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England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> R (Children : Discharge Care order No contact order and s91(14) orders) [2014] EWFC B187 (3 January 2014)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B187.html
Cite as: [2014] EWFC B187
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Case No: MA13C00040
IN THE FAMILY COURT SITTING AT MANCHESTER
Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Date: 03/01/2014
Before:
DISTRICT JUDGE RELPH
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Between:
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AB
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Applicant |
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SALFORD CITY COUNCIL -and-
RJ, RN, and RB [by their Children’s Guardian David Delahunty] |
1st Respondent
2nd ,3rd, and 4th Respondents
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AB appeared in person assisted by Mr. J
Ms Hooper Solicitor appeared for 1st Respondent
Ms Dean appeared on behalf of the children.
Hearing dates: 2, 3 January 14
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JUDGMENT
Approved by the court.
Transcribed from the Official Tape Recording by
Apple Transcription Limited
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JUDGMENT
1. The court is concerned today with three children:
RJ, RN, and RB, who for reasons of anonymity are not further described within this final approved judgment but are referred to as the children.
3. The application is brought by AB, who is the children’s father. At the time of the hearing he was 49 years of age. The mother of the children is BC, very sadly BC died on 6th January 2013. The three children are all the children of this couple and the father is named on the children’s birth certificates and therefore has parental responsibility for each of them.
4. I am indebted to both the guardian and the social worker in the case for providing me with a summary of the background which I think it is fair to say represents a very lengthy and complex history of Local Authority involvement with this family going back over a number of years to when the children were very small. Over the years a number of concerns were identified in respect of the children’s care which included not only the father’s situation but also the mother’s drug and chronic alcohol misuse which led to the mother’s significant health problems and ultimately her death but also the very real volatile nature of the parents’ relationship where domestic violence was said to be a feature.
5. The parents separated in 2008 and, following their separation, the parents both made allegations against each other and the children were initially the subject of private law proceedings between 2008 and 2009, and those proceedings took place in the Salford County Court and were dealt with by me. There has therefore been judicial continuity. By July 2009, a residence order was, however, made in favour of the mother. By March 2010 the Local Authority initiated care proceedings in respect of all three children. The three children were made the subject of interim care orders, although initially they remained in the mother’s care. A number of expert assessments were undertaken in relation to both the mother and the father, and that included a psychological assessment of the parents and a psychological assessment of the children.
6. The Local Authority during the course of those proceedings facilitated supervised contact between the children and the father. However, at a contact in March 2011 an incident took place between the father and the contact officer. The Local Authority stated that the father assaulted the contact officer, although this has been disputed by the father throughout. What is said by the children, however, who witnessed the incident, was that the father was shouting and pushing the contact officer, and since that time, although there have been a number of meetings between the father and the Local Authority, there has been no direct contact with the children and their father.
7. In June 2011 an order was made under section 34(4) of the Children Act 1989 which gave the Local Authority permission to refuse contact between the children and their father. I pause to add that at that hearing the father did not oppose either the making of the final care order or the making of the section 34(4) order, and he did not challenge the evidence which was before the court at that time. The children were placed in foster care in November 2011 and they have fortunately been placed within the same foster placement and that foster placement has remained the same foster placement since November 2011.
8. The final care order was made on 19th March 2012 by me. The Local Authority proposed that the children should remain in foster care and, as I understand it, the current carers have recently been approved as long-term carers for the children, although I think that may need to be finally approved in the near future, but certainly the funding for the children’s placement has now been approved, I think at Assistant Director level, which has secured the children’s placement.
9. The Local Authority’s applications for care orders were not opposed by either the mother or the father at the final hearing. The mother accepted that she was simply not in a position to care for the children and she expressed a strong wish that they should remain within their existing placement. The father did not oppose the Local Authority’s application although it is recorded that he did not feel the existing placement for the children was meeting the children’s needs, and by that I mean I understand he did not believe that it was meeting the children’s ethnic needs.
10. I think it is important to note that the final order of 19th March made by consent contains the following recording:
“In terms of the father’s contact with the children, the Local Authority is not recommending that any direct contact takes place between the children and their father. It seeks that the section 34(4) order remains in force and the children to continue to be of the view that they do not wish to see their father at present, although RM has said that she would like to see her father in the future. The Local Authority will continue to facilitate indirect contact once a month. The frequency of indirect contact will be reviewed and contact generally will be reviewed at each LAC review.”
11. The court also approved the Local Authority’s final care plans and the order under section 34(4) was confirmed, the previous order being an interim order.
12. Since the making of the final order in March 2012, the contact has perhaps not progressed as one would have hoped and it has continued to be problematic. There has been therefore limited indirect contact between the father and the children. In July 2012 two of the three children wrote letters to their father, [although the father has stated throughout that he did not receive those letters]. In November 2012 RM wrote another letter to his father; again the father states he did not receive that letter. Two of the children have received birthday cards from their father over the past year and the children also received a joint card from him, although they did not receive separate cards. In their turn, the children sent their father a joint Christmas card. In addition, the Local Authority has sent the father quarterly progress reports in respect of the three children every three months.
13. I think it is important also to simply recite in brief the relationship between the father and the Local Authority during this period. It has been problematic, to say the least. The Local Authority in their evidence indicate that the father has bombarded them with email communications of an inappropriate nature and also that, certainly following a meeting in April between the father and CW, who is the independent reviewing officer, and RN, that was a short and difficult meeting when the independent reviewing officer felt intimidated by the father and that was, as I understand it, the last occasion before this hearing when the father met with any representative of the Local Authority, save the meeting to which I will refer in September 2013.
14. The Local Authority allocated the case to the present social worker, CW, in June 2012, and there has been, unusually in this case, no direct contact between the social worker and the father since she was allocated the case, as she has been instructed by senior management within the Local Authority that the only form of communication with the father is by written correspondence. Similarly, there have been statutory reviews which have been held in respect of the children since November 2012, and the father has not been invited to either of those reviews. It is understood that the father has not responded to the documentation forwarded to him to provide the reviews with information about himself, and that has proved problematic.
