Before His Honour Judge Clifford Bellamy
sitting as a Judge of the High Court
(judgment handed down on 27 November 2014)
Re N (A Child: Section 37: Interim Care Order)
This judgment is being distributed on the strict understanding that in any report no person other than the advocates (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.
Miss June Rodgers for the father
Mr Alun Jenkins for the mother
Mrs Margaret Styles for the child
JUDGE BELLAMY
These proceedings concern a young boy, N. N is aged 7½. His parents are JLM (‘the mother’) and GLM (‘the father’). The father applies to the court to vary a shared residence order made three years ago. His application was issued in September 2013.
The earlier proceedings were issued in 2010. They came before me for final hearing in August 2011. My judgment is reported as Re N (A Child: Religion: Jehovah’s Witness) [2012] 2 FLR 917. In that judgment I set out the background history very fully. It is unnecessary to repeat it. This judgment should be read alongside my earlier judgment.
The previous proceedings
In the previous proceedings both parents applied for a residence order. In the event, they agreed that there should be a shared residence order. They were unable to agree how N’s time should be divided between them.
Of greater complexity were issues arising out of the fact that the mother is a Jehovah’s Witness whereas the father is not. The father had concerns about the impact of the mother’s beliefs on N. He sought to restrict the extent to which the mother should be able to involve N in the practice of her religion.
Although I handed down judgment on 24th August 2011, there was an inordinate delay of several months whilst the parties agreed the terms of an order reflecting the decisions set out in my judgment. The order provided for a broadly equal division of N’s time between his parents.
The order contained a number of recitals, one of which reads:
‘And upon both parents agreeing that they will not engage in any form of teaching of N intended or likely to alienate N from the accepted teachings of the Church of England or Jehovah’s Witnesses.’
Paragraph 6 of the order is headed ‘Religious beliefs, practice and instructions’. The order went on to provide that
The Mother as one of Jehovah’s Witnesses shall not take N on house to house ministry;
The Mother shall be permitted to take N to:
The annual evening celebration of the Memorial of Christ’s Death;
A special Assembly Day;
A weekend Circuit Assembly;
Two days of the annual three day convention but not to include any day where N would otherwise be at school.
That to ensure the arrangements in 6(ii) above, insofar as may be necessary the division of time and care between the parties as hereinafter ordered in the Schedule hereto shall be adjusted by mutual agreement upon reasonable notice to enable these arrangements to be implemented;
Neither parent will do anything either themselves or through 3rd parties to criticise, denigrate or undermine the other.’
Before I gave judgment in August 2011 competing draft orders were prepared by both parents. In my earlier judgment I made observations about those draft orders and also about the nature of the problems and the risks. Those observations are relevant to the issues I now have to determine. At §88 to §91 of my earlier judgment, I said:
I have greater concern with the proposed recital set out in the mother’s draft order that she ‘may teach the child her Christian beliefs as one of Jehovah’s Witnesses’. I note that on this issue, too, the mother’s draft does not include a like provision that the father should be entitled to ‘teach’ N his Christian beliefs.
N is involved in the life of the Jehovah’s Witnesses and also in the life of the Church of England. There are profound differences between the two both in terms of practices and beliefs. When either of these parents refers to his or her ‘Christian beliefs’ it should not be assumed that they are talking about the same thing, the same set of beliefs. They are not. Later in her draft proposed order the mother includes a recital that ‘neither parent will do anything either themselves or through third parties to criticise, denigrate or undermine the faith or practices of the other’. In my judgment there is a real risk that in taking advantage of her first proposed recital the mother is likely to put herself in breach of the second.
There is also a risk that as N grows older and begins to appreciate the differences between the beliefs held by each of his parents the fact that one of them is actively engaged in ‘teaching’ him is likely to be experienced by him, consciously or subconsciously, as a pressure to subscribe to that parent’s beliefs in preference to the other parent’s. If both parents were ‘teaching’ him the bind he would find himself in would be even worse in that there is a risk that at some stage he would become caught up in the conflict between the two sets of beliefs and experience inner conflict between his loyalty to one parent and his loyalty to the other.
I accept that ‘teaching’ can take many different forms. In terms of the living out of one’s faith in daily life I accept that it could be said that one teaches by example. I see nothing inappropriate in that. However, another meaning of ‘to teach’ is to instruct or to give lessons in. That is what one would expect to happen in a classroom. So far as concerns these parents, given the potential for conflict, I have profound reservations about the appropriateness of either parent ‘teaching’ their Christian beliefs to N in any formal sense, by ‘instructing’ or ‘giving lessons’. In my judgment it is both proportionate and in N’s best interests to restrict the parents’ right to ‘instruct’ or ‘give lessons’ concerning their Christian beliefs.’
The father now applies to vary the shared residence order. He alleges that the mother has not complied with my earlier order. In his application notice he says that in addition to variation of the order he also seeks ‘further assistance from the court to help with the implementation and compliance with the order’.
Although the mother makes it plain that she isn’t happy with the order I made in 2011, she did not appeal against it and has not issued an application to vary it. She has, though, made it clear that she wants that order to be changed.
In the earlier proceedings I made N a party and appointed an officer of Cafcass to be his children’s guardian. In these latest proceedings I have followed the same approach. The officer appointed as Children’s Guardian is Fiona Dean. Her first report is dated 8th April 2014. The following passage from her report sets the scene for this present hearing. She said,
N has been the subject of proceedings and parental conflict for 5 years now. He is 6 years of age and will become 7 years old on 23 May 2014. N is getting increasingly aware of the disharmony between his mother and his father.
N is perceptive enough to pick up on very strained adult relationships and has told me on 25 February 2014 at school that he knows his parents do not get on and neither does Ms V [the father’s partner] with his mother. He told me his father “sometimes isn’t very kind” and his father “doesn’t think she (Mother) is kind”, that she does everything and that they chat or argue. Mother believes Father has a temper and can be verbally abusive, however Ms V denies having experienced this.
Both parents are very articulate and if they continue to relate to each other in such a highly critical manner, they are likely to expose N to emotional abuse. If they continue in this manner, it may be that N cannot be parented effectively by both or one or the other and it may require the instigation of Care Proceedings. This may result in neither parent having care of N.
It is right in my view, that N should have his own voice within these proceedings. Whilst there is a long protracted history to these private law proceedings, the parents in this case have clearly continued to dispute nearly every issue in N’s life. Sadly the older he gets, the more apparent it will become to him. However once the Court makes a child focused decision, then the parents will be required to follow it. It is appropriate for N that the Court look at the issue of contact and residence again, as he will shortly be 7 years old.’
