday if the family were to move to Northampton. She proposed fortnightly indirect contact through telephone and Skype and holiday contact for two weeks in the summer, one week at Easter and Christmas, and an extended weekend at half term. In her oral evidence she said she hoped the monthly visits could coincide with school holidays wherever possible.
41. The SG filed statements which were circulated to the parties on Friday 30^th May 2014 and signed at court on Monday 2^nd June 2014, the first day of the hearing. Those statements confirmed their earlier proposals. They took issue with the birth family's position that all contact should take place in the North East and that they, the SG, should transport the children. Their statements recorded there was 'no proposal to share the cost or even meet us halfway. That this places an unfair burden on ourselves.' The position statement went on to say that they, the SG, should not be required to do more travelling than they had offered (which was twice a year). If they were required to remain in the North East, the SG considered that the current level of contact was too much for boys, stating their view that it exceeds the boys' needs. The SG's position statement went on to say that the contact diminishes the fun time the SG have to spend with the children. In their oral evidence, the SG said they drafted their statements themselves which were then sent to their solicitor and they signed them at court.
42. At the start of the hearing on 2^nd June 2014 I was told by Mr Twist (representing the SG) that their position in relation to contact had revised. He outlined a very significant change. He said that the SG were agreeing that it was in the boys' interests to have two weeks of staying contact each summer, a week at Easter and Christmas and alternate half terms. The SG were offering to do all transport and also offering fortnightly Skype sessions in between contact visits. The circumstances of this changed position were explored with the SG in their evidence. They both said that their changed position came about following their conference with Mr Twist. They each confirmed that they maintained their earlier position when their statements were circulated. They said that they had had time to reflect on the CG's report and had been assisted by the opportunity they had had to discuss the contact proposals with their counsel. In his oral evidence SG1 described their previous proposals as "possibly unfair".
43. The SG's statements and their oral evidence nonetheless emphasised the negative aspects of contact. They made some concessions in relation to the benefits of contact when those were put to them in cross-examination, but with a degree of reluctance in my judgment. SG2's criticisms, once again, returned on many occasions to issues going back a period of years. In cross-examination the SG did ultimately concede that both boys enjoyed their contact with the birth family. There was no clear picture from the evidence I heard from the SG as to their proposals for contact if a move was prevented. They did not appear to have discussed or considered that option beyond the matters contained in their statements.
44. SG2's most recent statement, dated 2^nd June 2014, made reference to recent behavioural difficulties with L which she believed were related to contact. Enquiries by the CG revealed that L had been disruptive in school and disrespectful of his teacher, which was said to be very unusual for him. The school had queried whether the children had had contact on the preceding weekend. The school confirmed to the CG however that they had not noted any difficulties or changes in the boys related to contact, but they are aware of the potential disruption for some children with contact arrangements. The school had not considered this a significant episode and did not consider it to be part of a pattern of behaviour.
45. SG2's evidence in particular appeared to place considerable emphasis on L's difficult behaviour. She described "constant behavioural issues" and tantrums, describing L as "quite aggressive". She made repeated references to the involvement over time of the CAMHS team. She related this to contact, saying that the difficulties occurred on the Monday after contact had taken place. The CG's evidence was that any disruptive behaviour may or may not be related to contact and, if so, was not necessarily as a result of the birth family's behaviour, but potentially more broadly associated with the contact and the boys' divided loyalties. The CG gave evidence that there is no current involvement with CAMHS. Historically, the SG have been concerned about the impact of contact on the boys. The CG said the school are not concerned about the boys. In March 2014 the school reported that they were both "doing really well". The CG's concern was that the SG attributed all difficulties to the birth family.

