England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/08/2014

Mrs Justice Pauffley:

Introduction

1. Nothing is ever certain or predictable in litigation about children. It is trite to observe that what may have seemed likely on reading the papers may turn out to be totally unrealistic when evidence is given. By the same token, changes in attitude which no one would have considered possible can and do occur at times which are a surprise to everyone involved.
2. This case underwent a fairly dramatic and very pleasing alteration in its presentation during the course of yesterday's evidence. Suddenly, it seemed there was potential for significant progress in a situation which until now has seemed entrenched, immovable and profoundly depressing. The first signs of an improving situation were when the mother asked questions of YA who is a social worker with the second local authority. The prospect of real and enduring change for the better came during the mother's 'cross examination' of the father which she began with an unexpected 'Hello'. What followed was a reasonably friendly dialogue marked by quite remarkable civility on both sides, devoid for the most part of rancour, hostility and unpleasantness.
3. Their discussion, albeit brief, and in the highly artificial surroundings of this large courtroom paves the way, so I believe, for more optimism than I would have believed possible just two days ago. Whether there is the progress which the mother and, indeed, the father crave will depend crucially upon their willingness to work tirelessly with the local authority and respond positively to the suggested programme of intervention.
4. So this judgment will not be lengthy not least because the issue for determination is narrow but also because the time for criticism and attribution of responsibility for difficulties should now be allowed to recede. Put another way, it would not be remotely helpful if I were to trawl through the apparent problems – as recorded – since early June and now. In the spirit of optimism and in an effort to achieve lasting improvements it is only necessary to note their existence and to record the mother's unequivocal ambition to "make a brand new start" in her quest that Y should be "secure, happy, loved and have a great future."

The context

5. So as to give a context for events at this hearing, I should say that since the autumn of last year, these private law proceedings in relation to a two year old girl have occupied a considerable period of court time. My first involvement was on 27^th November when there was an issue about the interim arrangements in which the child's father should see her. On 26^th February 2014, at the conclusion of a three day fact finding exercise, I set out my conclusions in relation to a range of issues – most significantly as to whether the child's father represents any kind of risk to her, sexual or otherwise; and the reasons, so far as I was then able to ascertain them for the mother's belief that he was, indeed, a sexual perpetrator.
6. By early April, as the result of a deteriorating set of welfare circumstances for the child, it was necessary to consider on an interim basis, over two days, whether she should move from her mother's home to live with her father. The judgment of 2^nd April comprises my reasons for having decided that she should. Over the course of a further two days in May and June, a final decision was taken as to where the child should live. Judgment was given on 4^th June.
7. No final orders as to the arrangements for the child to spend time with her mother were then possible because the handover between the first and second local authorities had yet to occur. I commented in the concluding paragraphs of the June judgment that the new local authority had only a peripheral understanding of the complexities and difficulties and, at that stage seemingly, there was no appreciation of the need to provide adequate, professional supervision of the mother's contact. In the circumstances, there was no alternative to listing the proceedings one last time so as to provide the opportunity to settle the arrangements for the child to see her mother and maternal relatives including her brother L.
8. On 10^th June there was a joint agency planning meeting between the two local authorities at which the second authority indicated it would accept case responsibility at a 'transfer in' case conference arranged for 16^th June. On that day, a decision was made that Y should remain subject to a child protection plan with the case transferring to the second local authority.
9. At this stage, the background requires no elaboration. Historical as well as more recent events are charted within my four preceding judgments.
10. On 23^rd July, the mother's very experienced Solicitors wrote to me indicating there had been problems in gathering instructions from their client and consequential difficulties with legal aid. On 31^st July, my clerk received an email from the mother's Solicitor confirming that she no longer wished that firm to act for her. The mother filed a Notice of Acting in person and has represented herself at this hearing. On the first day, she was assisted by a McKenzie Friend who indicated he would be able to attend on the second day. There was no objection to him assuming that role; the other parties were neutral as to whether he should.
11. He was in touch with the court on the morning of the second day, making clear he would not be attending. He and the mother had parted company. She was assisted on the second as well as the third day by her sister LG without objection or difficulty.

