CDM v CM & Ors

In this case, at the suggestion of the bar, I am taking a very unusual course. What follows is not one judgment, but two.

The case concerns two children, and was what has become known as an intractable contact dispute. In this instance, the residential parent had persuaded the children (quite falsely) not only that the non-residential parent had both physically and sexually abused them, but also that the non-resident parent’s own parents, with whom the children had previously enjoyed a perfectly normal relationship, were also physical abusers and a threat to the children. The result was a cessation of all contact between the children, the non-residential parent, and the children’s wider family on that side.

The solution I adopted in this case was an order under section 37 of the Children Act 1989 addressed to the local authority inviting it to consider taking care proceedings to enable an assessment of the children’s relationships with their parents to take place under the aegis of an interim care order. I had come to the clear conclusion that the children were suffering significant harm in the residential parent’s care. It had, furthermore, become clear that an assessment of the kind needed could only take place if the children were not in their own home

The local authority, as a result of its section 37 investigation, agreed with my analysis that the children were suffering significant harm in their residential parent’s care, and began care proceedings. As it was impossible to conduct an assessment of the children at home, they were removed under an interim care order.

Within a very short space of time, and freed from the need to accommodate the residential parent’s false belief system, the children rapidly resumed their relationship with the non-residential parent, in whose favour I later made a residence order. Their relationship with their former residential parent, however, remained problematic, as the second judgment shows.

I have decided to publish my two principal judgments in this case in order to demonstrate one method of addressing an intractable contact dispute. I am immediately conscious, of course, that the case turns on its particular facts, although the phenomenon it represents is by no means uncommon. This was the second time I had used the section 37 procedure to remove children who were being denied all contact with their non-residential parent, and were suffering significant harm because of the residential parent’s false and distorted belief system about the non-residential parent, which the children had imbibed.

I am also conscious of the fact that there is a tendency in Family Law to see an outcome such as this as a panacea - a one size fits all solution. I emphasise that this is not the case, indeed, this judgment comes with a series of strong health warnings.

Firstly, of course, section 37, which I set out at paragraph 121 of this judgment, can only be used if the facts of the case meet its criteria. It must appear to the court that “it may be appropriate for a care or supervision order to be made” with respect to the children in question. In other words, at the very lowest, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the children meet the threshold criteria under section 31(2) - that is to say that the children are suffering or are likely to suffer significant harm. Section 37 is, accordingly, a well focused tool, to be used only when the case fits its criteria.

It is sometimes forgotten that the court has the power to make an interim care order when it gives a direction under section 37 (see Children Act 1989 section 38(1)(b)). The definition of “specified proceedings” (ibid s. 41(6)(b)) includes private law proceedings for contact or residence orders in which the court has given a direction under section 37(1) and has made or is considering whether to make an interim care order). In these circumstances a children’s guardian must be appointed under section 41(1) unless the court is satisfied that it is not necessary to do so in order to safeguard the children’s interests.

In the instant case, the children were already represented by CAFCASS Legal when I made the section 37 direction. Had they not been, I am in no doubt that I would have appointed a guardian to represent them.

Although this case is but an example, it does seem to me that it is possible to extract some general considerations of wider application from it. I put these forward tentatively, as each case is different, and what fits one may not fit another. Some points are self-evident, but need stating nonetheless. I will state them in short form and then expand on them where necessary

In the instant case, the residential parent asserted that the children had been sexually and physically abused by the non-residential and the latter’s parents. This was not true. I was, however, only able to proceed on the basis that it was not true because there had been clear and compelling findings by an experienced circuit judge, and I was able to confirm those findings by the evidence I heard. It is, in my judgment, very important that the local authority should know the court’s findings, and prepare its report on t he basis of those findings. In an intractable contact dispute, where the residential parent is putting forward an allegedly factual basis for contact not taking place, there is no substitute, in my judgment, for findings by the court as to whether or not there is any substance to the allegations.

In my judgment it is vital for the local authority to know the judge’s thinking in making the order. Even if such an order is made urgently, a note of the reasons for it should, in my judgment, be prepared and made available to the local authority. Apart from anything else, clear reasons for the order save a great deal of time, and enable the local authority to focus on the salient points. In the instant case, I reserved judgment and shortly afterwards handed down the first of the two judgments set out below in a form designed to be read by both the parties and the local authority. In its original form, the first judgment was cross-referenced to the court bundles which were also disclosed to the local authority. Such a course may not be practical in other cases, particularly where the report is urgently required. However, it is not enough in my judgment for the local authority simply to be told the judge has ordered a section 37 report. The local authority needs to know why the judge has done so.

It is prosaic thought, but when making a section 37 order the court should be clear about how the order is going to be communicated to the local authority and by whom. There is nothing more likely to cause delay than the absence of a speedy mechanism for conveying the order to the local authority. I have on at least one occasion written short reasons, told the bar what they were, and then sent them by facsimile to an identified officer of the local authority.

It is my view that one of the prime categories for the tandem model of separate representation in private law proceedings is where all contact has ceased and the issue of contact has become intractable. Children in this situation frequently have an interest in the proceedings and in the outcome which is independent from the viewpoint being advanced by each of their parents.

As I have stated in paragraph 10, in the instant case the children were already represented by the time the case reached me. Generally, however, if an intractable contact dispute has reached the stage where it is ripe for a section 37 report, then in my judgment it is at a stage where separate representation is necessary. If the report recommends care proceedings, the guardian already in place can act as guardian in those proceedings. If it does not, the court is going to have to try an alternative approach. This is an area where the independent tandem model, in my experience, has proved extremely helpful in providing advice and, where necessary, obtaining expert evidence.

