England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

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

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		5th August 2016

JUDGMENT

HER HONOUR JUDGE HUDSON:

Introduction

1. I give this judgment at the conclusion of care proceedings concerning two children:

T, now aged 9 years; and

B, aged 8 years.

2. The care proceedings were issued by the local authority on 19^th November 2015 and arose out of private law proceedings between the parents which started as long ago as 2012. I first became involved in the private law proceedings some three years after they began when the case was listed before me for a fact finding hearing concerning allegations made by the parents against each other, principally allegations made by M that F had physically, emotionally, and sexually abused the children. I gave judgment in the private law proceedings on 26^th August 2015. That judgment at A0A to A0S in the court bundle is taken as read for the purposes of this judgment. I reached the following conclusions in that judgment:

(a) There was no reliable evidence of sexual abuse of either child by F or anyone else;

(b) F had smacked B on two occasions, as he had admitted. I made no findings of physical abuse by him of either child beyond this;

(c) I concluded there was no evidential basis for findings of physical or sexual abuse by any other man as had been alleged;

(d) I found the children's statements had been influenced or prompted by M whether deliberately or because of a distorted perception of events. I found this had caused the children and was continuing to cause them significant harm.

3. I made further findings on the evidence that I heard:

(e) The relationship between the parents was volatile for years including numerous separations and reconciliations during the course of their marriage. The children were exposed to this volatile and inconsistent relationship and have suffered emotional harm as a result;

(f) M suffered from anxiety and depression in the relationship. The fragility of her emotional and mental health in 2008 resulted in a referral to [a consultant psychiatrist], and sessions of cognitive behavioural therapy;

(g) F also suffered from anxiety in the marriage for which he sought support from the general practitioner and CPN on occasions;

(h) The volatile relationship between the parents involved frequent arguments. M had and acknowledged she had anger management difficulties for which she sought professional assistance in 2011;

(i) The parents each have, and have had for years, a highly negative view of each other. M's views of F are shared by MGM. The children have been exposed to these negative influences, which has caused them emotional harm;

(j) The children have enjoyed positive contact with their father, seen objectively to be of good quality when observed up to the end of 2014.

4. I reached the following conclusions in respect of evidence I heard from family members at paragraph 85 to 87 of that judgment:

"(85) There were aspects of the evidence of both parents and of MGM which led me to question its reliability. In the case of F, in some areas I found he sought to portray what I considered to be an unrealistically positive picture of himself and his behaviour, by way of example, in saying he never lost control of his temper with the children.

(86) I have already made some factual determinations adverse to M and MGM. I found their reaction to the nose-picking incident informative in assessing their approach and reaction to events in the children's lives. I found the content of M's email to the school in relation to that episode to be a disproportionate response to the event in question. I found their evidence that they both still consider this to be a reasonable and responsible approach to demonstrate a lack of proper perspective or reality to the situation.

(87) Having heard the evidence in full, I found myself greatly troubled by what I heard from M. On her own account, the questions she has asked the children were often leading. The conclusions she has drawn from events are extreme and not borne out by an objective assessment of the evidence. Her evidence was, at times, inconsistent, nonetheless given with composure, restraint, and conviction."

5. I recorded elsewhere in my judgment that M's evidence was unreliable and could not be relied upon in important respects.