15. On 6th January 2013 the mother very sadly died, and it was in May 2013 that the father filed the first of his various applications which I will come to shortly. I should add that throughout the Local Authority have maintained relations between the children and the maternal family, notwithstanding the demise of the children’s mother.
16. At the outset of this hearing, following some discussions between the parties, it was agreed that, notwithstanding the number of applications before the court, there were effectively three issues identified that the court needed to deal with, and that was the application for discharge under section 39 of the Children Act; the application to discharge the order under section 34(4); and the application which the guardian has asked the court to consider under section 91(14) of the Act. It was agreed at the outset that these were the principal issues.
17. However, I should add that, in fact, there are eight applications which have been issued by the father and I list these as follows. The first application was on 18th May 2013 and that was an application for contact with a child in care. The second application was dated 30th May 2013 and that was an application for contempt against the Local Authority social worker. The third application is dated 31st May 2013 and that was for interim contact. The fourth application is dated 24th June 2013; that also is for interim contact. On 9th October 2013 there was a further application, I think the fifth application, for contempt and enforcement. On 25th October 2013 there was a sixth application. This was for disclosure but disclosure of all records of contact between the Local Authority and Greater Manchester Police. On 4th November 2013 there was an application for a prohibited steps order and a wasted costs order. On 6th November 2013 there was an application for disclosure of the children’s whereabouts.
18. I should also add that this matter has been listed for final hearing since August 2013. At my request, the solicitor for the Local Authority compiled a core bundle which I ensured was disclosed to the father, and there was a bundle prepared for the hearing when all documents were before the court. The only additional document since the hearing that has been provided to the court which has played a part in these proceedings was, in fact, the father’s own witness statement which is dated, I believe, 29th November 2013.
19. At the outset of this hearing, however, I felt it was necessary to bring to the parties’ attention the voluminous copy emails which had been forwarded to the court, not all of which it seems had been communicated to the other parties, and I indicated my view to the parties that they were largely irrelevant to the issues which this court had to contend with at this hearing but, nonetheless, they needed to be disclosed, and so they were. Of all those documents, only two individual pieces of paper were admitted in evidence, and that was the minute of the meeting on 26th September 2013 between the father and the Local Authority and the agenda that was prepared for that meeting.
20. I should also indicate that the father has acted on his own behalf in respect of these matters but has been assisted at the various hearings firstly by the PSU, then he was assisted by a friend, and during the course of this hearing he has been very ably assisted and indeed represented by Mr J, who sought permission at the outset of this hearing to play a part in the proceedings, which I have granted. I must say that I am indebted to Mr J, who has conducted himself very well before this court and has greatly assisted in the presentation of the father’s case.
21. If I can turn to the parties’ positions, the father’s position differed slightly in his evidence from the final submissions made. His application is for a discharge of the care order, but his initial evidence indicated that he wanted the children to be returned to his care but accepted this should not be immediately but that he felt he should have direct contact with them. That was slightly at odds with the final submission made on his behalf by Mr J- that the care order should be discharged, to be replaced perhaps by a supervision order or indeed a Family Assistance Order. The father also sought discharge of the section 34(4) order so that direct contact in any event could be resumed forthwith between himself and the children, and the father clearly opposed the making of the section 91(14) application, which would mean that there should be no further applications before the court in respect of the children without leave of the court. The remaining applications which I have listed are certainly before the court but have not been actively dealt with and canvassed before the court.
22. The position of the Local Authority is simply that the father’s applications should be refused. The position of the children’s guardian was that the father’s applications should be refused, but additionally the guardian’s contention was that the court should consider very carefully the imposition of a section 91(14) order.
23. I have dealt with the background very briefly of this matter and in terms of the historical information I am indebted to the guardian’s brief summary. However, I am also indebted to the Local Authority social worker’s report which gives me an updated picture of the three children with whom I am concerned. Both in her written report and in her evidence, the social worker describes RJ as a sensitive young boy. I am told that he has been willing to engage in sending letters to his father, although recently he has refused, having not received a response from his father. The main issue for RJ, I am told, is that he wants confirmation that he will be remaining long-term with his current carers. That is perhaps not surprising, given his age and the fact that one must remember that in September next year he will hopefully be going to secondary school and so he is looking to which school he should go to. So that is a matter of some anxiety for him. I am told that RJ is able to express his wishes and feelings when they are important to him. RJ, I understand, has expressed an interest in his identity and that is reflected in the letters that have also been produced before the court. He wants to know about his father’s history and his family, and that seems to be an important issue for RJ, and it will be, as the social worker accepts, an important issue for both RJ and his siblings, and will continue to be so as they grow older.
24. The children’s mother, it should be noted, was white British, and, as the social worker understands it, although she has very little information about the father, he is black British but with a Caribbean background. Having knowledge of the father’s history and family, the social worker opines, will assist in promoting RJ and his siblings cultural and racial identity and will contribute to RJ developing a positive sense of himself and be more confident about who he is. Clearly both RJ and all the children have suffered a great sense of loss when their mother died. They have been given professional support and I think it is perhaps very helpful to the children that they have been given the opportunity to spend time with the maternal family.
25. RM is described by the foster carers to the social worker as a very enthusiastic and inquisitive young child. She is always looking to try every new experience and activity that comes her way, which suggests a blithe spirit in this young lady. She is described as being very honest, and she will tell her carer if she has done anything wrong, and she has, I am told, responded very positively to the consistent boundaries and routines within the foster placement. It must, of course, be remembered that the children had a very unsettled early start in life due to the difficulties within their parents’ relationship, the parents’ separation and the mother’s difficulties with drug and alcohol misuse. However, I am told that the main issue for RM is that she remains long-term with her current carers. RM is doing well at school and there appear to be no concerns about her emotional stability. However, I am told that her carer is vigilant for any changes.