The Plan to Relocate

46. I come, finally, to the proposed move to Northampton. The SG plan is to move to Northampton where SG2's mother lives. Her sister also lives in the Midlands, in the Nottingham area. SG2 is not a native of Sunderland, although she has lived in the North East for more than 20 years. SG1 is Sunderland born and bred. His mother and some other family members live in the locality. He described being close to his mother, but not the other siblings who live locally. The SG have sold their house and are living in a rented property in the Sunderland area. That is not a long-term option and they plan to buy again. They have made some enquiries about the area in which they would choose to live and schools for the boys if they moved to the Northampton area. L has one year to undertake before he moves on to senior school and J has two years.
47. The SG's case is essentially based on SG2's need for the support of her mother in the light of her current emotional frailty. SG1's evidence is that SG2's health would improve with the move. He says the contact is not the issue for her, but the ongoing court proceedings. There was a strong emphasis from SG2 in her evidence of a need to get away from the court proceedings. The SG both place responsibility on the birth family for the court proceedings; it was repeatedly said by them and on their behalf that the SG had not issued any proceedings. I found that surprising in the light of the adoption applications and their application to relocate to Australia and my conclusions that their behaviour had been designed to cut the birth family out of the children's lives.
48. The evidence of the SG was inconsistent about the extent of the contact they have had in recent months with SG2's mother. SG1 recalled far fewer visits than SG2. She explained the discrepancy, as she put it, SG1 "could not remember what he had for tea yesterday". There was also a real lack of clarity in the evidence that they each gave of their plans if they do not move to Northampton. SG1, who gave evidence first, said he wanted to look at where and how far they could move. He said he would wish to know "which jurisdictions" they could move to. That gave the clear impression, although he denied it when I asked him specifically, that he would be looking to move as far as possible from the birth family. SG2's evidence in this regard was very different. She said if they did not move to Northampton they would stay in Sunderland. She said, "why move somewhere else?", although she did contemplate a move to a different area of Sunderland. Notably, the SG envisage a change of school for the boys. The SG said that the school is performing poorly and they made reference to an Ofsted report in relation to this. I did not receive any other evidence in respect of this matter. The school has been viewed as a positive environment for the boys, in which they are both settled and happy.

The Final Position of the Parties

49. M, supported by F, MGM, and the CG, invites the court to make a prohibited steps order preventing the proposed relocation to Northampton. She invites the court to make a child arrangements order providing for increased contact, including staying contact. The birth family now falls in line with the proposals put forward by the CG in her report and confirmed in her evidence. In final submissions, Miss Callaghan raised the issue of parental responsibility for F. He has parental responsibility for J but not for L as a result of L's date of birth. M also invites the court to consider whether the special guardianship orders are still appropriate, with the enhanced parental responsibility vested in SG as a result of them.
50. The SG resist the application for a prohibited steps order. They argue their plan to move is well founded. In his statement dated 2^nd June 2014, SG1 said they should have the right to live where they choose within the UK and should not be constrained by an unfounded fear of noncompliance with a court order. He went on to say that as suitable SG they should be able to decide where to live. The CG does not support replacing the special guardianship order with an alternative order (which would presumably be a residence order). She considers such change would be of little value. The CG's concern about the boys' circumstances and emotional wellbeing is such that she raised in her report and her oral evidence the possibility of a s.37 direction. She drew back from making a recommendation for such a direction at this stage in both her written and her oral evidence. At D378 she said that it 'should be avoided if at all possible as the children have already been exposed to repeated litigation and significant professional input'.

