High Court of Justice in Northern Ireland Family Division Decisions

(a) L and N were married in October 1997. It would appear that both children were born during periods of difficulty within their relationship. The couple have now been separated for several years and the courts have been treated to a long history of acrimonious dealings between them in connection with contact arrangements between N and the children, who have resided at all material times with L.

(b) The first court appearance would appear to have been in the Family Proceedings Court at Belfast on 11 March 1999. In April 1999 the first of numerous interim contact arrangements were agreed between the parties permitting N to have direct contact with his children. Thereafter on 11 March 1999 a resident magistrate made an specific steps order that on the birth of S, the baby was to be known by the surname of H. Notwithstanding that L proceeded to register the child under her maiden name. On 31 March 2000 the resident magistrate made an order that the child was to be known by the name of H. N appealed that order to the family care centre but the order was affirmed by the county court judge.

(c) In March 2000 it was agreed between the parties that L would have residence of both children and N would have contact with both children every other weekend.

(d) By November 30 2000 proceedings were yet again brought before the court alleging breaches of the contact agreement by the mother L. It is the father respondent's case that the mother admitted on that occasion that she had been in breach of the contact orders on a number of occasions and the resident magistrate conditionally discharged her for 12 months on foot of these breaches. This seemed to trigger thereafter an application by the father N for a sole residence order which has been the subject of a number of subsequent applications by him. A residence and contact application were transferred from the Family Proceedings court to the Family Care centre and then against to the High Court for determination. The all too familiar pattern emerges again. The case was contested for 2 days culminating in another agreement with contact orders for the father to see the children. Mediation was proposed but sadly that proved of no avail.

"If (L) continues to fail to promote their (ie O and S) emotional and behavioural development as she should, frustrating the need for these children to identify with both parents, and persists in investing N with threatening characteristics in order to undermine his position as a role model, a court is likely to conclude that it is implausible for the children to continue to reside with her."

I have no doubt therefore that at that court hearing, and with the written judgment that I gave, L was well aware that this court was contemplating a transfer of residence to N unless she ceased attempts to frustrate the court orders and deprive him of contact.

"(L) feels that, although the court order is quite specific, she was not doing anything wrong by contravening the conditions of the order as O does not want to go and she would like her to have the opportunity to say so herself. I do feel that O should not be put under this pressure."

The social worker made a number of recommendations to the court including the following;

"(i) That a change of residence, bearing mind that J (a half sibling) of S and O is an integral part of their family life, would be too traumatic for these children but L needs to realise that, for the children's' emotional well being, contact with N and his extended family needs to be a positive integral part of their lives.

(ii) That the alternate weekend, bank holiday and main school holiday contacts remain in place with N picking up the children from school and leaving them back to school. This will prevent further confrontation and alleviating the resultant pressure upon O in particular as well as allowing N direct involvement in their education.

(iii) That N in order to promote continuity should be allowed to have contact with the children between visits, if not a Friday sleep-over as requested, then at least regular telephone contact."

"3.01 – the statements of L, and the statement and letter of N, indicate that there have been some improvements over the past year, with both children attending for contact at a much higher frequency than they would have done in the past. Difficulties have continued to arise, perhaps the most significant of these being O's refusal to see her paternal grandmother. Reports indicate that L does continue to disrupt contact arrangements and ignore agreements."

5.01 – L continues to elicit and encourage negative stories from O in relation to N and has extended family. This remains a cause for concern.

5.02 – O has a very strong desire to please her mother. Unfortunately this is all too likely to result in O misinterpreting or exaggerating events, which might then reflect badly upon contact with her paternal side of the family.

5.03…however I believe that if L supported the contact fully O would be very happy with the arrangements her father makes including contact with his extended family. Rather than this however and despite her assertions that she recognises the importance of N to the children, L makes quite irrelevant complaints, which have a disruptive effect upon contact.