The point made at paragraph 22 has proved to be prophetic.
I gave permission to the parties to instruct Mr Paul Livock, a Chartered Psychologist. He has prepared two reports. Those reports, and in particular his final report, have changed the landscape of this case profoundly. In light of his second report, at the recent pre-hearing review I made an order under s.37 of the Children Act 1989 directing Warwickshire County Council to undertake an investigation to consider whether it should apply for a care order or supervision order with respect to N. I invited the local authority to attend and be represented at this final hearing. I also made it clear to the parties that I would consider whether it is appropriate for me to make an interim care order on the basis that N should be removed from the care of his parents and placed in foster care.
Psychological evidence
Mr Livock’s first report is dated 23rd May 2014. His report begins with an executive summary which encapsulates the essence of the detailed analysis which follows. He says,
The parents appear each to have expended a good deal of energy in attempting to discredit the other and in the process, seem to have abandoned the focus on an optimum joint strategy that would safeguard N’s long-term social and emotional development.
Each parent displays a low opinion of the other’s parenting skills. It is doubtful whether without therapeutic intervention either parent would be able to promote the other positively.
Similarly, I do not feel that either parent will be able to resolve their differences regarding N’s understanding of their religious beliefs and how to relieve him of any overt or subtle imperative, without professional help.
Engagement with Cognitive Behavioural Therapy (CBT) could prove helpful to them in understanding and resolving these issues. However, both parents demonstrated a disposition to make overly positive presentations and indicated strong resistance to personal change, suggesting the risk of early exit from any therapeutic process.
Both parents presented with behaviours that without modification, could impact upon N to alienate him from the other.
N appears to be attempting to keep his experiences in each parental home separate and in my view, this could create emotional tensions for which as a very young boy, he is unprepared. He also demonstrates an almost exclusive focus upon his mother that is unhelpful to him in attempting to maintain a close relationship with his father. In my view, if the current dissonance persists, N will suffer emotional harm.
N’s problems with speech and language appear confined to some minor articulation difficulties. I do not regard these as arising from his experience of the parents’ marital difficulties.
It is suggested that Play Therapy would be helpful in assisting N to express himself freely and to communicate his problems and concerns from within a neutral therapeutic environment. If the parents were to engage with CBT, it is suggested that they and N could share in Filial Therapy sessions.
Unless the parents engage with therapy, I cannot see a resolution of the current impasse and consequently, I do not regard either parental environment as, ‘suited to support N’s psychological upbringing’
Both parents were open to the suggestion that they undergo Cognitive Behavioural Therapy (‘CBT’). Both have engaged in CBT; both say they intend to continue with it; both say they have found it helpful. That is very positive. However, the progress they are making is very slow. In his oral evidence Mr Livock reflected that in recommending CBT as a positive way forward, perhaps he had been ‘travelling in hope’. Progress is likely to take very much longer than he had expected. This means that CBT is unlikely to have any beneficial impact on the parents’ care of N in the short to medium term.
In his first report Mr Livock made some observations that have proved to be particularly insightful so far as concerns N’s religious upbringing. He said:
I am aware that if both parents shared the same religious belief and chose to bring up their child within for example, the Hindu, Catholic or Jewish faith, the Court would not be overly concerned with N forming a ‘balanced’ view. It is this fundamental difference of belief between parents with equal parental rights and responsibilities that appears to have become the focus for conflict, to the extent that the impact of their discord upon their son seems to have become a subsidiary concern.
Mother refers to her faith in terms of truth. She does not appear to be able to accept other beliefs as of equal value in helping a developing child to understand and construct his world. Father is concerned - and from Mother’s interview responses, in my view, correctly – that N is being presented with more than simply an introduction to Jehovah’s Witness beliefs.
Mother has admitted that N attends meetings specifically constructed to offer teaching of Jehovah’s Witness beliefs. However he is still at an age where he will have difficulties in dealing with complex and abstract concepts. N is subject to indoctrination: he is encouraged to accept ideas uncritically. This is not unusual in caring for children. In order to safeguard them, there are things that they must (or must not) do in order to remain safe. It is often unnecessary or inappropriate to invite them to explore the logic behind instructions…
I would also point to N’s reported unquestioning expression of Jehovah’s Witness beliefs to others, but more significantly, his exclusive focus upon his mother to the virtual exclusion of his father, seen in his Family Relations test responses…as evidence of a clear lack of balance in the parents’ approach to his care.
When N is residing with his mother, he appears to be subject to an unremitting focus upon her faith. He would seem to have habituated to this and modified his behaviour accordingly. Similarly, Father stressed N’s active participation in activities that were antithetical to Jehovah’s Witness doctrine. Both parents provided differing accounts of N’s compliance with their attitudes to customs and celebrations. At present, N’s participation is all that is required. However, as he develops it is likely that he will be required to make statements regarding his position and it is highly probable that his experience of greater dissonance will lead to avoidant or reclusive behavioural responses.
I am equally concerned about Mother’s wish to have her son embed the beliefs and practices of her chosen religion against the wishes of his father at a time when the boy is still unable to deal with abstract concepts to arrive at his own conclusions. I can only conclude that in my opinion, neither parent could assume full-time care of N without jeopardising his relationship with the other and…that unless the parents make a positive attempt to engage with therapy, the consequences for N could well be significant and deleterious.’
Mr Livock’s second report is dated 15th October. There was a five month gap between his meetings with N. The level of concern for N’s emotional welfare is considerably higher in this second report. Mr Livock presents a very troubling picture. He says,
I talked to Mother about my meeting with N and asked how involved he had been in her Jehovah’s Witness activities. Mother said, ‘Not much’. She said that since the Court Order, N was only allowed to accompany her to a 2-hour meeting at the Kingdom Hall on a Sunday morning. I told her that N had said that he’d been out on ministry. Mother said that she had ‘never taken (N) on door-to-door ministry’ and only went on ministry herself when N was with Father.
I asked how N knew about ministry in so much detail. Mother said that N, ‘will have seen a video’. I suggested that N’s willingness to offer his views on his religious beliefs – particularly about non Jehovah’s Witnesses being ‘destroyed’ - so freely might bring him into conflict with his peers and others, for which he seemed unprepared. Mother said that ‘other children had been through it,’ and that, ‘you have to learn to deal with that sort of thing at some point anyway.’ I asked about possible conflict with N’s father’s faith. Mother said, ‘he hasn’t really got a faith – it’s his parents, really.’