In the instant case, as the first judgment shows, a complication was that removal was supported by the children’s guardian and opposed by the psychiatrist she had instructed to advise on the children's behalf. It is, however, of material assistance to a court if there has been an investigation by an expert who has come to the view that the children are suffering significant harm and that local authority intervention is necessary. This advice does not, however, in my judgment necessarily have to come from a psychiatrist or psychologist. A competent CAFCASS report by a Court Reporter should identify the problem.

Where a report is ordered, the date for its receipt and for the giving of further directions must be specified. If a guardian is required, and CAFCASS Legal cannot allocate a guardian immediately, a guardian from another source should be appointed. This can either be a specialist solicitor who can then instruct an independent social worker to undertake the guardian role, or an organisation such as the National Youth Advocacy Service (NYAS).

In this case, there was inexcusable delay between 8 February 2001 when the order inviting the Official Solicitor to represent the children was made, and 27 September 2001, when the children were joined as parties to the proceedings. The very fact of ordering a section 37 report involves an element of delay. It is very important that this should be minimised. This requires strict judicial control: hence one of the needs for judicial continuity.

The object of care proceedings following the section 37 report in this case was to relieve the children from the significant harm they were suffering with their residential parent, and to restore their relationship with their non-residential parent. In the longer term, the aim was to enable the children to retain a good relationship with both parents. That objective is defeated if, having regained their relationship with the non-residential parent they then lose it with the parent from whose care they have been removed.

In my judgment, therefore, it may well be desirable for the case to be kept under review – alternatively, as here, the court should satisfy itself that mechanisms were in place to address the issue of ongoing contact.

It has to be acknowledged that the section 37 process is heavy on resources and takes time. At the same time, the stakes for the children are very high. Decisions to remove children from the homes they know and in which they feel secure are difficult. The consequences can be traumatic.

As it happened, the residential parent in the instant case was the mother, and the non-residential parent was the father. I wish to make it as clear as I can, however, that this judgment is neither pro-father nor anti-mother. As with every case tried in the Family Division and by circuit and district judges and magistrates up and down the country day in and day out, it is my attempt to apply the welfare principle in section 1 of the Children Act 1989 to the facts of the particular case.

The two judgments which follow are anonymised. Otherwise, I have decided to leave them very largely unedited. It will be for others to decide if they warrant reporting in full. I leave them as they are to demonstrate the processes of thought which led me to the decisions I reached. Any summary I made would interfere with that objective.

This case concerns two children. They are L and D. L (a girl) was born on 11 May 1988 and is rising 14 at the date of this judgment. D (a boy) was born on 2 December 1991, and is 10.

The children’s parents were married and are now divorced. Their father, CDM (Mr. M) will be 42 on 18 July 2002. Their mother, CM (Mrs. M) will be 40 on 10 April 2002. The marriage took place on 14 June 1986. Its formal breakdown was marked by a divorce petition filed by Mrs. M on 22 March 1996. There appears to have been a decree absolute on 2 March 2001.

The children live with their mother in the former matrimonial home, which is a jointly owned property. Mr. M lives in a two-bedroomed flat, which he is purchasing on mortgage.

Mrs. M lives on State Benefits. I bear in mind throughout the difficulties involved in bringing up two children on very limited resources. Mr. M is employed, and contributes to the children’s support via the Child Support Agency. Despite the divorce, no application appears to have been made by either party for ancillary relief. In particular, the future ownership, occupation and ultimate disposal of the former matrimonial home does not appear to have been formally addressed.

The case has a long and dispiriting history of applications to the court, starting in 1996, which I will need to summarise later in this judgment. However, the stark issues with which I am faced can, I think, be identified by a series of simple propositions. I make it clear that these include my findings of fact, and so represent the factual basis upon which the case proceeds from henceforth. I will also try to set them out in simple language which Mrs. M will have no difficulty in understanding.

Mrs. M is not suffering from any recognizable psychiatric illness. There are anxieties about her behaviour, her health and her medical history (notably her continuing, excessive use of laxatives) which I have not investigated. There is a psychiatric report on her, written by Dr. S in May 1996, for the purposes of the proceedings, which appears to have relied on self-report and makes no reference to her medical records. It concludes that there was no evidence Mrs. M was suffering from or had suffered from mental illness.

Dr. W shied away from labelling Mrs. M as having a personality disorder, although he described her as having “long-standing difficulties of personality and social adjustment”. It was, I think, unfortunate that Dr. W interviewed Mrs. M before seeing her medical records, and was thus deprived of the opportunity to discuss them with her.

Having read the papers, listened to the evidence and seen Mrs. M in the witness box, my assessment of her is as follows: -

Like the Circuit Judge who dealt with this case when it was in the County Court, I found Mrs. M a wholly unsatisfactory witness. It is, however, only in the witness box, and under the firm discipline of cross-examination, that she can be forced to confront issues which in day to day life she can avoid, or on which she is not normally challenged. Thus, under cross-examination, she was forced to acknowledge that which she had initially denied, namely that the children were aware of her hostility to contact and her hatred of their father. Her only spontaneous truthful utterance was when she agreed with me that she hated her former husband. Otherwise, on issues of fact, I found her wholly unreliable, and ready to make up on the spur of the moment whatever evidence she thought served her immediate purpose when answering a particular question.

The only live evidence I heard was that of Mrs. M, Dr. W and the children’s CAFCASS Legal Services and Special Casework guardian (the guardian), who had filed a detailed and most helpful report. I was not asked to hear Mr. M, and no application was made for him to be cross-examined. Dr. W described him, so far as I can judge from the papers accurately, as an “ordinary bloke who wanted to see his kids”. I proceed on that basis.

The question for me, therefore, is whether, at this stage, anything can be done to rectify the damaging situation for the children which I have described. Several options were canvassed in evidence and in argument. They varied from doing nothing to an immediate removal of the children from Mrs. M’s care. I will, of course, return to them, once I have set out the relevant facts. I should, however, make it clear at this point that, in my judgment, the option of doing nothing is not acceptable. These children are suffering significant harm, and in my view the court has a duty to investigate all available options before it decides, if it has to, that doing nothing is the least damaging course.

