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Family Law

The leading authority on all aspects of family law

21 MAR 2014

Re X [2014] EWHC 724 (Fam)

The full judgment is available below.

SUMMARY TO FOLLOW

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

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Neutral Citation Number: [2014] EWHC 724 (Fam)

IN THE HIGH COURT OF JUSTICE.

(FAMILY DIVISION)

Royal Courts of Justice,

Strand,

London WC2A 2LL.

Thursday, 23rd January 2014.

Before:

MRS JUSTICE HOGG

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DONCASTER METROPOLITAN BOROUGH COUNCIL

Applicants

- v -

(1) HAIGH

(2) TUNE

(3) X (By their Children's Guardian)

Respondents

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MISS CAROLINE FORD appeared on behalf of the Applicants.

The Respondent Mother appeared in person.

MISS ELIZABETH RODGERS appeared on behalf of the Children's Guardian.

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Digital Tape Transcription by:

John Larking Verbatim Reporters

(Verbatim Reporters and Tape Transcribers)

Suite 91, Temple Chambers, 3-7 Temple Avenue

London EC4Y 0HP.

Tel: 020 7404 7464 Fax: 020 7404 7443 DX: 13 Chancery Lane LDE

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JUDGMENT

HOGG J:

[01] I have before me several applications brought by the local authority in respect of a little girl X, who was born on 13th November 2003 so she is just over ten. The parents were married; they separated very soon after their marriage and indeed after the birth of X. Initially there was contact. That broke down and a long time further on the local authority issued care proceedings as a result of which a care order was made.

[02] The local authority is now seeking a continuation of a Section 34(4) order giving them leave not to arrange contact with X and her mother. It seeks the order to last two years from today. The authority is also seeking non-molestation and restraining orders against mother to protect X and her father, and an exclusion zone in the area of her home and her current school, her prospective future school, and her grandmother's home where she spends considerable periods. Such order to last for two years. Finally it is seeking a Section 91(14) order against the mother from issuing any further application under the Children Act in respect of X for a period of three years. It is a permissive order, a filter order, so that if the mother for whatever reason wished to make an application in respect of X she would have first to come to court to ask for leave and the court could then consider whether leave should be given or not.

[03] The local authority's applications are supported by the guardian. The father is not present. He was aware of these applications when they were initially made last summer and he was understood then to be in support of the applications and of the orders being made. The mother, who represents herself today with the help of a Mackenzie friend, opposes them. I should add that she has applied for legal aid but that was refused and her appeal against that refusal was also rejected. The mother has provided a lot of documents which I have read, and very recently a tablet upon which there was a letter from the Probation Service, which I have read. She is articulate; educated; although may feel inadequate representing herself she is far from inadequate; she is articulate and can express herself easily although she may find it a strain. I certainly have listened to what she has had to say with great care. Fundamentally the mother does not understand and can see no reason why she cannot see her daughter. She believes that no contact is not in her daughter's interests and is detrimental to her and contrary to her and her own Human Rights and respect for family life, and contrary to the interests of her own younger child who is X's half-sister.

[04] I do not have to go into the history of this case in great detail because previous judgments have already been made public and are easily available. I have already referred to the reporting restriction which remains in being and I know that the ladies of the Press who are present have heard and I hope have understood what that means, that whatever I say the order is still standing and that the child is not to be identified.

[05] As I say, the parents were married; there was contact initially when they separated, but it stopped in the Spring of 2006. By the end of that year the mother was making the first allegations of sexual abuse against the father. Since then she has made and there have been a series of allegations against him, all of which have been taken seriously and indeed the child started making allegations as well. Private Law litigation started in 2006. X was then not three and litigation continued for a number of years in the Private Law parent conflict.