The Care Proceedings

6. At a directions hearing in October 2015, I was told the local authority was considering issuing care proceedings in the light of my judgment and its involvement since. The care proceedings were ultimately issued on 19^th November 2016. CG, the second of two rule 16.4 guardians appointed to represent the children in the private law proceedings, is the allocated children's guardian in these proceedings.
7. At a case management hearing on 9^th December, 2015, I approved the Part 25 instruction of EL, a consultant psychologist, to undertake an assessment of the parents and children. The local authority was seeking interim care orders with interim care plans for removal of the children from their mother to foster care. I listed a contested interim care hearing before me on 18^th January 2016. I directed viability assessments of proposed alternative family carers. I timetabled the care proceedings to an issues resolution hearing and, unusually, also listed a final hearing on a provisional basis, mindful of the time proceedings had already been before the court and with a view to reaching final decisions in respect of the children's care and contact arrangements within the 26 week track.
8. The interim care hearing was listed for one day on 18^th January 2016. M was represented by counsel, but declined to come into court herself or to participate actively in the hearing. In the course of her oral evidence at the final hearing, she said she was told on her arrival at court that morning that I had already decided the children would be removed from her and her distress was such that she was unable to come into court. I had not done so. The case was listed for a day before me to decide that very issue. When the parties came into court, I was told M had decided to remain outside and had instructed her counsel to present her case in her absence. I dealt with the case on submissions, as I was requested to. I made interim care orders and approved the revised interim care plan of placement of the children with PA and PU, the children's paternal aunt and paternal uncle.
9. Following a contact visit on 4^th February 2016, the local authority applied for an order pursuant to section 34(4) of the Children Act 1989 authorising a refusal of contact between the children and their mother. At a hearing on 15^th February 2016, I approved an agreement for M to have indirect contact until a hearing on 8^th March 2016, following which direct contact resumed.
10. At the issues resolution hearing on 12^th April 2016 the parties sought an adjournment of the final hearing in the light of the report of EL which recommended therapeutic work with both parents before decisions could be taken about the prospect of the children's placement with either of them. Despite my concern about the delay, I concluded that it would better meet the children's welfare interests to allow time for this work to be done to maximise the prospects of the children's placement with one or other of their parents. I therefore vacated the final hearing and relisted it before me on 28^th July 2015 with an issues resolution hearing in advance. My order dated 12^th April 2016 recorded that PA and PU could not care for the children beyond mid or late July 2016. It was vital therefore that the final hearing proceed.
11. A matter of days before the issues resolution hearing, I was informed separately by M and her solicitors that her solicitors were seeking to come off the record as they were no longer able to act for her. This was an extremely troubling development. M had initially instructed local solicitors but had later instructed another firm of solicitors in Birmingham. Until these solicitors withdrew, M had been represented at the hearings before me by four different barristers from local chambers in Newcastle, two barristers from St Ives, and a solicitor advocate from the Birmingham firm. I was aware that it had been intended for M to be represented by an in-house advocate from her solicitors at the final hearing. None of the advocates who had previously represented M were apparently in a position to do so. Against this background, I am particularly grateful firstly to Sugaré & Co, a law firm in Leeds, and Ms Sarah Fearon, counsel from chambers in Hull who took on the case on M's behalf in advance of the issues resolution hearing and represented her at the final hearing ensuring her case was put comprehensively by specialist family lawyers.
12. The final hearing was listed for five days. During the court time available, I heard oral evidence from the following witnesses: thee social workers (SW1, SW2, and SW3) and two contact supervisors (CS1 and CS2) on behalf of the local authority; from M and her parents (MGM, and MGF), as well as BK (M's therapist) on behalf of M; I heard F's evidence in support of his case; I heard from EL and, finally, from CG. It was possible to complete the evidence and submissions during the five-day hearing, but there was insufficient time to consider and deliver judgment. My existing professional commitments meant I was unable to give judgment in the week commencing 25^th July 2016. I had hoped to give judgment earlier this week, but M was unable to attend until today, Friday, 8^th August 2016 due to a pre-booked holiday. I am very grateful that PA and PU have been willing to continue for the children beyond the deadline they set. The arrangements for they have made for T and B's care have been at the sacrifice of their own family arrangements.

The Position of the Parties

13. The local authority seeks care orders with care plans providing for the placement of the children with their father. These plans are supported by F and by the children's guardian. M seeks the return of the children to her care.
14. It is also relevant to record the position of the maternal grandparents. They have played a significant part in the children's lives, but have not had contact with them for some six months. They were proposed by M as alternative carers and were the subject of a special guardianship assessment, completed on 20^th May 2016, which was ultimately negative.
15. The case was next before me on 8^th June 2016, when I explored the position of the maternal grandparents who had attended court to support M. They told me they had received legal advice and were not seeking party status, but put themselves forward as alternative carers if the children were not returned to their mother. I revisited their position at the issues resolution hearing and indicated that if they were not seeking to be joined to the proceedings, they should nonetheless sit in during the hearing so that they could hear the evidence and would be in an informed position as a result when they gave their evidence. Ms Fearon confirmed that the maternal grandparents were put forward by her as fall-back carers and, as that formed part of her case, she was content to put forward arguments on their behalf.
16. MGM and MGF were present throughout the final hearing, as well as giving evidence. They support the children returning to the care of M. Their secondary position was not entirely at one with each other. MGM said the children should live with them if not with M; MGF put F ahead of placement with themselves, although he said it would be better if both parents completed therapeutic work before resuming the children's care, in which case the children could live with them until that time. Neither parent supports placement of the children with each other.

The Relevant Law

17. I apply the same legal framework in relation to factual determinations as during the fact-finding hearing. It is for the person making an allegation to prove it. I determine all factual issues on the balance of probabilities. It is not necessary to determine every factual dispute between the parties, only those in respect of which the evidence is sufficient to do so and where findings are material to the issues in the case. My judgment recorded the case law which was then recent (Re: A (2015) EWFC 11, the decision of the President, and Re: J (2015) EWCA Civ 222 in the Court of Appeal) provided a timely reminder if required that a court's welfare analysis must proceed on facts as found on the evidence rather than allegations or assertions.
18. In so far as I may conclude that a person has lied, I caution myself against any assumption that to lie about one aspect of the evidence renders the rest of a person's evidence unreliable or untrue. I am mindful that lies can be told for many reasons and have, in effect, given myself a Lucas direction.
19. In addition to reading and hearing the evidence of the parents and during the course of this hearing the grandparents, I also had the opportunity of observing them during the course of the hearing. I have taken account of the fact that those involved in proceedings such as these may present very differently in such a stressful situation and had not drawn conclusions from their presentation alone. It is nonetheless important to forming assessment of the parents as to credibility and reliability in evidence.
20. I have considered the evidence in respect of each event individually in the context of the evidence as a whole. The findings I make will inform the welfare analysis that I then undertake in respect of the children. I therefore make such specific findings in the areas I consider material as I am able to do.
21. Provided the court finds the section 31 threshold criteria established, the court then proceeds to a welfare analysis having the children's welfare as my paramount consideration. In accordance with section 1(3) of the Children Act 1989, I have regard to the matters set out in the welfare checklist, in so far as I consider each applies. The court is asked to consider three placement options with M, with F, and with the maternal grandparents. The court is required to balance the placement options taking account of the pros and cons of each placement option before reaching a conclusion.

