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C v C [2005] EWHC 2935 (Fam)

A child care case involving a discussion of the need for a section 37 order so that children could have a psychiatric assessment.

Case No: BT00P00764

Neutral Citation Number: [2005] EWHC 2935 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14/12/2005

Before :

THE HON. MR JUSTICE SUMNER

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Between :

Lisa C Applicant

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Steven C Respondent

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Miss Laureen Fleischmann (instructed by Kirkwoods Solicitors) for the Applicant

The Respondent appeared in person

Hearing dates: 17 November 2005 and 2 December 2005

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HON. MR JUSTICE SUMNER

This judgment is being handed down in private on 14 December 2005. It consists of 19 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr Justice Sumner :

Introduction

1. I am concerned for 2 boys, Adam C born 20 April 1996 who is 9 and Eli C born 10 October 1998 who is 7. The parents, 43 year old Mrs Lisa C and 49 year old Mr Steven C, ("the mother and the father"), were married in August 1992. The marriage deteriorated soon after Eli was born. Each party petitioned for divorce in September 2000. In the mother's absence the father removed the children to his brother's home. Police became involved.

2. Adam was with his father, Eli with his mother when proceedings started. The father was ordered to return Adam but Adam would not leave the car. There were a series of hearings. On 20 September 2000 interim residence of Adam and Eli was granted to the father with contact to the mother. There were allegations that the mother lost her temper and smacked the boys. The case was transferred to the High Court.

3. Dr Berelowitz reported in January 2001. I first gave directions in March 2001. Of the next 10 directions or other hearings to the end of 2004 I heard 9 of them. I have heard all of them since 2004. This includes hearings on 1 & 28 July, 2 September and 27 October 2005.

4. The 2 boys have remained with the father. Contact between mother and Adam came to an end in August 2002 as did staying contact. Contact with Eli continued. It too came to an end in July 2005.

5. Dr Berelowitz reported between 2001 and 2003. He has given oral evidence. In October 2004 NYAS was invited to act as Guardian to Adam and Eli. The order was marked as being made by consent but the father now disputes this. Throughout the father has acted in person. The mother has been represented by Mrs Fleischmann of counsel.

The present issue

6. In a detailed statement of 26 October 2005 running to 28 pages Mrs Ware, case worker for NYAS, invited the court to make a direction pursuant to s.37 of the Act 1989. That is opposed by the father. I heard this application on 27 October. It was during the 1 week in 2 months when I was in London. The father said he would not be present. Accordingly I heard counsel for NYAS and the mother in support of this direction.

7. I directed that a note of the hearing and the directions should be served on the father. I gave him the opportunity to make representation if he wished. The timetable I proposed was not kept to. The reasons have not been investigated. In the event I heard the parties via a video link on 17 November whilst I was sitting in Newcastle.

8. The father addressed me at length in an impassionate plea. In essence he submitted that there were no grounds either on the facts or in law for a s.37 direction to be made. In a further hearing on 2 December the parties addressed me again quite shortly.

9. Before I consider the history to the extent necessary to decide this matter, I shall set out the provision of s.37. I shall then summarise the essential points made by each party. I have only reached my decision after much anxious consideration.

"Statutory provision

s.37

(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 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 section the Local Authority concerned shall, when undertaking the investigation, consider whether they should –

(a) apply for a care order or for a 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 a Local Authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of –

(a) their reasons for so deciding;

(b) any service or assistance which they have provided, or to intend to provide, for the child and his family; and

(c) any other action which they have taken, or propose to take, with respect to the child.

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

10. My review of the background will not be complete. I have had a bundle for the hearing on 27 October. It contains documents from 29 September. Other documents have been added. There has been a great deal of correspondence in which I have been involved.

11. Whatever decision I reach, this correspondence should now stop. Where disputes arise, they should be resolved by the issue of summons. Urgent hearing dates can be sought if required.

The history

12. It would greatly lengthen this judgment for me to review the events as they have unfurled since my first involvement even if the papers before me covered them all. However I should record the main events as they have been helpfully summarised by Mrs Wade and as they appear in the reports before me.

Dr Berelowitz, Dr Barnes and the Tavistock Clinic

13. The father was aware of difficulties in the relationship between Adam and his mother. Originally he thought it was because of the smacking and shouting but it was not. Eli was always happy to be with both parents. Adam insisted that his father be present when he was interviewed.

14. He said his mother shouted and smacked them and still does. He was unable to remember when he had last been smacked. His mother hit him everywhere but he was unable to show where this had happened recently.

15. On the second occasion he said that a bruise on his thigh had been caused when his mother smacked him for phoning his father. He saw Adam and Eli with their mother. Adam was neither intimidated by nor aggressive with his mother.

16. He considered the father's relationship with Adam was very close and involved. He thought that the children had been caught up in the hostility between the parents and that the parents now needed expert family mediation and advice. The non-resident parent should have extensive contact unless clear abuse had been identified.