The Legal Framework

51. It was agreed by the legal representatives in the case (counsel for the SG, M, and the CG) that all issues before me are determined by the children's welfare as my paramount consideration. I was provided with two Court of Appeal authorities in relation to internal relocation: T (A Child) [2009] EWCA Civ 20 and S (A Child) [2012] EWCA Civ 1031. The court will look to the factual situation, taking account of the tensions that may exist between the freedom of a parent or carer to relocate, against the welfare of a child which may militate against relocation. The reported decisions referring to 'exceptional' circumstances in which a move within the jurisdiction may be prevented are to be seen in the light of the welfare analysis, that in many or most cases such a move would accord with the children's best interests. The matter is to be determined on the facts in each case.
52. When considering the welfare interests of these two boys, I have regard of course to the welfare checklist in s.1(3) Children Act 1989. When making a child arrangements order or varying an earlier contact or residence order, the amended provisions of the Children Act 1989, in particular s.12, require the court to consider the issue of parental responsibility in the light of the revised provisions of that section.
53. The provisions in relation to special guardianship orders are contained in s.14A Children Act 1989 onwards. S.14C contains the provisions in relation to parental responsibility and the entitlement of SG to exercise their parental responsibility to the exclusion of any other person with parental responsibility (other than another special guardian). S.14D contains the provisions in relation to variation/discharge of the special guardianship order. It is clear from s.14D(2) that such an order can be varied or discharged without a specific application to do so, if the court considers it in the welfare interests of the child or children concerned.
54. I will consider the relevant factors as I find them to be in relation to the welfare checklist before considering the alternative options and my overall analysis.

The Children's Ascertainable Wishes and Feelings, Considered in the Light of their Age and Understanding:

55. L and J are aged 10 and 9 respectively. It is, in my judgment, difficult to determine their wishes and feelings which, in any event, must be considered in the light of their respective ages and understanding. They have apparently been accepting of the decision in relation to relocation to Australia. There is a question about the reliability of their views expressed to the CG on 13^th March 2014 and what may have influenced them. The children have otherwise been consistently positive about contact with their birth family.

Physical, Emotional and Educational Needs

56. The most significant consideration by far, in my judgment, is the children's emotional needs. It is evident that the tensions and differences between the SG and the birth family are having an impact on the boys. The impact on the SG is also a factor, with its consequential impact on the children in their care. There is a question as to whether the SG really accept the importance to the children of their relationships with the birth family and my judgment given on 26^th February 2014 reflected that. The CG recorded her concern about the children's emotional wellbeing in paragraph 5.8 at D378. I read what I consider to be the most relevant parts:

Sadly, I am growing increasingly concerned for the children's emotional welfare and question whether the SG are really able to protect the children from harm, prioritise the boys over their own needs and remain committed to the children should they be unable to relocate within the UK.

57. Later in the paragraph the CG continues:

However, following recent discussions with the SG it is my opinion that SG2 is unlikely to ever be able to accept the value of J and L's birth family or tolerate their involvement in the children's lives.

She concludes the paragraph in the following terms:

J and L both have a strong sense of identity and relationships with the birth family should be preserved. Failure to do so will undoubtedly incur difficulties as they mature and it should be anticipated that they may display behavioural difficulties and resentment towards their carers due to the cessation of relations with their mother, father and maternal family. I am anxious that the SG would respond to such difficulties on a personal level due to feelings of rejection and that again the children's placement would be in jeopardy.

Change in Circumstances

58. The proposed move to Northampton would give the SG the distance they seek from the birth family and a home nearer to SG2's family and the support that can provide for her. It requires consideration of the reality of the contact proposals. There is, in my judgment, a risk that the relationships the boys have with their birth family would break down. They would also move from the schools they attend and other activities in the Sunderland area. They are notably closely involved in their football and rugby activities.

The Particular Characteristics of the Children

59. It is important, in my judgment, to take account of the circumstances in which these boys, now aged 10 and 9, have lived with the SG since 2007, when they were very young. In my judgment dated 26^th February 2014 I reflected that these boys see themselves as part of the SG's family but they also understand themselves to be part of a wider family, with important and beneficial relationships with the birth family.

The Harm and Risk of Harm

60. There is potential harm to the boys if the SG's wishes to relocate are thwarted and that then has a detrimental effect upon them in consequence. There is a risk of harm if their relationships with the birth family are undermined. There is the potential for harm should the SG relinquish their care.