6.02 – L states that she does now appreciate the positive contribution that N makes to O and S's lives; it may be that she has begun to do so, but this has not yet impacted sufficiently upon her behaviour in dealing with her children's' relationships with their father. L should try to grasp the fact that it is she who is putting O under pressure in respect of contact, by presenting O with choices, by making O feel bad about contact, by producing an environment in which O feels she must pick which parent to side.

6.05 – N has shown himself to have good parenting skills and has consistently shown an interest in his children. He is as aware as can be expected of his children's' needs and he should be allowed to plan his allocated contact with his children as he sees fit. L should not attempt to define who N can include during contact. N is capable of determining this himself. L should leave that part of the children's lives to N and the children and should not involve herself in conversations with O as to who will be or who has been present during contact."

In that report Dr Leddy had set out detailed and specific steps that L was to adopt in order to fortify appropriate contact between father and children and which in my view should have been simple and easy for her to follow.

"During the last few weeks of our relationship she had become more and more blatant about breaking court orders. She believed that the court had no power over her and she mocked the judge and …….. the legal representatives in vulgar terms and laughed at them. She said that she was giving N the run-around".

I watched this witness carefully and whilst I recognised that he might have had an axe to grind in the wake of the break up of his relationship with L, nonetheless I believe the general thrust of what he was saying and in particular the paragraph I have quoted, chimes with my own perception of how L perceives the role of the legal system in the context of contact.

"4.01 S and O are now suppressing warm positive memories of their father. They have decided upon a story in which their father is all bad, and their mother is all good. The fact that their father is effectively cut out of their lives at present, means that they are not exposed to the balanced view that they would have if they were meeting him in contact. They are sacrificing their relationship with their good father, with all the benefits that this would incur, for the sake of preserving the primary attachment relationship. This is adaptive; to them it seems to be the safest course. The job of the primary attachment figure, the mother, in this situation is to provide reassurance, and to promote healthy emotional development. Instead (L) has seen the children develop a slanted view of their father as toxic, dangerous and as a threat. She promotes negative descriptions although these are neither accurate nor in their best interests.

3…I do not believe that the children have been coaxed in the sense that it is unlikely that they have been repeatedly rehearsed in telling lies. It is my opinion, however, that they are continually exposed to a negative view of their father, to the undermining of their relationship with him and to the general attitude that the father is not an important figure. All of this leads them to the conclusion that life would be much easier if their father were not in their lives.

4…Ways Forward

(L) is causing harm to her children by failing to support their relationship with their father, and by allowing them to develop a distorted view of his motivations and of his feelings for them. She is not assisting them as they attempt to understand their emotional world, indeed encouraging misinterpretation of events. Living with (L) means that the children must choose her and reject their father. Having no contact with (N), leaves them even more exposed to (L's) skewed beliefs about him. (L) has disrupted the development of the children, causing stress, anxiety, problems with identity and moral development. She is not thinking clearly and effectively about the needs of her children. N would offer a home to his children, and stated that he would encourage contact between the children and their mother. However, if the children were to move to live with N, they would grieve for their mother. The children are still highly dependant upon their mother. Their beliefs and perceptions about their father are entwined with her. N is a good father, and would be likely to understand that grief, and to assist them in dealing with it, but the amount of distress and disturbance around each contact visit with their mother would be tremendous, heart rendering and overwhelming. The impact would be such that the children would experience difficulty in concentrating, sleeping and socialising. The amount of work required to support the move would be enormous and indeed contact with the mother would probably have to be suspended if such a move were to be contemplated. It could then be anticipated that adolescence would bring with it intense rebellion, and acting out behaviour which would be extremely challenging to deal with….when they are older they may be more free to reflect upon their mother. They may indeed rebel against her and express anger over her behaviour and become extremely difficult for her to manage. They may eventually reject her because of her attitude towards their father; or they may continue in adult life to experience difficulty in managing relationships and integrating conflicting views and different facets of personality. I believe that the best course at present is that the father should keep the door open emotionally through maintaining indirect contact. Family centre work is unlikely to succeed because L's influence is so powerful and so negative. Moving the children from their father to their mother is likely to do more harm than good. Remaining with L means that O and S will continue to suffer, but this will appear to be the least worst option."