17. Dr Berelowitz saw Adam in his office again on 2 March 2001. For the first 20 minutes Adam did not speak to him. He then shrugged in response to questions. He eventually nodded about being hit at his mother's home but he could not recall an incident which led to the bruise on his thigh.

18. He noted Adam's wish to be with his father, his inability to recall a specific incident of abuse at the hands of his mother, and his apparent physical comfort with his mother as he had seen them leaving holding hands. He supported a therapeutic outcome for the family.

19. There was a contested hearing on 16 March. Dr Berelowitz gave evidence. The parties agreed to work towards shared residence. Dr Barnes a family therapist was to assist the family.

20. She reported on 30 July. She carried out some 7 interviews. She noted the extreme hostility between the mother and the father. Though concerned and overtly child centre there was a strong underlying anxiety about their views on Adam. It had not been possible to move beyond this. She felt that Adam should have long-term independent therapy. It would also help the mother.

21. When the mother saw Dr Berelowitz in September 2001 she felt that her relationship with Adam had blossomed because of the quality of the time they had had together. However she was concerned by what she described as the father's controlling behaviour.

22. Dr Berelowitz commented that it remained a very unpleasant and distressing case. The father appeared to have rejected everything said about him or to him by the court, the Court Welfare Officer or himself. He was unable to see the impact of his behaviour on the mother and he could not imagine anything that he needed to do differently. He noted that Adam's observed behaviour with his mother was at odds with what he was saying about it. He thought that the mother was more likely to promote the children's relationship with their parents than the father.

23. In his further report of November 2001, having seen Adam and Eli, the difference between what Adam said about his mother and the way he behaved with her was even more striking. He did not think that this was because the mother systematically ill-treated Adam but either because Adam had come to believe that he should only say negative things about his mother or that he had been primed to say what he really did not believe. He was very concerned about Adam's situation.

24. The Tavistock clinic reported on the 1 November 2002. Adam had said on 15 August that he did not like his mother because she hit him. He had refused to go on holiday with her and Eli. He was refusing contact. Adam said his mother continually shouted and hit him, though he did not elaborate on any specific incident. He had seen his General Practitioner on 6 & 15 October with bruising. Adam said his mother had dragged him from the car on the first occasion and on the second she had hit him when he was returning from the Tavistock to the father. There was no assessment of the injuries or referral to social services.

25. They concluded that Adam believed his mother was or could be dangerous for him. They felt that the level of the father's concern would be communicated to Adam and could be instrumental in the way he responded. They recommended that he saw an individual therapist at the Tavistock clinic.

26. In January 2003 Dr Berelowitz reported again having seen the parents. He considered that it remained a desperately difficult case. He noted that the father had a particular view of his own role that was denigrating of the mother's and indeed he questioned the need for Adam to have a mother. He felt that this would be sufficient to influence Adam enormously in his relationship with his mother.

27. He repeated the alternatives. He thought that what he described as the most tempting was Adam having been traumatised by both his mother's behaviour, the separation, and then the father's behaviour towards him and the mother compounding the situation. He concluded:

"However I remain painfully aware what a sad and difficult case this is and of the risk of getting it wrong. At the same time I must point out that the risks associated with doing nothing are also very significant indeed."

28. Adam underwent 6 sessions of therapy in early 2003. It ended badly. Adam tried to take away a picture which the therapist did not wish him to do. The father thought the therapist had assaulted Adam.

29. When Dr Berelowitz reported on 7 October 2003 he noted that the father did not trust him. The school considered Adam to be a troubled child. He felt unable to make a final recommendation feeling that a decision was needed about whether the mother's, the father's approach was the most problematic or whether both were.

30. In the course of his evidence I raised the question of whether the harm that had been done had become significant in which case a Local Authority might step in. Dr Berelowitz's answer, in agreement with a question from me was that he saw evidence of harm but he was unable to say whether it was significant or not.

31. After a 2 day hearing a consent order was made giving shared residence of Adam and Eli to both parents. The order recorded the following –

"Adam: upon the understanding that Adam lives with the Respondent father and that father accepts that it is Adam's best interests to have contact to the Applicant mother, but in fact that Adam has chosen not to have contact with his mother. Adam shall have contact to the mother when Adam is ready as shall be agreed between the parents."

Adam was to commence individual therapy at the Tavistock as soon as an arrangement could be made and contact with Eli was as set out in a schedule.

2004 - 2005

32. The mother in a statement in April 2004 said she was at risk of losing her relationship with Eli. She recorded 2 occasions when Eli had been unwilling to talk. On each occasion he ended up saying his father had told him not to talk to anyone. On the second occasion he said he hated his mother. She believed that the father stopped contact when the maternal grandmother informed social services because of Eli's behaviour.