She continued, ‘I believe that N has decided on the Jehovah’s Witness’ view of God for himself. He has his own relationship with God in the form of prayers.’ I suggested that it was more likely that N had been exposed to his mother’s commitment and her view of religion that he had adopted as his own. Mother disagreed: ‘He’s just interested in God. He asks a lot of questions - it’s no different from other things that he learns in school.’ I suggested that I thought it unlikely that Mother would have answered N’s questions by offering a range of views of equivalent value but would be more likely to have promoted her own. I said that in talking to me, N was very clear that only the Jehovah’s Witness view was the correct one. Mother asked ‘What’s wrong with that?’ She said that she could not see why the issue was ‘such a big deal’ as N simply ‘wanted to know about things.’
Mother said that N was not unhappy with his beliefs; ‘He doesn’t come to me and say he’s unhappy’. I suggested that N might not be sufficiently mature in his development to express and difficulties fearing that she might be displeased. Mother said that N, ‘should know me well enough to be honest with me, however I might feel.’ She added that she believed that N was ‘emotionally well-adjusted’ and could not think of anything to suggest otherwise: ‘he talks to me about things, but he is able to make his own decision about what he believes.’
A little later in his report Mr Livock recounts his most recent meeting with N. He says,
I asked N what sort of things he did when he stayed with his Mummy. N said that they, ‘still go to Dudley and the Ricoh – it’s like an underground stadium - for special assemblies – and to the Kingdom Hall of course.’ I asked what else he did when staying with his mother but N’s response seemed to be a continuation of the same theme: ‘I worry about being in the Paradise and all the bad people will be destroyed - and Daddy, because he doesn’t believe.’
I asked if this worried him a lot. N said, ‘No because Jehovah will make sure that everything we want will be in the Paradise. Jehovah will definitely make sure that Daddy learns about Jehovah so Daddy will be there, but if people keep on being bad they will be destroyed. It says it in the Bible and ‘Watchtower’ and ‘Awake’. If you want to know about it, here is the website: www.jw.org.’ I asked N what he thought would happen to people who believed differently, for example, Jews, Hindus or Muslims? N said, ‘They will just get destroyed.’ He added, ‘Jehovah is here with us now – he holds everyone’s right hand but you just can’t see him.’
N seemed very animated when talking about his beliefs: ‘I’ll tell you something else – we didn’t come from apes – that’s a lie. Apes just grow bigger and die, they don’t change into anything else. Adam was the first human, and Eve. Adam named all of the animals. Jehovah created everything but the Evil One controls the earth.’ I asked N to whom the name ‘Evil One’ referred. N replied, ‘Satan’. I asked N to tell me why, if Jehovah had created everything, why had N thought Satan had been created. N said, ‘He was an angel. The angels have been here forever – like Jehovah - and they guide us all the time but Satan decided to be bad. If you want to know more about it, you can go on a computer - or tablet - to www.jw.broadcasting - that’s like Jehovah’s TV. It has parts for children, teenagers and adults – it will tell you what’s actually controlling all of us.’
I suggested that a boy of his age might also be interested in spending more time on other things such as following a hobby – as with his Lego, or ‘Minecraft’ - or playing sport. N said, ‘but I want to go on the ministry more and talk to people about Jehovah. You go out sharing the Bible and you give them a magazine if they want one.’ I asked N to tell me how the ‘ministry’ worked. N said, ‘you have a timetable that gives the name of a street with the house numbers to go to. A brother at the Kingdom Hall gives you the timetable. I’ve been on ministry – it’s like, going all over the world to preach.’ N then stood up and played out a scenario of knocking at a door. ‘You ask them if they want to know more and offer them a magazine and if they want one you give them one and if they don’t, you don’t.’
He continued, ‘I can even do it in school. I even did ministry to my teacher Mrs O in my school before (this one) and gave her magazines about Halloween and magic. I’ve done lots of ministry – not just on the streets – sometimes even on school trips.’ N then offered to tell me about the, ‘true stories of N and David,’ but I suggested that we might look at the materials that I had brought along. N reassured me that I could find the stories later on the website address that he had given me.
Finally, I asked N if I had a magic wand, what he would choose if he could change only one thing about his life. N replied, ‘Make me live with Mummy every day, for ever and ever – and not Daddy.’
Mr Livock’s reflections on all of this are deeply disturbing. He says,
When I met with N, this time, I gained the strong impression that he felt the need to make certain statements, perhaps arising from anxiety at the possibility of forgetting them. Without being asked, N stated his preference for the division of residence with each parent early in the interview (paragraph 10.5). These were too similar to his mother’s anticipation of what he might say (8.21) not to have been discussed with him. In fact, N’s stated wishes later in the interview, were more drastic, removing his father from the picture altogether. In addition, N’s proposals for altering current arrangements (‘If I saw him for one or two days, or one-and-a-half days, that would make him happy.’ paragraph 10.5) gives the strong impression that he has been party to – or directly involved in – adult discussions regarding his shared care.
However, N is still able to discuss enjoyable activities with his father and children – for example, his holiday in Majorca (paragraph 10.4) and does not appear to be aware of the discontinuity between this and his wish to portray his father as someone requiring to be ‘trapped’. In my opinion, the ambiguity of N’s account is a result of the dichotomy of his experience of shared care.
I discussed in my first report, the difficulties for N in balancing the need to please both parents. It now seems to me that the imperative has become skewed towards his mother. N’s apparent rejection of his father’s care may well be the child’s way of removing (for him) the seemingly impossible task of having to satisfy two parents with different demands, leaving him able to satisfy the needs of one almost completely – and in a setting where he does not have to compete for the parent’s attention with other children or conform to a different set of expectations.