When she appeared before me to give evidence Dr Leddy had made an alteration to her view. In essence she made the following points and added another option to the situation previously postulated by her.

(i) Despite what L has said, she cannot support or promote contact with the father. She finds it threatening and she wishes for there to be no contact between the children and their father.

(ii) Whilst the mother is able to provide for many of their needs, it would be valuable now to conduct an exercise to assess her overall parenting ability.

(iii) It is necessary to weigh the risk of upsetting the children further by transferring the residence to their father against the risk of exposing them to further negative views and depriving them of contact with their father. These circumstances need further investigation of the parenting skills of the mother and an attempt to ascertain if she is willing to change. Without support to her, there is little chance of her changing. Looking back on the contact over the years Dr Leddy felt it was remarkable how well N had managed it in face of the evident opposition of L. He has demonstrated an ability to put the children at their ease when he is with them and despite the relatively limited nature of the contact he has been permitted, he has exhibited skills when with them.

(iv) If residence was now transferred, even temporarily, whilst the children would suffer, history does reveal that they do settle with their father and this option of a temporary change of residence could prove beneficial. Dr Leddy had spoken to Dr Sturgner an English psychologist concerning 4 cases in England where transfer of residence had successfully occurred as a result of court orders and this encouraged her in the view that she was now expressing. If the children were transferred, and if there was support for it by mother and father with the involvement of social services and the children realised that this had been a decision taken by the court for their own benefit, there was a real chance that resolution of this issue could occur. Investigations of the mother could proceed during this time with perhaps the benefit of professional help to her and the father would be afforded an opportunity to rebuild a relationship with them. By repeated assurances to them, it could be explained to the children that this move was to help their mother understand the need for the children to see both mother and father. It would be conveyed to them that mother was still there, still loved them and would be seeing them albeit that perhaps contact should be withdrawn for the initial 2-3 weeks. Dr Leddy recorded that children regularly spend such periods away from one parent on holiday with the non-resident parent. Hopefully in this case it is going to be a temporary arrangement and the chances of success would be increased if all other activities of the children remained as before.

(vi) Dr Leddy explained her introduction of this option on the basis that this possibility had occurred to her after some anxious thought. She was concerned that her earlier suggestion was tantamount to giving up and in that hopeless state she has now considered the alternative option. When the Official Solicitor had asked her to consider the possibility of the court initiating an investigation under Article 56 of the Children Order (Northern Ireland) 1995, Dr Leddy had felt that L would probably not co-operate and further delay would simply be brought about. Therefore the idea of a change of temporary residence became a viable option. She was satisfied that the children would feel safe with their father once they were with him because they know him and in the past have felt safe with him. It would be necessary for some independent person to speak to them, explain to them the basis of the change and emphasise the importance of their father in their lives.

Principles of governing cases of intractable contact disputes

"56 – (1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or a supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances.

(2) Where the court gives a direction under this Article the authority concerned shall, when undertaking the investigation, consider whether it should -

(a) apply for a care or supervision order with respect to the child;

(b) provide services or assistance for the child or his family; or

(c) take any other action with respect to the child.

(3) Where an authority undertakes an investigation under this article, and decides not to apply for a care or supervision order with respect to the child concerned, the authority shall inform the court of -

(a) its reasons for so deciding;

(b) any service or assistance which the authority has provided, or intends to provide, for the child and his family; and

(c) any other action which the authority has taken, or proposes to take, with respect to the child.

(4) The information shall be given to the court before the end of the period of 8 weeks beginning with the date of the direction, unless the court otherwise directs.

(5) The authority named in a direction under paragraph (1) must be -

(a) the authority in whose area the child is ordinarily resident…

(6) If, on the conclusion of any investigation or review under this article, the authority decides not to apply for a care or a supervision order with respect to the child -

(a) the authority shall consider whether it would be appropriate to review the case at a later date; and

(b) if the authority decides that it would be, the authority shall determine the date on which that review is to begin.