33. The father for his part had in an email accused the mother of a vitriolic campaign of hate against him and his family. He added in another message that what she might succeed in doing (involving social services) was having both boys placed in care. In a statement of 4 October he noted that the matter had been before the court 28 times. He ended by saying that the court had heard from Adam and Eli that they demonstrate knowledge and understandings and their wishes and beliefs are paramount above the wishes of their parents.

34. Seeking a way out of the lengthy and increasingly difficult situation, at a hearing in October 2004 I suggested that NYAS be invited to act as a Guardian for both children. This was consented to as the order noted at the time.

35. In an email shortly after the father said that his consent only went as allowing them to read the court papers and that he did not consent to them being invited to represent Adam and Eli. As he felt the mother's solicitors had not listed all the documents he felt they should have done for NYAS, he withdrew his consent to approaching NYAS in any way at all.

36. In February 2005 Mr Auster, the previous case worker from NYAS circulated a proposal of work. Mr C objected. At further hearings on 9 May, 1 July, 28 July and 2 September Mr C did not accept that NYAS could properly act as Adam and Eli's Guardian.

Mr Auster's report of 27 June 2005

37. He met the mother. She felt let down by the court process. She believed experts had sat on the fence in relation to their recommendations.

38. It was not in Adam's best interests to force a relationship with him. She said that letters she had sent him had at times been ignored or torn up in front of her. He had also declined presents.

39. The mother was anxious that she needed to sustain a good relationship with Eli. She was fearful that influenced by the father he might start to reject her. She had enjoyed a relationship with Adam for 2 years before he started to turn against her.

40. He met Eli with the mother on 23 June. He saw Eli with his mother and on his own. Eli put the word mum on a piece of paper with a large cross through it. When his mother asked him why he did it, he responded that it was because "you want me living with you and Adam to go into care". He was reticent in talking to Mr Auster.

Mr Auster's evidence on 28 July 2005

41. He described him as reasonably relaxed in the mother's home and that he observed an affectionate relationship between him and the mother.

42. He described how he had met Adam at the father's home. He said he could do without professionals in his life. He thought the mother was trying to put him into care. His father had told him this. He enjoyed living with his father who did not scream, shout or whack. He was told that Eli had nothing to say to him.

43. He saw Eli at the father's home on 20 July. It was a very affectionate relationship with his father. Eli said he did not want to go on holiday. The reason he gave was that the mother wanted him to go into care. He said that he hated the mother, scares and shouted at him. She was evil. The father told him that he should not use the word evil.

44. He commented that he needed to establish rapport and trust with the boys. He was a long way short of that. If the boys were under the impression that the mother was putting them in care, it would be very worrying for them.

45. At the hearing of 1 July, Mrs Ware records that the father told the court that the children wanted nothing to do with the mother, they did not love her, they were afraid of her, she was a liar and someone who wanted them to go into care. He felt that he had no responsibility for the feelings of his children.

46. An order for contact between the mother and Eli for a holiday in August was made on 28 July but subject to Eli not being forced to go. There was an incident at handover on 29 July. It brought to an end the mother's contact with Eli.

47. The same day the mother wrote in emotional terms to the children. She was heartbroken and said she was dropping proceedings. She also wrote to the father. The father says that the boys are upset that she did not carry out her promise and is now pressing for contact.

48. There was an attempt at contact at the end of August but it was not successful. The mother now goes to school twice a week. She sees Eli whilst he waits for his brother to come out of school. I am not clear whether there is any real conversation between them.

49. At a hearing on 2 September the father promised to make the children available to Mrs Ware for meetings. Her attempts to set it up have not been successful.

NYAS report of 26 October 2005

50. Mrs Ware had met the mother and spoken to the father. The mother told her that she had never been abusive to the children, her physical chastisement had been no more than a tap on the hand. She had mellowed.

51. She said that the father's attitude was vindictive. He encouraged a negative view of her and had influenced the children against contact. His relationship with the children was too exclusive, he did not allow for any views contrary to his own.

52. Incidents are frequently disputed because he exaggerates and falsely accuses her. Her concern is the influence on contact. She did not know how to improve her contact. She would do anything to progress contact, even supervised contact.

53. Mrs Ware spoke to the father on the telephone in October 2005. He did not accept the legality of NYAS being involved. He had not consented to it. He did not want anyone from NYAS intruding, Adam and Eli did not wish to see or talk to her. The boys had their solicitor who would act on their instructions – they were old enough to instruct him and to tell him they did not wish to see their mother.

54. After Mrs Ware explained about the reasons for NYAS being involved, Mr C said the boys knew their own mind, there were tired of not being heard. Mrs Ware indicated she would not force a visit. The father then said he would agree to it. NYAS appointed a solicitor to act for them in London. He was told by the father that he would not allow Mrs Ware's attendance at his home because of her obvious prejudice as shown in the telephone conversation. Mrs Ware therefore did not go.

