England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT MEDWAY

		Sitting at Tunbridge Wells 42-46 London Road Tunbridge Wells, Kent.
		7th October 2015

HER HONOUR JUDGE HAMMERTON:

1. On the 9^th of April of this year J was taken from his father's home under police protection. He was placed in foster care where he has remained. These proceedings formally commenced on the 16^th April. The application which is made by the Local Authority, Medway Council, is that an order is made for J to be placed in the care of the Local Authority. The care plan is one that he remains with his current foster carers. J's father opposes the application. He seeks an immediate return of J to his care. Throughout this Judgment I shall refer to J's father as the "father". I mean no disrespect by that terminology.
2. It is submitted on behalf of the father that the threshold criteria, as set out in section 31 of the Children Act, are not proved and that in those circumstances there is no power for the Court to make any orders in respect of J and he must be returned to his father's care.
3. It is submitted in the alternative that I should recuse myself on the basis that "the test of bias has been crossed" and that the matter should be set down for a new hearing before an impartial tribunal with a direction for the preparation of a parental capacity assessment of the father. It was said that any further hearing should not be before myself, or His Honour Judge Scarratt, and should preferably be at High Court level.
4. J is represented by his Guardian. The Guardian supports the application made by the Local Authority.
5. The hearing of this application took place before me over three days on the 21^st, 22^nd and 24^th September. There was insufficient time to conclude the hearing. In the circumstances Counsel provided written submissions. These were sent to me sequentially and the matter is listed for Judgment today.

Background

6. These proceedings are the third set of legal proceedings between this Local Authority and the father. On the 27^th February 2013 His Honour Judge Polden made a care order in favour of the Local Authority. J was placed in long term foster care. The Judgment of His Honour Judge Polden appears on BAILLII reported at [2014] EWFC B185. Paragraphs 3 to 36 of Judge Polden's Judgment sets out in full the background to the proceedings which were before him. Those proceedings had commenced in July 2012 as a consequence of an emergency protection order made at that time.
7. In October 2013 J was returned to the care of his father. In May 2014 the Local Authority made an application to discharge the care order. The matter came before His Honour Judge Polden. The litigation was protracted. Having initiated an application to discharge the care order in August 2014 the Local Authority changed their position. In those circumstances the matter was set down for a contested hearing. That hearing came before me on the 9^th November. The matter was adjourned part-heard. Eventually the application concluded on the 3^rd March 2015. In the event a full trial did not take place. The care order was discharged effectively by agreement. The full details as to the sequence of events which led to the discharge of the care order are set out in my Judgment which also can be found on BAILLII reported at [2015] EWFC B39.
8. The proceedings having concluded on the 3^rd March 2015 there was no continuing role for the Local Authority. On the 26^th March 2015 the Local Authority Emergency Duty Team received a call from Kent Police. The police informed that they were attending the father's address as the result of a call made by the Ambulance Service. From the information which is set out in the police log it would appear that the initial call was made by the father to the Ambulance Service. He required assistance. It was stated that J was violent and smashing up the house. There was reference to his son having a mental health assessment.
9. Police officers attended and reported that the state of the home was a cause for concern. The home was described as "filthy" with not one room being acceptable or clean. It was reported that the father would not accept that the home conditions were unsuitable.
10. At 15:15 hours on the 5^th April the police were called to the father's address. This was in response to a call made by the father to the police. He advised them that on the day before, that would have been the 4^th April:

" J had trashed the house with a hammer and shot his dad with pellets from an air gun. Dad stated that the incident had started today as a result of something dad told him. It was noted that whilst on the phone to police dad left the address as he was afraid of what J might do."

It was recorded that the father was advised that J was a 12 year old child. The response was that dad could not restrain J, as J would call him a "Paedophile". The father believed that J was not mentally stable.

11. When the police arrived they noted that J was hiding underneath the piano. When he spoke to the officers J was emotional. He told them that the demands being made of him by his father in respect of extra homework, Russian schooling and playing the piano were too much for him. The officers noted that when J tried to speak to his father he was shouted down. It was noted in the report that the officers tried to mediate between father and son but the father would not listen, was abrupt and dismissive. The officers recorded that the house was very unkempt and there was a hole in a glass pane of a front window. The officers advised father and son that they needed to listen to each other and the house should be tidied up. It was noted:

"Dad continued to refuse to accept any part of blame for the parenting concerns of J and insisted on placing full blame on to Social Services."

Following that visit a referral was made to Social Services by the police.

12. The father's evidence is that on the same day – and as I understand it, it was after the visit – he went down to the police station. He explained that in his home country it was usual practice to go to the police station for advice and not in terms of the police being an enforcement unit. He gave evidence that he spoke to an inspector who agreed that he would attend at his home on the following Tuesday.
13. On the 8^th April at 21:50 hours the father phoned the police. The crime report reads as follows:

"The suspect called the police to report that the victim had been causing damage to his property by smashing items and using matches. He said that he had been threatening to set himself on fire. He wanted police to discipline his son. He mentioned that he had been in contact with officers previously and was not happy as to how it was dealt with. The suspect was given advice to contact Social Services but states he did not think they would be able to help him."

It was not possible for the police to attend at the father's home that evening.

14. On the following day two officers, PC Sheppard and PC Roostan, attended shortly before 10 a.m. They remained at the house throughout the morning. During the course of the morning Social Services were requested to attend. A decision was taken that J would be taken into police protection. The father was arrested on suspicion of child neglect.
15. On the following day, 10^th April, an application was made to Medway Family Court for an emergency protection order. There was a hearing before the Magistrates. All parties were represented. An emergency protection order was made which was to continue over the weekend until 13^th April.
16. On 13^th April the matter was listed before me. The emergency protection order was extended to the 20^th April on the basis that an application was to be made for an interim care order.
17. On the 20^th April the hearing in respect of the interim care order did not proceed, the reason for this was that the police evidence was not available. An interim care order was made on the basis that the matter would be listed for a fully contested hearing. The first available date for that was 5^th June. In the meantime to avoid further delay a case management conference was fixed before me on the 5^th May.
18. On the 5^th June evidence was produced by the Local Authority which was a CD of a film made from body cam footage taken by the police. There was an issue as to the admissibility of that evidence. I decided that the evidence was admissible, however, there was insufficient time for the advocates to see all of the footage and in particular for Counsel for the father to take instructions. It was in those circumstances that the matter was adjourned to a hearing before His Honour Judge Scarratt which took place on the 22^nd and 23^rd June. At that hearing evidence was heard by His Honour Judge Scarratt from the social worker and from the Guardian. The interim care order was confirmed.
19. The final hearing had been listed, unusually by me, at the case management hearing on the 5^th May to take place over 4 days in August. It was clear that that listing was no longer practical and His Honour Judge Scarratt listed the matter for final hearing for three days, starting on the 21^st September.
20. On the 29^th July there was a further hearing before His Honour Judge Scarratt. On that occasion there were cross-applications in respect of contact. The order made by His Honour Judge Scarratt was to direct that contact should take place fortnightly and be supervised by the Local Authority.
21. The father had been charged with child neglect. The matter was sent to the Crown Court. On the 2^nd September no evidence was offered against the father and he was acquitted of the charge.
22. The original timetable provided for an IRH to take place on the 28^th August. In the event the jointly instructed psychologist, Miss Melanie Gill, had not been able to produce a report in accordance with that direction. In the circumstances the IRH was moved to a hearing on the 14^th September.
23. The IRH was before me. On that date an application was made on behalf of the father that the final hearing should be adjourned. The basis of that application was that Yom Kippur fell on the 23^rd September, in the middle of the trial. In the event it was possible to vacate that day of the hearing on the basis that the matter could be heard additionally on the 24^th. That had been a day originally earmarked for Judgment. On that basis the application for an adjournment was withdrawn. Further directions were made which provided details of the witnesses who would be called at the hearing.
24. At the beginning of the hearing on the 21^st September Counsel for the father sought an adjournment of the final hearing. There were three grounds for the application. First of all, that there were outstanding decisions from the Court of Appeal in respect of the appellant notices which had been filed. Secondly, the need to implement the recommendations of the expert witness. Thirdly, that the child's voice was not being heard.
25. At the hearing of the IRH on the 14^th September, which was a Monday, I was informed that the father had filed appellant notices seeking permission to appeal a number of decisions that had been made. There was an application for permission to appeal in respect of the decisions made by me on the 5^th May, firstly, refusing to recuse myself; secondly, making a direction for the instruction of Dr. Kilby as the jointly instructed psychologist; and, thirdly, refusing separate representation for J. I understand that that appellant notice was filed around the end of June. There was a further appellant notice filed in respect of my decision on the 5^th June in respect of the admissibility of the body can film footage. There were appellant notices in respect of the decisions made by His Honour Judge Scarratt on the 23^rd June when the interim care order was confirmed and also the decision on the 29^th July which reduced contact which had previously been weekly. I was told that those appellant notices had been filed on the 28^th August.
26. I was informed on 14^th September that it was expected that there would be information from the Court of Appeal in respect of an application for a stay by Friday the 19^th September. In the event no further information was forthcoming and it was in those circumstances that Counsel made an application for an adjournment.
27. The application for an adjournment was refused by me. I gave reasons at the time. My view was that the matter, having been listed for final hearing, it was in the interest of all parties, and most importantly for J, whose interests are paramount, that there should be no delay. In so far as the appeals being made against interim orders were concerned, it was preferable that the Court should hear the full evidence in which case the original appeals might fall away. In so far as the appeals were against case management directions, and in particular issues such as the admissibility of evidence, those were matters which could be addressed by the Court of Appeal after the trial.
28. In so far as the implementation of the advice from the expert witness was concerned, this was in respect of the recommendations made by the psychologist, Miss Melanie Gill, for video interactive guidance therapy. One of the central issues in this case is the cause of the emotional difficulties between J and his father; whether these can be addressed by therapy and if so, the timescales? The video interactive guidance was one of the therapies recommended by Miss Gill.
29. It was unclear from her report as to the timescales in respect of this therapy. Given the lack of clarity in respect of this issue, and that it was an issue that was at the heart of the case, it was my view that this was something which needed to be decided having heard the oral evidence of Miss Gill and also the other evidence in the case. It was not a matter which could be decided at the outset. It was a matter which needed to be considered as an issue in the trial.
30. In so far as J's voice not being heard is concerned, and this in particular in relation to the rights of the child as set out in the United Nations Convention Rights of the Child, this was a matter which was the subject of an application made on the 5^th May when I refused the application for separate representation. It is clear that my decision is not accepted by the father. One of the difficulties which has occurred within the arrangements for contact has been the ongoing dispute in relation to the father providing information to J in respect of the name and address of his previous solicitor and an encouragement to consider separate representation.
31. Having considered the evidence that I have now heard in the case I am satisfied that J's views have indeed been communicated to the Court and have been heard. That has been achieved through the Guardian, also from evidence given by the current social worker and Melanie Gill.
32. I turn now to the legal framework. In so far as the law is concerned it is trite law that an order can only be made in public law proceedings if the Local Authority establish threshold as set out in section 31 of the Act namely :