26. RC I am also told is thriving from the care provided by his carers and that he is very happy within the foster care and is also responding well to the boundaries. He will often, I am told, perhaps understandably due to his young age, follow what his older siblings say when expressing his wishes and feelings, but he has been able to independently express that he wanted to have contact with his maternal family. He can occasionally be reluctant to talk about his parents. However, that may be due to him not being able to fully articulate his feelings due to his age. So far, I am told that RC has refused to write to his father but will sign a card, and the significant issue for RC is to be able to remain with his current foster carers.
27. RM, however, I am told, has on a number of occasions (and this is echoed by the social worker and the guardian) said that she would like to see her father, and the social worker opines that if that were to take place then that would need to be carefully managed. On other occasions the children have refused to write letters to their father, largely because he does not respond to their letters and the questions that they have raised with him.
28. In dealing with this application, I have had the benefit of hearing oral evidence from the father, the social worker and the guardian. In terms of the father’s evidence, I have his written witness statement which was dated 29th November 2013, and that is contained at C50. His evidence was that he wanted the children to be returned to his care but not immediately. He accepted that could not happen, but he felt that he should be having direct contact with them. The father was adamant that he had not seen the care plan from the last hearing, that is when the care order was made, and he had never seen the document when directed to the care plan at all. He said that he felt his legal representatives may have seen the care plan but he had not. He did not oppose the care order and the care plan, he said, as that was the result of the advice he was given at the time and, as he put it, the mother’s death was imminent. However, when taken in cross-examination to his earlier witness statement, it is quite plain to me that the father referred to the care plan, and I am satisfied that the father has indeed seen the care plan and saw the document at the appropriate time.
29. His evidence was that he opposed the fostering of the children but the reason he did not oppose any of the matters at the time of the final hearing was that was based on the advice he was given at the time and based on the future possible outcome, by which I assume him to mean the possible demise of the children’s mother. He said he did not oppose the order because he did not know how long it would be for and that he did not feel it was necessary to oppose the section 34(4) order.
30. In terms of the Local Authority’s evidence and the witness statement provided by the Local Authority, the father’s evidence to the court was that he felt the majority of what was said by the social worker was just hearsay and that he felt that the Local Authority concerns were flippant and that he felt that the children’s wishes and feelings, particularly at the time of the final hearing, were simply a reflection of the influence that the mother had had on the children, but now the children had written to him and in his evidence he felt that the children all wanted to see him. Certainly one of the children says in a letter that they miss him, but whether they actually want to see him is a matter for interpretation.
31. Within his evidence, the father was taken to the psychological report prepared during the course of the earlier proceedings and the paragraph which described the Father as follows:
“The Father is not seeking any form of therapeutic help and I am not recommending any. The Father does appear to be frustrated and at times agitated and his interpersonal manner causes difficulties for professionals. However, I do not think that the Father would accept that any of the fault lies with himself. His current mind set is litigious and he seems determined to continue in that matter.” [My EMPHASIS]
That is a report from Brian Stanley, who is a consultant clinical psychologist instructed within the earlier proceedings, and that description of the father was contained in a report dated 3rd October 2010. That description of the father may be over three years old, but in my judgment it remains as accurate a description of the father now as it was then.
32. In his evidence in terms of the letters being written to the father by the children, he was adamant that he wrote back every month, and it seems to me that the indirect contact has been problematic since the making of the care orders. It is, in fact, only in recent months – I think possibly since July – that there has been anything which might be described as a flow or exchange or proper indirect contact, even though that in itself has been problematic.
33. In his responses, the father was asked when he was referred to the letters: “Why did you scoff?” and his response to that was that it was almost as if the letters which the children had sent to him, [which are contained in section F of the bundle], were being prompted. The one that says the children miss him seems natural but the others he was adamant were all prompted. His evidence was that he was quite sure that the Local Authority simply did not wish for the children to see him, and that he felt a deep sense of annoyance with the Local Authority. It was put to the father that even if the care order was removed, he would have to engage with the Local Authority and the professionals, and he said that that was a reasonable deduction to make and that if he wanted to recover his children then he would do so. He felt that the children were being put at risk by being outside of their ethnic group and the family and that he had a great deal of love to offer them. There had been no assessment of their ethnic background and he felt that the final paragraph in paragraph H of the final care order was offensive. The father told the court that he was Muslim, that he had been Muslim for the last 15 years, and that was the religion in which it was intended the children should be raised. The mother, he said, had no religion, she was an atheist, and that the Local Authority had not shown any interest in relation to the children’s status or made proper enquiry about this. The father’s evidence was clear that when the children were with him he would take the children to mosque and the relevant celebrations at EID and Ramadan, and they would go to festivals and events. When the children were removed into foster care, their Muslim identity disintegrated. I should add that the parents separated in 2008 and from 2008 until their reception into care they lived with their mother, who was white British, and they lived in the community with their mother. The father found it hugely unacceptable and very offensive that the children were being taken to a Christian Sunday School. The father was questioned about this, given his previous statements that he wanted the children to grow up with knowledge of both Christian and the Muslim religion.
34. In terms of the father’s ability and preparedness to engage with the Local Authority, the father gave some odd evidence. He said he was committed to working with the Local Authority. Now that his former partner, the Mother had died, there was no threat to his children and he felt they should be with him, but he accepted that they would need to prepare the ground with the children in order for him to have contact with them, but he felt that this should be done via direct contact. He felt that the section 34(4) order should never have been put in place.
35. When asked by his representative was he prepared to give the court an undertaking that he would conduct himself in a proper manner in front of the children, the father’s response was that he always conducted himself properly and he would not harass any supervising officer. He was asked had he sought any therapy for his anger management issues, and the father’s evidence was that he had sought assistance through his Imam and he had sought advice and assistance through prayer and discussion with the Imam. The father did not accept that the foster carers were properly culturally aware in order to meet his children’s needs.