I do not believe that, ‘N has decided on the Jehovah’s Witness’ view of God for himself’ as Mother asserts. I have no wish to enter into a discussion of Jehovah’s Witness doctrine. However, I am of the view that the implications of a young child becoming so immersed in any religion to the point that they appear compelled to proselytise, raises concerns:
It is entirely possible that as the curriculum becomes more detailed and complex, N may find that some aspects of his participation in learning may be at odds with his – and/or his mother’s beliefs – and this may cause him to become anxious and/or reluctant to discuss school activities at home. Indeed, from his mother’s responses on a Parenting Relationship test, this may already be happening (paragraph 9.3)
More significantly, for a small child to present as keen to promote the doctrines of a religion to anyone who appears willing to listen - regardless of age or setting - places him- or herself at risk. It is somewhat surprising that his mother does not appear to be able to recognise the possibility of N coming to harm - for example, from others who may wish to inveigle him into their company with malign intent, or from the reactions of some who may be affronted by his insistence that they, by virtue of their adherence to their own religion, will be ‘destroyed’. In my opinion, it is simply insufficient to take the view that everyone has to learn to deal with such situations ‘at some point’ (paragraph 8.15) and in this respect I would not regard N as ‘low maintenance’ (paragraph 8.13) but in urgent need of guidance regarding potential dangers.
I am by no means certain that Mother would accept this view. She presents as having limited insight into the need for a bright child with a developing intellect to have access to a broad and balanced range of interests and experiences. Instead, she seems to have devoted the major part of her life to the pursuit of her religion and appears content that her young son should do the same. ‘
These concerns were repeated and underlined by Mr Livock in his oral evidence. When he had met with N most recently, N had presented as being totally immersed in the Jehovah’s Witness faith. Unprompted, N had talked to Mr Livock at length about Jehovah’s Witnesses’ beliefs in order to persuade him of the truth of those beliefs. It was clear that Mr Livock had been disturbed by this encounter. He said that he has never in 40 years come across a child who so freely and dogmatically presented his views to a stranger. The mother is insistent that N’s beliefs are his own beliefs, independently arrived at. Mr Livock disagrees. He does not accept that this is possible for a child of N’s age.
Mr Livock’s is not the only evidence raising concerns about N’s religious upbringing. In her final report, the guardian records that on a recent visit to see N,
N told me “I actually am a Jehovah’s Witness – I actually am”. He then launched into 5 minutes of very animated and passionate teaching of what JW…means and explained why other people who are not JW are wrong or misguided. His animated expressions, language, body language and gestures made me feel as if he was ‘teaching’ me. During this discussion, it was easy to forget he is only 7 years of age.
His knowledge and passion on this subject is far superior than would be expected of a child this age.’
I have also received evidence from the father’s partner, Ms V. In her first witness statement, made in March 2014, she says,
‘9. …I recall a conversation that I had with N although I am unable to recall exactly how the conversation came about. However, it followed on from a conversation that N had had with [his father] when [his father] had asked N if he wanted to go to Sunday School. The conversation then led on to N’s paternal grandparents. N commented that his grandparents believed in God. Both myself and [his father] said that yes that was the case but we both commented that different people believe in different things. N replied that “If you believe in Jehovah you have to try to make everyone else believe in Jehovah like mummy”. I tried to keep the conversation general and said to N that it did not matter if people believe in different things. However I could see that N was getting anxious and N said “But if you don’t believe in Jehovah you won’t go to paradise. People who believe in Jehovah will go to paradise and there you can ride on the lion’s back”. I asked N what would happen to people who don’t believe in Jehovah and N said that he didn’t know but those people would just disappear. In the conversation N also referred to “when it ends” and “it’s getting nearer”. I understood that N was talking about the end of the world and I asked N why he thought it was getting near. N responded by saying “We are having more Kingdom Hall days”. N was now quite agitated and said “Will you please just think about it and believe in Jehovah as I want you, daddy, Josie and R to come to paradise.’
That account bears such close resemblance to Mr Livock’s evidence that I am satisfied it is a broadly accurate account.
In his first witness statement the father says that the mother,
‘is increasingly showing continued attempts at engaging in teaching N the Jehovah’s Witness lifestyle and beliefs on a one to one basis. The [mother] has instructed N about the Jehovah Witness beliefs about birthday parties immediately prior to N attending a party, and also about the Jehovah Witness beliefs about Halloween, the weekend before N was to enjoy spending Halloween in my care…The [mother] also regularly notes in the [communications] diary that she has watched Jehovah Witness DVDs and read books with N about the lifestyle and beliefs of a Jehovah Witness…’
The mother’s response is telling. She says,
‘I merely do what a parent does best and teach N the truth about all things in life for his benefit. When he asks me questions as a curious 6 year old may do, I tell him the truth and we research topics if need be, in an age appropriate way. He is willing and happy to learn about the purpose of life and about God through the bible and the jw.org website…
I feel that N is currently receiving a “rounded” view of how different people behave and this is beneficial for N but I will teach N the truth about the Bible because that is my choice at this time and N is very happy to listen…I would encourage [the father], the court, CAFCASS representatives and anybody else who is involved in this case to look at jw.org and find out what the Jehovah’s Witness religion is about because there are many good things to learn. For example, following Bible principles with N is teaching him to have good manners, to love, care and be kind to everyone, to be respectful, to be obedient to his parents and elders and to appreciate creation… I would pose the question “how is he being harmed by learning things from the Bible?”…N has a human right to learn about life and choices…’
That exchange took place months before either Mr Livock or the guardian became involved. That first statement by the mother forms the benchmark against which her developing understanding of the need for change must be judged. It was clear from her oral evidence that any change has been minimal. She told me that N is very interested in learning about God. As a result, she shares her faith with him if he shows interest. For her, belief in Paradise is a core belief. As she put it, it gives a really strong hope for the future. She was very clear that God will ensure that the righteous will have a place in Paradise. She was rather more reluctant to say what she believes will happen to the unrighteous. N clearly believes that they will not go to Paradise. He is anxious that that means that unless his father and paternal family come to accept the core beliefs of the Jehovah’s Witnesses they will not go to Paradise. The mother appeared unconcerned about N’s distress.
Mr Livock’s view is that the mother is indoctrinating N. He qualified that by saying that he was using the word ‘indoctrinating’ in the technical and not the pejorative sense. He went on to say that this indoctrination, which has led to N’s total immersion in the mother’s beliefs, is emotionally harmful to N and that if N continues to proselytise indiscriminately, in and out of school, there is a risk of him suffering physical harm by offending those of a different religious persuasion. He could not have been clearer.
Having heard that evidence the mother said that she does not believe that N is suffering harm. She is not concerned about the way N presents. Indeed, she said that she was pleased to read what N had told Mr Livock because it is clear that N’s faith makes him happy. When challenged about the passage in Ms V’s statement, to which I referred earlier, she said that ‘maybe N’s understanding is not as clear as I thought it was. Maybe I haven’t explained things to N as well as I could have done.’ It could, of course, be the case that the opposite is true; that she has explained her beliefs to N very clearly indeed.