The Evidence

22. I heard evidence about many disputed factual issues. There are many more in the written evidence. In submissions, I was addressed on behalf of the parents (M in particular) and the local authority about a number of specific incidents which are relied upon by the local authority as part of its case. I will deal with these incidents together with some others and more general issues before I consider the evidence of BK and EL in light of the conclusions I have drawn in relation to those incidents. I will deal with the evidence of witnesses as I consider the specific events.
23. The evidence that I heard from the parents reflected the evidence that they gave in the fact finding hearing in the private law proceedings in many respects, although the subject matter was, in the main, of events postdating the private law proceedings. M's case is that the local authority through the social worker, SW1, has had an agenda to secure the children's removal from her care which pre-dated the care proceedings. M said in her evidence that she did not attribute this intention to the other social workers who had been involved, only SW1. M alleges that SW1 has lied and misrepresented situations to achieve her goal. In her statement dated 13^th May 2016, M said it is her belief that the social worker has "waged a vindictive campaign against her to try and drive her to insanity". These sentiments are repeated elsewhere in her written evidence and were reflected in her oral evidence. I have had this in mind as I have considered the evidence of the witnesses in relation to the areas in dispute.

1^st October 2015

24. On 1^st October 2015, SW1 supervised contact between F and the children. According to the local authority's recordings, B was reluctant to leave her mother while T engaged well. B was said to be rude to her father throughout the contact. SW1's evidence is that at the end of contact, M asked to speak to her. She records what followed in her statement dated 9^th November 2015 at C728:

"As I left the building, M asked to speak to me. She asked me if I had read the report from the judge. I advised I had. M then stated to me, 'I accept what the judge has stated, but I do not agree with it.' She then stated:

'She expects me to let my children go to the house of a man who abused my children with a friend.'

I advised M that this was found not to be true by Judge Hudson. M replied:

'That judge is nothing but a bitch. She's never met my children, knows nothing about our lives. How dare she say what she has in her report?'

M then stated:

'I will be suing someone for all of this, but that bitch is untouchable, so I can't sue her, can I? Judges are untouchable."

M then stated to me that F had been found guilty of physical abuse on her child and again informed me that she would not allow her children to go to his house and asked, 'What are you going to do about this guilty verdict?' M informed me that T had not wanted to go to contact that day with his father and had stated to her, 'I'm not bothered about seeing him.' I informed M that this was not what I had witnessed during contact and that T presented as happy and content in his father's company. After M said what she wanted to say to me, she got into her car and ended the conversation by saying:

'I will not accept the judge's views as I believe my children and something has happened to them when they have been with their dad'."

25. M denies she has spoken these terms. Her statements record that she accepts my findings. Whether these were precisely her words as the quote marks suggest or not, I am satisfied and find that SW1 has not fabricated this account - as M asserts - but that this is what M said in essence. The primary significance is not the manner in which she made reference to me and my judgment, but her clear rejection of the court's findings as well as her resistance to accepting the social worker's view that T had enjoyed contact with his father. B's reaction is to be contrasted with more recent contact.

16^th October 2015

26. On 16^th October 2015, SW1 had a prearranged meeting with M. SW1's evidence is that the purpose of the meeting was to discuss the judgment from the fact finding hearing, but that the meeting ended after around ten minutes as M was unhappy that SW1 was working from the judgment and not her (M's) account of previous events. SW1's evidence is that M responded to this by saying, "Well, that's me and the children screwed then." The social worker's evidence is that M was loud and abusive and was asked to leave the social services' building. M denies this and has always argued that the local authority should produce CCTV recordings from the reception area which she says will prove her case. M says there are notices informing people that CCTV operates; the local authority denies that there are any recordings.
27. M agrees that she said they were "screwed", but in response to SW1 telling her that she (the social worker) had not read the background papers and did not intend to. M said she wanted SW1 to have a better understanding of the history. M's evidence was that she asked SW1 what she could do to keep the children at home and that SW1 told her there was nothing. In her oral evidence, M described SW1's behaviour as "a hissy tantrum."
28. On the evidence, I concluded that M had indeed reacted adversely to SW1's stance that she was working from the findings of the court and that M responded in an angry and confrontational way so that SW1 ended the meeting. I do not accept, as M asserts, that the social worker had "a hissy tantrum."

The Issue of Care Proceedings

29. At a hearing in the private law proceedings on 18^th November 2015, the local authority confirmed its intention to issue care proceedings and seek the children's removal from M's care. On all accounts, M reacted badly to this news. The local authority arranged an EDT visit to the family home. During a telephone call between MGF and a local authority social worker on 19^th November he is said to have described M as having had "a bit of a meltdown." He denies using that expression, but agrees that M was "not herself" and said that she was saying things that she did not mean and was not herself at the time. Whether or not the term 'meltdown' was used, I concluded that M was in an extremely distraught state at this stage, which was evident to all concerned and must therefore have been evident to the children who were in her care. This is further supported by the email M sent to the social worker on 19^th November 2015 which emphasised this.