"That the child concerned is suffering or is likely to suffer significant harm."

And (b):

"That the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him if the order were not made not being what it would be reasonable to expect a parent to give him."

33. In proving threshold the burden of proof is on the Local Authority. The standard of proof is on the balance of probabilities. I have been reminded by the Local Authority of the relevant case law. In particular Re A [2015] EWFC 11 with emphasis on paragraphs 4, 5 and 6 of that Judgment. Further, the matters set out at paragraph 26 of that Judgment which emphasises the necessity for findings of fact to be based on evidence and not on suspicion or speculation. Further, the need to link the facts which are relied upon as being probative of the fact that the child has suffered harm or is at risk of doing so.
34. In considering the degree of harm -- and this of course must be significant harm – I was reminded of the guidance in Re J [2015] EWCA Civ 222, particularly paragraph 44 which quotes from a Judgment of His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877. In that Judgment the Circuit Judge emphasised that the Courts were not in the business of social engineering or providing children with perfect homes.
35. The final threshold document in this case has been adapted from the threshold document which was used at the outset of these proceedings and relied upon at the interim hearing. All matters that are alleged against the father are disputed by him. Therefore, it is necessary to look at these allegations with care.
36. In so far as the evidence relied upon by the Local Authority, this comes firstly from the then allocated social worker, Miss Palles. Secondly, the film from the body cam footage taken on the 9^th April. Thirdly, documentary evidence which includes the Judgments from the previous proceedings, the documents from the police and Social Services and the expert evidence from Melanie Gill.

The Evidence of Miss Palles

37. Miss Palles was the social worker for J, in the period autumn 2014 up until the discharge of the care order on the 3^rd March. There was no contact between Miss Palles and the family after the 3^rd March. She was called to the father's home by the police on the 9^th April.
38. On the 15^th April she visited J in his foster care placement. That was a visit jointly with a police officer. During that visit J described his life with his father. Miss Palles described the conversation as being the most revealing moment, a picture of what was happening. Miss Palles made detailed case notes in respect of the conversation on that date. I found Miss Palles to be an impressive witness. When in the witness box she was very careful to give accurate answers. When she was unsure of her recollection she asked to see the case notes. She was measured in her replies. Her evidence was consistent with the other evidence, both her detailed account of the attendance on the 9^th April and her notes of the 15^th April. In respect of both occasions there is evidence from the police and in respect of the 9^th April the body cam footage. I am satisfied that Miss Palles's evidence is evidence upon which I can rely.

The Film from the Body Cam Footage

39. The attendance by police on the 9^th April was filmed. One of the police officers was wearing a body cam and accordingly there is a real time record of their visit. The admissibility of the film was as I have previously indicated the subject of a dispute which was resolved by me on the 5^th June. On that occasion I had watched part of the film, since then I have watched the film twice. In my judgment the film portrays very clearly the conditions in the father's home. The film is in colour and much clearer than the black and white photographs attached to the bundle. Whilst the film is not able to capture everything it provides a vivid portrayal of not only the home conditions, but the interactions of those present. In particular the father with the police officers; the father with J; and then the arrival of the social workers.
40. When watching the film I was struck by the appearance of Miss Palles. Although she was entirely professional she seemed to me to be visibly shocked. It is of course possible to misconstrue facial expression. I asked Miss Palles what she was thinking at the time? Her answer as noted by me was:

"It was distressing to see the family home in that state. As a social worker I felt I had been unable to protect him. I did not know how long he had been living in that environment."

The police evidence

41. The documents provided by the police include the Storm report for the 26^th March; and the crime reports for the 6^th and 9^th April. In addition there are detailed witness statements provided by the police officers who attended on the 9^th April, together with their pocket books. Of course I have not heard any oral evidence from the police officers. It was not at any time suggested that they were required to attend. Their evidence forms valuable background to this case.
42. In addition there is the Judgment of His Honour Judge Polden and also my Judgment on the 3^rd March.
43. The burden of proof is of course on the Local Authority. The father does not have to prove anything. In considering the evidence presented by the Local Authority it is important that I consider this having regard to the evidence given by the father. He has provided two statements, the first dated 30^th April and the second the 17^th September. In addition he gave lengthy oral evidence. Indeed he was in the witness box for most of the day on the third day of the hearing.
44. It is perhaps stating the obvious that any parent who is faced with the prospect of their child being taken into care will find the legal proceedings stressful. The final hearing will be particularly stressful. Likewise, giving evidence in this type of litigation is always difficult. In family proceedings allowance is made for that.
45. In this case the father has for the most part been overwhelmed by his emotions and his vehement belief that the care proceedings are misguided and totally misconceived. He was in a high state of agitation throughout the hearing. He frequently withdrew from the Court room it would appear because he found the evidence too distressing.
46. When giving evidence himself he became argumentative. He failed to answer questions directly. He seemed determined to provide evidence on matters that accorded with his own agenda. It seemed to me that his conviction that he has been the subject of multiple miscarriages of injustice has undoubtedly coloured his perception of events.
47. When his evidence is examined against other evidence it is demonstrably unreliable. There are numerous examples. One particular example is that the father maintained that – and in his own words whilst giving evidence – it was "utter rubbish" that he had threatened to take J abroad. He said:

"What I said is that it was my right to leave the country."

Counsel on his behalf denied that any threats had been made by the father.