Having at the pre-hearing review made a direction under s.37 of the Children Act 1989, at this hearing the mother offered to suspend N’s involvement in faith matters, including not taking him to the Kingdom Hall, pending receipt of the s.37 report and, if recommended in that report, to continue the suspension for longer. I am in no doubt that that offer is a response to the risk that the court may make an interim care order and is not an indication of either insight into or acceptance of the professional concerns about N’s emotional welfare.
I turn next to the relationship between the parents. Although I have dealt with the issue of religion first, Mr Livock was clear that the fundamental issue in this case is the poor relationship between the parents and their inability to present each other to N with unconditional positive regard. He did not agree to a suggestion that the mother’s faith is the battleground upon which the parents’ battle is being fought. He did, though, say that he regards the Jehovah’s Witness issue as a focal point for their animosity towards each other.
It is important that each parent should present the other to N in a positive way. This isn’t happening. This is not a problem with one parent rather than the other. It is a problem with both parents. There is animosity on both sides which is why each parent finds it difficult to promote a positive image of the other. This is having a negative impact on N.
The key message which came from Mr Livock’s evidence – and it was a message which he repeated several times – is that N needs change and he needs change to happen quickly. If nothing changes then the situation for N will get worse. Mr Livock said that he is particularly concerned about the deterioration in N’s relationship with his father. In his second report he notes that,
I had begun to ask N to tell me more about his holiday activities when he interjected: ‘I really want to be with Mummy and Daddy but I want to be with Mummy for more days and all the holidays.’ N then added, ‘If I saw him for one or two days, or one-and-a-half days, that would make him happy.’ I asked him why he had said this. N replied, ‘Because Daddy’s sometimes mean to me – he calls me a two-year-old and he lets Josie go into my room when I don’t want her to and he says that I don’t talk properly and also, R is quite mean to me.’ I suggested that there might also have been some good experiences at his father’s house. N said, ‘The good thing is, I get ’Minecraft’ stickers – I play that on my Kindle.’
I asked if here were other things that N enjoyed when he was with his father but N returned to negative aspects: ‘V (Father’s partner) is sometimes mean to me, the same as Daddy. She has really long nails and scratches me with them when she grabs me.’ I asked N to show me how he had been ‘grabbed’ and he performed a mime of fingers moving up and down the sides of his body. I remarked that this appeared to be tickling. N said, ‘No, they (fingernails) are scratchy.’
He continued, ‘I’m actually quite angry with Daddy. I’ve got a spy kit and I’d like to set a trap on him.’ As N told me about his ‘kit’, he seemed to be describing surveillance equipment, ‘where you can record what happens’, that he would use as a ‘trap’. I asked why he would wish to ‘trap’ his Daddy. N said that it would record his father doing and saying ‘mean’ things.’
In Mr Livock’s opinion, these parents are exposing N to a flawed model of parenting. He needs a positive model and he needs it now. As a result of the parents’ behaviour N has suffered and continues to suffer psychological difficulties. That cannot be allowed to continue. Doing nothing is not an option.
How did the parents react to this evidence? They have each attempted to provide instances of unreasonable behaviour by the other. The father has been criticised for refusing to allow N to have school dinners, instead insisting that he take a packed lunch. The mother has been criticised for not taking N to swimming classes during those weekends when she has care of him. There have been issues about the tooth fairy, about N’s torch, about the father not sitting with the mother at school functions, about a trip to a race track (a birthday present for the father) and other seemingly minor issues. I do not propose to go through each and every one of those grievances and make findings. That is unnecessary. Criticisms and counter-criticisms such as these are in my judgment not of particular significance in themselves but are significant for what they tell us about these parents.
I have dealt with the Jehovah’s Witness issue at length because it clearly raises some serious issues. However, the father does not escape criticism. The shared residence order provides that N should spend his birthday, the father’s birthday and Father’s Day staying with the father. The father asked the mother to extend that contact so that it began the evening before each of those events. He has been completely unwilling to even consider some readjustment to give that time back to the mother. He said that he could not see what the benefit would be for the mother.
The father has recently suffered a sports injury and has his foot in plaster. Ms V gave the children chance to write on his plaster. Although N drew a heart and wrote ‘I love you’ the guardian, who was present at the time, observed that the father was critical of the way N held the pen.
It is appropriate to note another recent incident. It occurred on 31st October, Halloween. The mother told the guardian that N had reported to her that because he had spent a long time sitting on the toilet the father had become angry with him, had sworn at him several times, had thrown one of his toys away and had referred to his mother as ‘your stupid bloody mother’. The guardian records that N, too, had mentioned this incident to her, telling her that his father ‘was stomping up and down the stairs and said “I know you want to go back to your stupid bloody mother. I don’t want that I just want you to have fun”.’ N told her that this had happened on Halloween and that he had really not wanted to be involved in Halloween. The father denies behaving in this way. The guardian accepts N’s account. I am satisfied not only that N raised this with the guardian but that in doing so he was being truthful.
It was issues such as these which led the guardian to describe the father as a high-criticism/low-warmth parent. I accept that that is a fair assessment.
The father says that he accepts that there has been conflict in his relationship with the mother. He says that he accepts his role in this. He says that he has ‘subconsciously presented the mother negatively to N’. I am not persuaded that those and other similar comments made by the father are an indication of developing insight into the flaws in his parenting. The guardian reports that at his most recent meeting with her the father had demanded that she give him a list of what is wrong with his parenting. That incident alone provides eloquent testimony to the father’s inability to perceive the deficits in his parenting.
Mr Livock undertook some psychometric testing of the parents. What emerges from those tests is that each parent regards themselves as being a very good parent but regards the other as not a good parent. The reality is that both parents provide N with a flawed model of parenting.
Cognitive Behavioural Therapy
I noted earlier that Mr Livock had recommended that both parents should undergo CBT. Within the hearing bundle are reports from each parent’s therapist.
The report from the father’s therapist is detailed and thorough. He reports that although the father is making some progress, ‘Outcomes involving deeper personal changes are sufficiently precontemplative that they are not presently on the therapeutic agenda’. In his oral evidence the father said ‘I have moved on’. I do not accept that he has.