Meeting Between the Social Workers and M on 23^rd December 2015

30. By the time of this meeting at the family home, the local authority had completed a positive assessment of PA and PU. The local authority evidence records that M was disparaging about PA and said that she had a speech impediment. When that was clarified, M said, "She says 'er' and speaks Geordie."
31. The meeting between M and two social workers, SW1 and SW4, came to an abrupt end after the social workers allege that M's presentation changed dramatically after she was told that the local authority proposed PA would supervise F's contact in the place of the local authority's supervisors. The social work evidence alleges that M became angry and expressed herself volubly in earshot of the children who were in the next room about her views and those of her local community about "the disgraceful and terrible" local authority actions in seeking to remove the children from her. The local authority further alleges that M was loudly disparaging of PA and PU and their home in contrast to her own with repeated references to them living in a "grotty council estate" and being "working class".
32. When M was asked about her attitude to PA and PU in cross-examination, I found her initially evasive but then retorted that she is a snob and lives in one of the best areas in [the locality] and the children go to one of the best schools, whereas PA and PU live in an ex council estate which she described as "scruffy and grotty" and not the same environment the children were used to. In her oral evidence, M went on to describe the children as "terrified" of going to PA and PU's home. PA and PU live in a residential area in a less affluent part of [the locality].
33. The evidence of SW1 is that when they went to leave, M continued to be verbally abusive to them. I accept the evidence of SW1 that the children were in the next room. She said that they came out of the room when she left and she wished them happy Christmas. I concluded that the children were aware of and exposed to their mother's behaviour and her derogatory statements about the paternal family and the local authority.

The Interim Care Hearing and Subsequent Events

34. M chose not to be present during the interim care hearing. At the conclusion of the hearing I made interim care orders approving the care plan of the children's placement with PA. It was agreed by M's counsel on that occasion that the social worker and team manager would go to the family home at about 6.15pm to explain the situation to the children and then take them to PA and PU's home. SW1 duly went to the family home where T and B were with M and MGF. On all accounts, what followed was an extremely distressing experience for the children. The children were understandably upset at the prospect of leaving home. B was screaming and crying and T was obviously upset. M and MGF agree that they refused the social worker's entry until the police were on the scene. M said this is what she had been advised to do.
35. Police assistance did not arrive until after 8.00pm. A neighbour, DT, has provided his account of the incident on behalf of M. He describes the upsetting and distressing scene that he witnessed. Although SW1 gained access to the house once the police were present, the children were refusing to leave so that the police informed the local authority the only way the children could be removed was by force. This was not done.
36. This short summary of the incident cannot adequately reflect the descriptions by all who were there - from their different perspectives - of an extremely distressing episode for T and B. I do not doubt that the family and M in particular were distressed by my decision and the prospect of the children's removal, but I concluded that the actions of M and MGF did not assist the children in providing them with the support they required for the court's order to be put into effect. The children were eventually removed from school the following day after another fraught episode. Despite this, the children settled at PA's house. Although the children were pale and subdued at school the following day they quickly returned to their normal selves.

4^th February 2016

37. M and her parents had supervised contact with the children on 4^th February 2016. This was supervised by CS1 and CS2. On all accounts, T was feeling unwell. At the end of contact, which was at 5.30pm, T said he did not want to leave. CS1's evidence was that she thought this was because he felt unwell. The situation escalated after T became upset when M said he could not go to her house. T said he would kill himself and held his hands to his neck. M immediately said T needed to be seen by a doctor or the children and young person's service (CYPS). In her oral evidence, M was clear that T needed to be seen urgently by medical and/or psychiatric services.
38. Local authority statements from CS1, CS2, SWA1 and SWA2 (social work assistants), and SW1 set out the local authority's case together with a statement from an attendant who was due to lock up after contact finished. The local authority case is that M and MGM, particularly M, fuelled T's distress and anxiety so that the situation escalated to a stand off with the family refusing to leave. On all accounts, MGF took B off into a different room and was away from the situation for much of the time. The local authority makes no criticism of his behaviour on this occasion. Once again, the police were contacted in the light of the impasse and the heightened state of emotions.
39. The local authority evidence is that M was critical of the local authority and its role in the children's removal from her care and also the care given by PA, and that she was asking for T to be allowed to return home with her for the night. She is alleged to have been abusive to the social worker in earshot of T. She denies that her behaviour was in any way inappropriate and asserts that she was simply seeking to ensure that T received the emergency medical and psychiatric support that he needed. This incident continued until around 7.30pm when, after M left the room, MGF also persuaded MGM to leave so that T was left with the social workers. There is a dispute between the maternal grandparents and M on the one hand and the social work staff on the other about MGM's behaviour as she left. The local authority's case is that MGF helped MGM up from the sofa, whereupon she angrily grabbed at her handbag so that the long strap struck SW1 in the face. The local authority has produced photographs of bruising to SW1's face which it is said was caused by that incident. The maternal grandparents dispute that MGF did more than stand at the door and they say that the bag did not and could not have hit the social worker, whether deliberately or otherwise.
40. Notably, during the course of the special guardianship assessment by SW3, MGM is reported as telling her that the strap hit SW1 accidentally. In her oral evidence, MGM said this had been misrecorded by the social worker.
41. There are discrepancies between the various accounts, including between the accounts of some of the social work witnesses. I was particularly impressed by what I considered to be clear and objective evidence from CS1 in relation to this. She was clear that the strap struck SW1. I am satisfied that it did so and I find accordingly.
42. Once again, this short account of the episode cannot adequately reflect the accounts in the written and oral evidence of a highly charged incident. It is notable that on the evidence and evidence I accept, that within a short time after M and MGM left with MGF, T was smiling and interacting with the social worker, demonstrating his new skates, and said he no longer felt unwell. SW1 believed he soiled himself during this episode. She said she could smell faeces, T was pulling at his pants and walking with his legs apart, even though he had denied that he had done so. On the evidence I heard, I concluded that the behaviour of M and also of MGM on this occasion played a significant part in creating and prolonging this distressing episode for T in particular.