36. The father in cross-examination by the Local Authority was asked to consider his behaviour at the meeting on 26th September. The father has not ever accepted that he assaulted the contact supervisor in March 2011, and in terms of the meeting on 26th September he accepted that there was an agenda provided to him and that the meeting had been established to try and improve communications and to try and move contact on. He told me that he did not present any attitude at the meeting, that he was calm, and that he had taken advice from Police Inspector S as to how he should deal with that meeting. The father took issue as to whether or not it was a productive or unproductive meeting but it is quite plain to me that that meeting achieved nothing. In parallel with the correspondence between the children and the father, it appeared to me that there were two conversations going on during that meeting. The father had his agenda and wanted to put forward his side of things, but there was no proper dialogue between the parties that would have meant that the position could have moved on. I described that meeting as “an olive branch meeting” and it is a great shame and pity that it did not make the progress one would have hoped for, given the state of the relations between the Local Authority and the father and the fact that, up until then, and indeed continuing from that point, there was only one point of contact for the father and that was not the social worker.
37. In cross-examination from the guardian the father was asked what were the changes which had taken place since the making of the care order. The father’s answer to that was quite simply that the mother had died. When asked what he had done to address the problems that he had which were identified at the time the care order was made, the father indicating that he did not feel there was anything he needed to address. He remained anxious about his children and he wished to be able to engage with them. He felt that the only matters at the time that really needed to be addressed were the problems of the mother, but he gave a confusing answer when he said that the only matters which needed to be addressed were the mother, the stability and stimulation in terms of being able to look after the children. There were no safety issues, he said, which would have prevented him from caring for his children, and that he was capable of looking after his children and that has always been the case. He reiterated in his evidence that he simply felt direct contact is long overdue and that he felt there was no benefit in the indirect contact, and that the communication process, he felt, was damaging, and the answers he gave to some of the children’s questions were generic. He told me: “In my mind what is taking place is just destructive”- by that I inferred the indirect contact and he reiterated the fact that he felt that direct contact was long overdue and the children want to see him. He felt that indirect contact should come to an end, that it was a pointless exercise. The mother has died and the process of indirect contact is one of abuse. He told the court that he needed to see them individually and he felt that by rotating it each week he would be able to engage with them and would get to know them. He wanted to be able to play and talk with the children and find out what they were passionate and curious about. He did not accept it was the case that the children did not want to see him. He was the sole surviving parent and the sole surviving ethnic parent and the children should have contact with him, and that he felt there was no threat to the children in terms of their safety.
38. In cross-examination from the children’s solicitor he accepted that he had turned up at the meeting in September 2013. He told me that he turned up at the meeting and made it clear what his position was and what he wanted and that his engagement was totally different than it had been before because he was cordial and polite and that what he did was draw a line in the sand. He felt that what was done was done, and it was time to move on. But what is plain to me from that evidence is that he did not engage with the Local Authority at that meeting in terms of bilateral discussion. As he accepted effectively in his evidence, he turned up at meeting and told the Local Authority what he wanted and was not prepared perhaps to listen to what was being asked of him and take on board what was being asked of him. That, I am afraid, is a great, great pity.
39. In re-examination from Mr J, however, Mr C told the court that he felt he had been damaged himself by these proceedings and he told the court that he was wary of the professionals involved in this case. But he did accept that it was a concern that he was not engaging and appeared to accept that indirect contact would have to go ahead, and he did accept that he had not answered the children’s questions, and he did accept that he had answered questions with questions in much of his evidence, and he accepted that he needed to demonstrate change. In that respect, the father’s evidence was not consistent.
40. I turn to the social worker’s evidence. The social worker confirmed her witness statement and gave the court an update in terms of the three children with whom I am concerned. The social worker gave evidence that the Local Authority had tried to find foster carers which reflected the children’s racial identity. She accepted that the current carers are white, but she felt that they were very sensitive to the children’s circumstances and had been very accepting of advice and had done a lot to try and promote the children’s racial awareness. The priority for the social worker, however, was the security of the placement in the sense that the children were settled. They were flourishing within the placement and that, for her, now overrode the fact that it was not perhaps an exact ethnic match for the children. I pause there just simply to remind myself that the mother was, in fact, white British and the children resided with the mother for the majority of their lives. They have duel ethnicity.
41. The social worker was able to update the court in saying that the last letter she remembers them sending was in October and that RM and RC had refused to sign the Christmas card. She told me that she saw the children every four to six weeks and on each occasion she would give them individually a copy of any letter written by the father and would spend time talking with the children about what their father had written, encouraging each child to respond. A theme which has emerged throughout from the indirect contact which has taken place is that the children have written letters to the father, which I have read. The letters individually are charming; the children are full of curiosity about their father, and I accept wholeheartedly the guardian’s evidence that the letters individually each give the father a cue from which he could respond, and the father has chosen not to respond to the letters. In this, as in his relations with the Local Authority, there are two conversations going on, not one. I did ask the father did he not accept that it was his responsibility to respond to the children and deal with their agenda, rather than dealing with his own agenda. The father did not accept that.
42. The social worker went on in her evidence to accept that she had not met the father and that for her was a very unusual situation. She had been instructed by her employers and her seniors that, because of the numerous difficulties, she was not to have direct contact with the father. Notwithstanding that, the social worker and her manager had tried to move the matter on, and I accept that they had indeed tried to move the matter forwards by arranging the meeting on 26th September. I have referred to that meeting as “the olive branch meeting” because, given the history of this case, that was a very significant move forward by the Local Authority. But it is clear that the father did not want to engage. I am very conscious that we do not use social work language, but from his evidence it is quite clear that the father has his own agenda and that he struggles to consider the Local Authority’s position and the way that they want to advance the matter on behalf of the children. Her evidence was very plain that the Local Authority needed to share parental responsibility and that, because the father did not even know the children at this stage, the discharge application was far too premature. She felt that the section 34(4) order should remain in place. She felt that the indirect contact is still being established but it was very early days and that at this time the Local Authority were not considering direct contact but it has certainly not been ruled out.
43. When asked about the section 91(14) application, the decision of the Local Authority prior to the hearing had been not to apply for that order because, as the Local Authority social worker indicated, the Local Authority still want to work with the father. But how he behaved at that meeting and from his evidence yesterday, the Local Authority social worker indicated that she could not be sure that the father could work with the Local Authority, but she still hoped that was possible. What was plain is that at the time they had the meeting, the Local Authority were not aware that there were not two but, as it transpires, eight applications which had been made to the court. Given the evidence that the father has given, that had caused her to reconsider her position with regard to the section 91(14) application and she was concerned about the number of applications.