In order to explain the findings I have reached, it is necessary for me to set out the facts in some considerable detail. By doing so, I hope I will ease the process of understanding the case for any third party to whom permission is given for the court papers to be shown. . I am, however, also setting out the facts in detail because I wish both Mr. and Mrs. M to be in no doubt about my conclusions. Mrs. M told me that her solicitors had not taken her through the two judgments in the case given by the Circuit judge. I do not believe her. However, she will not be able to say that same about this judgment. I am, I hope, writing it in plain English which she will be able to understand. The parties will both be given a copy of the judgment as soon as practicable after it has been handed down, and it would, in my judgment, be a proper expenditure of public funds under both their funding certificates for their solicitors to go through the judgment with them. I cannot, of course, force Mrs. M to read it, let alone agree with it, but if she does not, it will be yet further evidence of her wilful disregard for the court and her refusal to understand that she is not acting in the best interests of her children.

The proceedings began in April 1996 with an undated application by Mrs. M for injunctive relief against Mr. M, including orders against molestation and an order that he leave the matrimonial home. On 19 April 1996 she also issued an application under the Children Act 1989 seeking Residence Orders and that Mr. M be afforded supervised contact with the children. It appears from the Notice of Application that she had vacated the matrimonial home temporarily and was living with the children at a temporary address..

On 24 April 1996, Mr. M countered by issuing his own application for Residence Orders relating to the children. On 29 April 1996 a Recorder made an Interim Residence Order in Mrs. M’s favour, jointly with her mother, on the basis that the children would reside at the former matrimonial home. She also made an order for contact in favour of Mr. M. He was to see the children every Sunday from 9.00 a.m. to 6.00 p.m., every Tuesday from 3.00 p.m. to 7.00 p.m. and was to have such other contact as may be agreed between the parties.

On the same day, the injunction proceedings were compromised by cross-undertakings and by Mr. M undertaking to vacate the former matrimonial home on or before 4.00 p.m. on 3 May 1996. He also undertook not to have direct contact with the children unless supervised and in the presence of one or other children’s paternal grandparents. On this basis, the Recorder adjourned the parties’ applications to 12 June 1996 and gave directions for the filing of evidence. This included permission to Mrs. M to file and serve a psychiatric report on herself and the local authority to file and serve a Section 7 Report.

The psychiatrist, Dr. S, reported on 27 May 1996. On 12 June 1996, a Circuit Judge listed the matter for hearing on 6 and 7 August 1996 and gave further directions for the filing of evidence. He directed that Mr. M was to have unsupervised contact to the children, and he also directed that Mrs. M’s mother was no longer required to reside at the former matrimonial home.

What was the underlying basis for these applications? The section 7 report dated 14 June 1996 was by Ms K. She recorded that the Child Protection Investigation Team had become involved with the family on 16 April 1996 following an allegation that D had been sexually abused by his father. D would then have been four. There had been a joint police / social services investigation. L had been interviewed on video and there had been an audio interview with D. Neither child had made any allegations of abuse. Mr. M had been interviewed and had denied the allegations. The result was that no further action was taken.

Ms K observed contact between the children and their father. Although initially reluctant to attend contact, D’s reluctance decreased when greeted by his father; indeed, both children were relaxed and pleased to see their father. During contact, Mr. M had appropriate physical contact and displayed interest in both children’s welfare. There was good interaction over a meal which Mr. M prepared.

Ms K was also able to observe the children with their mother. Once again, the interaction was positive. Ms K’s conclusion was that the children should live with their mother and have regular contact with their father and paternal grandparents.

On 6 August 1996 a circuit judge made a further interim residence Order in favour of Mrs. M and directed that Mr. M should have contact with the children three times a week, namely on Tuesdays between 3.00 p.m. and 6.00 p.m.; on Fridays between 3.00 p.m. and 7.00 p.m.; and on Sundays between 9.00 a.m. and 6.00 p.m.

Thereafter, until 22 August 1999, Mr. M had regular contact with the children, although not to the extent envisaged by the order. On his case contact went reasonably well, a statement I see no reason to doubt.

Before leaving the 1996 proceedings, I should point out, I think, that in the documentation filed in those proceedings, Mrs. M makes a substantial number of allegations against Mr. M involving physical assault and verbal abuse. Those allegations were, of course, never adjudicated upon because the proceedings for injunctive relief were compromised, and Mr. M, in the material he placed before the court denied the allegations against him.

Also in the 1996 documentation are statements from witnesses who had initially supported Mrs. M’s assertions that Mr. M had sexually abused the children but subsequently came to take the opposite view and to believe that Mrs. M had exploited and misled them.

Mrs. M comes to the present applications as a witness whose credibility is in tatters. I have, however, not overlooked the possibility that her hatred of her husband may relate to actual or perceived maltreatment at his hands during the course of the marriage. The difficulty about that proposition is that maltreatment of her is not currently put forward as a reason for preventing his contact with the children. The reasons Mrs. M puts forward are alleged sexual and physical abuse of the children. Since the Circuit judge who dealt with the matter more recently has effectively discounted any such proposition, it does not seem to me that I should give any weight to the initial allegations of domestic violence, and I do not do so.

In any event, I am quite satisfied that there is absolutely no possibility of the children in any way being placed at risk of physical or sexual abuse were they either to have contact with or to live with their father, and accordingly when assessing any harm which the children have suffered or are likely to suffer under section 1(3) of the Children Act 1989, I can say with confidence that the only harm they have suffered or are likely to suffer in the context of contact is the abusive attitude which their mother had taken to the subject and the views which she has inculcated in them.