55. Mrs Ware's predecessor as case worker Mr Auster, who had withdrawn for personal reasons, had met Adam and Eli at their father's home in July 2005. The father apparently taped the meeting. I shall refer later to their meeting.

56. She pointed out that Dr Berelowitz has been involved from the time of his first report in January 2001. He reported again in March, September and November 2001 and in January and October 2003 when he also gave oral evidence. There were reports from a therapist, Dr Barnes in July 2001, from the Tavistock Clinic in February 2002 which was followed by a 2 day hearing in October 2004. This was followed by a report from Mrs Ware's predecessor, Mr Auster.

57. Mrs Ware in her assessment pointed out that she had not seen the children. If she had she is clear they would have told her that they did not wish to see their mother. This was a very unhealthy situation. She pointed out that in October 2003 Dr Berelowitz pointed out that as long as Eli but not Adam was seeing the mother there would be no finality and that Eli's contact would be fragile. That has now broken down and he has said that the mother hates and that she is evil.

58. In relation to Adam, Dr Berelowitz had been greatly concerned that he might have worrying personality features and may have in store more problems if there is no effective intervention. There had been no action on the parent's agreement in February 2004 to refer him for individual therapy.

59. She was also concerned for Eli's emotional health. Dr Berelowitz had again pointed out that it did a child no good to have a denigrated view of a parent even if merited but it was very troubling when it was not merited. There could be serious effects as the child got older.

60. She was worried about the attitude of the father. He misinterpreted or exaggerated communications, he used bombastic language. She was concerned that the father had for instance shown Adam at the age of 5 an early report which had made Adam distraught.

61. In July 2005 he told Mr Auster that his mother wanted him to be put into care because his father had told him so. She felt it was difficult to avoid the conclusion that things are much worse than when Dr Berelowitz had accepted that there had been harm caused. The father was not able to cooperate with anyone other than who he chooses even in the interests of the children.

62. She recommended a Section 37 report and that it might assist the father if he were to undergo a psychological assessment. She thought that further work to be done by a child and adult psychiatrist should be explored seriously and consideration given to a fact finding hearing.

The father's position

63. He wrote a 40 page closely typed letter on 3 November 2005. He set out the very good reports there had been on both boys at the end of the summer term. Eli's school teacher had told him at the end of October that he had absolutely no worries or concerns about Eli in any capacity. If the court had the evidence 3 years ago and did not order a Section 37 investigation then they could now do so. On any basis there was absolutely no foundation for saying that there is the slightest question in respect of any part of the boy's welfare. He pointed out the features of emotional abuse.

64. The court should throw out the NYAS report because the evidence there was totally outdated, inaccurate and in places straightforward lies. They had ignored the wishes and feelings of both boys. The threshold under Section 37 is very high and Mrs Ware has come nowhere near reaching it. Guardians must be independent and expert. To criticise the tone of his letters would be a joke if it were not so serious.

65. Mr Auster listened to the children. Mrs Ware has waged a personal vendetta. They have ignored the welfare checklist. He did not trust what was going on. Dr Berelowitz was discredited.

66. NYAS was interested in the mother's rights, not those of the children. The report was one-sided. There were no criticisms of the mother. Mrs Ware had made only one telephone call to arrange an interview with the boys. In his letter of 25 September he made it clear that he would allow her to see the children. He added that he would not accept her report.

67. There was no evidence that he had promoted a negative view of the children. He has been speaking the truth. The boys had satisfied the test that they could instruct a solicitor and be represented by someone they chose. NYAS is redundant.

68. Mr Auster had seen both boys and expressed no concern about his care. He had not said that he refused to allow NYAS to speak to Adam and Eli. The mother is trying to put the boys in care. On the tape it shows him as saying to Eli that his mother loved him. Therapy for Adam at the Tavistock had no point unless Adam wanted it.

69. Mrs Ware had helped the mother to retract her letters to the boys which were helpful and hopeful. Brainwashing has been done by the mother. Because the mother went back on what she wrote to the boys they will never trust her. Eli's decision not to see his mother was based solely on his own feelings and experience. Adam had told Mr Auster that what the mother did to him was still happening in her home.

70. The boys are suffering no harm because of his parenting. He went through the welfare checklist. He also went through the charter on human rights. He blames Dr Berelowitz for being unable to grasp that children should have a large part to play in deciding things in their own lives that affect them.

71. They do not have a one-sided view of their mother. It comes from their own experience. The mother and her family do a more than adequate job in educating the boys about their attributes or otherwise. He pointed out the harm that will be done to the boys if they were taken into care. He went through instances for which he blamed the mother.

72. Finally at the video hearing on 17 November the father read a statement he had prepared at some speed. He provided a transcript of it. Again it is a closely typed statement running to some 10 pages.