The Capability of the Parents and Others to Meet the Needs of the Boys

61. This is an unusual case in a private law context. The carers were granted special guardianship orders giving them enhanced parental responsibility. They were vested with the greatest legal responsibility as carers, short of adoption. My judgment on 26^th February 2014 highlighted issues in relation to the exercise of that parental responsibility. I found the SG's motivation in their proposed emigration, at least substantially, was to bring about a cessation in direct contact and to restrict the involvement of the birth family. There is the prospect of the boys' placement in foster care if the proposed move to Northampton is not permitted. There is no immediate alternative family placement available. MGM made an application for a residence order at an earlier stage in the proceedings which was not pursued in the circumstances as they then existed.

The Available Powers

62. I have already addressed the range of orders which may be considered in the course of my judgment.
63. I have been very concerned for the emotional wellbeing of these two children over the last 22 months that I have been involved with them. The judgment I gave on 26^th February 2014 set out the basis of my concerns at that stage and the conclusions I reached on the evidence then before me. In the three months following, and leading to the hearing on 2^nd June 2014, my anxiety about the current and future wellbeing of these two young boys has increased in no small measure. It is notable, in my judgment, that the stated shift in thinking put forward by the SG, particularly SG2 in her evidence in December 2013, has not been reflected in their approach to the birth family and the birth family's relationships with the children in the intervening months. The written and oral evidence of the SG was once again very critical, seeking to minimise the involvement of the birth family. At this hearing the court was faced with a very similar volte-face in relation to the proposed contact as at the hearing in December 2013. As then, in relation to the evidence I heard during the course of this hearing, I was not satisfied from the evidence of the SG that they are genuinely in favour of the increased contact proposed, or that they will in fact promote it.
64. I have found it very concerning that these SGs, who say they have treated the children as their own and wanted to become their legal parents, have considered and continued to consider relinquishing them and placing them in foster care if they do not secure their desired move. The fact that this has been an ongoing prospect over almost three months has led me to conclude that it is a realistic prospect. This possibility, or probability as the SG have described it at times in their oral evidence, only emphasises the magnitude and importance of the decisions I am to take and the potential harm the boys may suffer one way or another. I am reminded of the words of Mr Justice Mostyn in the external relocation case referred to in my judgment in February 2014, TC and JC (Children: Relocation) [2013] EWHC 292 (Fam), and the paradox that a parent who copes less well with the prospect of refusal of a desired move may fare better in a relocation application. That is a relevant factor I have taken into consideration in my determination of this application.
65. The court is faced with unpalatable alternatives for L and J, each of which carries with it significant risks, in my judgment. If I refuse the prohibited steps order, the SG and the children are likely to move to Northampton in the near future. SG2 believes the support she will receive there will assist her own vulnerability and she will recover. She and SG1 both said, however, that it is the continuing court process that causes the anxiety and distress for her. In the light of my conclusions about their true wishes in relation to ongoing contact between the children and the birth family, there is every prospect that enforcement proceedings would be required. If those were to take place in Northampton, there would be a new CG appointed, a different judge, and in a location which would be likely to prove inaccessible for this birth family, aware as I am of their circumstances (both practical and financial). If I grant the prohibited steps order, I restrict the SG from moving to an area in which SG2 undoubtedly has family support. My decision may well exacerbate her current difficulties with a consequent impact on the children. There is the potential that the SG will no longer continue to care for L and J, raising the prospect of disruption and possible foster care for them. Contact difficulties may well continue, but with better prospects of enforcement with continuity locally in terms of the judiciary, CAFCASS, as well as representation, together with a more realistic prospect of the birth family's involvement.
66. I have considered the motivation for this move. There is, in my judgment, no single motive but, once again, I have concluded that the move has been motivated at least in part by the SG's desire to distance themselves from the birth family and from their contact with the children. I have no confidence that contact would be actively promoted by them. I have considered whether a move, even with reduced or no contact, would in fact better meet L and J's welfare needs, when viewed against the risks inherent in requiring the children to remain in the North East. In reaching my conclusions I have had the competing Article 8 rights very clearly in mind - the rights of the birth family, the SG and, most importantly, the children for respect for their private and family life.
67. I have concluded that the boys' welfare interests are met by granting a prohibited steps order to prevent the proposed move. I have reached this conclusion in the unusual circumstances of this case for the reasons which are set out in the course of my analysis and summarised as follows:

(a) My conclusions in relation to the SG's motivation for move;

(b) My conclusions in relation to the SG's true wishes in relation to contact;

(c) The difficulties in enforcing any contact following a move;

(d) The importance of the birth family to the boys;

(e) The risk to the emotional wellbeing of the boys if the relationships between them and the birth family are not promoted;

(f) The questions relating to the SG's commitment to continue to care for the children; and

(g) The conclusion that I have reached that a move will not provide SG2 with release from the issue relating to the birth family that she craves.

These factors, in my judgment, outweigh the arguments put forward to support the move, identified once again in the course of my judgment.

68. Having concluded that a prohibited steps order should be made, I consider the appropriate extent in terms of relevant geography. It is, in my judgment, best achieved using county boundaries in the main. I therefore make a prohibited steps order which prohibits a move beyond the boundaries of Sunderland, South Tyneside, North Tyneside, Newcastle upon Tyne, Gateshead, County Durham to the west of the A68, Hartlepool, Stockton, Darlington, and Middlesbrough. My reasoning is to keep the children within a reasonable and reasonably accessible geographical distance. Should the SG move outside the boundaries of Sunderland, consideration should be given to whether they have sole responsibility for transporting the children, subject to what I will say in relation to the contact arrangements. In reaching this conclusion and making a prohibited steps order, I continue to hope that the SG will maintain their commitment to the children and show that they are able to meet their welfare interests.
69. I turn to the issue or contact or, as it is more accurately described now, who the children spend time with. Once again, this is a difficult issue. It is clear that L and J have significant relationships with their birth family that should be promoted. I determine this issue on the basis that L and J will remain in the care of the SG. On the SG's case at the hearing, there was agreement that the extended holiday contact proposed of one week at Easter, one week at Christmas and two weeks in the summer should proceed. I do question whether that in fact reflected their true feelings. There is an issue as to whether there should be monthly staying contact for weekends, as proposed by the CG and the family, or less frequent contact as proposed by the SG in their statements. The view of the CG is that the boys need regular contact to maintain their relationships in circumstances in which the SG are otherwise unlikely to promote the birth family to the children.
70. The SG argue that the contact with the birth family interferes with their enjoyment of weekends and activities. There is an advantage to contact taking place during the term time with the potential for handovers at school and with the opportunity for the birth family then to be involved with the children's regular activities, as the boys themselves have expressed a wish that they are. I am sympathetic to the SG's view that they should have time free of contact arrangements, including some holidays. These arguments are finely balanced, in my judgment, and there is no easy or right answer.
71. Having considered this matter with care, I have finally reached the following conclusions. I agree that the children should have the proposed holiday contact in the main school holidays so that they have one week in December, one week in the Easter holiday (which will be in March and/or April) and two weeks in the school summer holiday in July or August. In addition, there will be weekend contact in the following months: January, February, May, June, September, October and November.
72. In general, the weekend contact will take place from Friday to Monday. In February, May and October that contact may coincide with the half term. In one out of the three half terms, I will provide for the contact to be extended from Friday to Wednesday. The other two half term holidays will be free of contact, if the SG prefer, otherwise the monthly contact will take place between a Friday or a Monday at either the start or end of the half term holiday. I will, in due course, need to hear submissions about those matters - as to which half term will provide for the extended period of contact and whether the contact will take place during the half terms in the other two relevant months or at the start or end of the half term holiday.
73. In approving those arrangements for contact, I make it clear that that is contact which will be the full contact provided for the birth family, including not only the staying contact which will take place with MGM but also the time that the children will have with each of their parents. The arrangements for F's contact, in particular, will remain supervised. The CG made a recommendation as to the steps he can take to improve his circumstances, most importantly by undertaking a domestic violence programme.
74. The SG agreed in their oral evidence that the boys should have a two week holiday with the birth family in the forthcoming summer holidays. It will, in my judgment, be beneficial for the boys to have a weekend before the end of the school term to give them the first opportunity of staying contact and while they have the stability of the school environment both before and after contact. I therefore propose that contact take place either the weekend of 27^th to 30^th June 2014, or 4^th to 7^th July 2014. I do not have the children's school holiday dates but it is unlikely they are to break up before 11^th July at the earliest, but it is more likely to be on or about 18^th July 2014.
75. The SG proposed fortnightly Skype contact, so that the children maintain indirect with the birth family when direct contact is not taking place. I approve this as part of the overall child arrangements order.