44. The up-to-date position, she said, was that RM at this time does not want to write another letter as the father has not replied. If the father sent RM a birthday card it was not received. In terms of the children’s religion, the social worker has told me that she was not aware that the children had been brought up in the Muslim faith and she had not been informed that the children were Muslim. Part of that problem, she felt, was that the father had not co-operated with the Local Authority and provided them with proper information. Her initial enquiries in relation to the children’s religion and other matters had all been made through the mother, who was the children’s main carer, and part of the difficulties in obtaining information from the father was his lack of engagement and co-operation with them, and that the information about the significance of the children’s religion had clearly not been made fully known to the social worker. She told the court that at the time the children were placed the mother told the Local Authority that the children were not Muslim and she was the children’s main carer. She accepted, however, that the father should have been asked. But she remained unsure as to how much involvement in the Muslim faith the children had had, but this was something that she hoped could be covered in the ongoing indirect contact through letters, and certainly the children are curious and they have asked her about this issue and it is something that clearly the social worker is going to have to work with the children.
45. The social worker offered the father advice about what to put in the letters and she felt that the style of the letters could be very much improved and that they needed to be far more child-friendly and that he should respond to their letters. I would say, quite simply, the father needs to move his agenda, in the sense that he needs to respond to the children’s agenda rather than setting his own agenda within the letters, and that is very much, in my judgment, in the father’s power and control. I accept the guardian’s evidence. He is clearly a very intelligent man and this is something that is a matter of choice rather than ability.
46. I also accept the evidence that there needs to be a letter for each child, that a generic letter is not helpful and that the content needs to improve. For example, putting things in a different language at the bottom of the letter is not helpful because the children cannot understand what is said.
47. In terms of trying to move the matter forward, the social worker was asked how can we improve matters. The short point is that there needs to be an improvement in the dealings between the father and the Local Authority. For things to move forward, there will inevitably have to be a further meeting. The father will have to meet and understand that if he is to progress contact, there will have to be a written agreement between himself and the Local Authority, and he will have to accept that his behaviour needs to be different. The social worker very much wants him to attend and to be able to move the matter forward by involving himself with the Local Authority, engaging constructively with them and accepting that matters cannot always proceed on his agenda. If productive discussions can take place and there can be a flow of proper indirect contact, then she remained hopeful that the matter could move forward, but the father needs to decide that he is going to engage with the Local Authority. For example, when he is sent information in respect of LAC reviews, he has refused to return information which would have helped very much in moving matters forward for the children.
48. I turn now to the guardian’s evidence, and I am grateful to the guardian for his helpful report. The father, it has to be said, in his evidence queried the guardian’s expertise and experience. As such, quite properly, the solicitor for the children went through the guardian’s experience and he gave evidence that he had been qualified as a social worker for 30 years, he had been a full-time guardian for 20 years and has acted on behalf of children in hundreds of cases. I have absolutely no hesitation in accepting that the guardian has a vast amount of experience in dealing with children and in dealing with these cases. As always, the guardian was frank and honest. He gave his evidence in calm and measured way. He accepted that he had not seen the children often ; he had seen them twice in July, but his decision not to go to see the children after the August hearing was quite deliberate as he had had feedback from the foster carers that his visits to the children had caused them very real anxiety and he was anxious that should not be made worse by further visits.
49. He described the children very much in line with the social worker: that they were engaging and presented as happy and relaxed in their foster home, but he felt that the social worker knew the children better than himself. He had been able to read the minutes of the last statutory meeting and he was able to confirm that he had spoken to the children’s foster carer just prior to this final hearing. The guardian was anxious to make it plain that he accepted wholeheartedly that the father loves his children very much and that he understood that the father wanted what was best for his children and acknowledged that it is enormously sad for the children that the father is playing such a small part in their lives, and he hoped that this could change and that he could play a larger part. The guardian’s evidence was that he had had a difficult meeting with the father at court upon initial meeting, but they had a second meeting at his home. There was an agenda prepared for that meeting. It was a meeting which lasted over two hours and the guardian had no concerns about the father’s conduct during that meeting. He accepted that he too had exchanged a large number of emails with the father but felt that his experience in dealing with the father had been different from the Local Authority. He too echoed the evidence of the social worker in terms of the letters which had taken place since July and that the children were disappointed that the father had not answered their questions and, as a result, they had expressed to the foster carer that they were reluctant to write again. The foster carer said it was getting harder and harder to get them to write but he felt that the foster carers remained encouraging and he remained of the view that it would not be impossible to get the children to write again and that he felt that we had reached a point where the process had not broken down. He accepted that the children had said that they would like direct contact but not at the moment. In fact, all three children were saying at the moment they did not wish to see their father, and RM at the moment was saying that she did not want to write to her father, but again the guardian felt that the children could be persuaded.
50. I think the key for the guardian was that some progress needed to be made in getting a working relationship between the father and the Local Authority. The meeting in September was, in fact, the first meeting that the father had had with any member of the Local Authority since April 2012, and that had been a meeting between the independent reviewing officer and the former social worker, Mr N. That had been a very difficult meeting and the father was said to have been intimidating, and it was a meeting that lasted no more than 20 minutes. The September meeting was a longer meeting. Although it was not perfect, he would like to think that was at least a beginning. There are two parts. There is the engagement with the father and the social worker; and then there is the involvement with the reviewing process which will involve the independent reviewing officer. The guardian will speak to the independent reviewing officer at the conclusion of these proceedings to see if he can persuade her to engage with the father at least by telephone, if not embarking upon a direct meeting.