[06] Care proceedings were issued in 2009 and on 29th January 2010 after a two-week hearing when the mother was represented by counsel His Honour Judge Robertshaw found that the mother had coached the child to make allegations of sexual abuse against the father; that those allegations had originated in the mother's mind and were in fact false allegations; the child had not been sexually abused. A care order was ultimately made and after a full hearing with full assessments of both parents the child was placed with the father under a care order and she has been with him ever since. She has done well. I am told she is settled, she is happy, doing well at school and educationally bright. However, there has been no contact. Supervised contact was offered to the mother but she declined to have supervised contact and as a result there has been no contact.

[07] The mother resorted to a media and internet campaign in which she was critical of social workers, teachers, the guardian, police, lawyers and judges. She emailed other parents at school and the father's employees, making allegations that the father was an abuser. The reporting restriction order was put in place on 25th February 2011 and on 25th July 2011 Baker J made a non-molestation order, a Section 34(4) order, and a Section 91(14) order all of which were to last for two years. On 10th November 2011 the mother was found guilty of breaching the non-molestation orders. An incident had occurred in March 2011 at a petrol station. She was sentenced to three years' imprisonment. That was reduced on appeal to two years three months, and she was released from prison in September 2012.

[08] Since then, on 28th September 2012 the headmaster of X's school informed the local authority that he had received a request from the local vicar for X to attend her half-sister's christening and that request had emanated from the mother. There was a further event on 6th April 2013 in a local pub when mother and a barmaid spoke about R. She was recalled to prison as being in breach of her licence and then released again on 17th May 2013. She was then re-arrested for the contact she had made to the school via the vicar concerning the christening, for the barmaid incident, and for sending or attempting to send a birthday card to X in 2012. Those matters went to the local Crown Court in December 2013. She pleaded guilty to seeking to make contact with the birthday card. The barmaid incident was left on the file and the christening invitation incident was dropped. She was sentenced to 12 months' conditional discharge.

[09] The Probation Service had imposed an exclusion order on mother on her release on licence and that comes to an end on 7th February this year. These applications were made in July last year and orders were made by Sir Peter Singer in August to last until today when the matter was to be reviewed. It is right to point out, as the guardian has pointed out, that since 19th August 2013 there has been no breach of the current orders and I bear that in mind.

[10] The social worker for X has spoken to her. She provided three statements in respect of these applications, 16th July and 15th November 2013 and the last one 2nd January 2014. It is important to refer to these statements because they give a clear indication of what the little girl is thinking when it comes to seeing and having contact with her mother. I am looking at para. 17 of the statement of 16th July when the social worker says that X 'continues to state she does not wish to see her maternal family members. The possibility of contact with her maternal family has been posed with her by myself and my predecessor. This has been done alone with her and when her father is present. She is fearful and anxious of mother's intentions following attempts made to abduct her in March 2011.' That refers to the petrol station incident when the mother says that she was not found guilty of attempted abduction but a breach of the restraining order which was then in being and that is the situation. 'X says she is happy as things are. During a visit in May 2013 her grandmother said she has spoken to X about different sorts of contact such as talking with others with specific reference to X's maternal grandmother, and her paternal grandmother openly reminded X that she still had all of her photo albums, items given to her by family members in her wardrobe, and which X could if she wished to access at any time. X said she knew this, however stated she just wanted things the way they are now and was happy.'