The report from the mother’s therapist is much shorter and less informative. It is positive that the therapist is able to report that the mother has attended five hours of CBT and has requested monthly booster sessions. However, there is no evidence of significant change. The therapist says that the mother,
‘is cognisant on the influential effect that her behaviours exert on her son’s emotional and intellectual development. Mother is actively being mindful of these models in her daily interactions with her son and ex-husband’.
‘Cognisant’ and ‘mindful’ though the mother may be, the evidence does not suggest that this is having any real impact on her interactions with N and his father. Indeed, it could be said against her that she is all too ‘cognisant’ and ‘mindful’ of the impact of her immersion of N into her religious beliefs
The father
The father has been criticised for being obsessed about the mother’s religion. As I have noted, there are some issues in respect of which criticism of the father is fully justified. I am not persuaded that this is one of them. The father is concerned that at the tender age of 7, N declares himself to be a Jehovah’s Witness. He considers it to be detrimental to N at his age. He is concerned that the mother’s religion has alienated N from him. The professional evidence before me gives some support for the father’s concerns.
The father’s solution is that N should live with him and should have contact with his mother once every four to six weeks. Whilst that would go some way towards addressing the father’s concerns about N’s immersion in his mother’s religion, it is unlikely to help to preserve a meaningful relationship between N and his mother given the continuing parental animosity. The father blames the mother for the conflict in their relationship. He said that he is giving N a positive picture of his mother ‘as best I can’. He accepts that he has ‘subconsciously’ presented the mother to N in a negative way. I do not accept that his use of the word ‘subconsciously’ is appropriate. He said that he believes he cares for N well. I accept that he is able to meet N’s physical needs. It is clear from the evidence that he does not meet N’s emotional needs.
The mother
Notwithstanding the evidence of Mr Livock, the mother said that she does not believe that N is suffering harm. She does not share the concerns of Mr Livock and the guardian with respect to N’s presentation.
The mother agrees that she shares her faith with N. N is very interested in learning about God and that she shares her faith with him if he shows an interest. He asks a lot of questions. ‘I don’t shy away from him’, she said. She believes that N wants to follow her religious beliefs. She said that ‘If something is in their heart, it is in their heart’. She denied taking N on house to house ministry though she accepts that N is aware that she does that herself. Mr Livock’s evidence strongly suggests that the mother is being untruthful on this issue.
Whereas the father concedes that he has not always presented the mother to N in a positive light, the mother told me that she always presents the father in a positive light. However, she appeared to accept that she has been less co-operative than she should have been. She said that she is going to try to be more co-operative. She went on to say that she feels uncomfortable in the father’s company. She appeared to consider it inevitable that there will continue to be tension between them.
The mother said that she has never regarded my original order as being fair. ‘My legal team accepted it’, she said. She tells me that as he gets older N himself does not think the present arrangements represent a fair division of time between his parents. She does not agree with the father’s proposal that her contact with N should be reduced to once every four to six weeks. In his closing submissions on behalf of the mother, Mr Alun Jenkins proposed that there should be ‘a continuation of shared care, a family assistance order, continued CBT, play therapy to commence, and for there to be a Section 91(14) direction to stop further conflict in Court…’
The local authority
The local authority has been represented at this hearing. The social worker allocated to undertake the s.37 investigation has also been present for part of the hearing and has given evidence. She has already met with N twice, once at school and once at the father’s home. Although she has been provided with some of the case papers her opportunity to consider them had been extremely limited. At this early stage her views are provisional.
On the basis of her limited investigations the social worker said that this is not a case which she would normally have raised with her manager with a view to taking protective measures. The local authority is not advocating removal. At this early stage the local authority is unable to form an assessment of risk. Nonetheless, if the court makes an interim care order on the basis that N should be placed in foster care, the local authority will co-operate. A foster placement has been identified. The foster carers have a child of their own. He is slightly older than N. In this placement N would be able to continue at his present school. If N is placed in foster care the local authority proposes that each parent has supervised contact with him once a week, after school.
In her meetings with N the social worker had used open questions and had taken care not to prompt him. She had established that he understands the difference between truth and lies. He had told her that life is a bit confusing because his parents ‘believe in different stuff’. He talked about being happy in both homes. When with his father he doesn’t like play fighting. He also said that the food isn’t so good as at his mother’s house.
The social worker reports that it was quite someway into her conversation with N when he spontaneously raised the issue of religion. He told her that he is a Jehovah’s Witness by choice. His mother had told him that being a Jehovah’s Witness is a real religion. He had looked it up on the internet. The conversation then moved on to other matters, though N later returned to this issue of religion. He talked about his paternal grandparents, saying that they think they are safe because they go to Church but the Church was ‘set up by Satan’ and was ‘Satan’s trick’. He linked that to his worries about his father who is not a Jehovah’s Witness and would not go to Paradise.
As for the future, N’s first preference is that his parents should get back together. His second preference would be to stay with his mother and see his father two or three times a week. He said he would not choose to live with his father because he is mean and has rules. He looks nice but is actually horrible. The reference to his father being ‘horrible’ was linked to the play fighting. N also made the point that his father is an ‘Army man’ and that isn’t good because Jehovah’s Witnesses don’t like guns.
The Children’s Guardian
The guardian has prepared three reports. Her final report, dated 7th November, recommended that the court should make a direction under s.37, that the parents should continue to undergo CBT, that they should support N’s need to undergo play therapy and that the court should consider making an order under s.97(14) prohibiting the parents from making further applications without obtaining the prior permission of the court. Having heard the oral evidence, the guardian changed her position. She now supports the making of an interim care order on the basis that N should immediately be placed in foster care.
N recently moved up from Infants School to Junior School. Whilst it is to be expected that some time was likely to be required for him to settle in his new school, the guardian reports that there are now ‘some marked differences in how he is now described by staff’. She goes on to say that on 5th November the head teacher and learning mentor both reported that,
‘in class and at breaktime, N presents as withdrawn, quiet and does not socialise with others much. He engages well in paired work but does not interact as well in the playground. When he goes to the nurture room, he rarely plays with others and will hide himself away.’
The head teacher had described N as ‘blending in – you wouldn’t know he was there’. Given that N had previously presented as a sociable, happy, confident little boy, this recent change in presentation causes the guardian concern.
The guardian continues to be concerned about the impact of mother’s religion on N. In her final report she says that in her opinion, the mother
‘has heavily influenced N with her beliefs. This has led to N feeling isolated from his peers and is making it very difficult for N to be able to enjoy time with his father and family…Mother presents as having a very casual view as to whether N wants to believe in JW, however, I believe her manner is highly manipulative and her engagement in the therapy very superficial.’