The Looked After Review (LAR) on 4^th May 2016

43. It now transpires that M has, without the local authority's knowledge or consent, been recording meetings covertly. She says she has done so because of the lies she says SW1 has told. She produced recordings for a number of meetings following a directions hearing where this became evident. A transcript of the LAR held on 4^th May 2016 was obtained by the local authority after a dispute about M's behaviour at the meeting and allegations she was reported to have made. M made a number of allegations or assertions during the course of the meeting which deserve mention.
44. She alleged that T had said at contact that he would rather be dead than where he is. The contact supervisor, CS1, has no record of this being said. Her recordings from contact are very detailed and very clear. Although it is possible that things are missed by her, she said she records everything that she hears. On M's evidence CS1 did hear this as she specifically looked up in response to T's statement. I do not accept that this was said by T as M asserts.
45. M also alleged that B had told her at contact on 25^th April 2016 she did not want to be hurt again when speaking of her father. Once again, there is no record of this being said. Having regard to my overall assessment of the reliability of M's evidence, I am not satisfied this was said.
46. M alleged SW1 had contacted her employers and demanded she be suspended. M has otherwise been adamant that SW1 attended a meeting with staff at the college at which M teaches, with a view to securing her suspension. SW1 agrees that she contacted the LADO (local authority designated officer) in accordance with local authority procedures but denies attending any meetings or arranging for M's suspension or otherwise. M has produced notes from meetings at the college which do not bear out her account of the social worker's actions. M has not proved these allegations and I make no findings therefore.
47. M further alleges that SW1 assaulted T which she had reported to the police with reference to the events on 4^th February 2016. Her accounts of the meeting described the social worker stroking T's leg and ear, and fondling his leg and knee in front of three staff. M maintained this in oral evidence, but sought to say it was the police who wanted to log it as an assault rather than her wishing to do so. This was very similar to M's approach as I found it at the fact finding hearing of giving professionals information and then taking their response to her information as advice she was obliged to follow. SW1's evidence was that her actions were simply to provide T with appropriate reassurance and to wipe away his tears and mucous when his nose was running. I accept her evidence.
48. M is widely reported to have been very angry at this meeting. I was not asked to listen to recordings in circumstances in which she has accepted that she can come across in this way.

Contact on 23^rd May 2016

49. There were further difficulties at the end of this contact. The local authority evidence is that, on occasions, M prolongs the end of contact by various means and also tells the children she is not allowed to stay and has to go, rather than reassuring them about the contact ending and seeing them again soon. On this occasion, CS1's record, which I accept, describes T becoming increasingly upset the more M said she have to leave. Eventually M was guided out of the contact room and T tried to follow. The local authority's evidence is that F, who had been asked to come in to assist, restrained T in what the contact supervisor considered to be an appropriate manner in the circumstances. M agrees that she returned to the room to collect the family tortoise but denies, as the local authority alleges, that she shouted about F's presence and otherwise. The local authority's case is that the children were distressed during this, but once again calmed quickly after M left and the door was secured. I am satisfied that the local authority accounts set out by CS1 in her contact recording is a reliable description of the contact visit and represents a further occasion where M's behaviour caused the children distress.

6^th July 2016 – T's concert

50. By agreement with the local authority, M attended T's leavers' concert at his school on 6^th July 2016. She signed an agreement setting out the basis upon which she would attend when she was at court for a hearing on 5^th July 2016. M did not, however, receive a copy of the agreement before the event. The local authority raises a range of issues relating to her behaviour at the school and her failure to comply with the instruction of social workers as the agreement required her to. It is clear that she did not, in that, on her own account, the social worker gestured that M should sit with her but M did not respond. There was also an issue about the arrangements after the concert. I do not propose to address these in any detail other than to consider the circumstances as M and the social workers left the premises.
51. The evidence of SW1 and CS1 is that M left through a gate and deliberately swung it back in SW1's face. M says she was securing the gate as required by the head teacher in all circumstances. I found M's evidence in relation to this unpersuasive and preferred the social work evidence. I have concluded that M was both upset and angry. She agrees that she had refused to speak to the social worker before she left the school building, putting her hand up towards the social worker's face as she did so. I find that M deliberately swung the gate back in the knowledge the social worker was immediately behind her.