[11] In November the social worker again saw X to discuss her wishes and feelings on the issue of contact. At para. 15 that statement says: 'I saw X on 15th November and whilst talking about her birthday I talked to her about presents and cards that she had received from her mother and younger half-sibling and from her maternal grandmother.' The social worker had those presents visibly with her. They included three small gift bags, two with visible gifts, which were a teddy bear and one a small knitted dog. The other contained books and a photograph of her mother with her younger sister. X was alone with the social worker when attempts were made to show her these gifts and she was very clear in her views about them. She did not present as upset in any way but stated that she did not want the gifts. The social worker assured X that the gifts and cards had been looked at and they contained best wishes for her birthday. One card was from her maternal grandmother and one from her half-sister, written by her mother, with some scribbles on it by the child, and one from her own mother. X again stated she did not want to have them. She was reassured that there was no right or wrong answer but she needed to say how she felt. The social worker said that sometimes people change their minds when something is very emotional and personal to them and suggested that she left the gifts with her paternal grandmother and she could look at them at a later date should she change her mind. The grandmother was present at the time and she was willing and able to do this. X said she did not want the items and would not change her mind; that she did not want them at her grandmother's either. She stated: 'I have a suggestion. You can send them back to the sender.' X presented as calm and not distressed by the situation and her grandmother said 'Are you not interested in looking at the photograph and present from your sister?' X said she was not. The grandmother said that no one would be angry with her if she wanted to know about her sister and wanted to be in contact with her mother and maternal family. X said that she knew this; she did not want this as she is happy. X was then left alone to speak with the social worker, who asked her if she thinks about the past and X said she does not really any more. She volunteered that "the best thing was living with Daddy; that is awesome; she was happy and wished for things to stay the same." She was again reassured she could change her mind or have any questions or wish to see any family member that she should ask her father, social worker, talk to her teacher or to her grandmother or her paternal grandmother. X was very clear that she knew this and understood.

[12] She was seen again shortly before this hearing and I think the date was 2nd January this year. The social worker went to visit her and they had a quiet chat with grandmother. The social worker said that X answered the door, appeared to be very cheerful and happy to see her, asking her if she would like to come in; she was excited and wanted to show the presents she had received for Christmas. X talked about her plans for high school; she wishes to go to Roman Catholic school in the area which requires an 11-plus exam, and that she is aware that she has to work hard. She then referred to a sports event that she had been invited to and that made her pleased and rather proud. The social worker told X that she (the social worker) would have to go to the court considering the orders and asked X what she felt about this. X had previously felt that she would feel better if such orders were in place. X again stated that she would prefer them to be there as she did not want anything in her life to change. The social worker shared with X that very soon in February the measures that were in place in terms of preventing her mother coming into the village where she lives or the neighbouring towns or villages where her school is or where her grandmother lives would no longer be in place, and would enable her mother to enter those areas. She asked X what she felt about this and X's presentation and demeanour which was previously cheerful clearly changed. She answered quickly, saying she would be very scared. Her head was held low, she no longer presented as wishing to engage in conversation openly and confidently. The social worker asked X why she would be scared and X answered, stating that she would be worried that if her mother was able to come into the village as her mother might make attempts to take her away again like she did from the petrol station there, and also that her mother tried to stop her from living with her father. The social worker discussed with X what she would do and how she would feel if she were, for example, to be in a shop in the village and her mother came into the shop. X again stated that she would be scared but that she would be okay as she would be with someone. She said she would stay close to the adult she was with and ask to leave the shop. X did say this would be very different if she was on her own at any point as this may happen when she gets older such as when she goes to the senior school. She again stated she just wanted things to remain the same, that she just wishes to remain with her father.

[13] The social worker asked if X would mind if a record was made of her views and the court told of her wishes. She said she would like others to know how these matters make her feel.

[14] I have read the accounts of her wishes and feelings over the last year with care and I have taken into account X's feelings.

[15] The guardian is supportive of X and supports the local authority's application under Section 34(4) on account of the wishes and feelings of a child guardian. He is also supportive because of the mother's continuing clear and firm views.

[16] The mother throughout these proceedings has not and never has accepted the findings in the original care proceedings. She does not accept that she coached her child to tell lies about sexual abuse. She does not accept that she has behaved inappropriately in any way, and has a very firm view that she is innocent, as she puts it, of any crime; that she and X are being punished.

[17] From what I have recounted by way of the history albeit briefly it is clear that since the care order was made there have been occasions when the mother has behaved inappropriately and in contravention of court orders has sought contact with her daughter. She has made it clear she does not accept the basis of the care order. She wants contact and cannot understand why she has been prevented. She would like her two daughters to know each other and believes it is in their best interests for that to occur.