The guardian says that when she saw N at school he launched into a sermon and continued uninterrupted for around five minutes. She has been a social worker since 1996 and a children’s guardian since 2004 and has never before encountered such behaviour. She said that N was so animated that he was communicating with his whole body.
The guardian has some equally significant concerns about the father. Her assessment of him is that he hasn’t recognised the damage that he himself is causing N. By way of illustration, she said that the father is fixated on knowing about what N has to eat. This is an issue he raises in the communications book. She described it as ‘shocking’ that the father should seek to control what N eats. The father is also intolerant about the fact that N is a slow eater. He feels that it is rude if you don’t eat everything that is on the plate in front of you. He therefore makes N sit at the table until he has cleared his plate. She says she gets the impression that nothing N does will be good enough for his father.
The guardian raised another concern. The father now lives with Ms V. They have a daughter together, J. Ms V also has a daughter from a previous relationship, R. R is the same age as N. Since the father has been living with Ms V, R and N have both been led to believe that Father is her father. In her first report in April the guardian said that she had made it plain to the father and Ms V that R and N needed to be told the truth about R’s paternity, yet still she has not been told. In her final report, the guardian says that,
It is concerning if Father and Ms V have still not felt it appropriate to inform R of her paternity. I have concerns for the emotional well being of N, who is party to a ‘secret’, one which is likely to cause considerable friction between the children if this is disclosed. It concerns me that they have chosen to ignore advice and it may well indicate their inability to accept and act upon advice.’
The guardian is in no doubt that N is suffering emotional harm. She believes that unless N is now removed and placed in foster care he will continue to be exposed to this flawed model of parenting. Both parents are able to see the other’s faults but not their own. If nothing is done the damage will continue and will get worse. Because there are real concerns about the parenting of both of these parents, placing N in the primary care of one of them is not the answer. He needs time and space away from both of his parents.
It is for these reasons that the guardian now supports the making of an interim care order. N needs some protection and a safe space. She acknowledged that separation from his parents will be painful and upsetting. However, it is in his best interests that he should now be removed. Echoing Mr Livock, the guardian asked rhetorically, ‘If not now then when?’.
The law
The approach the court must take in determining the appropriate outcome in this case is to be found in s.1 of the Children Act 1989. Section 1(1) provides that when determining any question relating to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in the child’s best welfare interests I must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(2) sets out the general principle that any delay in determining the question is likely to be prejudicial to the child’s welfare. Section 1(5) provides that the court should not make any order with respect to a child unless satisfied that making an order would be better for the child than not making an order. In other words, the order made by the court must be proportionate.
I noted earlier that at the pre-hearing review I made an order under s.37 of the Children Act directing Warwickshire County Council to undertake an investigation of N’s circumstances. I had also made it clear to the parties that at this hearing I would consider whether it is appropriate for the court to make an interim care order. The power to make an interim care order is to be found in s.38 which provides that,
‘(1) Where –
in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or
the court gives a direction under s.37(1)
The court may make an interim care order or an interim supervision order with respect to the child concerned.’
In my judgment the approach to making an interim care order should be the same whether the order is being made within care proceedings brought under s.31 or upon making a direction under s.37. Before making an interim care order which will lead to the child’s immediate removal from her parents’ care, the court must first be satisfied that the child’s safety requires interim protection – Re L-A [2009] EWCA Civ 822. In this context, ‘safety’ should be interpreted in a broad sense to include not merely physical safety but also psychological safety - Re B (A Child)[2009] EWCA Civ 1254 at §56. Removal must be a proportionate response to the risk of harm.
In my earlier judgment in this case (Re N (A Child: Religion: Jehovah’s Witnesses) [2012] 2 FLR 917) at §64 to §70 I reviewed the relevant authorities relating to the approach to the determination of a dispute concerning the religious upbringing of a child. In the light of that review, at §84 I set out the principles which should be applied:
Parental responsibility is joint and equal. Neither parent has a predominant right to choose a child’s religious upbringing.
Where parents follow different religions and those religions are both socially acceptable the child should have the opportunity to learn about and experience both religions.
A parent’s right to enable her child to learn about and experience his or her religion is not an unconfined right. Where the practice of that religion involves a lifestyle which conflicts with the lifestyle of the other parent and the court is satisfied that that conflict has had or may in the future have an impact on the child’s welfare the court is entitled to restrict the child’s involvement in those practices.
Restrictions imposed for welfare reasons do not necessarily amount to a breach of that parent’s right to follow the beliefs and practices of his or her religion provided that any restriction imposed is justified by the findings made by the court and proportionate.
In determining such an issue, as in the determination of any other question relating to the upbringing of the child, the child’s welfare is the court’s paramount consideration.’
Those principles continue to apply in this case.
Since my earlier judgment in this case the Court of Appeal has given judgment in Re G (Children) [2012] EWCA Civ 1233. In that case Munby LJ (as he then was) underlined the limits of judicial decision-making with respect to matters of religion. He said that,
The important point for present purposes is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: see, for example, Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46, [58], where the court said that:
"The State's duty of neutrality and impartiality … is incompatible with any power on the State's part to assess the legitimacy of religious beliefs."
Within limits the law – our family law – will tolerate things which society as a whole may find undesirable. A child's best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children.’
However, he went on to make the point that there are circumstances in which the court does have the power to regulate religious practice. He said that,
Some manifestations of religious practice may be regulated if contrary to a child's welfare. Although a parent's views and wishes as to the child's religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child's best interests. In matters of religion, as in all other aspects of a child's upbringing, the interests of the child are the paramount consideration.’
The following more general observations are also pertinent in the context of the case with which I am concerned. He said,
At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a 'judicial reasonable parent' and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable.
In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future.’
Discussion
As in the earlier hearing, the mother’s religion – her beliefs and her practice of those beliefs – have formed a significant part of this hearing. I have noted the point made by Munby LJ in Re G (Children) that it is not for the State to determine the validity of religious beliefs. I make it clear at the outset that in the analysis which follows my concerns are not about the validity of the beliefs of Jehovah’s Witnesses. My concern is about the impact of the mother’s practice of her beliefs on N’s welfare.
It is also appropriate to acknowledge at the beginning of this discussion that the evidence from Mr Livock was clear. The key issue in this case is the dissonance in the parents’ relationship with each other.