The Children's Care and Contact Arrangements

52. Despite M's negative views about the placement, T and B have been settled and happy in the care of PA and PU. They have also made friends in the locality. I express my thanks to PA and PU for offering their home to T and B for a period which exceeded its expected duration and at no small personal costs in terms of their own family's arrangements. The children have continued to attend the same school close to their mother's home. B was distressed at the prospect of traveling by taxi but, despite this, M was opposed to F accompanying B to school, even when she was told it was what B had asked to happen. The children's continued attendance at their schools has provided them with stability and allowed teaching staff to monitor their responses to the changing situation in the context of their past knowledge of the children. In general, the children have been settled, although the episodes I have referred to have inevitably had an impact upon them.
53. F's contact with the children, which had been the issue in the private law proceedings, has progressed. Notably, B - who was very resistant to contact with him - has a warm and easy relationship with F seeking affection appropriately. T's behaviour has been more of a concern but, on F's account and other observations, T enjoys his time with his father with shared interests giving them a particular focus.
54. It will be evident from my account of the incident relating to contact and reference to the section 34(4) order made in February 2015 that contact arrangements between the children and their mother have been more problematic. Direct contact has been suspended on two occasions, most recently after the incident at the school.
55. Apart from the issues I have highlighted, much of the contact between M and the children is positive. She is well prepared and there are many recordings of warm and appropriate interaction between them. M's contact is all supervised. The local authority venue which has been used for contact is not, in my judgment, well suited to children of T and B's age. I was told that the facility is no longer to be used in any event.
56. The children had, until recent months, always had frequent contact with their maternal grandparents. On all accounts, T and B have a significant relationship with their grandparents and have missed seeing them. MGM and MGF have not had contact now for some six months, it appears because their contact has been seen as part of M's. They have not requested contact, either through their solicitor otherwise. The children's guardian's evidence, accepted by the local authority, is that the children's relationship with their grandparents should be seen separately from their relationship with their mother, so that if the children are not living with their mother, contact between them and their grandparents is promoted independently of the children's contact with their mother.

The Evidence of BK

57. EL recommended that M and F would benefit from therapy. M has had a number of sessions with BK from April 2016 to June 2016. They numbered ten at the time of his report dated 24^th June 2016.
58. BK's reports, reflected in his oral evidence, record that M does not have a borderline personality disorder. He said he followed a fairly conventional CBT approach in the work that he undertook, although he pointed out the need for a report within a short timescale had necessarily truncated the work. He nonetheless identified areas in which he considered progress had been made at J11 to J13.
59. BK records the difficult circumstances M was in at the time the work started. He credits her ability to hold down a demanding job, together with undertaking the Triple P parenting programme, mindfulness training, Open University courses, and a psychiatric assessment for her employer. BK says he thought that M was only coping as well as she was because of her natural energy and resilience and excellent support from family and friends. He considered her training and work experience provided an additional resource she brought to the therapy. He considered the area for work in therapy was to address M's frustration when others do not meet her high standards and her use of emotional language in such circumstances. He identified perceived threats to the children or her relationship with them to be an issue, to be addressed by considering M's perception of others.
60. BK identified three limitations: ill-defined expectations; M's belief that some people are not being honest; and her worries about her children, which he considered could have been best met by a joint agreement. At paragraph 36 of his report at J15, BK said this:

"While I have been working M she has not said or done anything in my presence that implied that she is any risk to her children. Indeed, the reverse is true. She has communicated a profound wish to care for them and promote their successful development through to adulthood."

61. M wished me to hear from BK. I considered if he was to give evidence it would be helpful for EL to hear him and that is what happened. BK confirmed he would not be assisted by reading any of the other documentation. His oral evidence reflected his positive assessment of M from the involvement he had with her, but without the broader context of the proceedings. He said he considered their work was finished but, as he said, with anybody who may request his services through the Yellow Pages or otherwise, he would be happy to offer M further sessions.
62. BK was asked about an email he sent to M with the subject, "Music to ears" with a newspaper article criticising the local authority in the case of Ellie Butler, the child killed by her father which has received recent significant publicity. He did not agree that in so doing he was endorsing M's views of the local authority. He says he was saying, "It may be a bad system, but that is how it is."
63. Of more significance, in my judgment, in relation to this email are M's actions in response. She forwarded it to SW1, the guardian, and copied it to her parents, brother, solicitors in the case, and the deputy chief executive of the local authority with the following:

"I presume you have all read this. Can I remind you that F was found to have physically abused B by HHJ Hudson? I hope you recognise the potential outcome of your presumed position given as you are refusing to return the children's musical instruments to me for the summer indicating, despite SW1 stating on 15^th June, that she's writing a positive assessment of me and I have this recorded, that you have decided not to return my children to me this summer when I have completed the parenting course and my psychological therapy successfully and met all the court and social services' requirements. F has, to date, met none as he has not started therapy and has not agreed financial mediation. This is sheer prejudice by social services and CAFCASS and is a failure in both your duties of care to my children in regard to their physical safety and possible lifespan."

64. M was asked about this in cross-examination, with particular reference to the comment about the children's lifespan in the context of the article about Ellie Butler being killed by her father. M denied she intended to make that reference, but said she was referring to what she considered to be the real risk arising from the children's threats of suicide. I found this to be another example of M's overreaction, akin to her response in relation to the nose-picking episode in the private law proceedings.

EL's Opinion

65. EL completed a lengthy and detailed report and answered questions following its completion. In relation to M, her conclusions included the following:

M's manner and the information gave no indication of acceptance of personal responsibility, growth, or insight into how her behaviour could have affected her children at any time. She denied any exposure to upsetting or disturbing behaviour herself.