[18] I was also concerned that the mother wanted X to give evidence to me as to her wishes and feelings. This is a 10-year old who has been the subject of litigation since 2006 when she was only three. I rejected that submission. She has expressed clear consistent views over the last year to her social worker. Imagine what it is like for a little girl aged 10 to come to court, give evidence in front of a number of people, her mother would be there asking questions, and it would be deeply upsetting and distressing for this little girl partly to be dragged all the way to London but much more, how would she feel aged 10 having to say you do not want to see your mother in front of your mother? It would be totally inappropriate. It indicated to me mother's lack of insight into what is needed for this little girl. She wanted the little girl to be assessed by a child psychologist as to her views which she has held over a long period. Again I thought this is inappropriate. There is absolutely no need. She has expressed her clear views to her social worker, who has encouraged her and reassured her that she could accept gifts; that she could look at photographs; she could ask to see members of the family. It is clear that at the moment and for a long period this little girl has not wanted that contact.

[19] I recognise it is important that where possible children should know and have a good relationship with both parents. Under a care order there is a statutory duty in the local authority with the care order to promote contact. A local authority is obliged to review contact and the detail of it on a regular basis. This little girl has been spoken to by a social worker on a number of occasions, and she has been consistent.

[20] If the local authority is of the view that contact is not in the best interests of a child, then they are obliged to come to court and seek an order under Section 34(4) Children Act for leave not to promote or arrange contact. It is a permissive order and is designed to assist the local authority in conducting its statutory obligations and duties looking after a child in their care under a care order. There are occasions when it is not in the child's interests to have contact with a parent or member of the family, and contact generally has to be for the benefit of a child. If contact causes harm or is detrimental to a child one has to look at it very carefully.

[21] In this particular case the mother remains of her long-held views that the findings made by His Honour Judge Robertshaw and the decisions and findings of His Honour Judge Jones were wrong; that she did not teach her child to lie; she has maintained the view that this child has been sexually abused and is at risk of such from her father; she has engaged with media and I notice the mother is leaving court at this point, engaged with the media and internet; she has made it extremely difficult for the father in his care of the child. She has to come to understand that her beliefs are potentially very harmful to R. If X came to hear what her mother believes she could be confused, distressed, upset deeply by what her mother says saying and undermine her placement with her father and her relationship she has with her father. It would be very detrimental. Added to which she herself has very clear views; she does not wish at this stage to have contact, direct or indirect, with her mother or any member of the family.

[22] I have to look at what is in the best interests of R. She is settled; doing well at school; contact has been kept under constant review, as it has to be, and X has been told, and I have been told, that if the situation changes with X and if she wants to see or have contact in any form, mother has returned to the court, the local authority will reconsider the situation. But, they have said it may not be an easy situation to resolve if the mother has not altered her own position.

[23] The applications for non-molestation orders together with the exclusion zone are linked with the issue of contact. They are there to protect X from a deliberate or accidental meeting by the mother with her daughter. X expressed to the local authority social worker that she was frightened even of an accidental meeting, frightened that she might be removed from her father, and she wanted the orders in place. The exclusion zone has been reduced in size from what the prohibition zone has been. It is smaller and I have discussed it at length in the presence of the mother. It is intended to keep the mother away from the village in which the child lives; and from the area in which her primary school is; and to put a smaller zone around the potential high school in the neighbouring town, and a small zone around the paternal grandmother's home, again in another village. The mother says that to exclude her from the area which has been described by the postal code area is an inconvenience and an intrusion into her daily life. She lives about four or five miles south of the area; she has members of her family living within the exclusion zone; she has friends there; her partner goes there for their little girl; and on occasions she would like to be able to drive through the area rather than skirting it in order to go to another major town for whatever reason that may include her GP. As I say, it is a greatly reduced area and it is there to protect X and to give X some peace of mind, and that is what she needs.