As previously indicated, Mr. M’s case is that he had satisfactory contact with the children until 22 August 1999, when Mrs. M stopped contact. On 29 September 1999, Mr. M issued an application applying for the enforcement of the order for contact made by the Circuit Judge in August 1996. His Notice of Application states that he had been having regular contact with the children every Sunday without any problem but that on Sunday 22 August 1999, Mrs. M had stopped contact and thereafter refused to allow it to take place.

What had happened was that on 31 August 1999, the Social Services Department of the local authority had received a referral from the local police. The allegation was that D had told his mother than Mr. M had exposed himself in front of D. There were also suggestions that D had seen “page 3” type pictures at the house of his paternal grandparents, that Mr. M had got into bed with D and pulled his penis, that Mr. M had been violent to Mrs. M and the children and that they were terrified of him. Both children were interviewed. Mr. M denied the allegations and felt that the children were being influenced by their mother into making the statements.

On 15 October 1999 a district judge directed that Mr. M’s solicitors were to make inquiries of the social services department of the local authority as to their ability to provide a Section 7 Report and, if so the time required.

On 2 December 1999, Mrs. M put in a Notice of Application stating that “in general terms because of the respondent’s treatment of the children and their wishes I do not consider contact to be in the best interests of the children”.

On 6 December 1999 a district judge ordered the Social Services Department of the local authority to prepare a report under section 7 of the Children Act 1989 with particular reference to (a) the wishes of both children; (b) the operation of the principle of contact and whether or not it is in the interests of the children to have contact with their father - that report to be filed by 10 January 2000.

The section 7 report was undertaken by Mr. DB, a senior social work practitioner with the local Child Protection Investigation team. It is an excellent piece of work, carried out in the face of considerable obstructions from Mrs. M.

Mr. DB arranged with Mrs. M that if the children felt comfortable with him he would take them out to McDonalds to meet their father. However, when he arrived at the home to talk to the children, he found a man and a woman present, the former of whom introduced himself to Mr. DB as Mrs. M’s “healer / counsellor”, although he refused to give his qualifications. Despite this obstruction, Mr. DB was able to speak to the children, and got on well with them. He was, however, unable to make another appointment to see the children. Mrs. M said the children had been “upset" by his visit and that she had had to keep D off school.

When Mr. DB explained to Mrs. M how well he thought his previous conversation with the children had gone, she said that he had “cleverly wooed” the children, and “pulled them in”. Thereafter she refused to allow Mr. M to see the children again.

Mr. DB reported that there was no evidence to support the allegations of abuse, but was otherwise unable to provide the court with adequate information on which to make a decision about contact.

On 16 February 2000 a district judge fixed a final hearing for 27 April 2000 for the Circuit Judge and directed that Mr. DB to attend the final hearing. On 27 April 2000, a deputy circuit judge made an order in the following terms :-

Mr. DB’s addendum report is dated 26 May 2000. This is a very important document. He was able to implement the order of the Deputy Judge. On both occasions of contact the children showed appropriate affection to their father and were not apprehensive of him. Conversation flowed. The children were open and comfortable with their father. Mr. DB concluded his addendum report with these words: -

On 13 June 2000 the application to enforce contact came before the circuit judge. The order made by the judge was that Mrs. M was to permit Mr. M to have contact with the children as follows:-

Every third Sunday from 11.00 a.m. to 7.00 p.m.

There is a transcript in the papers of the judgment given by the circuit judge on 13 June 2000. It is a trenchant document. The judge records that, in practice, from 1996 to 1999, Mr. M only saw the children once a week, notwithstanding the order that he was entitled to see them three times a week. The judge plainly did not accept the reasons which Mrs. M gave for terminating contact. The judge describes her in terms as “an extremely unsatisfactory witness whose evidence was very difficult to believe on any important matter”.

Amongst the important matters on which the circuit judge disbelieved Mrs. M were, firstly, her assertion that Mr. M had kicked the children, D in particular, on the backside quite hard on a number of occasions. Mrs. M told the judge that this had occurred some time in 1999. It was not however, in the statement which she had made to the court.

Secondly, the Judge records that Mrs. M made a most serious allegation against Mr. M’s parents which, once again, was not contained in any written document at all. The allegation was that D had told her, in late 1996, that he had been at his grandparents house and had needed to use his asthma puffer. Mrs. M alleged that he told her his grandmother had held him down whilst his grandfather had undressed him in an inappropriate way.

The judge rejected that allegation and described it as “just a nonsense”. The judge recorded that Mrs. M had made similar allegations against Mr. M in her statement, namely that he had behaved inappropriately with D. The judge said in terms that he did not believe those either.

The judge commented that it had become clear in the course of her evidence that Mrs. M simply did not accept what anybody said about the children. On the other hand, he formed a favourable impression of Mr. M. He was, in particular, impressed by Mr. M’s moderation and the fact that he was able to say that, in general, Mrs. M was a very good mother. The judge was also impressed by Mr. M’s appreciation that contact had to be “taken slowly and gently”.

The judge recorded that pursuant to the deputy judge’s order on 27 April 1999 there had been two periods of contact supervised by Mr. DB. The judge was impressed by Mr. DB. Mr. DB had had a difficult task because of obstructions placed in his way by Mrs. M. However he had approached his task professionally and properly. His evidence had been helpful and convincing. Accordingly the judge found, in summary, that the children were happy to see their father; that their father behaved appropriately to them; that they talked in the way one would expect. Mr. DB had corroborated what Mr. M said namely that after an initial minute or so of difficulties, bearing in mind there had been quite a long break in the contact, they got on very well with their father and talked in an entirely sensible proper way. This had occurred on both occasions.

The judge also recorded that the children had had the opportunity of speaking to Mr. DB. The children were then 12 and 8, and the judge was of the opinion that their views were entitled to considerable respect. He further described the children as sophisticated and well developed intellectually. He recorded the children telling Mr. DB that they wanted to see their father. He said they had not appeared apprehensive beforehand and everything went well. Afterwards they said they wanted to see their father and they wanted to see their paternal grandparents. However, they wanted to take things slowly.