51. The guardian’s evidence was that the father presented as a frustrated individual, and to some extent he understood that because there was no mechanism by which he could share his frustrations with the Local Authority. He accepted that the father does have some legitimate grievances but he did not agree with all of them. The absence of the mechanism by which he could vent his frustrations did not help the situation. He has tried to think of ways in which the Local Authority can engage with the father in a different way, but he accepted that the Local Authority are in a very difficult position, and it has to be said that that is largely down to the father’s own behaviour, which can be intimidating and aggressive. The guardian opined that the issue in terms of the father’s religion was more of an issue in these proceedings than it had been in the last proceedings, and certainly been a greater issue in the oral evidence than any of the written information. The guardian’s evidence was that the nature and quality of the letters to the father was very interesting. The letters from the children are charming, they are full of life, they explain what they have been doing, and he is satisfied that they are not dictated by any third party and that they are all very appropriate. He felt that there were all sorts of cues that the father could use and pick up on in his response and he had not adequately explained to the guardian why he did not pick up on these. He felt that he had not made the best of the opportunity he has been given by way of indirect contact. He felt confident that the father could respond differently and he felt that he should be writing a letter to each of them. He frankly did not understand why the father did not do so, and he felt the father is fully able and capable of addressing matters in age-appropriate language. He did not understand why the father had not responded to the children’s letters appropriately or why it was a problem for him. The guardian accepted the Local Authority have hardly any information about the paternal family, so there is very little that the Local Authority can do to assist the children about understanding their paternal family. If the father feels so very strongly about the children’s background and ethnicity, the guardian did not understand why he has not responded to the children’s questions, and he felt that this would have been a very straightforward and easy way to build on the questions asked by the children and to build on the indirect contact leading to direct contact.
52. However, the guardian was clear in his evidence that given the length of time since they saw their father and the circumstances in which they last saw the father, when he is alleged to have assaulted the support worker, and the views the children have expressed, then any move in contact has to be approached cautiously. The guardian is satisfied that the foster carers are open to contact and open to direct contact. The way forward, in his evidence, is the indirect contact should be built upon in a much more positive form, and that this was not a waste of time. The guardian’s evidence was that the father was clearly a very intelligent man, perfectly capable of responding appropriately, but he had chosen not to, but it was not clear to the guardian why he had chosen not to do so. He felt that if he did write appropriately, the children could be persuaded to respond, and this would lead the way to direct contact. It was simply a reflection that it was sad that the father was not playing a more active role in the children’s lives. Certainly the Local Authority promoted contact with the maternal family, so it is very sad that the paternal family is not represented within the children’s lives, and he felt that it could be very difficult if the father chose not to do so. He felt that if the father chose to withdraw from indirect contact, that would be very unfortunate as, in his view, his evidence was that this was an exercise with a clear purpose, and its purpose was to prepare for direct contact if that was the children’s wish, and that is what needed to go on. He felt that the time between July and now had been a missed opportunity for the father and indeed the children. If the exchange of letters had gone positively from July, it might be that that could move on in March.
53. In terms of the discharge application, the guardian did not support the discharge of the care order. His evidence was clear that the Local Authority need to continue to share parental responsibility and the children need to remain in their current placement on a long-term basis. He felt that the section 34(4) order was a permissive order; it did not mean that contact cannot take place and it should be left to the Local Authority to decide when direct contact should be appropriate. If the order was not in place they would be obliged to provide direct contact and his evidence was that the children are not ready for that and it is not time for that yet. An order to define contact was not appropriate and he did not accept, as the father contended, that indirect contact was a pointless exercise and that monthly contact was about right.
54. In terms of the children’s religious needs, the guardian accepted that the father’s concerns are legitimate and understandable, but at the moment the children are happy and settled and have been there for over two years after a very unsettled period and they are expressing a clear wish to remain with their current carers, who are very sensitive and responsive to advice, and for him there would have to be very compelling reasons to move the children from their present placement, even though it does not completely match their ethnic background. There were other factors at play here and they overrode the issue in terms of ethnicity at this time, but that is clearly something that the Local Authority is going to have to address going forwards. He felt that in terms of the religious aspect of the matter, the father’s views appear to have changed since 2012, but he felt that the foster carers were doing as much as it would be reasonable to do in all the circumstances. He recognised the children are interested in Islam and he was sure that they would welcome more information from the father about that, and this is something that the Local Authority will have to address going forwards.
55. In terms of the section 91(14) application, the guardian referred to paragraph 89 of his report. He felt this was still a matter for the court to consider but he felt even more strongly on the issue now than when he wrote the report as a result of the evidence he has heard within the course of these proceedings. His view was that when he read the documents in this case for the first time, the issues that the court was being asked to consider reflected very much the issues which were around in 2012, and the children’s views on contact now are pretty much as they were when the matter was last before the court in 2012. The father’s views were the same, other than the issues that he has raised now in relation to religion. The guardian felt very much during the course of his enquiries that he was asking the children the same questions as the previous guardian, and was concerned that, following his visit, the report from the foster carers was that the children were very unsettled, and he felt that the children had been involved in the litigation process now for a considerable period of time and that they should be shielded from the anxieties and uncertainties that litigation brings, if at all possible. He felt that the Local Authority were addressing the contact issues which remained problematic, and he did not feel that the children being subjected to further litigation would be in the children’s best interests. The felt that there was a strong welfare case for the children not being subjected to further litigation, and that was part of his rationale for recommending a section 91(14). He felt that the section 91(14) order would give a clear message about the future emplacement of the children and that this was important because RJ, it should be remembered, will go to secondary school in September, and it would be in the children’s best interests for them to know that they were going to be living where they were for the foreseeable future, which was also their wish. If there were in the future a real change in circumstances in either the father’s case or the children’s case, then there might be a case for a further application, but that was not the case now.
56. In terms of the various submissions, I do accept the submission made on behalf of the father that the father has now been engaged so long in the litigation that there is a deep distrust between himself and the Local Authority. It was submitted to the court that the father has, in fact, taken on board the evidence he has heard and that the father is pleased to note the children are interested in him and his family and heritage. It was submitted they were clearly born into the Muslim faith and that they should be brought up as Muslims, and the fact that there is no reference to this in the reports and that this had not been addressed was a matter of concern. It was submitted on the father’s behalf that he felt he was being punished by the section 34(4) order and that his abrasive style, which he seems to accept, and his frustrations boiling over, seem to have led to the section 34(4) order being made.