73. He started off by setting out the legal process in relation to Section 31 applications for a care order. He said that NYAS had to prove firstly that the child was suffering or likely to suffer significant harm. They had failed to do so. The threat to place the boys into care or separate them had now begun to impact on their health. This could be rectified by removing that threat.

74. It was time to bring the process to an end after 5 years. He repeated that NYAS involvement was without his consent. They had been malign and attacked him.

75. NYAS had bullied the court into altering the burden of proof. It was not for him to refute or prove their evidence. Mrs Ware had shown bad faith in not saying that the children were thriving with their father. There is no possible way that the court can legally justify a section 37 investigation.

76. He has 60 witnesses and the school telling the court that the children are happy and thriving. It is the boys own stated wish to remain at peace living with him and the paramount priority is to accede to the wishes of the children. There is nothing to show any element of emotional harm in any NYAS report. NYAS never specify what their extreme concerns are. The mother has lived in denial of her own admitted violence.

77. NYAS broke Bar Council rules when, presumably through their counsel, attempted to bully the court into launching a section 37 investigation but omitted to refer to the law and relevant decisions. He referred to authorities to the effect that it was inappropriate for a judge to order a section 37 investigation which was not clearly urgent.

78. He went into the definition of harm. He set out the 6 categories of emotionally abusive behaviour by an adult towards children, in short spurning, exploiting or corrupting, terrorising, denying emotional responsiveness, isolating, and emotional neglect. He emphasised how well the boys were, both in physical development and in popularity. As recently as 4 November the boys had told their mother that he had encouraged them to see her. He set out the history of recent meetings.

79. The court must be prepared to hold NYAS and Dr Berelowitz to account. He had shown a decency and a morality which had not been shown to him.

Witness statements

80. Mr C has submitted a large number of witness statements. I will summarise them shortly.

81. There is a report from a former learning support assistant. She considered Adam and Eli well balanced and thriving. Eli grows in stature everyday since he has not had contact with his mother, his confidence has grown. He said that he did not love his mother and never wants to see her. He does not want to see her or her family because they are horrible to him and hurt him and say horrid things to him about his dad that he is evil and wicked. It would be a travesty of justice to remove them from their home.

82. His class teacher said that he was happy at school and mostly motivated to work hard. He was a very likeable boy, almost always well behaved. He had no concern regarding his emotional well-being. An Associate Professor said that both boys were perfectly normal, well balanced emotionally and psychologically. They enjoyed an excellent relationship with their devoted father.

83. The family barber said that they were well adjusted and always content. A neighbour said that the boys sing and laugh waiting to go into school.

84. A neighbour was impressed by the boys' good manners and general behaviour. They are liked in the road where they also play with other children. A parent described Mr C as an excellent father and Eli as a kind gentle boy who adores his father. The boys were always happy and relaxed. A friend described the boys as very well adjusted and very well behaved. Adam the eldest is the quieter of the two, to separate the 2 boys from their father would be a disaster.

85. A friend whose boys played with them said that they seemed to be happy cheerful and polite. Someone who organises tournaments described the boys as polite and happy participants. A friend whose daughter the boys played with described them as very happy children who seemed to be very fond of their father.

86. A lady describes them very secure and happy emotionally stable in their environment. You only had to see them with their father to see they are very secure. Their paternal grandmother says that it is a puzzle to learn that there is a question about taking the boys into care. They are already in a perfectly capable living care in a very stable household with relatives and friends.

87. A neighbour of the grandmother described the boys as happy and well-adjusted. A long standing friend of the father's said that the father was an excellent parent and the boys are bright, cheerful and happy. Someone who had seen the boys for 5 years said they had blossomed from shy timid boys to very confident and happy individuals.

88. A friend who had spoken to the boys over a fairly lengthy period said that they understood the present position in relation to their parents and they had the ability to come to their own decisions regarding what should happen to them now and in the future. A solicitor, Mr Moody, to whom I shall refer again, said that he would do what he could to assist the boys both of whom he thought were charming and a credit to the father. There is a favourable report from a project at school.

89. There is a recording of an incident on the 29th July with a small boy clearly distressed running round the forecourt of a garage and a woman shrieking very loudly. The woman was seen to push the man several times once he had picked up the small boy. The author said to the young boy that he seemed very scared of the lady and he replied yes he was scared and she hit him. This is obviously intended to refer to the mother.

90. There are more than 20 further similar statements including one from the paternal grandfather as well. One describes Adam as being very scared of being touched or near women. He said he was scared of them because they were all like his mother. He has changed enormously in the last 5 years under the guidance of his father. Eli has also opened up and loves to run round and play, they blossomed under the nurturing and love of their father.

NYAS's position

91. Mr Fitzpatrick in his response on behalf of NYAS said that they were not biased. The report was fair. It set out allegations against both mother and father. It had analysed and assembled the expert evidence.

