F v M

I am again concerned in this case with the future arrangements for two children, X, who was born in 2009, and Y, who was born in 2011. In June 2021, I made an order for X and Y to live with their father. I made a finding that the mother had alienated the children. I made that finding for the reasons that are set out in the judgment that all parties have seen

There were three key limbs to my finding. First of all, I took into account the evidence of a jointly instructed expert. Secondly, I took into account the analysis of the guardian. She had used the Cafcass alienation toolkit and in her evidence, she referred to specific elements of conversation she had had, things the children had said to her and she gave her evidence to the court. Thirdly, I based my decision on evidence that was given primarily by the mother in her oral evidence in court and I came to the conclusion, taking all those three limbs – any one of them might have been sufficient, but taking the three together, I concluded that there had been alienation.

At the time, in June 2021, I was asked to make an order that the children should have a period of time when they did not have contact with their mother, to enable them to settle into the care of their father. I provided for contact on a very limited basis during the school summer holidays of 2021, and I provided a plan for contact moving on once the school term began in September. That was going to start in a stepped way so that in due course the children would be able to spend half of each of their holidays with each of their parents and two weekends a month.

The case next came back to court in October 2021, because there were concerns that the children were being disrupted in the care of the father by things that were happening, or things that were being said to them, either by their mother or by the mother’s family, so I made a second order in November 2021 about contact. Again, I was urged to stop all contact for a period of time to enable the children to engage in therapy and to have a period of peace and calm and tranquillity, away from the stresses of contact.

I provided for some contact to take place between the hearing in November and today because I came to the conclusion that these children needed to spend some time with their mother, and I listed this case for hearing today to see whether or not we were now in a position to get into the situation that I had hoped we would be in when I made the order in June 2021. It was particularly important that the case was heard this week, because the mother was, and is, planning to take the children to France on a skiing holiday starting on 11 February.

I have today had the benefit of hearing Mr Hale QC, representing the father. He has represented him throughout these proceedings. The mother has now instructed Professor Delahunty QC to represent her today, and I have not only heard from both of them but I have read their position statements or case summaries and notes for today. I have also had the benefit of hearing from Miss Allwood who is the counsel representing the children today, through their guardian.

The position of the children today is that they are doing exceptionally well at their new schools. I have had the benefit of reading the school reports. It is clear that, in school, the children are thriving. They have made friends; they are engaging in all sorts of activities in school, out of school. They are doing sports; they are taking part in school plays. They are very engaging and engaged members of their school communities. That is a great credit to the children who have managed to survive the stresses and strains of the litigation, to thrive in the way that they have at school.

They have, since we were at court in November 2021, had three contact sessions with their mother. Those seem to have been successful. I have no doubt the children were upset at leaving their mother at the end, but I am not told that there were any dramas or traumas at the conclusion of any of those visits. They have also been able to speak to their mother each Wednesday. They speak to her for up to an hour at a time. Those seem to have been successful as well. So the contact that I provided for has, as I say, been successful.

What has not been successful is the ongoing therapy that was anticipated. This family has been in therapy, one way or another, for years, long before this court case began and long before the parties came to court before me for the first time. They, between them, have identified therapists that they thought would be useful. They had an independent social worker who worked with them for some years. She identified a family therapist who could work with them. Work was done with the children and with the parents, for years.

In my main judgment, in June 2021, I made the comment that I thought that the jointly instructed therapist had perhaps more hope than I did for the success of therapy, she perhaps had too great an expectation of the success of therapy when I took the view that they had been in therapy for a very long time and actually none of the family had moved on as far as they might have done. Nevertheless, I was satisfied that they seemed to think that therapy was going to continue to be helpful to the children to enable them to adjust to their new circumstances.

The mother had engaged her own therapist and she was working with her. The father had done some video guidance work. There was a family therapist and there was an individual therapist who was going to work with each of the children. That therapy has continued, off and on, since June 2021.

X has become more and more reluctant to engage in the therapy and it is abundantly clear she does not want to do it. There may be all sorts of reasons why she does not want to do it and I am not, today, so concerned about what her reasons are, but she does not want to engage in therapy any more. That may be a pity, because it might help her, but it is clear to me, and I said in the November hearing, that you cannot make somebody engage in therapy if they do not want to engage. It cannot be forced on anybody.

Y thinks it is all rather boring. She does not mind the family therapy when everybody joins in, but she just thinks it is all a bit boring and she would like to just get on and be a 10-year-old child.

At the last hearing, in November 2021, the mother was identifying different therapists that she wanted to instruct, or experts that she wanted to instruct. I refused that application. I was sure that it was not going to be in anybody’s interests to introduce yet more people to work with this family.

The therapists have said that they do not think their work will be successful if the children continue to see their mother, and they expressed that view in a meeting with social services. Social services seem to have taken the view that if therapy was taking place, then there was no real role for them and the Child in Need plan that they had sketched out was not needed.