Mrs. M had told the judge that these were not the children’s real views. She said she had had “terrible trouble with them since”; the children had cried and had been upset. She had had to take them to the doctor and keep them off school. They had, she said, continually told her that they do not want to see their father. The judge expressed his view on this point in the following terms:-

The judge then went through the welfare checklist set out in section 1(3) of the Children Act 1989. He laid emphasis on the fact that the children had clearly expressed by their conduct and words a wish to see their father and their grandparents. He also recorded that the children had telephoned their father and his parents on a number of occasions since the last contact. The judge was in no doubt that it was in the interests of the children to see their father and paternal grandparents. However, he accepted that it should be taken gently to start with and after a discussion in court made the order which I have set out in paragraph 47. .

Most regrettably, Mrs. M did not obey the Circuit judge’s order, and contact did not begin. Accordingly, on 3 July 2000 the judge made a further order that contact should take place in accordance with his order dated 13 June 2000, save that the starting date should be 9 July 2000. He attached a penal notice to the varied order and directed that Mrs. M pay the costs, enforcement of those costs to be suspended.

Unfortunately, this order did not have any effect on Mrs. M’s resolve to frustrate contact, and Mr. M was constrained to issue a notice for Mrs. M to show good reason why an order for her committal to prison should not be made. That application came before the circuit judge on 17 July 2000. The judge varied his order of 13 June 2000 by directing that Mrs. M was to bring or arrange for a third party to bring the children to an identified location and to permit Mr. M to have contact thereafter every third Sunday, initially from 2.00 p.m. to 7.00 p.m. but, commencing 22 October 2000, from 11.00 a.m. to 7.00 p.m. Once again, a penal notice was attached to the order and Mr. M’s application to show cause was adjourned to 31 July 2000.

Once again, Mrs. M disobeyed the order. However, in this instance, her disobedience took a subtle and most insidious form. What happened was that she put L up to make an allegation of sexual abuse against Mr. M, which was reported to the local Child Protection Unit. Mrs. M was then able to use the fact that L had made this allegation to frustrate contact.

In the papers is a transcript of L’s Memorandum of Good Practice interview with the police which took place on 26 July 2000. There is also a video of the interview, which I have viewed. All the professionals who have watched the video of L’s interview are entirely satisfied that she is not telling the truth. Dr W, who unfortunately only viewed the video after he had filed his original report, describes L’s presentation as “remarkable”. He said she made a number of serious assertions without any apparent emotion. Dr W had rarely seen the like.

In summarising the main thrust of L’s allegations, I can do no better than quote the words of the circuit judge, in the second of his judgments, dated 20 October 2000. He described the video as “very disturbing” and that the sequence of events which L described was “clearly incredible in the proper sense of the word”. His analysis of the video was in the following terms – I have highlighted certain phrases:-

The judge then quotes Mrs. M’s statement to the police in which she said:-

The Circuit judge was in no doubt at all that nothing had happened. He went on to say, however:-

I entirely agree with the circuit judge’s analysis of the video and with his conclusions in relation to it. The passages I have highlighted are only one example of the lies which Mrs. M is prepared to tell in order to protect herself. No mother whose child is being sexually assaulted within earshot would fail to go to her assistance. Mrs. M thus has to invent an elaborate charade to explain why she did not do so. In addition, where a child is put up to tell lies, important details are overlooked. L tells the police she told her mother all about it. Had it happened, she would have done. But had it happened, and had she been told, Mrs. M would have been bound to take action. So, according to Mrs. M, L must be lying when she says she told her all about it. Of course, L is lying, but not for the reasons Mrs. M gives, which are entirely self-serving. L is lying because what she describes did not happen.

Dr W, from a psychiatric perspective, comments that L’s account lacks credibility for obvious, common-sense reasons. He goes on:-

I agree with Dr W’s analysis of the video. I would, however, use a stronger word than “remarkable”. In my judgment L’s wish to support her mother’s position is powerful evidence that L is being emotionally manipulated and abused by her mother and is suffering significant emotional harm. I do not think that Dr W would disagree with either proposition.

Inevitably, the police services took no action on the allegations which L had made. On 31 July 2000, The Circuit judge adjourned Mr. M’s application to commit Mrs. M to prison to 29 August 2000, and gave Mr. M’s solicitors permission to disclose papers in the case to the police, together with the judgment given by the circuit judge on 13 June 2000. A transcript of the video was ordered. On 29 August 2000 the police were ordered to produce the video.

Mr. M’s application to enforce the order for contact came back before The Circuit judge on 20 October 2000. By this time, the judge had seen the video. He begins his judgment on this occasion by reciting the history. He repeats that, on this occasion as previously, he found Mrs. M “a most unsatisfactory witness”. He said she was “prone to make up answers on the spur of the moment” and could not rely on her in any material respect at all. The judge goes on :-

The judge then analysed the video in the terms which I have set out at paragraph 73 above). He went on to find - and once again I agree with him - that what was occurring in June 2000 was that Mrs. M was not in fact facilitating or permitting contact at all; she was encouraging the children not to go. Slightly later in his judgment the judge found that she was in breach of the order because “she had put them under such intolerable pressure that they refused to agree to go”. The judge, of course, made that finding - as he had to - on the criminal burden of proof, that is to say, beyond reasonable doubt.

The judge accordingly found Mrs. M in contempt of court. The question was what he should then do. He adjourned for a short time to enable both parties to take instructions. After further submissions he decided that he would make an order for committal to prison for 42 days, but was going to direct that the warrant be not executed before 27 November 2000. He also directed that his previous order for contact take effect from Saturday 28 October 2000. The judge intended, on 27 November 2000, when the matter was to come back to him, to hear any applications that be made whether for residence by the father or otherwise. At that point he would decide whether he would allow the warrant to go - that is to say for it to be issued and for the mother physically to be committed to prison.