48. The film taken from the body cam records the conversations that the father had more than once with the police officers. Clearly the father was telling the police officer of his intention to move to France which was to escape Social Services.
49. Whilst I find in general terms that the father was an unsatisfactory and unreliable witness I have reminded myself of the principles set out in the criminal case, R.v Lucas. The fact that a witness is found to have lied about one matter does not necessarily mean that their evidence on other matters is untruthful or that the lie is probative of the allegation which is made against him.
50. Further, as set out by Baker J in Devon County Council v E B & Ors it is important for all the evidence to be considered against the broad canvass. Accordingly there is no substitute for considering the father's evidence in context. When considering allegations of threshold these require to be examined individually looking at the evidence in respect of each allegation.
51. The first allegation is physical harm. This is the allegation at No. 5 of the Threshold document which reads:

"Father has physically harmed J on more than one occasion."

The allegation as pleaded is imprecise. It reflects the statements made by J during his meeting with Miss Palles and the police officer on the 15^th April. The statement as recorded by the police officer was that J said that he was punching his dad and he, that is a reference to the father, punched him in the face. He said it happened about a week before he came into care and that he sustained a cut to his lip. The matter was set out within Miss Palles's statement in terms that the week before he was removed from his father's care his dad had punched him on his face and his lip was bruised. The incident happened within the home.

52. The father's evidence as to this is an emphatic denial. He related that J had since told him that he has never made an allegation as set out above. The father's view was that J had been pressurised to make the allegation. He further expressed the thought:

"May be he has been drugged by Social Services?"

53. It is right that J was not prepared to give an ABE interview. It is quite clear that when he returned to the police station he indicated that he did not wish to give evidence against his father.
54. It is correct to note that when J was spoken to initially at the premises by PC Roostan, in particular in respect of some writing on the back of a picture frame, J was asked had his dad ever hurt him. J's reply was:

"Not now. He did when I was little."

55. J was seen on two occasions prior to the 9^th April. No injuries were observed on those occasions. On the 26^th March he was examined by the paramedics.
56. In considering the evidence which I have heard from Elizabeth Palles I am satisfied that the allegation as recorded by her and by the police officer was made by J. I am satisfied that the allegation was made spontaneously by J and that it was taken seriously by the social worker and the police.
57. Given J's loyalty to his father it is unsurprising that he chose not to give an ABE interview. In the absence of an ABE interview and the details that would be obtained in such an interview, and in the light of the other evidence which appears to conflict with what has been said, I am unable to make a finding that there had been a recent physical assault which could appropriately be included as part of the threshold. In those circumstances there will be no finding on allegation No. 5.
58. Allegation no 6 reads:

"Father has been unable to stop J setting fire to objects within the home and has permitted matches to be left on the floor leaving J at risk of physical harm due to fire setting."

The evidence in respect of this comes from the film and the documents from the police. The film footage shows matches scattered on the floor in the bedroom, on the stairs and in the living room. The film shows a mark on the stairs at the time described by the police officer as a "scorch" mark. She relates that she had been told by the father that he had put out the fire with water.

59. The police report in respect of the phone call on the 8^th April was in terms that father related that J had been using matches and threatening to set himself on fire.
60. The police officers who attended on the 9^th provided detailed statements. PC Roostan described that on the step there was a bit of burnt acetate paper and burnt matches on it and that the scorch marks on the step appeared to have been put out by water. Further, the father told the officer at the house that J had threatened to burn the house and set himself on fire.
61. PC Sheppard records the father telling her that the small pile of matches under the piano had been lit by J the night before and the officer saw small pieces of burnt paper. She asked the father why he had not stopped J lighting the matches and the answer was that he could not as J would just ignore him.
62. The evidence given by the father was that J was not setting fire to anything. He described how J had been in an excited mood. He had been taking matches, lighting one match, and then throwing it away. He did this repeatedly. He could not remember how many matches were lit. It was not in double figures. This took place in the living room. He maintained that the burn marks were insignificant. He could not remember how he put out the fire on the stairs. He did not remember using water to extinguish it.
63. When J was spoken to by the police he described that matches had been left lying around. He lit them. He was unable to give a reason for his actions.
64. I am satisfied from the evidence that the lighting of matches was not just confined to the sitting room as alleged by the father, but that there was a further incident on the stairs.
65. On the father's own account he told J to stop lighting matches. He refused to do so. I am satisfied that this was all part of the escalation of J's behaviour which took place on the 8^th April and caused the father to call the police.
66. The father has maintained that when he called the police he exaggerated his description of what had occurred to ensure that they would arrive. That however does not explain why he repeated the same facts to PC Roostan.
67. I am satisfied that the father with hindsight has sought to minimise this incident. The fact that J was lighting matches as described clearly carried with it the risk of physical harm. I am satisfied that this allegation is proved.
68. Allegation No. 7:

"The home conditions are dangerous, in particular knives are within easy reach of J and broken glass is present within various rooms in the home. Some pieces of broken glass are 1 to 2 centimetres in size."

On the 9^th April broken glass was observed within the home. This included shards of glass on the living room floor. There was also a broken fish tank. There was glass on the kitchen floor. The broken glass was seen by Miss Palles and recorded in her detailed note and by the police officers, PC Sheppard and PC Roostan. PC Sheppard noted that the glass on the living room floor had not been there on her previous visit on the 5^th April. PC Roostan in his statement records that when referring to the broken glass over the floor he asked the father why he had not made the floor safe. The father's reply was that it was for J to do so as it was J who had created the mess. The broken glass can be seen on the film footage. In addition there are the jagged edges of what appears to be a fish tank in the living room.

69. In the formal response to threshold the father states that he accepts that there may have been one or two pieces of glass on the floor. In oral evidence the father said that there was glass in the kitchen and it was limited to a small area of the kitchen floor which was inaccessible. He said that he done his best to cope with what was going on and that part of the problem was that J was addicted to computer games. He denied that the conditions were unfit for J.
70. A submission was made on behalf of the father that the social workers had visited the property in the period from February 2013 to the 9^th April and no one had made any complaint regarding its conditions until 26^th March. It was admitted that the film did not show poor home conditions. It was asked rhetorically why the police did not remove J on the 26^th March or the 5^th April if the conditions were the same?
71. I have viewed the film on two occasions and I am satisfied that the home conditions were totally unsuitable for a child. I am satisfied that on the 9^th April there was broken glass on the floor in the living room and in the kitchen. I am satisfied that pieces of broken glass made the premises dangerous. That should be self-evident. The concerning aspect of this issue is that the father was unconcerned as to this. When J entered the living room bare foot it was the police officer who reminded J that he needed to have something on his feet and to take care where he trod.
72. There is an additional concern in father's insistence that this was something which needed to be cleared up by J. It is to be noted that J had told Miss Palles that the broken window had been in that state for a period of a month and that when he had tried to clear it up he had cut himself on a piece of glass.
73. The poor conditions in the home has been a recurring problem. This was something which featured when the father was cautioned in 2010. That was the occasion when an EPO was made. Again during the care proceedings in 2012 and 2013 His Honour Judge Polden made a specific finding that the conditions in the home were not acceptable. That is at paragraph 174 of his Judgment.
74. Whilst there would appear not to have been any concerns following the return of J in 2013 it would appear that the escalation in respect of the conditions at the home took place from Christmas 2014. At least that was the information provided by J.
75. Certainly at that stage, although there was a care order in place, there was very little engagement with social workers. As far as Miss Palles was concerned her visit on the 9^th April was, as I have already indicated, something that she found shocking.
76. The evidence by the police in respect of home conditions is set out in detail, both in the visit on the 26^th March and the 5^th April. Notwithstanding the advice that something needed to be done in terms of the state of the home nothing had changed between the 5^th and 9^th April, save that PC Sheppard noticed the addition of the broken glass on the living floor on the 9^th April.
77. Save that there is no evidence as to knives being accessible to J and a danger I am satisfied that the presence of broken glass in two places made the home dangerous. It was not an isolated event. With the deletion of the reference to knives I find the allegation at paragraph seven is proved.
78. Emotional Harm. These are set out at allegations 8 to 13 which read as follows:

"Father lacks empathy and is unable to provide sensitive parenting.

Father has difficulties separating his needs and feelings from J's.

The father fails to understand the impact that his actions and mistakes have on J.

Father is rigid of thought, inflexible and egocentric. This impacts on his ability to consider the views of others to provide for J's emotional needs.

Father does not have the capacity to provide emotional warmth, unconditional acceptance and nurture for J.