Since last month, it seems that X has not been prepared to talk to the therapist; Y is bored; I am not sure whether the mother is still having some therapy on her own, and father is willing to engage in family therapy, but you cannot do family therapy all by yourself.

The therapy and the contact issue are intertwined. The questions I have to determine today are should I suspend contact to make everybody go to therapy or should I stop the therapy and renew the contact order I made in June 2021?

I have heard submissions that have ranged rather further and wider than these specific issues. I know that on behalf of the mother she remains convinced that I was wrong in my decision in the summer. She is convinced that the jointly instructed expert was the wrong expert to instruct, and that she has approached this case in a biased way, and that she has selected and chosen therapists who are equally biased. I do not need to go down the route of considering any of those matters when I look at the specific issue I have to determine today; should I suspend contact so therapy can take place or should I allow the contact to go back to where it was supposed to be in June 2021?

The guardian has changed her view, or is reflecting on her view. In November, the guardian was clear that the contact that had been provided in the order in June should not be reinstated, but she was equally clear that it was not appropriate to stop all contact. She was looking at a middle course to enable the children to continue to develop a safer relationship with their mother. I have used the word “safer”; she did not use the word “safer”. Today she is wondering, now, whether she put too much emphasis, or was too influenced by the evidence she heard from the jointly instructed expert.

That is not the basis on which I made my findings. I did not make my findings in June simply because the guardian said she agreed with the jointly instructed expert but on the basis of the guardian’s own independent analysis and assessment, but of course it is right that the guardian should continue to reflect, as everybody should, on the case as it develops. Today the guardian says that the therapy should stop and that the children should have contact with their mother.

I start with the therapy: I cannot make an order for anybody to go to see a therapist. If I made an order that so-and-so had to see this therapist or that therapist, it would be unenforceable, apart from making them turn up for an appointment and sitting in silence in the corner of the room. It is not what therapy is about.

I have come to the conclusion that, for these children, the therapy has really reached the end of the line at the moment. It has done some good, particularly for Y, and particularly for the father because they have both engaged in it. So far as X is concerned, there were glimmers that it was starting to help her but she is no longer willing to engage and for that reason I have come to the conclusion that this therapy has reached the end of the line.

These children will still need somebody outside their family to turn to for help, guidance and support from time to time. It may be that the school pastoral services, the school counselling services, can provide some of that assistance. It may be that the County Council, who will be given a copy of this order, need to think again about any support they can give to these two children, but the therapy that the family embarked on a long time ago, and then they have been engaging in for at least the last year, is no longer productive. I am not in any way suggesting it should not have been started, I am not saying it should not have been tried, I am not saying these are the wrong therapists. I am not saying they are all in some sort of biased financial hub with a plan in their mind as to how to move forward. I make none of those findings at all, but simply on a practical and pragmatic basis the time has come for this therapy to come to an end.

I then turn to the issue of contact and remind myself of the legal provisions that apply when I am asked to make any orders in relation to the welfare of children, and the welfare checklist factors that are set out in the 1989 Children Act, the factors I bear in mind, and section 1(2)(a) of the Children Act which is, in round terms, that in most cases it is important that children are able to grow up having a good relationship with each of their parents. That has to be the aim of court cases such as this.

When I look at the welfare checklist factors and the issue of contact that I am asked to decide, I have to look at the wishes and feelings of each of these children, given their age and understanding. I had already said in my June decision that the wishes and feelings of these children have to be tempered by what had happened in their lives thus far and by the approach their mother had taken to the family disputes.

These children love both of their parents. Y, on a number of occasions, has said she wished that it was possible for them to love both their parents and for their parents to get on. It was X who said that they spoke as if there was “a blank brick wall between them”. The children love their father and they love their mother, and if only their mother and father could acknowledge that it is important for the children to have that love of both parents acknowledged, life would be much easier for these children. They do not have to choose.

The children would say they miss their mother and they want to spend time with her, and I take that into account. X says she would like to speak to me. I am sure arrangements could be made, once I have made the decision in this case, to have a meeting with X and Y, if they want to. I have written letters to them in the past. I think the second letter was probably more successful than the first, but if they would rather speak to me, rather than me write to them, I am more than happy to see them.

The next factor I have to take into account is their physical, educational and emotional needs. Their father is meeting all of their physical needs. All of their educational needs are being met. Emotionally, their needs cannot fully be met until both parents acknowledge that the children can, and do, love the other parent, and can, do, and should be able to spend time with the other parent without that other parent undermining the relationship they have with the other one. That remains a work in progress. The therapy may have moved it a little bit, but probably not very far, and I am satisfied therapy will not move that any further.

I then have to consider the impact of change on these children. They have undergone huge changes and they have settled remarkably well. They do need to spend time with their mother. A longer period of time with no contact to their mother will not be productive, it will not strengthen their relationship with their father or weaken their fondness of the mother. The danger is it will make the children more angry and less able to understand what is happening to them.