[24] I ask myself, what is in the best interests of this child given this history? I am very clear she needs protection; that the mother fails to understand this; fails to accept that the allegations she has made or has caused to be made in some way have not been accepted and that there have been clear findings that she is at fault and clear findings that the child has not been abused. If she could come to understand that her way of thinking needs to change then the situation might change. In the meanwhile I have to make the orders in order to protect this child from this mother. Section 34(4) order gives the local authority permission to cease contact or ensure there is no contact if that is in the best interests of the child. It is permissive. The local authority would be able to allow some kind of indirect contact or direct contact if it were right for the child. An order enables the local authority to consider the situation on the ground and releases it from the obligation to promote contact.

[25] As for application for the non-molestation orders, which is linked with the application under Section 34(4) and states the mother is forbidden whether by herself or by instructing or encouraging any other person from intimidating, harassing or pestering the father or paternal grandmother, they will be named in the order, and that she is forbidden whether by herself or by instructing or encouraging any other person from intimidating, harassing or pestering R; and is forbidden whether by herself or by instructing or encouraging any other person from communicating with the father, paternal grandmother or X whether by letter, text message, telephone or other means directly or indirectly save through the social worker employed by the Applicant and assigned to the child R. That means if she sent anything to the social worker the worker will be able to discuss with X if she wishes to receive the card or the present as she has done in the past.

[26] Finally, a further injunction is sought against the mother forbidding her whether by herself or by instructing or encouraging any other person from entering the specific postcode as outlined in a map which will be annexed to the order, coming within 250 metres of the paternal grandmother's home, coming within 250 metres of the potential high school. These orders are sought for two years, ending on 23rd January 2016.

[27] I have decided I should make these orders to protect X and I make the orders as sought. I have considered very carefully the proposed exclusion zone and the mother's contacts and the mother's views about it. The reality is she has already been out of the zone and a larger zone, particularly the village in which the child lives, for a considerable period. From where she lives to the major local town she will have to skirt the area but it is not a very considerable extra mileage; she could indeed use the motorway. Although the area has been extended towards the east so as to cover the potential high school it has been reduced overall. It is a reasonable area on the map. There will be no difficulties about it; and an order will hopefully help to protect and secure X's wellbeing and peace of mind. I make those orders.

[28] The final order that is being sought is one under Section 91(14) Children Act which is that the mother shall not make an application about X without leave of the court. X has been the subject of litigation since early 2006. It is now early 2014. The little girl is only ten. Litigation is not conducive to peaceful existence. Litigation is anxiety-making. Litigation is aggravation to the lay parties. It does not help a peaceful life. X is a party, be it all represented by her guardian; she has to be involved be it all indirectly with the court proceedings in the sense that the social worker visits and asks about her wishes and feelings. The guardian may also visit, although I do not think she visited recently, but read the social worker's evidence.

[29] Inevitably if there are further applications by the mother X would become aware to some extent of those applications. It is not good for a child to be the subject of litigation, and after eight years it really has to come to an end for X's sake. She needs to be able to continue her life with her father, do well at school, she has the 11-plus coming up and 1 hope very much she will do well and get to the school that she wants. If there were further litigation this could deflect her from what is otherwise prospective success.

[30] The guardian suggests that instead of an order for two years I should make it three years so as to cover the transition from primary school to a high school. She is due to enter high school, subject to the 11-plus, in September 2015 and the guardian thinks it would be wise and sensible to protect her for the extra year while she makes the transition.

[31] An order under Section 91(14) is a filter; mother would have to come to court to make an application for leave to make an application then a court would consider it at an early stage. The mother would not be totally precluded from making an application; it is only a filter. As I say, X needs protection from litigation and I am going to make the order. Bearing in mind what the guardian has said I am going to make it for three years so it will continue until 2017 when it will have to be looked at again. By that stage it may be a different situation. It may be that X will have her own views; maybe the mother will have come to a different view about the past. I am going to make the orders as sought and have the judgment transcribed.

A fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports.

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