The contact issue

12. The single issue is as to the frequency of Y's contact with her mother. Currently, and since early June, the pattern has been for meetings to occur twice each week for 3 hours at a centre operated by the first local authority.
13. The suggestion now made by the existing supervising authority, the father and Ms Nicholls, Y's guardian is that there should be a reduction to fortnightly visits. It is also said that, for now, there should be close professional supervision; that the current levels of contact are too high; and that maternal family members are not yet in a position to provide adequate supervision. The reasons are that, seemingly, they are too sympathetic to the mother's position, have aligned themselves with her view which has been that Y should not have been removed, that she is a good mother and that the father has abused Y.
14. The second authority, whilst accepting the need for professional supervision, suggests the level of contact should be phased down over a period of two months to a frequency of monthly for two hours on each occasion. The offer made is to work with the families under a Child in Need plan, to allocate a family support worker for a period of three months and for there to be a series of Family Group Conferences so as to enable the maternal and paternal relatives to find a way to resolving the difficulties. Because of budgetary constraints within the second much smaller unitary authority, there can be no commitment to supervise contact long term or even beyond three months. The suggestion was made that if there is an apparent requirement for a contact supervisor three months hence, then the parents would be expected to find the funds to pay for that service and a neutral venue also. A figure of £30 for a worker to supervise a two hour session was mentioned.
15. The second authority would prefer there to be no order either as to the precise levels of contact or requiring some form of local authority intervention but would respect whichever order is made. If a Family Assistance Order were to result, the case will be allocated to and operated by the relevant officer. But whether or not such an order is made, it was made clear by both YA and the Director of Children's Services, who gave evidence briefly yesterday, that the authority will work with the family under a Child in Need plan. As the Director said, there is no way of knowing precisely how things will turn out but it should be possible to gain a sense of whether there is the potential for movement within the maternal family over the course of the work planned for the next three months. The Child in Need plan would be for six months and the authority would most definitely be working towards an "end point."
16. The mother's position is readily understandable. She wishes to have as much time with Y as possible. I have absolutely no doubt about the trauma, shock and great distress felt by her as the result of the change in Y's residential arrangements. Any reading of the contact notes makes clear just how precious to the mother every minute spent with Y is. The mother makes the point that if there is to be a gap of a month between visits then the high levels of emotion engendered at the beginning and end will be even more considerable and that it would be better for there to be greater frequency as suggested by the first authority and the guardian.
17. The points in favour of monthly frequency were well made by YA and the Director of Children's Services. It was said that contact should be about sustaining Y's attachment with her mother as well as settling her at her father's home and nursery. The second authority relies on the need for "manageability," believes that whatever happens there is a likelihood of contact being stressful for Y and that her real need is to settle into the pattern and routine of life with her father.
18. As YA so perceptively said in relation to the sessions of which she has read, there has been an impact upon Y who has returned home very tired. The moves between her father and mother have been disruptive. The mother is, according to YA, still trying to get over the trauma of Y's removal and there is a resulting impact within the contact sessions. YA does not suggest a frequency of once a month would continue for ever but "given the intensity which has been involved until now" she believed contact should "come to a level that's manageable for Y."
19. On the other side of the professional divide, AB of the first authority considers that a reduction to monthly intervals from the current twice weekly arrangement would involve too long a gap between visits given Y's age and her good relationship with her mother. Miss Nicholls similarly described monthly intervals as leaving a "large gap" between visits. She also said that fortnightly intervals would "sit better." Challenged by Miss James as to whether there had been deterioration in the quality of contact since early June, Miss Nicholls said she had not noticed any "hugely stark differences." There had been elements throughout of the mother having difficulties in her relationships with contact supervisors and also because of her need to inspect Y. So although Miss Nicholls has sympathy with the second authority in relation to its scarcity of resources, she believes Y should see her mother fortnightly not least because she is already settled, stable and well adjusted to living in her father's care. Moreover, there is no evidence said Miss Nicholls that Y has been in any way traumatised by contact.