92. NYAS had no view on the form of the final order. The question was whether it was appropriate to make a section 37 order at this time. Firstly Adam and then Eli had stopped having contact. Reports showed that there were positive features to that contact. Loss of contact was serious. The children may suffer in future relationships if there was no relationship with the mother.

93. That Adam was a troubled child had been noted by the Tavistock. Mr Auster has said in his oral evidence on 28 July that Eli had said his mother was evil and he hated her. Adam had been told about a section 37 report.

94. There may be many positive aspects to the father and an excellent relationship between him and the boys. But Mrs Ware had noted the florid language and tone of Mr C. The question was what it said about Mr C.

95. It was not correct to say that the children's feelings and wishes had not been represented. NYAS did not accept that putting the children's wishes and feelings into effect is necessarily in their best interests. This was particularly so when the children were saying such things about the relationship with their mother.

96. NYAS recognised that their request for a Section 37 report was finely balanced. They were clearly of the view that it may be appropriate.

97. This was an experienced care worker in Mrs Ware of 17 years experience. NYAS would like a report as soon as possible and they wanted the continued involvement of Dr Berelowitz who they did not regard as discredited.

The mother's position

98. Mrs Fleischmann for the mother stated that I had raised the question of possible significant harm in November 2003. She had raised it in 2004. NYAS was leading the way. She pointed out, as I had not been able to see on the video that the mother was sobbing throughout the time that the father was going through his statement. It would delay matters to obtain another child psychiatrist's view.

99. The father in reply said that Eli had not said he hated his mother. What his mother had done was evil. They had an age and understanding such that they are entitled to be separately represented. The boys had had enough.

100. He asked what we are going to achieve, and to be told of one allegation against him. The boys will not see their mother. She had hit and punched them for 5 years. He concluded by saying that he was sorry for his tone but the whole thing stinks.

The law

101. In Re: L (Section 37 Direction)(1999) 1 FLR 984, the Court of Appeal allowed an appeal where a section 37 direction had been made in respect of a grandmother who was looking after a 6 year old girl. The dispute with other relatives was over contact.

102. It was held to be a pure private law proceeding. It was nowhere near the threshold criteria under s.31 of the Children Act. The words of Wall J. as he then was in Re: CE (Section 37 Direction)(1995) 1 FLR 26 were cited with approval by Thorpe LJ.

103. Wall J. had said that a court should not order a Local Authority to conduct a s.37 investigation unless it appeared that it might be appropriate to make a public law order. Having quoted those words, Thorpe LJ went on –

"In purely private law proceedings any investigation required should be conducted by other means."

104. I have also been referred by the father helpfully to the case of Re: M (Intractable Contact Dispute: Interim Care Order)(2003) 2 FLR 636. The case involved contact between a father and 2 children of 13 and 10. The mother had persuaded the children that the father and paternal grandparents had physically and sexually abused them. Contact stopped.

105. The allegations were proved to be untrue. Contact was ordered but did not take place. A penal notice was added. The mother did not obey and made further allegations of sexual abuse by the father. These were held to be untrue.

106. The case was transferred to the High Court and was heard by Wall J. He ordered a section 37 report, care proceedings were issued, the children were removed from the mother, a residence order was made to the father and a 2 year supervision order was also made.

107. It was held, as the headnote states, that:

"1) One method of addressing an intractable contact dispute is by using the section 37 procedure to remove children who are being denied all contact with their non-resident parent and are suffering significant harm because of the residential parent's false and distorted beliefs system about the non-resident parent. This procedure is not a panacea and comes with a series of strong health warnings.

2) When considering whether to use the section 37 procedure the court must be satisfied that the criteria for invoking s.37 are met and the action contemplated (removal of the children from the resident parent's care for assessment or a change of residence) must be in the children's best interest. The consequences must be thought through; there must, in short, be a coherent care plan of which temporary or permanent removal is an integral part.

3) In an intractable contact dispute where the residential parent is putting forward an allegedly factual basis for contact not taking place, such as allegations that the children have been sexually or physically abused by the absent parent, the court must address those issues and make findings. The Local Authority in carrying out their assessment should know the court's findings and prepare its report on the basis of those findings.

4) The court must spell out the reasons for making the s.37 order very carefully and a transcript (or very full note) of the judgment should be made available to the Local Authority at the earliest opportunity. It is preferable that the s.37 report is supported by professional or expert advice.

5) Children should be separately represented in private law proceedings where all contact has ceased and the issue of contact has become intractable. Undue delay must be avoided."

Hearing on 1 December 2005

108. The issue arose when it became apparent that the father had instructed solicitors in New Barnet, P. W. Moody. They had stated that they had come into possession of a large bundle of paperwork. It appeared that the father may have been giving court documents without permission to a solicitor.