I propose to begin my evaluation of the evidence by undertaking a welfare checklist analysis in accordance with the provisions of s.1(3) of the Children Act 1989.
Section 1(3)(a) requires the court to consider N’s ascertainable wishes and feelings (considered in the light of his age and understanding).
N is now 7 years old. He is an intelligent and articulate 7 year old. He has made it clear to the guardian and to the social worker that his primary wish is that his parents should get back together. His secondary wish is to be able to stay with his mother and see his father two or three times a week.
It is appropriate to make it clear that I have heard N’s wishes. However, I am required to consider them ‘in the light of his age and understanding’. I am concerned about the influence the mother has had on N. This begins with, though does not end with, her immersion of N in her religious beliefs and practices. The guardian has described her as ‘manipulative’. I agree with that assessment. Mr Livock expressed concern that N is becoming increasingly alienated from his father. I accept that assessment, too. I am confident that the mother has manipulated N to such an extent that I cannot be confident that the wishes and feelings he expresses are authentically his own.
Section 1(3)(b) requires the court to consider N’s physical, emotional and educational needs.
N’s physical and educational needs are the same as for any other child of his age. However, although the mother appeared to be either unable or unwilling to accept it, it is clear that the impact of the ongoing dispute between his parents has led to N having emotional needs that are greater and more challenging than most children of his age. It is Mr Livock’s opinion, shared by the guardian, that as a result of the impact on him of the ongoing dispute between his parents, he now needs to undergo play therapy.
Section 1(3)(c) requires the court to consider the likely effect on N of any change in his circumstances.
This is an important issue. One thing is clear from the professional evidence before me, and that is that something needs to change and it needs to change now. The father proposes that he should become N’s primary carer and that the mother should be limited to contact once every four to six weeks. N himself has expressed the opinion (which may well have come from the mother) that she should become his primary carer and that he should have contact with his father two or three times per week. Given the concerns about both of these parents, either of those outcomes would be likely to keep N in the eye of the storm. He would continue to suffer harm and would continue to be damaged by it.
The other alternative is that he is removed into foster care. That would take him out of the field of conflict but his removal from, and the significant reduction in his contact with, both parents would be painful and distressing. The parents both say that it would also be likely to be damaging. One thing that is clear is that that option is not risk-free.
Section 1(3)(d) requires the court to consider N’s age, sex, background and any characteristics of his which the court considers relevant.
I need say nothing more about N’s age and sex. His background is important. He is the son of a mother who is a Jehovah’s Witness and a father who is nominally an Anglican. Since his parents separated his background has been that he has shared his time equally between two parents who love him but who are hostile to each other and in which conflict about his immersion in his mother’s religious beliefs and practices has become the focus of that hostility.
Section 1(3)(e) requires the court to consider any harm which N has suffered or is at risk of suffering.
It was Mr Livock’s evidence, shared by the guardian, that over the course of the years since his parents separated N has suffered emotional harm. His father appeared unwilling to face up to that. The mother was clear that she does not accept it. I am in no doubt that N has suffered emotional harm both as a result of the ongoing hostility between his parents and because of the way the mother has immersed him in her religious beliefs and practices. I also accept the evidence of Mr Livock, again supported by the guardian, that for so long as the present arrangements continue N will continue to suffer harm and the greater that harm will be.
Section 1(3)(f) requires the court to consider how capable each of N’s parents is of meeting his needs.
It is clear from the totality of the evidence and the findings I have made thus far that neither of these parents can be relied upon to meet N’s emotional needs. The father has little insight into the harm which has been caused to N as a result of the ongoing parental hostility and little insight into the role he has played in causing that harm. As for the mother, it is her right to choose her religion and to pursue it in whatever way she considers appropriate. However, knowing that the father does not share her religious beliefs and practices, an insightful parent would recognise the potential for harm to her child by immersing him in those beliefs and practices. In this case the problem goes beyond lack of insight. I have found the mother to be manipulative. I am satisfied that by her indoctrination of N and by immersing him in her religious beliefs and practices she has intended gradually to alienate N from his father.
In my judgment neither of these parents is presently capable of meeting N’s emotional needs.
Section 1(3)(g) requires me to consider the range of powers available to the court under the Children Act in these proceedings.
I accept the evidence that things need to change for N and that they need to change now. I accept that delaying appropriate change will add to the harm N has already suffered. Save to encourage the parents to continue to engage with CBT there are no options open to me to try to assist the parents to overcome their hostility towards each other. Neither is there anything I can do to help them to develop insight into the harm they have caused to N by their continuing hostility. For those reasons, I do not accept Mr Jenkins’s submission that the shared care arrangement should continue. These parents are, at present, simply incapable of making that arrangement work.
Those same reasons effectively preclude the option of making one of these parents N’s primary carer. I do not trust either of them. If I were to place N with his father I cannot be satisfied that he will show unconditional positive regard in the way he presents the mother to N. It is more likely that he would undermine that relationship. As for the mother, by her behaviour she has made it perfectly clear that adherence to what she believes the practice of her religion requires is a matter of considerably greater importance than fostering a good relationship between N and his father. On the basis of the principles I identified in my earlier judgment (set out at §63 above) and the subsequent guidance in Re G (Children) I am satisfied that I have the power to regulate the mother’s exposure of N to her religious practice and beliefs. However, I am not satisfied that such restrictions would be capable of being policed. Enforcement would be difficult. There is a risk that such restrictions would amount to little more than judicial posturing.
For all of these reasons I am not satisfied that it would be in N’s best welfare interests to make either of his parents his primary carer. What, then, should the court do?
Both parents submit that an interim care order should not be made. For the mother, Mr Jenkins submits that what he refers to as the ‘immediacy test’ is not satisfied. For the father, Miss Rodgers does not say that the test for making an interim care order is not met but rather I infer that her position is that such an order would be disproportionate when the father is ready, willing and able to take over full-time care.
In this case there is the clearest possible evidence that action needs to be taken now and that in the absence of robust action now N will continue to suffer harm and that the impact of that harm is likely to increase. I am satisfied that N is in need of protection. It is clear that the need for interim protection can arise in respect of a child’s emotional safety as well as his physical safety. That is the case so far as N is concerned. The only remaining question is whether interim removal would be a proportionate response to N’s need for protection. I am satisfied that it is. I shall make an interim care order.
That, of course, is only an interim measure. It creates a breathing space for N and a window of opportunity for the professionals to consider next steps. It is to those next steps that I now turn.