The Special Guardianship Order

76. I am asked to consider whether the welfare interests of the children are met by a variation in the special guardianship orders at this stage, so that parental responsibility was shared equally between the SG and the relevant birth family. The CG's view, expressed in her report and confirmed in her evidence, is that there is little value in such change. It will be evident from the judgment I have given that I am deeply concerned about these two children. I do not, however, propose to vary the special guardianship order at this stage. I want to give the SG the opportunity to demonstrate that they are willing and able to use their parental responsibility - and enhanced parental responsibly - appropriately and responsibly in the children's welfare interests.

S.37 direction

77. I have given very careful consideration to the appropriateness of making such a direction now in the light of the conclusions I have reached about L and J's circumstances. I have concluded that I should not do so at this stage. It is, in my judgment, important to see how the decisions that I have made are received and managed and how the children's welfare needs are met, following on from this judgment. The making of an s.37 direction remains in prospect should there be continuing evidence of significant emotional harm.

Parental Responsibility

78. This issue was raised only in final submissions by Miss Callaghan, on behalf of F. It was not responded to in the submissions made by Mr Twist, on behalf of the SG. I did not receive submissions on the new provisions relating to parental responsibility in s.12 Children Act 1989, brought in by the Children and Families Act 2014. It has implications not only in relation to F's parental responsibility but also in relation to MGM. There is a risk that the parties are precluded from arguing their position in relation to this if I determine this issue at this stage. I will therefore defer this issue until the case is before me on the next substantive occasion.

Further Hearing

79. It is clear from this that there can, in my judgment, be no conclusion to the proceedings at this stage. I am very mindful of the time that the proceedings have been before the court. I could not be more alive to the thrust of the family justice reforms and the child arrangements programme with its emphasis on concluding proceedings, in particular in paragraph 15.3 in relation to the timetable for the children. Despite this, it is not, in my judgment, possible to conclude the proceedings at this stage in the welfare interests of L and J. It is necessary for the proceedings to continue. I agree that there should be a further hearing in September or October 2014, as appropriate, unless there are significant developments which require an earlier hearing. The submissions in relation to parental responsibility and the longer term contact arrangements (in relation to half terms etc.) can await that hearing, particularly if it takes place in September 2014. Obviously, I would wish to be informed if there is any significant change in the children's circumstances in the interim.
80. I would hope and expect that the parties can agree the arrangements for the contact between the children and the birth family in the interim - as to the weekend before the school summer holiday, the two weeks in summer, and the relevant weekend in September. My intention is that the collection and return for contact can be at school wherever possible. For the next hearing, I would propose that there are signed statements from the parties in relation to contact issues and submissions such as the parties wish to make in relation to parental responsibility, together with an updated report from the CG.
81. I will direct a transcript of my judgment. In the circumstances in which the application has come before me on this occasion, I propose to direct that the transcript is funded by the SG, M, and the children.
[Judgment ends]