"First, of course, section 37, … can only be used if the facts of the case meet its criteria. It must appear to the court that it may be appropriate for a care or supervision order to be made with respect to the children in question. In other words, at the very lowest, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the children met the threshold criterion under section 31(2) – that is to say that the children are suffering or are likely to suffer significant harm. Section 37 is, accordingly, a well- focused tool to be used only when the case fits its criteria.

(9) It is sometimes forgotten that the court has the power to make an interim care order when it gives a direction under section 37… in these circumstances a children's guardian must be appointed under section 41(1) unless the court is satisfied that it is not necessary to do so in order to safeguard the children's' interest

…

(11) Although this case is but an example, it does seem to me that it is possible to extract some general considerations of wider application from it. I put these forward tentatively, as each case is different, and what fits one may not fit another. Some points are self evident, but need stating nonetheless. I will state them in short form and expand on them where necessary;

(i) The court must be satisfied that the criteria for ordering a s37 report are satisfied,

(ii) The action contemplated (removal of the children from the residential parent's care either for an assessment or with a view to a change of residence) must be in the children's best interest. The consequences of the removal must be thought through. There must, in short, be a coherent care plan of which temporary or permanent removal from the residential parent's care is an integral part.

(iii) Where, as here, the allegation is that the children have been sexually or physically abused by the absent parent, the court must have held the hearing in which those issues are addressed and findings made about them.

(iv) The court must spell out it reasons for making the s37 order very carefully and a transcript (or a very full note of the judgment) should be made available to the local authority at the earliest opportunity.

(v) The children should be separately represented.

(vi) Preferably, the s37 report should be supported by professional or expert advice.

(vii) Judicial continuity is essential. Apart from saving time and resources, this means that applications can be made to the judge at short notice and he or she can keep tight control over it.

(viii) Undue delay must be avoided.

(ix) The case may be kept under review (as in the instant case) if the decision of the court is to move the children from one parent to another."

Conclusions

(i) I am satisfied that the mother in this case has shown an inability to put the children's interests first. Her implacable opposition to the children having meaningful contact with their father has occasioned to date significant harm to them. She has caused them emotional abuse by allowing them to develop a distorted view of his motivations and of his feelings for them. I am satisfied that she has disrupted the development of the children, causing stress, anxiety, problems with identity and moral development. I was singularly impressed by the evidence of Dr Leddy on these matters and I accept her assessment. I am satisfied that her views provide a sure foundation upon which I can rely with confidence. Unless there is a major change in this mother's attitude, I consider that her continued care of the children is incompatible with them enjoying and benefiting from a normal relationship with their father and that such continued circumstance would merit in all likelihood a transfer of residence to the father. In so far as the mother has asserted the contrary to me on a number of occasions, I completely disbelieve her. I have watched her carefully giving evidence before me and I am satisfied that she is disingenuous, determined and manipulative. Her evidence failed to convince me and became a testament to her lack of candour throughout these proceedings.

(ii) It is necessary to balance the value of the children having a normal relationship with both parents against the risks involved in transferring residence to the father with the consequent trauma that might be occasioned to the children. The mother has brought about a situation whereby the children, still highly dependant upon her, deal with her confusion by shutting their father out. On the face of matters, this mother's care of these children is good except in relation to contact with the father. A change of residence would involve emotional and physical upheaval for the children. In her report of March 2005, Dr Leddy echoed my own views when she said that the impact of moving these children away from their mother would be such that the children would experience difficulty in concentrating, sleeping and socialising. She went on to add;

"The amount of work required to support the move would be enormous and indeed contact with the mother would probably have to be suspended if such a move were to be contemplated. It could then be anticipated that adolescence would bring with it an intense rebellion and acting out behaviour, which would be extremely challenging to deal with."