109. In the event it turned out that this was not so, but a hearing for further understanding on this matter was arranged. At the hearing Mr C repeated that he had not sent any court documents. I emphasised that of course he was entitled to take advice himself but the solicitors were acting for him and not the boys. I add that it is plain from the statement made by Mr Moody that he has in fact met the children.

110. At the hearing Mr C started by raising a series of complaints against NYAS and Mrs Fleischmann. Apparently in error NYAS had sent a bundle of papers to Dr Berelowitz and social services following the last part-heard hearing. They accepted this was an error and through Mr Fitzpatrick they apologised.

111. Mr C referred to this as the tainted bundle, they had failed in so many ways, and they were in collusion with counsel. He accused NYAS of presenting a legal challenge using character assassination and retribution as a means of defending themselves. There were too many errors.

112. He wanted the court to investigate NYAS's behaviour, to consider Mrs Fleischmann's position with a view to reporting her to the Bar Council. He complained of not getting copies of some of the messages that had passed between the parties.

113. I asked Mr C a number of questions. This was to assist with this judgment which I was in the process of preparing.

114. He said he would not let a social worker see the children at home because they would have been appointed unlawfully. He would not stop them if they were lawful. He would not stop them seeing a general psychiatrist but he would not if it was Dr Berelowitz. NYAS had indicated that they were not necessarily fixed on the notion that any future child psychiatrist should be Dr Berelowitz.

115. Mr C said that there had been enough investigations. According to his calculations there had been 10 different experts who on average had seen the children every 6 ½ weeks and that he described as persecution. He accepted that there had been no therapy.

116. He did not know whether he would encourage the boys to see a child psychiatrist but he would not discourage it. He said that he had nothing to hide. Mr Auster from NYAS had never had any concerns about the boys in his care. The report of Mrs Ware was tainted. The evidence of what the boys are thinking and how they are behaving is to be found in all the statements. Mr C's short message was that he wanted it all to stop.

117. Mrs Fleischmann said that time was running out. A suggestion from me that for NYAS to go to the school and a child psychiatrist to see the children was resisted on the grounds of delay.

118. Mr Fitzpatrick for NYAS said that the father had entrenched views. They were unlikely to change. The proposal I had mentioned would be further delay without cause.

119. Mr C in his final response said that the boys would see a psychiatrist. If NYAS went to the school he would not take any steps to prevent them gaining information about the boys, he would agree to it.

Conclusions

120. Adam is 9 and Eli is 7. There have been almost continual proceedings since the parents separated now just over 5 years ago. There was contact by the mother to both boys until August 2002. The mother has not had contact to Adam since then. Contact to Eli continued until July 2005.

121. I have been involved in these proceedings since March 2001 and continuously since 2004. The father has addressed me on numerous occasions firmly and uncompromisingly. The tone has changed of late. His voice is more strident and he does not hesitate to make accusations at the least pretext in vivid terms. He now believes for instance that the court has been bullied by NYAS who are in conspiracy with Mrs Fleischmann.

122. The father believes that it is in the best interests of Adam and Eli for the mother to give up her claim for contact, for the boys' voice to be heard, and for the court to take no further action. There are cases of course where the court has acted in this way, see Re: D 2004 ECWH 727 (Fam). There are others where the court has not done so even after no contact for 7 years, see Re: M v M 2005 EWCA (Civ) 1090.

123. In this instance despite the efforts of the court, a child psychiatrist, a CAFCASS Officer, a therapist, the Tavistock Clinic, and NYAS, contact has not succeeded. Should the court now take further action given that views of the boys and the father are said to be clear? And if it does take action is s.37 now the only way forward?

124. There are significant features of the history as I have set it out and accept which cause concern –

• When Adam was seeing his mother he reported that she shouted and smacked them both, but he could not detail incidents. It contrasted with his behaviour with his mother when he was physically comfortable with her, and he was not intimidated by her.

• The father's concerns about the mother and his denigrating view of her were considered by Dr Berelowitz greatly to influence Adam.

• In April 2004 the mother reported Eli as telling her that he hated her and he had been told not to talk to anyone.

• Adam described her as evil and he hated her. More recently Eli spoke in the same language.

• Dr Berelowitz and the Tavistock Clinic considered Adam a troubled child. Latterly he refused to talk to Dr Berelowitz. He needs therapy which has not taken place.

• Dr Berelowitz was satisfied that the children had suffered harm, he could not say whether it was significant.

• The children have spoken in dire terms about their view of the mother. The father has been unable to speak in any positive terms about her or her role which he did not accept.

• The father has allowed the children to see reports which they should not have seen. Furthermore he has told both of them that their mother wants them in care.

• The father has prevented professionals seeing the children. Only he can put forward their views which must prevail. Dr Berelowitz recognised his controlling behaviour.

• If the mother has behaved badly, the father is intent on ensuring the children do not forget it. His attitude and views are sufficiently clear from letters. Following an incident in September 2004 which greatly angered the father he wrote of the mother –

"You seem to think that by trying to impress me will bring you something in their eyes……..are you really mad now? I will explain. Eli and Adam will NEVER forgive you and nor will they forget. Clear?"