The indication is that M is strongly avoidant of responsibility and presented all information in order to justify her own position rather than having had what she called the 'wake up call' prompted by the judgment leaving her to reflect and develop new insights into the children's situation.

M showed no emotion, no regret, and made no comment showing developing insight into how the children could be affected.

M was defensive, avoidant, and unaccepting of the criticisms inherent in the judgment considering that she did not in any way illustrate her stated acceptance of the conclusion.

The indication is not that M has an anxiety disorder, but this is a set aspect of her personality probably reflecting a borderline personality disorder. This is likely to be reflected in unstable reactions and probable elements of obsessive behaviour in stressful situations due to the extent of her anxiety when she loses control. This reaction could possibly account for her aggressive reactions referred to. Although she has had CBT therapy in the past, it is probable that she continues to experience difficulties with managing anxiety reactions and the uncontrolled behaviour presents in an acting-out aggressive manner.

M seems to have a higher level of inherent anxiety and in stressful situations finds its orientation difficult to manage. She presents as having a complex unbalanced personality and, as a result, would find it difficult to interact in a stable manner with others.

M manipulates information in order to justify herself. Her behaviour presents as part of a set personality profile that shows no sign of being reflected on by her at the time of the assessment in spite of the long list of courses and therapy she says she was involved in.

The many courses and the forms of counselling presents as a list of uncoordinated activities without being a coherent, insightful, planned approach to engage with change. This lack of insight in the personality profile indicates there is a significant probability of future harm should the children be in her care.

A co-ordinated approach to change would be recommended focusing on therapy to develop insight and ability to acknowledge the difficulties alongside parenting skills and development work planned with childcare professionals to help focus on the children's individual needs.

M's capacity to promote contact with the paternal family was not indicated to be secure. Professional intervention and management would be essential for the foreseeable future. Therapy of a complex nature of at least a year seemed to be necessary before M's movement to change could be truly evaluated in such a difficult situation.

EL concluded that to achieve consistent change for M was a complex and difficult process which could not be quantified by dates. She considers that change could be achieved in theory, provided there was a true acceptance of the issues raised about her behaviour but considers that at present to be questionable.

66. In relation to her assessment of F, she said:

His overall presentation was of reasonable emotional stability with no symptoms of mental illness.

She concluded that F was unlikely to be the highly unassertive individual he puts himself forward to be. He was self justifying and avoidant of any criticism of his behaviour during the assessment.

F's avoidance of accepting responsibility and only brief acknowledgement his behaviour might have played a role in his complex relationship with his partner and influence contact with the children indicates that there is an element of risk due to a lack of insight causing him not to adapt his behaviour.

F did not present as in need of therapy due to a mental health condition but he could benefit from an exploration of his personal attitudes in order to develop more insight and flexibility about his views regarding his ex-partner and his role in events. A timescale of about six months in therapy would be usual considering his presentation."

67. EL also assessed the children. She relied substantially on information from others because the children were "highly defended" when she spoke to them. She noted that, unexpectedly, T had reacted more to the removal from his mother. She considered the children's primary attachment figure was their mother but their exposure to her negative comments was likely to have caused insecurity. She assessed the children has having a positive attachment to their father, but that was likely to have had an element of insecurity. She did not recommend any therapeutic work for the children.
68. In her oral evidence EL said that M's acceptance of responsibility would depend on the findings of the court regarding her behaviour. She said that she did not consider that there was diagnosis of a borderline personality disorder, but was describing a pattern of behaviour. EL questioned M's ability to work with professionals. Despite the progress M was reported to have made in therapy, EL said she did not have confidence that M has been able to manage her emotions. In relation to F, EL said that she would ideally like to see him have a couple of months of therapy before he could take on the care of the children. When she became aware of the need of the children to move, she was clear that a move to F would be preferable than a move of the children in to foster care.

Threshold Criteria

69. In my judgment given on 26^th August 2015, I concluded that the children had suffered and were continuing to suffer significant emotional harm because of their statements which I found had been influenced or prompted by their mother, whether deliberately or because of a distorted perception of events. Although M agreed to contact taking place between the children and their father following my judgment, the findings I have made regarding events between the judgment and the issue of proceedings establish that she was not accepting my conclusions and was resistant to addressing the issues arising from it.
70. My order dated 18^th January 2016 records that the court found the section 38 criteria established on the basis of findings in the private law proceedings. Those findings, together with what I am satisfied is M's lack of acceptance of them, established the threshold criteria as at the date protective measures were put in place (which is when proceedings were issued on 19^th November 2015). I therefore turn to the welfare analysis.

T and B

71. The welfare of T and B is my paramount consideration. I have considered the welfare checklist and highlight the following issues as particularly relevant. T and B are both bright intelligent children. This must reflect on the positive parenting that they have received. Their mother has, of course, been their primary caregiver. T is now 9 and B is 8. T's wishes, expressed to the children's guardian and others, are to return to his mother's care. Although B's wishes were previously understood to be to live with her mother, both EL and the children's guardian's found her to be "highly defended" and reluctant to express her views. B only relaxed when the children's guardian spoke to her about it when the guardian reflected that B may not want to say what her wishes were. It is notable how the children and their views have changed over time. B was highly resistant to contact with her father previously, whereas now she has a good relationship and enjoys their time together. T's behaviour has been a recent cause for concern, but I accept the evidence that it is in association with his mother and difficult incidents, and that he has been quite easy to bring around once that situation is passed.
72. The children have the basic care needs of any young children. It is clear that M has promoted their educational needs and they have been encouraged to do many extra curricular activities, an area in which M is critical of F in his failure to do so. The children's emotional wellbeing is the area of concern. In the light of my findings in the private law proceedings and since, the risk of harm is that they continue to be exposed to the damaging aspect of their parents' relationship and their behaviour otherwise. T and B have had the benefit of stability with PA and PU over the last six months, but they have always known that to be a temporary placement. They need to move within a matter of days. I am asked to consider three placement options: with their mother; with their father; and with their maternal grandparents.