In reaching that conclusion he expressed his concern that the children should have what he described as “a counter balance to the pernicious effect as I see it of being solely dominated by their mother’s views”. He made it clear that Mrs. M should be in absolutely no doubt that he was not frightened of making an order committing her to prison in this case if it was necessary in the ultimate to ensure that the orders of the court were obeyed. As it was, of course, his order plainly gave the mother another opportunity to obey the order of the court and to act in the interests of the children by facilitating contact.

What in fact happened, was that on 22 November 2000, L herself, through solicitors made an application for permission to apply for a Prohibited Steps order on the basis that she did not wish to have contact with her father. I do not know the circumstances in which L came to make that application, and accordingly I am not in a position to make any findings about it. The timing, however, is highly suspicious.

Under the present rules, any application by a child for permission to make an application to the court has to be heard by a High Court Judge. The circuit judge, accordingly could not hear it when he had the case before him on 27 November 2000. He had no option but to transfer that application to the High Court for hearing. In the event, however, he decided to transfer the proceedings themselves to the High Court and directed that the application by L and Mrs. M’s application to discharge the warrant for committal be listed before a Judge of the High Court in London on 11 December 2000. The judge also directed that the papers be disclosed to the solicitors acting for L, and he made an order staying the warrant for committal until 11 December 2000.

On 11 December 2000, Mr. Justice Johnson ordered that the social services department of the local authority be requested and directed to effect two occasions of contact between the children and their father, that contact to be supervised preferably by Mr. David DB or if he was not available then by another social worker the social worker who supervised was then to report on the two occasions by the 22 January 2001. Mr. Justice Johnson then fixed a further hearing for 8 February 2001 in relation to the application for further stay of the warrant and further directions for contact. He dismissed L’s application for permission to be added as a party to the proceedings.

Contact did not take place. On 8 February 2001, Mr. Justice Johnson continued the stay of the committal proceedings until further order of the court and invited the Official Solicitor to intervene in the proceedings on behalf of the children.

Most unfortunately, there was then a substantial delay until 27 September 2001 when the children were joined as parties to the proceedings by their guardian, an officer of CAFCASS Legal Services. The guardian was given permission to disclose the papers to Dr W who was to see the children if he thought it necessary and if so advised could arrange to see the children with their father. The deputy district judge who took this hearing also gave further directions for the filing of evidence and fixed the substantive hearing to commence on 14 March 2002 with a time estimate of two days. Thus it was that the proceedings came before me.

The evidence filed since September 2001 comprises updated statements from Mr. and Mrs. M. I have a report and an addendum from Dr. W. There are school reports relating to L and, most importantly, the report from The guardian. Much of the parents’ evidence is taken up by the allegation that L had been obliged to change school because in her statement made on 23 October 2001, Mrs. M said that on 6 March 2001 she had seen the children’s paternal grandparents driving around outside L’s school. This was, however, inconsistent with a letter written by her solicitors on 6 April 2001 in which it was asserted that both Mrs. M and D had seen the paternal grandparents outside D’s school. There is a statement from the paternal grandmother strongly denying that they had visited either school.

I have not, of course, had oral evidence from the paternal grandparents, but the patent inconsistency in the two versions of the basic allegation makes it highly unlikely to be true. But more significant, of course (if it is true) is L’s hysterical reaction. It is, in my judgment, highly worrying that Mrs. M appears to think that it is necessary for L to change school because of a report that her paternal grandparents have been seen in the vicinity. L is not now in mainstream school. She is being educated by an organisation called Integrated Support Service. She travels by taxi and apparently has a phobia about being driven by men. Despite some positive reports, I find myself most concerned about L’s education, and how she has got to where she is. This is not a matter which I have investigated, but in my judgment is one of the worrying aspects of L’s upbringing.

Like the circuit judge, I found Mrs. M a thoroughly unsatisfactory witness, willing to say anything which supported her belief system, including repeating the accusation that Mr. DB had lied in his evidence to the circuit judge about the children’s enjoyment of their contact with their father, and that L was not telling the truth about Christmas 1998 when she said she had told Mrs. M what had happened.

Of the many points I found of concern in her evidence, perhaps the most chilling was her reporting L as saying that she hated her father and wished he was dead. At the same time, in a quite matter of fact tone, Mrs. M said L was willing to have him pay for dancing lessons. Mrs. M appeared quite unconcerned about what she was reporting L as saying, and went on to tell me that, so far as the dancing lessons were concerned, L was “taking the Mickey”.

Another point amongst many which concerned me was that D has a substantial collection of toy guns. Mrs. M told me that D has said he wants to be a policeman and to train how to use a gun, so that he can shoot his father. Once again, she said this in a tone which was quite matter of fact.

This is a very impressive document. It runs to 85 paragraphs, and attached to it are detailed attendance notes of the guardian’s interviews with Mr. M, Mrs. M, the children, and the paternal grandparents. Also attached are reports from the Integrated Support Service which is currently providing L’s education, from L’s previous school, and from D’s school. There was also attached an attendance note of a conversation which the guardian had with Dr. W on 12 March 2002 after he had filed his report and his addendum..

In what is already a long judgment, I cannot repeat all the guardian’ careful observations or do justice to her acute observations. I can pick out some points which particularly concerned me. The first relates to D. D told The guardian that he had been “raped” by his father and his paternal grandparents. He clearly had no idea what the word meant. Mrs. M, according to the guardian, made no attempt to rationalise this with D or dissuade him from stating that he had been raped. On the contrary, she says, Mrs. M appeared to condone and encourage it. Mrs. M was asked about this in evidence, and her answers confirmed the guardian’s evidence. She said D had been raped – he had had things done to him, He had told her in the past that he had been “taken out of his bed by his father”, who had “hurt his willy and his bum”.