• The father has been rejecting of what Dr Berelowitz described as anything said about or to him whether by him, the court, or CAFCASS.

• Dr Berelowitz's conclusion was that he did not believe the mother was ill-treating Adam. It meant that either he had come to believe he should say negative things of his mother or he was being primed.

• The father has addressed the court repeatedly on the basis that the children do not love her, are afraid of her, that she is a liar, and that she should have nothing to do with them. His absence of regard for her evident distress has been remarkable. It is likely to have been conveyed to the boys.

• He has vacillated about whether the children should see professionals but then on his terms and accepting the boys' unwillingness to talk.

125. The father has adopted the clear posture that he alone knows what is best for Adam and Eli, whilst accepting no responsibility for what they say. It is sufficient that in his view they are apparently thriving. Their antipathy to their mother he considers justified and in accordance with his own view.

126. The stage has now been reached where views from professionals which differ from his are scorned. Whether he is right or not cannot be tested because he will either not now permit anyone to see the boys or they will not speak.

127. I am satisfied that I should at this stage accept the views of Dr Berelowitz, and of Mrs Ware. I find that the father's attitude towards the mother, his refusal to let the boys be seen, his complete subjugation to their views, and their reaction and attitude to their mother in which he is complicit all caused the boys emotional harm. It is likely to be significant.

128. I am not looking to put the boys into care. But the court needs to know what they are thinking at first hand, how they perform at school, whether they are in urgent need of therapy, and if so how and where that can be done.

129. I have exercised patience with the father, perhaps too much. I have endeavoured to find routes acceptable to him which will provide a way forward. His assurances are not enough. Too much time has elapsed.

130. Fundamentally I am satisfied the boys need help as recommended by professional views. The father lacks insight and understanding, at times almost total. He may not cooperate any further. The court must accordingly take action as the boys' welfare demands it.

131. In the light of what I have set out Adam and Eli are displaying a violent and dangerous antipathy to the mother. The father, far from helping them, has by his own views, what he has shown and told them, and what he has permitted them to say fostered that feeling. It is shared by him.

132. Uncorrected that view will have already harmed the boys emotionally and affected their future relationships. Even if justified in part, it can be harmful to have such feelings left unchecked and uncorrected. It is likely that extensive therapy will be required to ensure that the damage caused is stopped and remedied even if contact cannot be restarted.

133. I have considered whether a further hearing would throw more light on what has been chiefly alleged to have happened when Adam and Eli and then Eli were alone with their mother. I am not satisfied it would.

134. The father has made it difficult if not impossible for any proper assessment of the boys to be carried out so far. This is by his own actions and by allowing them to be silent.

135. I have had regard to the remarkable number and quality of the witness statements which all speak well of the boys. But this may hide the emotional harm that I am satisfied has been caused to them. To hold such bitter views of their mother whom father regards as having no role in their lives is sufficient added to the points I have highlighted.

136. Yet it would cause Adam and Eli enormous upset if as a result of a s.37 order they were removed for assessment or separated from their father even temporarily. It must be avoided if possible. I am bound to seek alternatives if I can against such a drastic remedy.

137. I am reluctant to prolong this long running case for a day more than necessary. But I need to be wholly satisfied that there is no other alternative than a s.37 direction. I cannot say that at this time.

138. If I authorised a s.37 report which I am satisfied is justified, such is the nature of the problem that obtaining a psychiatric view is inevitable. If the father will permit a child psychiatrist to see the boys, assess their views, and consider the matters I have raised and other relevant areas, I should not avoid that. I am given some hope by the father's final words on 1 December.

139. If the father frustrates this course then I am at a loss to see how I can do other than order a s.37 report. I want to avoid that. The father can help by permitting interviews and encouraging Adam and Eli to be open with the child psychiatrist who will not be Dr Berelowitz. The difficulties arising from their encounter makes that likely to be unproductive. I am not attaching blame to Dr Berelowitz.

140. At the same time I shall invite NYAS to make all proper inquiries at the boys' school short of interviewing them. They should report to the psychiatrist, the parties, and the court on their findings.

141. In reaching this conclusion I have been mindful of the case of Re: M, the mother's very great anguish, and NYAS' lack of support. I am not persuaded however that I should at present go further. I very much hope that will never become necessary. The parties will have liberty to apply.

142. I will ask the mother's solicitors to take the lead in choice of child psychiatrist, drafting of instructions, choosing the papers to be included, and the timetable. The father should be informed of all proposals before action is taken. In the event of a dispute I will with agreement resolve the issue on paper if I can, if not by application.

143. I shall also ask them promptly to draw the order resulting from this judgment. The father is to have 3 days to raise any objection to the draft.