20. In the aftermath of the evidence given yesterday, I do not believe a fixed or rigid contact plan stretching in to the middle distance would serve Y's welfare needs at all well. The following are my observations about what should happen over the next couple of months and in advance of review by the second authority under the Child in Need plan. Both parents have indicated their willingness and enthusiasm for working under that plan and with whichever social worker from the long term team is allocated. They must take their lead as to what should be happening in Y's life from the professionals prepared to work alongside them to achieve lasting and beneficial change.
21. Contact at the current twice weekly level is unsustainable. The pattern has resulted in a very tired two year old. There have been plentiful problems arising out of the mother's dissatisfaction with the supervisors, how they have performed their role, the "lies" as she perceives them to be within their reports and there have been occasions when the mother's anxieties have spilled over so that Y has been in the middle of a situation of difficulty. True enough, at her age and stage of development, she may not have had any idea of what was being discussed and why. However, almost certainly she is capable of sensing tension between the adults. If her mother gets cross there will be an impact upon her. If her mother cries or shows she is distressed then Y will be affected by that. If the atmosphere at contact is intense and pressured for whatever reason, there will be an impact upon Y. At her age, she does not have the ability to make sense of adult displays of emotion. She will be worried and confused by what she sees and hears.
22. So I'm in no doubt but that there has to be a scaling down of frequency and it should be gradual. I agree with SC that over the next two months or so, contact should reduce firstly to weekly and then fortnightly intervals. The ongoing success of visits will depend, crucially, upon the mother's ability to work with the local authority's plan. If she is true to her word and remains fully committed to starting afresh, to taking up as a matter of urgency the psychotherapeutic help recommended by Dr Asen, to re engaging positively with the father and his side of the family, to continuing on her journey towards fully accepting that he presents no risk of any kind to Y then I foresee fortnightly frequency as altogether achievable and in Y's best interests.
23. It is my sincere hope there will be no continuation of the cycle of problems identified within AB's statement evidence relying on the supervisors' reports. Shielding Y from the full impact of such events will become increasingly difficult as she grows older. No child however young or old should be required to undergo stressful events of the kind that Y has undoubtedly experienced.
24. I hope there will never come a time when a reduction below fortnightly intervals is necessary – but so much depends on the mother's ability to engage with professionals. Within a period of about three months from now it should be possible for the local authority to have established whether or not true and lasting progress is achievable. I thoroughly support the aim of time limited intervention. There has to be an end point. The parents supported by others within their families have to take back responsibility for their child from the authorities and from the court. If the mother is unable to consolidate the progress she appears to have made during the course of the hearing, then the future, I am bound to say, looks bleak.
25. If, against her indications given yesterday, the mother remains fixed and unshakeable in her belief system relating to the danger posed by the father, then I foresee an ever diminishing role for her in Y's life. It simply would not be fair, healthy or psychologically appropriate for Y to be repeatedly exposed to her mother's extremely negative view of the man who is now responsible for meeting Y's day to day needs. I believe the mother at last understands how her actions have resulted in the current situation. I say what I do only because from Y's perspective I urge progress and improvement.
26. The parents and particularly the mother have choices. Either there will be genuine, sustainable and positive change or things will remain the same. Y's long term health and happiness demand that urgent and determined efforts are made to bring about that change. The parents might begin, it seems to me, by referring to Y as "our" rather than "my" daughter. To them that may seem trivial. To me it speaks volumes about how they have tended to view one another and also Y. If they begin to see her as a shared, treasured and beautiful human being created in love then the chances of them being able to rebuild a civilised post separation relationship of trust and mutual respect will be immeasurably enhanced.