The guardian was also concerned by the drawer full of guns kept by D and by his expressed wish, already recorded in paragraph 93 to kill “him”. The guardian was struck by the fact, that D invariably referred to his father as “him”.

The guardian was sufficiently concerned about the children to recommend that, if the court made findings of emotional abuse against the mother and decided to remove the children from her care, they should be removed immediately under an interim care order to their paternal grandparents with a view to transferring them to the care of their father after an initial period of settling in.

The guardian’s view that the children should be removed immediately from their mother’s care was not supported by Dr. W. He was, I think, particularly influenced by the delay following the transfer of the case to the High Court. He said:

Dr. W was of the opinion that doing nothing was the “least bad option”. He appeared to reach that view principally on the basis that it would prove impossible to persuade the children to attend any contact ordered by the court. In his view, the damage had been done.

The guardian had difficulty with that view, and so do I. Dr. W was clear that the children had suffered and were continuing to suffer significant harm. He was equally clear that if the situation was not remedied, the significant harm would continue and that the children would be likely to grow up as emotionally damaged adults, with serious consequences for both of them in forming and maintaining relationships in their adult lives. Both children had learned that the price of living in peace in their mother’s household was to say that they hated their father and to class him as an abuser. This was very unhealthy. L, in particular, as she got into adolescence will realise that she has a powerful weapon to get her own way with her mother. She will, in Dr. W’s opinion at some point rebel against her mother’s stance and is likely to search out her father. When she discovers, in Dr. W’s words that he is “an ordinary decent bloke”, her relationship with her mother is likely to be further damaged, perhaps irreparably so. He said:

The guardian expressed her difficulty with Dr. W’s opinion neatly in paragraph 75 of her report: -

I have to say that I share the guardian’s view. It seems to me that, with great respect to him, Dr. W gives far too much weight to the practical difficulty of arranging contact. A principal feature of Dr. W’s advice is that “the damage has been done” and that the children would refuse to attend contact, however carefully the arrangements are made. He put it this way:

Whilst, of course, I recognise the practical difficulties of arranging contact, I find Dr. W’s opinion that “the damage has been done” inconsistent with his clear advice that if contact could be achieved, it would not take very long at all for the children to restore their relationship with their father. In his oral evidence to me he agreed that it might be a relief for the children to be removed from the false belief system in which they currently reside.

In my judgment, Dr. W has misled himself by his use of the word “irrevocable” at several points in his opinion, when he refers to the children’s alienation. In his oral evidence, he agreed with me that the children’s alienation is not irrevocable. It is incapable of being revoked only whilst the children are living in their mother’s care. Away from her influence, the children would rapidly resume their relationship with their father and paternal grandparents.

Dr. W was sceptical about the further involvement of social services. He asked: “what could they do?” and “whatever it was, would they have the resources to do it?” “If the court can’t solve the problem”, he said, “I really don’t see how a social services department could do so.” In this context, it seemed to me, he gave no consideration either to the prospect of skilled social work intervention with the family, or to the range of powers which would be open to the court within care or supervision order proceedings instituted by the local authority.

In my judgment, Dr. W’s own analysis of the harm the children are suffering, and the benefits to them if they can be removed from their mother’s baleful influence mean, firstly, that the situation is not irrevocable, and secondly, that it is too serious simply to leave as it is. In other words, I agree with the guardian that Dr. W’s conclusion – do nothing - is inconsistent with, indeed contradicted by, his analysis of the balance of harm and risk in this case.

Of course it is the case under section 1(5) of the Children Act 1989 that I have to be satisfied that making an order is better for the children than making no order. In the instant case, doing nothing will mean that the children will continue to suffer significant harm. Doing nothing could only be justified, it seems to me, by the argument that the cure (intervening in one of various ways by making an order) would cause more harm than the disease: in other words that the stress inflicted on the children by removing them from their mother’s influence or by the attempt to require them to attend contact with their father would cause them more damage than leaving them alone. I am not persuaded that this is the case.

In my judgment, the consequences to L and D of living the lie either until they attain their majorities and beyond or until they rebel against it and are caused further damage in that process are so serious that intervention is required.

In my judgment, action must be taken. The position cannot be left as it is. The question is: what action should I take? The opposite end of the “do nothing” spectrum is, of course, the immediate removal of the children to their father’s or paternal grandparents’ care under a residence order. This was the guardian’ first option. There are, however, significant difficulties about this both from the perspective of the children’s welfare and from a forensic standpoint.

From the forensic standpoint, the first point is that I have not seen the paternal grandparents. They are not parties to the proceedings. They are elderly, and the paternal grandfather is not in the best of health. They are not, I think, a long term option as carers for the children, and in the short term Dr. W was of the opinion that they might well have difficulties coping with L. As against that, of course, I have the guardian’ opinion that they could cope in the short to medium term.

Mr. M’s current accommodation is not suitable as a residence for the children. If he is to seek a residence order, it will need to be on the basis that he finds alternative accommodation. . In addition, in the absence of any planned structure for the children, there is the problem of implementing the order, if the children were reluctant to go. I could not rely on Mrs. M to co-operate with any such order.

Moving children from the home in which they have lived for many years is always a serious step, and not one to be undertaken lightly. If it is to occur, it must be part of a carefully thought out strategy: in other words, there must be a comprehensive plan for these children, in which the objectives must be carefully identified and the means of achieving them carefully thought out.

It would, of course, be open to me to remove the stay on the committal order made by the circuit judge in the event that Mrs. M did not immediately facilitate contact. I am full of admiration for the circuit judge’s conduct of this case, and Mrs. M should not believe that a change of judge means a lessening of judicial resolve. The circuit judge set a strategy for this case which involved the use of imprisonment. I bear in mind the need for consistency of judicial approach.