Placement with M

73. This would allow the children to return to their primary caregiver and to their first familiar home environment close to school, friends, and activities. Their close relationship with their grandparents would resume. It would also meet T's expressed wishes. The risk is that the children are exposed to emotional harm in M's care by reason of her attitude to F and aspects of her behaviour which, as I have found, have continued to put the children in stressful and upsetting situations. M has undertaken therapy, a parenting course, and sought other forms of support since the fact finding hearing. It is important to consider how these have affected her behaviour and her ability to regulate her emotions and her behaviour. At paragraph 34, E150, the children's guardian's said this about M:

"In considering M's ability to parent T and B safely and appropriately, there has to be confidence that she not only has accepted the findings of the court, but sought to address them and then demonstrated change at a fundamental rather than a superficial level. M asserts that she has successfully completed such a process. However, there continues to be a continuing contradiction between what M says, for example, her position that she would be able to co-parent with F and other aspects of her behaviour, for example, alleging that B remains afraid of her father and sending professionals a newspaper article and accompanying email thereby at the very least inferring that placing the children with their father could place them at risk of harm."

74. This was reinforced by the guardian's evidence. She considers that the evidence of M's behaviour during the proceedings and continuing to date makes it clear that M is not taking responsibility which is where the fundamental change is required. I agree.

Placement with F

75. At the time of the fact finding hearing F's relationship with the children was tenuous. It has become clear that, when allowed to, the children can have a positive relationship with him. He is, however, less experienced as a parent and has not had sole care of his children. EL recommended therapy for him and questioned whether he would make the progress required to take on the children's care. His therapy has only just started.
76. In her response to questions and in oral evidence, EL was more positive about placement of the children with their father in the light of the developments during the course of proceedings.
77. In the private law proceedings, I found that F had used physical chastisement on B in the past. There is a risk that he would do so again. He has, however, addressed that in his work with professionals since who express optimism at his stated understanding of what went wrong and how he would avoid the same situation recurring. Placement with F would go against T's stated wishes. T's reaction cannot be predicted, although I have recorded the circumstances in which T's behaviour has been most extreme in situations in which it has been apparently influenced by his mother.

Placement with the Maternal Grandparents

78. The grandparents put themselves forward as a fall-back to M. In the case of MGF, he also appeared to prefer a placement with F ahead of them, although he was somewhat equivocal about that. There is no doubt that the maternal grandparents have good and strong relationships with the children. They would be able to undertake the practical parenting. The question is whether they accept and understand the harm the children have been exposed to and their daughter's involvement in it. On the evidence, I was left with the conclusion that they do not, particularly so far as MGM is concerned.

My Conclusions

79. In light of the findings that I have made and my analysis of the placement options, I have reached the conclusion that the care plan of the local authority - supported by the children's guardian and with the support of EL - that the children should be placed with their father is the placement which will meet their welfare interests. I have considered the legal framework which should provide for that. The local authority seeks a care order so that it would share parental responsibility with the parents. That is supported by both F and the children's guardian. I am, of course, mindful of the disadvantages to children of being subject to care orders and the implications that it has on their day to day life, with the continuing involvement of social workers and other restrictions. It is, in my judgment, clear that the local authority must share parental responsibility in respect of these children at this stage to ensure their wellbeing is secured.
80. The local authority's proposal is for M to have fortnightly supervised contact with the children. The difficult history of contact throughout the proceedings will be clear from my judgment. I agree with the children's guardian, the local authority must be very explicit in setting out what is required and indicating some progress to increase contact. I agree that the goal for the children and their mother will be for them to have increased and unsupervised contact if that can safely be achieved. That lies in their mother's hands.
81. As I came into court to deliver this judgment, I was told of what the local authority alleges are recent difficulties in contact arrangements since the evidence and submissions concluded in the proceedings. I heard briefly from the local authority setting out the issues that they sought to bring to my attention and from Ms Fearon in response. I do not propose to address those in any further detail in the context of my judgment, other than to say those very issues exemplify the need for a clear structure in the arrangements for contact, the framework within which the contact will take place and the indicators of progress or otherwise.
82. I agree with the position proposed by the children's guardian and adopted by the local authority that the children's contact with their grandparents should properly be viewed separately from their contact with their mother. Their grandparents have an important and distinct role in the lives of T and B and their contact must be seen in that context. I have already made reference to my adverse view of the arrangements for contact in terms of the venue for contact and is no longer to be used in any event. The venue of contact needs to be addressed to ensure that the contact for T and B has the best prospect of providing them with a beneficial environment in which they can meet with their mother.
83. Subject to any matters arising and the direction for a transcript of judgment that concludes my judgment.
[Judgment ends]