A Family Assistance Order?

27. No one resists the making of a Family Assistance Order pursuant to s. 16 of the Act as amended. Had it been the case that YA could have remained as the allocated worker throughout the next 12 months then I might well have inclined towards leaving the authority to fulfil its obligations to Y on the basis of the Child in Need Plan. Because her considerable talents will be needed in other cases and accordingly at some stage there will a change to the long term team, it seems to me that it would be altogether appropriate to make a Family Assistance Order directing the authority to make available an officer to advise, assist and befriend both parents – each consent to being named – as well as Y herself.
28. The second authority will be in no doubt as to where the focus of attention should be – it is upon the need for advice and assistance in relation to improving and maintaining the mother's contact with Y. Pivotal in that will be the hoped for improvement in how the parents relate to one another as well as attitudinal change amongst maternal family members.
29. I have no doubt having heard YA in particular about the local authority's commitment to assisting the family. YA is a highly skilled expert with an extraordinarily pleasing ability to work alongside parents as well as to challenge attitudes and behaviour when necessary. She is a warm, empathic and thoughtful individual whose work would be of benefit to any family in crisis.
30. I am all too aware that my powers do not extend to deployment within the local authority. Those who have responsibility for managing YA's caseload will have a strategic understanding of how her time should be spent; I do not. It may be useful though as decisions are taken about who should carry out the various pieces of work over the next three months to reflect upon YA's involvement thus far. As was so obvious when she gave evidence, she has gained the trust and confidence of both parents. She's already met some wider family members. Crucially, she has become a familiar figure for Y.
31. If it were possible for YA to remain the allocated worker for just the next three months I would view that as enormously beneficial to all concerned.
32. Lastly in relation to the Family Assistance Order, I should indicate that it would be appropriate for there to be very brief reports at 3, 6 and 12 month intervals from now and I will so direct. The primary purpose is not so that I can monitor developments but for the parents to know how the officer considers progress is / is not being maintained.

The parents at this hearing

33. Finally I should make this abundantly clear. I have been able to see a different side of the mother as the result of the way in which she has interacted with me and others at this hearing. Several factors deserve mention. She now acknowledges that her childhood experiences will have had an impact upon the way in which she fears Y may have or will suffer sexual harm. That, to my mind, represents a major step forward which is not to say that all of the problems have simply fallen away.
34. The mother has, I'm quite sure, still a long way to travel in coming to terms with her ordeals as a child and gaining an understanding of how her sensitivities in relation to Y are bound up with her own experiences. She will also have to begin to learn ways of regulating her emotions and of separating out Y's needs from her own. That said, florid displays of frustration of the kind described in my June judgment were nowhere to be seen at this hearing. But I cannot lose sight of those recent episodes of ungoverned emotion at contact when the mother has felt criticised or her wishes have been thwarted.
35. The mother is hyper sensitive to criticism particularly in relation to her ability as a parent. She yearns to be seen as a good mother and to once more play a valuable part in Y's life. At this hearing, I've undoubtedly seen a more engaging, humorous and reflective young woman than at any stage since November last year.
36. It is also significant that the father presented rather differently when answering the mother's questions. Whereas before some of his answers had seemed rather crisp and he appeared at times a little brusque, when he was in discussion with the mother yesterday he seemed more relaxed and forthcoming than at any stage in these proceedings. So there are seeds of optimism. Whether they take hold and grow towards a truly successful outcome depends upon the parents,' especially the mother's, resolve.
37. I know it has caused great offence to the mother that in my fact finding judgment I described her as having invented the sexual abuse allegation for her own malicious purposes. I went on to say that I could not know whether she had done so intentionally or because her background renders her susceptible to seeing sexual danger where none exists. I considered there may have been elements of both.
38. I also said, and the mother may do well to reflect upon this, that to have a bad feeling that something was wrong and then to ascribe guilt on the basis of the look on the father's face was ludicrous. To go on, as the mother did, to believe that everything fitted with abuse was absurd.
39. I should make clear, at the end of this hearing, that I do not consider the mother to be a bad or malevolent person. But what she did in accusing the father was unquestionably malicious and cruel as she would surely accept if she were able to see things from his perspective. To allege against any father that he is guilty of sexual abuse in relation to his own child is at the most serious end of the complaints' spectrum. The effect upon him and all those who love and care for him must have been truly dreadful.
40. Lastly in relation to L and his relationship with his sister, I applaud the father's willingness to invite L in to his own or the paternal grandmother's home. The mother's wish is that her sister should manage meetings between L and Y which is, I'm sure, something which will receive early attention from the Family Assistance Officer. The priority has to be the mother's time with Y. L should certainly have good opportunities to spend time in relaxed but suitably managed settings with Y. At his age, contact centres are likely to produce a certain, adverse reaction. I can do no more than leave the sibling contact issue to the Family Assistance Officer.