Father places excessive pressure on J. As a result of the above J feels trapped and has both hidden from his father and presented aggressively towards his father, smashing walls in the home and threatening to set himself on fire."

The final paragraph is possibly the best place to commence an examination of this overall allegation which is one of emotional harm.

79. The father's response to this allegation is to dispute the matters that are alleged. He asserts that J's behaviour is due to his experience when he was previously removed from his father's care and placed in foster care. He said

"Not because of my parenting. He has not hidden from me. Rather, he hid beneath the piano from the police."

There is of course clear evidence that demonstrates that the behaviour of J as of March/April 2014 was causing the father to be concerned. This was to the extent that he sought medical help, initially with his call to the emergency services on the 26^th March and thereafter making an appointment with the General Practitioner on the 9^th April. He also sought help from the police.

80. In his witness statement the father describes his inability to discipline J and how when he tried to restrict time spent on computer games and films, J's reaction was that – and I am quoting from J 38 at paragraph 4:

"He tore up his paintings, photos, broke two monitors, five mobile phones and lamps, just as examples. He also damaged the house in a systematic way, putting water to Grand Piano, putting paint all over house. He was hiding the games."

In oral evidence the father accepted that J had put a hammer to the wall which had caused a hole. He denied that J had trashed the house and he repeated that J had not made a threat to set himself alight and this was said solely to cause the police to attend.

81. In respect of father's belief that J's behaviour was caused by damage sustained in foster care the father was asked why it was that since being back in foster care J had not displayed any of these behaviours? The father's reply was that J was in a comfortable jail and therefore not reacting and that J is depressed.
82. In respect of the allegation that J had hidden from his father it would appear that on all three occasions when the police attended, on the 26^th March, the 5^th April, and 9^th April, J was hiding. On the 26^th March in the report it is said that J was hiding in an upstairs closet and it took an hour for the paramedics and police to coax him out from the hiding place. On the 5^th April J was hiding under the piano. On the 9^th April J was hiding in the loft. In fact when the police first arrived J was present. His father asked him to leave. There was a period when the father was speaking to the police officers and showing the police officers around the house and the damage that had been caused. When the officers asked if they could speak to J the father's response, as noted in the police witness statement of PC Roostan, was that:

"The father said he will be hiding and that he does this quite regularly."

The officer then relates how he and PC Sheppard searched all areas of the house but were unable to find J. They became worried and thought that he might have left through the front door and gone missing. They were concerned that the father appeared unconcerned as to this. Eventually J was found in the loft although it was unclear as to how he had climbed into the loft. The loft ladder was not in place.

83. Whilst it may be that on that final occasion J was hiding from the police I am satisfied there were occasions when he was hiding from his father.
84. In so far as J's feelings of frustration in respect of his father are concerned, that is clearly evidenced in his conversation with Miss Palles and the police officer in respect of the events on 5^th April. On that occasion J confirmed that he had caused some damage in the house. He said he did so because he got angry and frustrated with his father because his father would not listen to logic. The failure of the father to listen to J is noticed by the police officers in their visit on the 5^th April.
85. I am satisfied that the behaviour of J on the 26^th March, 5^th April, 8^th and 9^th April, was more than a teenage temper tantrum. I find that the father has minimised the seriousness of the situation. That in itself underlines the father's inability to appreciate or understand the distress suffered by J at that time.
86. The father's failure to separate his own needs and feelings from J is demonstrated in his determination to maintain his protest against social workers and the care system. In the Judgment which I gave in March of this year I said at paragraph 68:

"I have no doubt that as set out by the Guardian this is a case in which it is imperative that the conflict comes to an end. It may well be that notwithstanding the conclusion of the proceedings the father will continue with his campaigns against the Local Authority. In that case unless the father takes steps to exclude J from involvement and protect him from the ill-effects of his campaigning there is the risk of further emotional harm to J."

87. J said in express terms to Miss Palles that one of the arguments with his father had been in respect of the filming of the programme which has been referred to in these proceedings as the " X " programme. That forms part of the father's protest concerning the previous care proceedings and includes footage of J, both at his class and also speaking to his solicitor. Miss Palles was quite clear that J found this campaigning embarrassing.
88. The father refuses to accept J's view. When asked about this in evidence and in particular as to the disadvantages of publicity on the Internet, the father maintained that a child would enjoy being a celebrity and gave an example in respect of his own childhood of an occasion when he was on the radio.
89. The father's behaviour on the 9^th April as shown in the body cam footage displayed a lack of empathy and understanding in respect of J's feelings. In the early part of the film the father is focussed entirely on telephoning various contacts, it would appear possibly someone at the film production company, with a view to publicising what was happening in the house. There is no concern shown for J. When the father does engage it is to shout at J in Russian to blame J for the arrival of the police and Social Services.
90. The evidence that was provided by Melanie Gill was that J was suffering from "compulsive compliance" which was due entirely to the parenting from his father. She explained that the effect of compulsive compliance was to bring its own problems; that children might appear as though they were doing well, but when something happens the child will explode. She said that the child's conduct will look like psychotic behaviour.
91. It was said by Miss Gill that the father was suffering from an intense preoccupation that J was being harmed. That was particularly in relation to the Local Authority. That caused him to be overwhelmed by his own trauma and on those occasions she said that:

"Everything disappears. He has no insight into himself, J's needs or their relationship."

92. The father does not accept Miss Gill's explanation that he has been adversely affected by his own upbringing or the fact of his parents' own traumatic experience as victims of the Holocaust. Whatever the explanation as to the cause of the father's behaviour there is no doubt as to its effect.
93. Further, the effect on J has been to cause him significant emotional harm. In the time prior to these proceedings being launched this was evidenced in the acute distress which resulted in the police attending on three occasions.
94. In addition to the clearly visible effects of harm for J, I accept the evidence that Miss Gill gave that the compulsive compliance has caused J to be depressed.
95. It is clear that there are positives in the relationship between the father and J. It is clear that father loves J very much and the feeling is reciprocated. I accept that there are times when father and son are attuned. Accordingly I am unable to find that the father does not have the capacity to provide emotional warmth. The reality is however that in the period immediately prior to these proceedings the father appears to have been overwhelmed by his own emotions and quite unable to provide J with consistency in terms of emotional warmth, unconditional acceptance and nurture. Accordingly with the deletion of the word "capacity" in respect of "empathy" I make findings in accordance with the matters set out in paragraphs 8 to 14.
96. In so far as paragraph 15 is concerned, as already set out, the charge of child cruelty resulted in an acquittal on the 2^nd September.
97. In so far as the allegation at paragraph 16 is concerned, which refers to the home being dirty, and an inability for the father to provide home conditions which are safe or appropriate for a child of J's age and development, I have already made findings as to the home being dangerous as a result of the broken glass on the floor. The home was not only profoundly untidy, indeed chaotic, but was also dirty. The evidence appeared to be that J's bedroom was unusable. The conditions as set out in the crime report reads as follows:

"The officers observed the house was in a state of untidiness and disrepair and it was cluttered and hazardous. There was old rotting food on plates around the home and dirty crockery also. There was broken glass on the kitchen floor which itself was filthy with spilled coffee. The dirty plates and cups and old food were piled on the sides."

98. The father, when he was cross-examined about these matters, denied that the conditions were unfit for J. He relied on what he said were observations made by the judge sitting in the Crown Court when he had viewed the body cam footage and the case as he said was thrown out. Whilst he conceded that the house was untidy and due for some improvement he denied that it was unsafe.
99. I am satisfied from the evidence that I have seen from the film footage and the evidence that I have heard from the social worker that the property was unsafe and inappropriate for J as set out in paragraph 16.
100. In respect of lack of food there were statements made by J that he had not had a hot meal for two days. It is clear that the officers attending on two occasions noted the absence of fresh food in the house. This matter was not explored in any detail and in the circumstances I do not make a finding in respect of the allegation at paragraph 17.
101. In so far as the allegation at paragraph 18 is concerned this is that the father is unable to work consistently with professionals in an honest and open manner in order to address these concerns and has threatened to remove J from the jurisdiction as a means of "avoiding the issue".
102. Strictly speaking this should not be a matter for the threshold criteria. At the material time – and of course this is being judged as of the 9^th April – the Local Authority was not involved. There was no obligation to work with the social workers. The allegation is relevant to some extent as to the risk of significant harm given the need for there to be a co-operative working relationship if the risks are to be ameliorated.
103. I am satisfied that the father made clear that he would remove J from the jurisdiction to avoid an involvement with Social Services.
104. In so far as the ability to work with Social Services is concerned, the response of the father, as set out at J 37, is that:

"I am willing to work with professionals. However, I find it particularly difficult when professionals seek to undermine my parental responsibility as they consistently have. My parenting is not perfect and I accept this. However, it is very difficult to work with professionals who undermine my parenting at the same time. I did work with the Local Authority in 2013 to the extent that they agreed and returned J to my care. I continued to work with them, including dozens of social workers, and the IRO."