57. The point was made that if there is a problem with the father’s communication, how is he to know that his communications are inappropriate, as there is no proper form of communication between himself and the Local Authority. It was submitted on behalf of the father that the Local Authority simply did not wish to communicate with him and did not wish him to see his children. His view was that they had dealt solely with the mother and that had given rise to further frustrations on the part of the father.
58. In submissions on behalf of the father, the psychological report was again referred to, and all I can say is that the father does not appear to have moved on. He remains entrenched within the litigation process, but if he is to make progress he is going to have to move on from that.
59. I do not accept the submission made on behalf of the father that part of the Local Authority reasoning in not promoting contact and the relationship between the children and the father is to preserve the foster placement. There is no evidence to support that submission. The father seeks direct contact with the children but it would not be his intention to tear them away from a situation that they were happy with.
60. The submissions on behalf of the Local Authority and guardian echoed one another: that there was no case for the discharge of the care order; that the section 34(4) order should remain in place and the father’s application refused; and the Local Authority within their submissions set out the steps that they believe the father would have to take in order to move the contact on. I set those out as follows.
61. The father will need to cease the numerous and offensive emails to the point of reference which has been given. The father will need to co-operate with the LAC process and, at the very least, fill in the consultation document. The father will need to write more child-focused letters, and if all goes well and the children wished it, it is hoped that will lead to direct contact being considered. In addition to that, I would say that the father will need to work co-operatively with the Local Authority and will need to sign an agreement as to expectations. The submission on behalf of the Local Authority was that the section 34(4) application needed to remain in place but there appears to be a way forward but that will depend on how the father responds from this point.
62. In terms of the section 91(14) application, the Local Authority has changed it stance from its initial position. It was said that initially the Local Authority did not feel they wanted to pursue that line as it would be draconian to do so, but there were eight applications which had now been issued which I have recited and basically all members of this family have been in litigation for so long that all will need a break from the litigation process and, most importantly, the children, and in that respect the Local Authority support the submissions made on behalf of the children.
63. The guardian’s submissions were that there was no merit in the application to discharge the care order and that there was a clear need for this to remain in force and for the Local Authority to share parental responsibility, and to discharge the care order would be premature. There was no evidence before this court upon which such an application could properly be entertained, and in any event any rehabilitation should be under the auspices of the care order. The care order and the only plan to protect the children was the current care plan, and it should remain in place.
64. The issue of contact is for consideration, that it was not appropriate for the court to make a defined contact order. That would not be in any of the children’s best interests, but the Local Authority does need to manage the contact and regulate contact and the speed at which it should develop. Therefore, the section 34(4) order needed to remain in place.
65. In terms of the section 91(14) application, it was submitted that the guardian had given clear and careful consideration as to the impact of the court proceedings and repeated applications on the children and that it was put forward primarily on a welfare basis. It was also submitted that since the final order in 2012 it was only in May 2013 that the litigation started again and the children have been settled in placement but there has been increased uncertainty, partly due to administration matters and the Local Authority not being in a position to say the children could remain there for financial reasons although the children are not aware of that, but certainly that has given uncertainty for the children, coupled with the ongoing litigation, and they need an opportunity to settle properly and have some certainty that this is where they can stay for the foreseeable future; and that the section 91(14) would protect the children from further litigation. It was submitted that this was something that the court should consider in the exercise of its discretion. It was not simply about the number of applications which had been presented to the court, but the combined effect. It would mean that the father would have to apply for leave, which meant the matter could be reviewed by the court without initially involving the children.
66. I have dealt with the evidence, but in terms of discussion I would like the father to understand that I have no doubt about the love that he bears his children. But it is quite clear to me, and as is evidenced from the psychological report which I have referred to, that the father has been engaged in a battle and a litigious process, and much of this, I have to say, is largely of his own making. Whatever his reasons, he must accept the responsibility for the predicament that he now finds himself in. I accept that the actions of the Local Authority in terms of their communication with this father are unusual, but given the volume of communications, the nature of those communications and the aggressive and intimidating behaviour by the father, it is perhaps not surprising that those steps have had to be put in place. I would hope that this is not an insurmountable problem and I hope that if these proceedings have served any purpose the father will have understood that there needs to be a change in his attitude and behaviour if we are to make the real progress which he wishes and which would be for the children’s best interests. I hope, as the guardian has put before the court, that, if nothing else, these proceedings will have also provided an avenue and opened up some lines of communication between the father and the Local Authority which can only be for the future benefit of the children. I accept the evidence and the submissions of the guardian and the Local Authority that nothing has materially changed in this case since the order was made in 2012, save that the mother has very sadly died.
67. It is clear to me that the father remains locked in this litigious battle. There are elements of his personality which appear obdurate and unreasonable, and his style, whether it is borne of frustration or otherwise, can be confrontational. Until he decides to change and emerge from that, then I suspect very little progress will be made, but there is progress that can be made and I accept the guardian’s evidence that the children have not yet reached a point where they do not wish to engage with the father; rather the opposite. The letters that I have read tell me that these children are very curious and, with careful handling and with patience, I would hope that contact could be re-established, but very much of this is in the father’s own hands and he must accept that. The children’s letters, I accept, are charming. They are curious, they are full of cues which an intelligent man such as the father can pick up on in order to establish a relationship. A generic letter back to the children is not acceptable, given the father’s intelligence, and I accept the guardian’s evidence on that. The father is plainly an intelligent man. He has his own agenda, it seems to me, by the way he has responded to the children, and he chooses not to correspond. There are two conversations going on here. There is the children’s conversation and there is the father’s conversation, and there needs to be one. This, I am afraid, is reflective of the way the father chooses not to engage with the Local Authority, as I find, unless it is on his terms. It is pointless agreeing an agenda, it is pointless attending a meeting, unless you are prepared to discuss matters properly and sensibly and, I have to say, to listen to a different point of view.