I then have to consider their age, sex and special characteristics. They are still very young. X is in secondary school and is doing really well. Y will be moving to secondary school in September. The parents have now both agreed that she can take up a place at the chosen school and all credit to her because I think it is a place that she has been offered without even having to do an entrance exam, and that is great, so she knows where she will be going next and that is going to be helpful for her.

The harm that they have suffered, I considered when I gave my judgment in June of last year and I do not need to repeat it. The capability of the parents of meeting the children’s needs, I also considered in June. The father has demonstrated that he is able to meet the children’s needs every day, and that he has shown some sensitivity towards the children being upset when they came back from seeing their mother, and that is to his credit. The mother has struggled to accept the findings I have made but it seems at the last few contacts she was able to contain her own emotions, and the telephone calls appear to have been appropriate and not distressing to the children. It may be that she is moving in her view as well, although that does not necessarily come over from the documents that are filed in the court proceedings.

I then have to look at the range of options that are available to the court. The immediate issue is should the children go skiing next week. I am told that there are no Covid problems, I think everybody that has needed to be vaccinated has been vaccinated, that they will all have to do the PCR tests or the lateral flow tests, or whatever else they have to do, so there are no Covid rules and restrictions on them going. I have no doubt they will thoroughly enjoy a week of intense physical activity on the ski slopes. They are both outdoor, sporty, active children and it may be that it enables them to feel “ordinary”, which is what they both want to do. They can have a good week’s skiing and come back to their father at the end.

I have decided it is in their interests to go skiing. I will allow that to happen. The father agreed in September. Assuming as he did then, that everything was going smoothly, he agreed the details and the timing of the skiing holiday.

For the sake of belts and braces, this order can record that the children are habitually resident in the United Kingdom. For the sake of belts and braces, if it is needed, it can record that the mother confirms that the children will be returned to the United Kingdom at the conclusion of the holiday, and they will be returned to the care of the father. I do not know that it is needed or necessary to say it but it would just be making sure that there was no prospect of any hiccups.

The father will provide the passports so that the children can go on the holiday. I am assuming that Y’s passport has been updated, because it had run out a couple of months ago. They will go, they will come back and they will go back to their father and they will go back to school as they are now. When they go back to school, they will be able to talk to their friends about what a good holiday they have had.

The next school holiday is Easter. I had provided for the children to spend half of their holidays with each of their parents and I had provided for the first half of the Easter holidays in 2022 to be spent with the mother and the second half to be spent with the father. Again, I am satisfied that the Easter holidays should take place as I have provided, so they will go and ---

Between coming back from skiing and the Easter holiday, we have a month, and I am satisfied that the children should spend one weekend in the month of March in their mother’s home. That, I think, will be the first time they have spent a weekend there for some long time, so they will have one weekend in their mother’s home, in March.

From after Easter, the pattern that I set out in June will be in force. In other words, it will be two weekends a month in their mother’s home. I had provided for sharing the travel, the order I made in June will take effect unless the parties agree some alternative arrangement, but that would be after Easter, so between February and Easter there will be one weekend in their mother’s home.

I have said one weekend to start with because it will be upsetting for the children to go back to their mother’s home and to see their old bedrooms and the dog and their friends. I do not want them to be upset too many times, but after the Easter holidays they will be in the routine of going to their mother’s two weekends a month. I am satisfied that that pattern is the best arrangement that can be made to meet the needs of these children now and in the future.

If the schools think the children would benefit from some special counselling or individual therapy, then the father and the mother will have to communicate about that and have to make arrangements for that to happen. The County Council social services need to see this judgment and it would be of help to the children if the Early Help worker, the family support worker, whoever it was going to be, could have some initial meetings with the children, so the children know what to do or who to contact if they feel they need to have a heart to heart with somebody away from their mother and away from their father.

It is unfortunate that the mother’s extended family, no doubt for the best of motives, got too wrapped up and too involved in the issues last autumn, and that has not been helpful. I am pleased that it has not been repeated, but the mother has to take responsibility for ensuring that her family do not, by trying to be over-engaged, make matters worse as they appeared to have done last autumn.

I have not raised this with counsel and I have not asked for submissions on it, but this case is heading towards a situation where I would be thinking of whether a section 91(14) order might be appropriate to stop further applications being made to the court to try and change or revisit these arrangements. I have not raised it and I have not heard submissions, and it would not be fair for me to make such an order today, and it would not be fair for me to ask either mother’s counsel or father’s counsel or guardian’s counsel to address me on it when they have not had an opportunity to think about it. I raise it because the parents must know that I take the view that this litigation needs to end. If anybody does make any further application to the court I would expect consideration to be given to a section 91(14) order being made at the conclusion of any future application. These children need to stop having this case litigated and they need to be able to just get on with their lives as they are now. That then is my order.