105. It is clear that whilst there was clearly some engagement with social workers at the time of J's return to his father's home, relationships broke down thereafter and certainly by the time the proceedings came before me in November 2014.
106. In so far as father's willingness to work with social workers, this only happens if he agrees with their proposals. That is clear from the father's own evidence when he explained that he could not be expected to work with social workers as long as J remained in foster care.
107. It is clear from the interactions of the father since these proceedings have begun, with a number of different social workers and contact supervisors, that when the father becomes overwhelmed it is impossible for there to be any constructive dialogue. The father becomes agitated and behaves in an intimidating manner towards professionals. There is a specific example in respect of the present social worker which I will set out later in this judgment.
108. At the time when these proceedings commenced, there is the note by the police in respect of the father's suspicion of social workers and reluctance to work with them. Certainly at the early stage of the proceedings the father was keen to prove that the home conditions had been improved, so that J could return to his home. However there was the problem that Miss Palles was not allowed to come and inspect. These observations are principally relevant to issues in respect of welfare which will be addressed later in the Judgment.
109. Allegation No. 19. This refers to the previous proceedings before Judge Polden. Within those proceedings there were clear findings made by Judge Polden. It is to be noted that threshold had initially been conceded on the part of the father. However, during the hearing it became clear that the father did not accept threshold. It was in those circumstances that Judge Polden made findings which included the home conditions being unacceptable; J being left alone more frequently than the father would admit and that J had suffered emotional harm and was at risk of further emotional harm if he was returned to the care of the father.
110. Judge Polden in his Judgment made clear that the father did not accept the concerns that had been expressed by Dr. Van Rooyen, who was the expert psychologist in that case, or the Guardian. Judge Polden was quite clear in accepting the evidence of both witnesses. The recommendation of Dr. Van Rooyen was that the father would need intensive psychotherapy in order to address the issues which were causing emotional harm to J.
111. The Guardian has observed that there is a cyclical nature to this case. Many of the allegations that are made in these proceedings reflect the allegations and findings made in the earlier proceedings. The Guardian has had the advantage that she has acted as Guardian from the outset of the first proceedings, accordingly she was involved from July 2012 to February 2013. She became involved again in May 2014, although in those proceedings she was prevented from having any contact with J. She has become involved again as a result of these proceedings.
112. It was submitted on behalf of the father that it would be wrong for the Court to place any reliance on the findings made by His Honour Judge Polden having regard to the fact that the care order was discharged on the 3^rd March 2015.
113. This submission reflects the father's thinking that the fact of the discharge of the care order vindicated him in terms of the criticism of his parenting. In my judgment that is not so. It is clear from the evidence I heard – and I heard evidence from two social workers – that the return of J to his father in October 2013 was acknowledged to have been premature and misjudged.
114. The father had not had any of the therapy that had been recommended in the previous proceedings. He had attended a parenting course. When the case was reviewed by a different social worker in August 2014, the decision was made that it was necessary for the care order to remain. Initially that was on the basis that J would remain with his father. There was then a further change of position and an application that J be removed from his father.
115. The Guardian explained in her oral evidence that the recommendation made by her within the discharge proceedings had been a very difficult and professionally challenging decision. In the event she concluded that on a balance of harm test it was better that J should remain at home and the care proceedings discharged. Her view was adopted by the Local Authority on the eve of the hearing. It was in those circumstances that the care order was discharged.
116. It seems to me that the relevance of the findings made by Judge Polden is that they illustrate that the behaviour on the part of the father is entrenched behaviour and one that appears to be repeated. I find that allegation No. 19 is proved.
117. In so far as allegation No. 20 is concerned, that is that father lacks insight, and continues to deny events that happened in the past, and their consequent impact on J's development and well-being, I am satisfied from the evidence I have heard that that allegation is proved.
118. It is submitted that the harm suffered by J is not significant harm within the meaning of the Act. I have made findings as to the neglect which I am satisfied was present in terms of home conditions, but further in terms of the father's care, or rather absence of care of J.
119. Further, I am satisfied that there was emotionally abusive treatment of J by his father on the 5^th and 8^th April. I am satisfied that J's reactions which were uncontrolled and severe were due to the father's treatment of him and also of his earlier parenting.
120. In addition to the significant harm to J when he reacts in anger to his father there is the additional harm that flows from his need to appease his father so as to avoid a confrontation. It was further the expert's view that this is a cause of depression.
121. The father's volatility and the ferocity of his outbursts have been evident during these proceedings and that is notwithstanding the contained environment of the Court. The unpredictability of these outbursts it seems to me makes it self-evident that they would be damaging to a child living with the father. I am satisfied that the harm and the potential for harm are appropriately described as "significant" and that the threshold is crossed.
122. It was submitted on behalf of the father that if the Court rejected the submission that the threshold was not established then as an alternative I should recuse myself on the basis that I am biased and that the father has not had a fair trial compliant with Article 6.
123. My initial decision not to recuse myself, which was made on the 5^th May, is as I have stated earlier, currently subject to an application for permission to appeal to the Court of Appeal.
124. In so far as this hearing is concerned it is right to acknowledge that the trial has not been easy given the difficulties for the father in maintaining his composure and accepting directions made by the Court.
125. I have endeavoured to conduct myself in a way which has provided a fair hearing. If that is incorrect then that would be a matter for the Court of Appeal who can set aside the orders made by me. In those circumstances the decision as to threshold would not then stand. It seems to me it would be utterly inappropriate for the case to be adjourned at this stage for a welfare hearing in front of a different Judge.
126. Apart from the undesirability of a lack of judicial continuity there is the overarching need to avoid delay. At the outset of these proceedings the Guardian stressed the importance of a swift decision for J. I have no doubt that it would be totally contrary to his interests for the matter to be adjourned for a separate welfare hearing before a different Judge.
127. I turn therefore to the issue of welfare. In terms of the law that is governed by section 1 of the Children Act. It is J's welfare which is my paramount consideration and I am required to consider the matters set out specifically at section 1 (3) as well as all the circumstances in the case.
128. The making of an order in care proceedings is an infringement of the convention rights of both the father and the child pursuant to Article 8. In those circumstances I must be satisfied that any order made by me is justified in terms of providing protection for the child and importantly is proportionate in terms of protecting him from the harm which has been identified.
129. I was referred by Counsel for the father to the decision in Re J [2015] EWCA Civ 222 and reminded particularly of the parts of the Judgment from paragraphs 44 to 56.
130. In considering welfare an important part of the evidence is the evidence which comes from the expert, Miss Melanie Gill. The instruction of Miss Gill as the jointly instructed expert was as a result of a direction made by His Honour Judge Polden on the 12^th June. A different psychologist, Dr. Kilby, had been the subject of an initial direction made by me on the 5^th May, with a report to be filed by the 30^th June. In the event Dr. Kilby was unable to accept the instruction.
131. The matter was restored to Court and a hearing took place before His Honour Judge Polden. Miss Gill had been one of the experts originally selected by the father and her CV was placed before the Court on the 5^th May. In the circumstances she was directed to provide a report, initially to be by the 7^th August. In the event there was delay, the date was put back, and as I understand it the report was not filed until 6^th September.
132. In her written report Miss Gill described the case as "highly complex and concerning". Her view was that the father was suffering from unresolved trauma described as a "vicarious trauma" from his parents' experience of the Holocaust. She wrote that the father is "continually overwhelmed by his traumatic antecedents, associated with both his and his parents' traumatic past with the result that he is sometimes unable within his thought processing to consistently represent J accurately as a child separate from himself."
133. She described J as having adapted throughout his childhood to his father's behaviour so that he has an attachment strategy of compulsive compliance. In addition, J was unconsciously perceiving his father as "unprotective".
134. Miss Gill described J's severe inhibited distress meant that he had begun to experience breakthroughs of inhibited anger which she described as "intrusions". It was her view that the father had been unable to provide consistent sensitive parenting and this had caused J to suffer from partial depression.
135. Miss Gill was clear that J was not suffering from any psychiatric disorder or developing personality disorder. The behaviours that had been exhibited were attributed to the compulsively organised behaviour and the breakthroughs when challenged by the father.
136. In attributing the cause for the situation Miss Gill expressed the view that the behavioural difficulties were entirely the result of his compulsively organised relationship with his father breaking down in the face of his father's overwhelming unresolved trauma being activated. Being taken into care would also have added to his need to behave compulsively.
137. Miss Gill expressed the view that until the father became more psychologically stable he would not be able to look after J on a day-to-day basis, neither would he be able to enjoy their relationship. Miss Gill's advice was that the relationship between J and his father needed to be supported practically and above all, therapeutically. Her advice was that they would benefit from video interactive guidance and that this should be part of the contact sessions.
138. When giving her oral evidence Miss Gill explained that the purpose of the video interactive guidance was to improve the relationship for the purposes of contact. She said that she could not envisage a return of J to father's care within a year. Later on in cross-examination when asked about reunification her response was:

"I don't think I could even begin to give you an answer to reunification."

139. In answer to the suggestion of video interactive guidance running alongside that therapy Miss Gill advised that the father needed therapy for his own problems. She said that this would be psychotherapy. It would be long term, at least a year. She also advised that J should have therapy. She believed creative art therapy would be of assistance.
140. Miss Gill noted that there were elements of good parenting. She noted that father and son were attuned and that they loved one another. She noted J telling her that he wanted his dad to calm down, not to be angry, and that J was very clear that he wanted to see his dad.
141. In giving oral evidence J said that contact with father had to be psychologically rewarding otherwise J would be harmed again. There needed to be an improvement and no more volatility.
142. The father does not accept Miss Gill's view that his difficulties are connected to his parents' experience in the Holocaust. He says that on the contrary he had a good childhood.
143. I was asked by counsel on behalf of the father to read a paper which is entitled "Parental Rearing Behaviour of Children of the Holocaust Survivors" by Nathan Kettleman. The conclusion of the author seemed to be that there needed to be further research in this area.
144. The father's view is that his current difficulties stem from his anxiety which has been caused solely by the fact of the care proceedings. He would be prepared to participate in therapy but this must be on the basis of a planned return of J to his care.
145. It is not necessary for me to decide the issue as to the precise cause of the father's difficulties and whether Miss Gill's view as to this is correct. The important matter is the effect of the father's behaviour on J. It is striking that the behaviours described by Miss Gill in terms of the compulsive compliance are entirely consistent with the findings of Dr. Van Rooyen in the first set of proceedings and the psychological profile which she provided which was accepted by His Honour Judge Polden. Her description at paragraph 93 reads as follows:

"There are no features of psychological or personality disorder. There are however features of paranoid ideation and traits which are related to his fundamental lack of basic trust and suspiciousness. The father also presents with strong egocentric thought processes where he views the world and how things relate to him with a concerning lack of empathy. His lack of empathy is evident in his tendency to lose sight of the needs and emotional well-being of his son and he has difficulty separating the needs and feelings of the children from his own needs and thus views J as an extension of himself rather than a person in his own right with his own experiences and needs. As a result of that father has difficulty in acknowledging concerns."

146. In so far as the effect of the father's behaviour on J is concerned, there is a parallel finding to Miss Gill's finding of compulsive compliance. That is reflected in the evidence which Judge Polden accepted from the social worker, Mr. Scott. This is at paragraph 210 when he described J in the following terms:

" J has had to learn how to read his father and respond accordingly. He knows what to say to try to keep the situation calm."