68. I accept all the evidence before me that the children have had a very unsettled start in their early life, and from 2008 they have had a very unsettled period. I accept entirely there is a desperate need for the children to be calm and free from litigation and the anxieties that that brings, because they are all now of an age to understand that something is going on. They have been, it seems to me, desperate to know that they are able to stay with their current foster carers, and it is only recently that for administrative issues, let alone these proceedings, it has perhaps been possible to reassure the children that they can stay where they wish to stay, and all three children have indicated that they wish to stay where they are. I am also reassured from the reports I read that the maternal family remain involved with the children, and they too are anxious that the children should be able to stay in their current placement. The children need reassurance and they need to be free from litigation. RJ will be changing to senior school in September and it will affect very much the schools that he is looking at where he lives, and RM will not be very far behind.
69. As I say, from all the evidence I have heard and read, I cannot see that there really has been a significant change in the father’s circumstances since the order was made in March 2012, and I am satisfied in this case that the Local Authority does need to continue to share parental responsibility, and so for all the reasons that I have given I am going to refuse the father’s application to discharge the care order.
70. In terms of the section 34(4) application, I think the father must understand that this is a permissive order. It is not an order for no contact. The real key to progress in terms of contact lies very much in his hands. I do not believe, and I accept the guardian’s evidence, that indirect contact is a waste of time. The letters from the children are a real cue to the father that he can take up and build a relationship, and there has been indeed a lost opportunity between July and today. We could have been very much further down this road, but the father has chosen not to engage in the children’s conversation. He almost seems determined to have a conversation with the children on his terms, and I am satisfied that he has sufficient intelligence to know the difference between the two. The concern I have is that this is reflection of the Fathers personality.
71. I accept the evidence of the social worker and the guardian that there needs to be a flow of proper correspondence, which I hope very much will lead to direct contact should the children wish it, but this will have to be dealt with cautiously, and there will indeed have to be, at some point, a meeting between the father and the Local Authority at which I would expect the father to agree and sign a written agreement so that everyone knows where they are. All of this, I am afraid, is very much in the father’s own hands, and I would hope that, following this very difficult hearing and this lengthy judgment which is far longer than I intended, he will have the opportunity to go away and reflect. It is very much in his own gift to progress this, but it is very much up to him. He talks about drawing a line in the sand. Rather, I would say that following this hearing the Local Authority and the father can embark upon matters and have a fresh start; that they will be able to co-operate and discuss matters respectfully with each other; and that neither party can dictate to the other what should happen. There has to be one conversation between the children and the father and one conversation between the Local Authority and the father. It is up to him. He must accept that he must moderate his behaviour, notwithstanding his frustrations and feelings, and he must not say inappropriate things to the children at contact. At this point in time the children do not know their father and therefore I accept, and I have already discharged the application to discharge the care order, it is premature. Equally, in my judgment, direct contact at this time is premature. The children do not know their father and they have much to learn about each other, and that can be done by indirect contact, and that also is in the father’s gift.
72. I accept what the guardian says and I think the father needs to be very careful. I think we are still at a point where progress is possible, but as the children grow and there is a window of opportunity, but it may be the children will change their minds, and I think the father needs to grasp what may be the last opportunity to improve and progress his relationship with his children, but I am satisfied that the Local Authority are addressing this issue appropriately and that they will need the section 34(4) order in place to continue and regulate the contact and to promote the children’s best welfare. For those reasons, I refuse the father’s section 34(4) application.
73. In terms of the section 91(14) application, I must remind myself of the considerations which the court must have in mind before making any such application. This is a difficult exercise in discretion and jurisdiction and there are a number of matters which I must consider. The power to restrict further applications under section 91(14) is discretionary, and in exercising my discretion the court must weigh in the balance all relevant circumstances. An important consideration is that to impose restrictions is a statutory intrusion on the right of the party to bring proceedings before the court and to be heard. The power should therefore be used sparingly and should be the exception and not the rule. In suitable cases and on clear evidence, the court might impose the restriction where the welfare of the children requires it, even though there was no past history of unreasonable applications. In cases where there was no past history of unreasonable applications, the court would need to be satisfied that the facts went beyond the commonly encountered need for time to settle to a regime ordered by the court and the all too common situation where there was animosity between the parties and the adults and/or the Local Authority and that there was a risk that, without the imposition of a restriction, the children or primary carers would be subjected to an unacceptable strain. The court might impose a restriction in the absence of a specific request, subject to the rules of natural justice, allowing a party to be heard, and a restriction might be imposed with or without limit of time. The degree of restriction should be proportionate to the harm it was intended to avoid and there should be no without-notice orders other than in truly exceptional cases.
74. In the instant case I have heard direct evidence from the guardian that he is concerned on a welfare basis that the children’s welfare and security has been put in jeopardy by the continued litigation and the anxiety which it has caused the children. His direct evidence is that he is concerned on a welfare basis that the children should be able to remain within their home and settle and make proper progress and that there be a proper concentration, I assume, on moving contact forward in a constructive way without the prospect of litigation.
75. I also take into account in this case not simply the number of applications which the father has made. The principal applications I have absolutely no difficulty with but there have been a number of applications which, had they been issued in the civil jurisdiction would have been struck out by me as they were beyond my jurisdiction and were simply not tenable. In addition to the number of applications which the court has received, I am aware of the number of email correspondences that have been received not simply by the court but by the guardian and by the Local Authority. All of that, I am afraid, has to stop if we are to make progress.
76. I do not make a section 91(14) order lightly. It should be made sparingly and rarely and where there is a real need. I accept the guardian’s evidence in this particular regard and I am going to make a section 91(14) order and I will make it for a period of two years. The formal order therefore will be that the father’s application for discharge of the care order is refused; the application of the father for discharge of the section 34(4) application is refused; and I make an order under section 91(14) in relation to the father for a period of two years that there should be no further applications without leave of the court, and I reserve all future applications to myself if available.
[Judgment ends]