On the other hand before me she ventured the possibility of a temporary total change of residence which she felt the children eventually would come to terms with as they had done in the past when staying with their father. I have no doubt that there may well be circumstances in which a parents' denial of contact could justify a transfer of residency of the parent. It may be that there is a palpable sense of inevitably about this case and that this mother's abject refusal to change and strive to undo the damage that has been caused to these children will result in that occurring. The question is whether the influence of this parent upon the children's situation is irremediably malign. I have come to the conclusion however that that moment may not yet have been reached pending an investigation by the appropriate Trust into the circumstances of her parenting skills and the current circumstances of these children. The children's current opposition to their father has to be take into account but cannot be determinative of the outcome partly because of their young age and partly because their views have been tainted by the influence of their mother. Nonetheless I am prepared to afford one final opportunity for a review of this case in the hands of the Trust and in the meantime far from reducing contact, I believe contact should be increased from that set out in my order of May 2003.

[iii] In my judgment the terms of Article 56 are directly applicable to this case. I am in no doubt at all that it may be appropriate for a care or supervision order to be made. In my judgment these children are suffering significant harm and I would have no hesitation in finding that the threshold criteria under the Children Order (Northern Ireland) 1995 are met. I do not have any power to compel the Trust to institute proceedings, nor would I seek in any way to interfere with the professional exercise of the Trust's investigative functions under Article 56. The responsibilities of the Trust if it decides not to institute proceedings are set out clearly in Article 56. However I can properly say that I am dealing with 2 children who are suffering what I think is avoidable significant harm and for whom the threshold criteria are met. My other reasons for invoking the procedure under Article 56 of the 1995 order are as follows;

(a) This is a case where there needs to be a careful plan for these children. I require the assistance of the Trust and in particular the facilities which it can offer these children and this mother. Whilst I cannot direct the Trust to undertake any particular steps in the investigation of the children's circumstances, that investigation should include perhaps Dr Leddy's suggestion that this mother's parenting skills require to be assessed and she be introduced to the possibility of professional help and assistance to challenge her present thinking. This case is a standing testament to the possible benefits of the new powers to be given to courts in the forthcoming Children and Adoption Act in England and Wales. I hope that it will not be too long before Northern Ireland courts are similarly empowered. In the meantime however this court must work within the confines of the existing law. Whilst it is a matter for the Trust whether or not they decide to institute proceedings having read the papers (including this judgment and the transcript of the evidence of Dr Leddy which she gave on 19 April 2005) and carried out their investigation, I think I can, however, properly say that if that is the local Trust's decision to implement public law proceedings, I would welcome it. It would, it seems to me, substantially widen both the welfare and the implementation options open to the children and to the court and could prove to be very much in their best interests. I am satisfied that the Trust will carry out a competent, professional investigation and give me sound advice in the interests of the children. However if the Trust does intervene in this case it is of absolutely crucial importance that the children should have an identified social worker or social work assistant who would remain the same and with whom they could all form a long term relationship so as to ensure that any improvements in this case are neither perfunctory nor ephemeral. The children should be told that this was the person in whom they could confide. I also note that Dr Leddy has indicated that she is prepared to play some role in speaking to the children and this might be availed of. It should also be observed that whilst I am neither making an interim care order nor appointing a guardian ad litem in this case, I am not doing so because of the input from and presence of the Official Solicitor in this case. I have found the presence of both the Official Solicitor and her counsel Ms McGaghey to have been invaluable in this matter to date and the Trust should be aware of the need to liaise with that office. I direct a copy of this judgment, together with the papers in the case and the transcript of Dr Leddy be released to the Trust by the Official Solicitor as soon as practicable.

(b) I direct that the period of investigation shall be no more than 8 weeks although in my opinion given the comprehensive set of papers in this case, it may be possible to perform it rather sooner than that. I will therefore give the Trust until 15 June 2005 to complete this task in the hope that they may complete it sooner with a plan for the children which will meet current difficulties.