147. In so far as Miss Gill's evidence is concerned it seems to me that her evidence in terms of the problems in the interaction of father and son is evidence on which I can rely.
148. I turn then to the evidence of the present social worker, Miss Aturu. She became J's social worker on the 15^th August 2015. In so far as her oral evidence was concerned I found her to be an open and straightforward witness. She was someone who was clearly child-centred in her approach. Further, she presented as having a positive outlook.
149. She described how she made her first contact with the father. This was a phone call made shortly after she took on the case. She said that she introduced herself and said she hoped that he and she could have a good working relationship. She was taken aback by the father's response which was that he would only work with her if she worked towards having his son rehabilitated to his care. If his son could not come back, that it would not be possible to have a working relationship. The response of Miss Aturu was that she hoped that they could have a working relationship and that they could be respectful.
150. Shortly after that there were further problems in respect of a contact visit and following that the contact did not take place. It is clear that the father was aggressive towards Miss Aturu. She described him in terms of standing next to her and being intimidating. She described her experience of the father as being a "challenging" experience.
151. Thereafter there was email correspondence and the father began his protest against specifically Miss Aturu and that included standing in the street with a large placard which invited help from the public for him to see J and at the foot of the poster made the statement that Miss Aturu should be found guilty of cruelty and be convicted under the Children and Young Persons Act.
152. There is absolutely no basis for making that allegation against Miss Aturu. The fact that J is in care and indeed the frequency of the contact visits are all matters that followed decisions made by the Court. I am satisfied that Miss Aturu was endeavouring to make contact work. Not only that but she was concerned that J's interests should be paramount and that there should not be any distractions in respect of arguments with the father.
153. The evidence of Miss Aturu in terms of concentrating on J's needs I found to be persuasive. She was quite clear in relating to the Court that when she discussed the Local Authority's care plan J told her that it was wrong. In her view J is able to say what he wants and that that is that he wants to be with his father.
154. She noted with pleasure that on her most recent visit to J she heard J laughing as he was engaged in banter within his foster care placement. In her view he is extremely well placed in the current placement.
155. It was submitted that the parenting assessment carried out by Miss Aturu was deficient and that there should be a further assessment. It is right that the section of the report which is in the standard form for final evidence consists to a large extent of references to previous evidence in the earlier proceedings, together with a reference to the conclusion of Miss Gill.
156. I bear in mind that there were difficulties for Miss Aturu. She was under a very tight time limit to produce the Local Authority's final evidence by the 11^th September. She received the report from Miss Gill only a few days before that. She had taken on this case, on any view a difficult case, only in the August.
157. The submission that there is not a detailed parenting assessment detracts from what in fact is the central issue and that is the issue of emotional harm to J caused by his father's behaviour. Until that issue is addressed it would in fact be quite impossible to carry out any meaningful parenting assessment. In those circumstances I do not accept that Miss Aturu's evidence is evidence on which I am unable to place reliance.
158. I turn now to the evidence of the Guardian. The Guardian has acted as J's Guardian since the first proceedings in 2012. She was unable to have any contact with him in the period of May 2014 through to March of this year. Once J was in foster care she was able to see him and indeed it is clear from her report she has visited him frequently on some six occasions. She has provided two reports. The first is dated 14^th May and the second is dated 18^th September.
159. In her initial report the Guardian expressed her concerns for J given that this was the third occasion when the father had been arrested and investigated by the police for child neglect.
160. She observed that given the background she believed that the prognosis for any successful rehabilitation within J's timescales was poor and she emphasised the importance for a swift conclusion given the anxiety suffered by J.
161. In her final report and again in her oral evidence the Guardian was clear in her recommendations to the Court which was that it would not be emotionally safe for J to return to his father. The danger to J arose both from his reactive behaviour, which made him a threat to himself, but also the ongoing depression as a result of compliance with his father's wishes.
162. The views that have been expressed by the Guardian are challenged by the father on a number of grounds. Firstly, it is said that she is prejudiced against him and has objected at every point to his requests. A particular example is given in respect of the application concerning contact in July.
163. Secondly it is said that she has fabricated information about the father. Thirdly, that she has failed to communicate J's views accurately to the Court.
164. In respect of the last assertion reading the two reports made by the Guardian and hearing her oral evidence I am satisfied that the Guardian has endeavoured to communicate J's views to the Court and indeed has achieved her purpose. Given the experiences that J has endured that is not straightforward.
165. In her first report the Guardian described how J told her that he did not know why the social worker was concerned about him and that it had been ridiculous for the police to have taken him away. He expressed the view that he was tired of being asked questions and that he wanted the Judge to decide what should happen to him. The Guardian reported that J expressed the wish that he wanted to return to his father's care eventually.
166. In her final report the Guardian set out that J had an understandable preference to live with his father, but that he was agreeable to remain living with his foster family until adulthood. She described him as being "accepting" about the idea of not returning to live with his father although tearful when the discussion was around the reason for this.
167. This view as communicated by the Guardian is entirely consistent with the conversations that J has had with the independent reviewing officer on the 15^th July and also with Melanie Gill. The Guardian set out how she asked J on several occasions whether there was anything he wanted her to say to the judge and he declined.
168. In so far as the issues of contact are concerned, again the Guardian communicated that J wanted an increase in contact and indeed it was as a result of intervention by the Guardian that the care plan was changed to provide for contact six times a year rather than the original four.
169. I turn to the specific allegation that the Guardian has fabricated evidence. This is an allegation that arises in respect of an incident which occurred on the 14^th July. This was intended to be a session of contact. It was a contact session that was to be observed by the Guardian. In the event the contact did not take place.
170. The evidence provided by the Guardian in respect of this is set out in her position statement in which she described arriving for the contact and noting that the father was waiting outside apparently having an intense discussion on the telephone.
171. The Guardian introduced herself to three members of the staff. She was informed by the staff that -- and this was information given to her by them – that the father had turned up at the contact centre in an agitated state, with an unknown elderly male, and that the father had proceeded to read out the United Nations Convention on the Rights of the Child to a waiting room of parents and children and had been telling people that J was being held as a prisoner. The father was advised by the staff that this was inappropriate. The father had then stated that he intended to give J papers with regard to his human rights at the contact session. It was then that the staff decided to terminate the contact session given the agitated state of the father who – and again this was a reported conversation – had called the staff "Nazis" and told them that J was being punished.
172. The Guardian then sets out how she then observed the father coming into the reception area and was agitated and the Guardian herself said that she was unwilling to discuss the matter with the father and that it would be best to have a separate appointment.
173. The father then was asked to leave the building. There were difficulties because J throughout this was waiting in a room inside the building with the interpreter. There was no back door to the centre and hence a practical difficulty for J to leave the centre. Eventually his foster carer arrived and there is the description of J looking relieved to see her and spontaneously smiling as she entered the room. There is a description of J leaving together with the foster carer and that when the father noticed that they had left, taking pursuit shouting loudly to J and gesticulating with his hands.
174. The contact session is subject of notes that were made by the contact supervisor, Tina Dineen, and also was the subject of discussion at a meeting of professionals on the 22^nd July.
175. It is said that the father denies that he read out the Convention on the Rights of the Child to a waiting room of parents, or anyone else, that he did not have the document with him and he says that his position is reflected in the notes of the contact session of the supervisor.
176. It is right that the notes of the contact supervisor do not make any reference to the reading out of the document of the Rights of the Child although it is relevant that there is reference in the note to the conversation that took place between the father and the Guardian when it was recorded that the father said that he was going to go to the Press and spoke about not being able to give J a copy of his human rights and the father then left the contact centre.
177. The Guardian when giving oral evidence emphasised that her statement reflected the information she was told by the staff when she arrived. She was not in a position to give direct evidence as to this. She was not there.
178. It is unnecessary to make any finding on this particular fact. It is clear from the evidence from the father and from a witness statement provided by the man who was accompanying him, Mr. S, that they had both together approached the staff and there had been discussion about the legality of the arrangements for J.
179. In the circumstances I am quite satisfied that the evidence that has been provided by the Guardian has been provided in good faith, relating to information that she had herself been told.
180. The concerning aspect about this incident on the 14^th July is the effect on J. Firstly the fact of the cancellation of the contact, and secondly that as reported J was fearful as he was driven away by his foster carer. That it seems to me demonstrates what has been a repeated theme of the father failing to appreciate the effect of his conduct and how distressing this is for J.
181. In terms of the general allegation that the Guardian has been prejudiced against the father, I find that there are no grounds for that allegation. It would appear that the principle matter in support of the allegation is that the Guardian issued an application to reduce contact.
182. This application was made following a meeting of professionals on the 22^nd July. It was clear that it was the consensus of the meeting that contact at the current frequency was not beneficial to J. There were particular concerns that it was increasingly becoming unmanageable. It was in those circumstances that the Guardian made the application to the Court to effect a reduction in contact. The father made it absolutely clear that he would not accept any reduction and therefore an application to the Court was inevitable. In the event the father made his own cross-application for an increase in contact and that was a matter which was decided by His Honour Judge Scarratt on the 29^th July.
183. In so far as the Guardian's reports are concerned I have found them to be balanced and authoritative. She has been careful to look at the matter from J's perspective and having his welfare as her primary consideration.
184. I now turn to the specific headings under the Children Act. The first are the wishes and feelings of J. The evidence given by Melanie Gill was that J was absolutely incapable of talking to her in terms of what he wanted for the future and she attributed that to the fact that he is compliant when he is relating to professionals.
185. The views of Miss Aturu and the Guardian were slightly different. Miss Aturu was clear that J could say what he wants and that he clearly stated he wanted to live with his father. The Guardian likewise was clear that J's preference was to live with his father. As she acknowledged that was understandable. She noted some ambivalence in terms of his wishes but that was undoubtedly his preference. J has been looked after by his father as his sole carer for all his life save for the very early part as a baby and for the period when he was in foster care in 2012-2013. It is clear that he loves his father very much. It is also clear that he worries about his father when they are apart.
186. I accept the evidence that J's primary position is that he would like to live with his father, but that he is also clear that he is agreeable to living with his present foster carers.
187. In so far as his present foster carers are concerned that is a placement which has many advantages. One of these is that it was effectively chosen by J. When he was first placed in care it was with a different foster carer. He went to his present foster carers for a period of respite. He enjoyed it so much that he asked if he could stay. It was the Guardian who was instrumental in helping to bring this about. It is clear that J is settled in the placement and that is reflected by the evidence that I have already quoted from Miss Aturu.
