P v C & Ors, Court of Appeal - Family Division, March 28, 2018, [2018] EWHC 693 (Fam)

Issuing Organization:Family Division
Actores:P v C & Ors
Resolution Date:March 28, 2018
 
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This judgment was delivered in private. The judge has given permission for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: MA16P50182

Neutral Citation Number: [2018] EWHC 693 (Fam)

IN THE FAMILY COURT AT THE ROYAL COURTS OF JUSTICE

IN THE MATTER OF THE CHILDREN ACT 1989

IN THE MATTER OF S (A boy: born 13th January 2004) & N (A girl: born 23rd December 2005)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28 March 2018

Before:

MS JUSTICE RUSSELL

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Between:

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Ms Seema Kansal (instructed by direct access) for the C

P (the children's father) (in person)

Ms Linda Sweeney (instructed byAFG Law) for the 2nd Respondent

Ms Katy Rensten (instructed by NYAS) for the 3rd Respondent

Ms Magdalen Case(instructed by the Legal Department) for the local authority who were invited by the court to take part in the hearing

Hearing dates: 19th February to 23rd February 2018

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JudgmentThe Honourable Ms Justice Russell:

Introduction

  1. This is the second judgment in private law proceedings which concern two children, S (a boy, now fourteen; born on 13th January 2004) and N (a girl, now twelve; born on 23rd December 2005), and child arrangement orders (CAO) under the Children Act (CA) 1989 section 8. The court has also been asked, by the children's guardian, to consider making a supervision order pursuant to s 31 of the CA 1989. Their parents are separated and the children live with their mother (C) in England. They are of dual heritage; their mother is British and their father (P) is Swedish. In April 2017 this court handed down a judgment following a fact-finding hearing. It was concluded, on the basis of the findings made, that the two children had suffered significant emotional harm as a result of their mother's behaviour. This judgment concerns their welfare, and future orders in respect of the time they are to spend with their parents.

  2. C's claims that S had been physically abused by his grandmother during the summer of 2016 were rejected, as were the claims that N had made well-founded complaints of bullying by her father. In fact, as the court found, both children had been deliberately influenced by their mother who was determined to bring the children's contact with P to an end. Indeed, she had succeeded in stopping all contact with P from the end of their summer holiday in 2016 until the hearing before the Spring or Easter holiday in 2017. Both children made complaints about the behaviour of the paternal family, and, at the time of the previous hearing, they were adamant that they did not want to go back to Sweden at all. They appeared to be wholly rejecting their father, their Swedish relations and that half of their own heritage.

  3. Both the children were represented by counsel through the guardian at that time, and their guardian, in her written and oral evidence, described visiting the children at home, to introduce herself and explain her role; the guardian's own shock and concern about the level of antipathy demonstrated at the suggestion they should resume contact in Sweden was palpable when she gave her oral evidence. Both children had, vehemently, said to their guardian that they did not want to see their father or ever to visit Sweden again. Up until the summer of 2016, the children, with apparent enjoyment, had been spending most of their school holidays in Sweden with their father, paternal grandparents, relations and friends. They also spent weekends with P in England. There had been social services involvement in this case, prior to the hearing in the Spring of 2016, partly as a result of C seeking to use the authorities to bring contact to an end. There had been numerous applications over the preceding past seven years in respect of the two children; some included very serious allegations made by C, most of which have been investigated by the authorities in Sweden and in England which were unsubstantiated.

  4. The findings made in the previous proceedings can be found in my judgment reported under the neutral citation number [2017] EWFC 23; and I shall not set them out here again. After the findings were made contact resumed, almost immediately, and the case was referred to the Anna Freud Centre (AFC) for assessment of the children and their (two) families and further assessments were carried out by the local authority. The local authority and the guardian, unsurprisingly concerned about the children's apparent alienation from their father, their paternal family and their Swedish heritage, considered that it was likely to be necessary, in their best interests, to move them to live with P in Sweden. The AFC filed its report in September 2017 and recommended the immediate transfer of residence to Sweden. I shall return to their recommendations later.

  5. The case could not return to court immediately for hearing, as there was insufficient judicial time available to list any substantial contested application, and the question of whether N should be separately represented had now arisen as it was obvious that she would not agree with the guardian's recommendation. The court was, and remains, keenly aware that N, who has always worked hard at school, was due to start her secondary school education in a highly sought after selective school near her home in England: this achievement forms an important part of N's self-image and identity and was not to be taken lightly. In any event contact had resumed and continued to take place in accordance with the court order. The children spent the week before the hearing in February 2018 commenced (half-term) in Sweden. In addition, the children have been supported by direct work with their allocated social worker, Ms Clark and a family assistance worker.

    Parties' positions and representation

  6. As he did before, P applies for the child arrangements order to be changed, and for S and N to live with him in Sweden; it is his case that the children will suffer further harm, caused by their mother, if they are not moved to Sweden to live with him. For the first time, when giving his oral evidence, P advanced a case that the children would be at risk of physical harm (as well as emotional harm) if they were not moved, although no such allegations were made in his written evidence. P again chose to remain unrepresented and appeared in person before me, his mother, G (who had been joined as an intervener in the fact-finding hearing), attended court with him and acted as his McKenzie friend. C is represented (by Ms Kansal on direct access). C opposes P's application; it is her case that she has come to a realisation of the harm she has caused the children and will seek and engage with appropriate therapy to ensure that she does not indulge in her damaging and abusive behaviour in respect of the children's contact with their father and paternal family.

  7. S remained represented by counsel (Ms Sweeney as before) through his guardian. Although older than his sister, S is on the autistic spectrum and attends a special school, he is not considered to be Gillick competent by his solicitor. S has told his guardian that he does not want to be removed to live with his father in Sweden. N is separately represented through NYAS by counsel (Ms Rensten). N does not want to move to Sweden, but she does want to have contact with her father and to go to Sweden during school holidays, and to spend weekends with P in England during term-time.

  8. The local authority attended court and were represented by counsel (Ms Case). The social worker, and Team Manager, Ms Clark was present through the hearing. By the time of the hearing in February 2018, Ms Clark and the local authority had changed their position: they no longer supported a move to Sweden and sought a Family Assistance order to continue to support the family in England. The guardian, too, in her final analysis no longer recommended that S and N be moved and recommended that the court make a supervision order in favour of the local authority to support the children should they remain with their mother.

    Background and history

  9. As set out in my previous judgment C, now aged 38 is English and she met P now aged 43, when they were both travelling in New Zealand in 2002. They returned to Europe and lived together in Sweden where they married in 2004. The children were born in Sweden, S in 2004 and N at the end of 2005. The marriage was short-lived and by the end of 2006 their relationship had ended. In 2007 C unsuccessfully claimed for damages for assault by P in the Swedish courts. At the end of 2007 there was an order for shared residence and care of the children in the former family home made by the Swedish court. Both parents were seeking a court order that the children live with them; P in Sweden, C in England. An investigation was carried out by the Swedish child welfare authorities who reported to the court; it recommended custody be granted to P. At the time the poor relationship between P and C, which was described as ``virtually non-existent'', was considered to one of the problems faced by the children; it is a problem for them that continued and has persisted to the present. S's learning disability was already apparent and there was a provisional diagnosis of Asperger's syndrome.

  10. In November 2007 divorce was granted and the Swedish Court (by a majority decision) awarded custody of the children to their mother with substantial visiting rights to P. C was permitted to move to England with the children where they have lived since; not without difficulty, S and N have...

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