188. In so far as contact is concerned clearly J would like to have frequent contact with his father, preferably once a month, and he would prefer for contact to be in the community with opportunities to play football, to visit exhibitions and go to concerts.
189. The contact to date has been inconsistent. There are a number of contacts where contact has been positive. Indeed, there was an occasion on the 7^th July which included playing football. Unfortunately there have been a number of contacts which have been cancelled. Although the contact on 7^th July was positive, on the same occasion there was a dispute between the father and social workers which meant that overall it was not entirely satisfactory.
190. It is said that J's wishes and feelings in this case have been silenced. I do not accept that submission. His views have been communicated to the Court.
191. Physical, emotional and educational needs. J's physical and emotional needs were not being met whilst in the care of his father. That is reflected in the findings that I have already made. It is clear that J has an emotional need for a relationship with his father, but that needs to be on terms that J is allowed to be himself and able to express his own views, which may conflict with those of his father. He needs a peaceful, harmonious and predictable home life. Given the difficulties he has experienced to date -- and this in fact is the second time in foster care – he has a particular and pressing need for stability and permanence.
192. In so far as educational needs are concerned J is a bright and able student. He performs well at school, both scholastically and in his interaction with his peers. It has been a positive that throughout these proceedings, notwithstanding his removal to foster care, he has remained at the same school. That is something which is clearly important to him.
193. The likely effect of any change in circumstances. It is submitted that J is suffering significant harm as a result of being in foster care. There is no factual basis for this assertion. On the present care plan J would remain with his present foster carers. I have already noted the advantage of the placement and that it was one chosen by J. In addition, the foster carers are a professional couple. The female foster carer is a psychologist. Her husband is a teacher. J appears to have a good rapport not only with the foster carers but also with their older children. In the placement he has the opportunity for family life. He has not demonstrated any of the behaviours as seen when in his father's home in April of this year. He has the appearance of being content and settled with the advantage of continuity of school.
194. If J were to return to his father's care, in my judgment it is likely that there would be a repetition of the behaviours which occurred in March/and/April of this year. As J becomes older and moves into adolescence there will be an increasing number of occasions when there will be a challenge to the father's authoritarian and rigid approach to discipline. In those circumstances there is going to be a recurrence of the problems that have been encountered.
195. Age, sex and background. It is relevant that the father's first language is Russian and J speaks Russian with him as well as speaking in English. In terms of religion the father is most anxious that J should be brought up in the Jewish faith. When in father's care J attended Russian school. This was for four hours on a Sunday and something which J said he found exhausting and he resented the time spent at the weekend attending the school.
196. In so far as the Russian language is concerned a compromise has been reached. J has agreed to continue with individual tuition which takes place at the foster placement. Of course that is not the same as being with his father and speaking Russian but it will ensure that his language skills are retained.
197. In terms of attendance at synagogue, this has been problematic. The foster carer has agreed to take J to synagogue. The indications are that at present J does not wish to attend. The father has repeatedly accused the social worker of discriminating against him on the grounds of religion. This is on the basis that arrangements have not been made for him to accompany J to the synagogue.
198. I am satisfied that these decisions by the Local Authority have been taken having regard to the management of contact. At present they feel that they are unable to manage contact in the community. It is for that reason that it is not possible for the father to attend synagogue with J. There is no reason at all why J should not attend a different synagogue with the foster carer.
199. Any harm he has suffered or is at risk of suffering. The findings that I have made above as to threshold demonstrate the significant harm that I am satisfied has been suffered by J whilst in the care of his father. The evidence of all the professionals is clear; that is that in the absence of any significant change in the father's presentation and in his terms of thinking, the likelihood of significant harm to J remains. It is clear from the history these problems are entrenched.
200. The father seeks to blame the Local Authority for J's behaviour. It is said that it is entirely due to the harm caused to J when he was in foster care. Whilst it is clear that Miss Gill opined that there were multiple causes to J's difficulties she identified the primary cause as being the compulsive compliance with father which was something that had developed during his childhood.
201. It is noteworthy that within her written report Miss Gill made clear that the removal to foster care initially had been justified.
202. I am satisfied that if J were to be returned to the father's care without significant changes that would be unsafe. It is the father's case that if J is returned to his care then the anxiety and agitation which he presently suffers would cease.
203. In so far as that is concerned it is relevant that the episode which occurred in March/April occurred at a time when the Local Authority was not involved with the father. Accordingly there was no reason for the father to be in a state of permanent agitation. Notwithstanding that, matters escalated and reached an acute stage for J.
204. I turn to the capability of the parents. I have referred to the submission made on behalf of the father that there is a lacuna in the evidence in that there is no stand-alone parenting assessment of the father and it would be wrong to rely on the findings made by Melanie Gill.
205. In the context of the history of this case, the fact of the previous proceedings, the circumstances of the emergency protection order in April, and the expert evidence that has been adduced, it seems to me that a stand-alone parenting assessment would not provide any additional information to that which is before the Court. I have made clear findings that the father has caused significant harm to J. The father disputes that J has suffered harm or that any of the harm suffered is attributable to him.
206. His obdurate stance in refusing to acknowledge any of the concerns is a significant stumbling block in attempting to ameliorate the situation. It has been submitted that he is prepared to work with the social worker and that he did so in the earlier period in 2013. As I have already found, the key is that he is only able to work with the professionals if they agree with his views. That is illustrated in his initial interaction with Miss Aturu. It has been reflected in countless statements made by the father that he is not prepared to countenance a situation where J remains in foster care.
207. The reality of this case is that in the absence of sustained psychotherapy for the father, coupled with the joint therapy with J to repair the maladaptive behaviour, the father is not able to safely parent J.
208. On the assumption that the father did participate in therapy, such therapy would take at least 12 months to effect any change. The realistic options in this case are either a return to father's care or alternatively long term foster care. There are no alternative carers. Initially there were viability assessments carried out in respect of two paternal uncles. Firstly, Mr. F who lives in Israel and secondly, Mr. A who lives in the United States of America.
209. The first assessment of Mr. F was positive. However, he stood aside for Mr. A. He said that it would be preferable for J to be looked after by him. When the assessment of Mr. A was negative Mr. F did not wish to be reconsidered.
210. The initial viability assessment of Mr. A was negative. He was informed of this on the 24^th June. He e-mailed immediately back to Miss Palles asking if there was anything he could do. It is highly regrettable that for reasons not properly explained the viability report was not sent to Mr. A. It appears that the last contact was on the 24^th June. Notwithstanding that of course this matter has returned to Court on several occasions since then. At no stage has there been any request that there should be a reconsideration in terms of Mr. A or any suggestion that he sought to challenge the negative assessment. He has not been in touch with the social workers. He has not had any contact with J. Indeed, the position is that J has not met either of these paternal relatives.
211. J was very clear in his views that he did not wish to move abroad and indeed he would prefer to stay with foster carers than to move to the home, albeit that of a family member, of someone who is unknown to him.
212. In evaluating the two alternative options before the Court it is right that the best place for a child will usually be at home with his birth parent. In this case this would be in accordance with J's stated wishes. His father is of course his only relative in this country. The disadvantage is that on the evidence a return would be unsafe. Principally in terms of the emotional harm likely to be suffered by J, but also potentially physical harm.
213. The alternative of foster care has disadvantages. There is the risk of instability. Foster carers can change and in this case particularly where the father has an apparent determination to destabilise the placement. There is the disadvantage of corporate parenting. There is the loss of contact with family.
214. As against this there are the advantages that in this case J will have a professional standard of parenting and also a placement which has been described as being "therapeutic". The foster carers have been described as being "robust" and to date have been fully committed to maintaining contact, notwithstanding the difficulties. It is clear that J is settled and the plan is that he should remain in the current home. It is clear that in that home he will have the opportunity to pursue his own interests and will not be in the position of being forced to conform to the rigid expectations of his father or risk his displeasure.
215. It is submitted that the making of an order for long term foster care is a disproportionate response to the feared harm. That submission of course is based on the fact that the father does not accept that he has caused any harm to J.
216. The father's refusal to consider that he has any responsibility for the events that have occurred confirm the need for orders which will provide protection for J. It is necessary to consider whether there should be a pause to allow the father to be subject to further assessment and an opportunity to make changes. The difficulty with that is that the father is not committed to making any change. His stance is one of opposition to the Local Authority. In the circumstances there is little prospect for believing that any change could be effected, certainly not in the short term. In considering this the timing is important. Looked at from J's perspective he needs to have certainty now as to where he is to live.
217. Having considered all the evidence I am satisfied that long term foster care is not only a proportionate response to the harm which I have found proved but is in fact the only order that can be made in this case.
218. Throughout these proceedings contact between the father and J has been a cause of dispute. In the initial period when J was in care for a period of four weeks there was no contact. This was as a result of representations by the police, who were unable to conduct the ABE interview as early as everyone would have preferred. Once contact began there have been difficulties leading to suspensions of contact and the application to the Court made in July.
219. It is clear that when contact has been cancelled the father has become overwhelmed by his own emotions and J's interests have been completely ignored.
220. The Guardian has made the valid point that given J's age there is the potential for contact to be on a frequent basis and more than six times a year as set out in the care plan. Frequently when older children are in care there can be frequent contact. A precondition to this is that the parent supports the foster placement. Sadly that is not the position in this case, the father making it very clear that he could not support any placement which is not with him. He has vowed that he will continue to oppose foster care, both through the Courts and by continuing his public protest.
221. The care plan provides for contact six times a year. As earlier indicated that was adjusted following recommendations from the Guardian. The Guardian when making her recommendations was aware of the need to balance the fact that J wanted more contact against her reservations that if father was not able to engage with contact then this would cause disappointment for J.
222. In addition to the contact to be arranged the Local Authority propose that there should be a referral for video inactive guidance therapy. The Local Authority have psychologists employed by them in the Education Department who are trained in this therapy. The procedure would be that there would be an initial assessment and then depending on the outcome of that assessment the therapists would advise as to the frequency of contact to enable the therapy to take place.
223. The possibility of this therapy taking place will be dependent on the attitude of the father. At present he states that he is not prepared to engage. It may well be that until there is some clarity as to the long term position it would be premature for the assessment to take place. I have no doubt that if the father is able to commit fully to this process it may be something that both he and J will find helpful.
224. Having considered the care plan I am satisfied that the provisions meet J's needs. Of course as with every care plan the provisions particularly in respect of contact are something that will be kept under review. It is in those circumstances that there will be a final care order in favour of the Local Authority.