Such an approach would have the effect that Mrs. M would be removed from the scene for a period of six weeks, and the children would be able during that time to live with their paternal grandparents and restore their relationship with both them and their father. This is, it seems to me, is a viable option, and may well be one which is capable of being put into effect. Forensically, however, it has a number of disadvantages. The circuit judge’s order is now 17 months old: arguably, it could be disproportionate to enforce it after this period of time. Perhaps more importantly, however, the delay which has occurred since the order was made reinforces the point that the children have been further damaged over that period, and any step which needs now to be taken must be part of a carefully planned strategy.

Dr. W was of the opinion that if the circuit judge had been permitted to imprison Mrs. M, even for a day, the outcome would probably have been different. He may be right about that. The Circuit judge was pursuing a particular strategy, and it was only the need to transfer the matter to the High Court which prevented him putting it into effect.

In my judgment, however, the time which has unfortunately lapsed since the circuit judge’s orders means that the matter must now be re-thought. It may well be that the strategy is capable of being revived. It may well be that the way forward is remove the stay on The Circuit judge’s order and to imprison the mother for contempt of court if she refuses to obey a future order. But if that is to be the way forward, it needs, in my judgment, to be part of a wider plan for these children, which, as I have already said, needs to be thought through.

A further option, if Mrs. M were to be imprisoned, would be for the children to live with their maternal grandparents. This is an option I am quite unable to consider on the evidence available to me. Equally, I am unable to make any assessment about the viability of a family conference in this case.

In these circumstances, I have to reject the immediate removal alternative proposed by the guardian. There is, however, a third choice, and it is one which, in argument, was supported by both the father and The guardian. I have, accordingly, decided that the proper way forward is to make an order under section 37 of the Children Act 1989 addressed to the local authority. I will first of all set out the terms of section 37, and then explain why I am making the order.

The relevant parts of section 37 read as follows: -

Powers of court in certain family proceedings

In my judgment, the terms of section 37 are directly applicable to this case. I am in no doubt at all that it may be appropriate for a care or supervision order to be made. I have already stated that, in my judgment, these children are suffering significant harm and that I would have no hesitation in finding that the threshold criteria under section 31 of the Children Act 1989 are met. Although it is a matter for the local authority and not for me, I would myself also be in little doubt that these are children in need within section 17 of the Children Act.

This is also a case, however, where in my judgment there needs to be a careful plan for these children. I cannot formulate such a plan without the assistance of the local authority and the facilities which it can offer these children. At the same time, as I recognise, I cannot require the local authority to take proceedings. The limit of my power is to direct the authority to undertake an investigation of the children’s circumstances.

It is, of course, the case that I have the power under section 38(1)(b) of the Children Act 1989 to make an interim care or supervision order at the same time as giving a direction for an investigation under section 37. I do not, however, in the circumstances of this case, think it would be right to take that course. These children are not in immediate physical danger: they are not in immediate need of removal to a place of safety or protection from an immediate risk of physical harm. There is no formulated care plan. It must, accordingly, be a matter for the local authority whether or not they decide to institute proceedings having read the papers (including this judgment) and carried out their investigation. I think I can, however, properly say that if that is the local authority’s decision, I would welcome it. It would, it seems to me, substantially widen both the welfare and the implementation options open to the children and to the court, and would prove likely to be very much in their best interests.

I must record that Dr. W did not favour the section 37 option. As I understood it, however, his objection was primarily based upon his scepticism about the capacity of local authorities to act effectively in cases such as this or to provide any worthwhile services for the children. I think he envisaged further delay, and an ineffectual and damaging investigation by the local authority, resulting in a further hardening of Mrs. M and the children’s position due to the threat hanging over their heads that the children might be removed.

I have to say that I do not share Dr. W’s pessimism about either the nature or the consequences of the local authority’s involvement. It is noteworthy that the only professional who has achieved any progress in this case is Mr. DB, the social worker from the local authority who organised the two periods of contact in the summer of 2000. He did so, it will be recalled, in the teeth of orchestrated opposition from Mrs. M. In addition, it is difficult to see how Mrs. M’s attitude could become harder than it is already.

I am confident that the local authority will carry out a competent, professional investigation and give me sound advice in the interests of the children. I do, however, agree with Dr. W when he told me that if the local authority does intervene in this case, it would be of the greatest importance that the children should have an identified social worker or social work assistant who would remain the same and with whom they could form a long term relationship (he had in mind a year or more). The children should be told this was the person in whom they could confide.

Dr. W was also clear – and in this, in my judgment, he is plainly correct - that the case must be approached henceforth by everybody (including the local authority) on the basis of the facts which I have found and which are set out in this judgment. To give the obvious examples, the facts are that the children have not been sexually or physically abused by their father and paternal grandparents; their hostility to contact and their expressed hatred of their father are both entirely due to Mrs. M’s malign influence on them. These are not questions which can be reopened. If Mrs. M persists in her assertions to the contrary, that is plain evidence of her refusal to recognise reality and what it is in the interests of the children.

This is a complex case, and this judgment is being handed down on the Wednesday before Easter. I propose to direct that the task of communicating and liaising with the local authority is given to the children’s guardian, and I will direct that a copy of this judgment, together with the papers in the case, be released to the local authority by her as soon as practicable.

The normal period of investigation under section 37 is eight weeks. That would take us to 22 May 2002. In my judgment, given the intervention of Easter, I think the local authority should be given until Friday 31 May to file the section 37 report. The parties should then have a week to consider it, and the matter restored for further directions before me on Monday 10 June at 10.30am in the Royal Courts of Justice. That will be my order.

I have already made it clear that I do not have any power to compel the local authority to institute proceedings, nor would I seek in any way to interfere with the professional exercise of the local authority’s investigative functions under section 37. The responsibilities of the local authority if it decides not to institute proceedings are set out in section 37(3). What I think I can properly say to the local authority – and it is manifest from this judgment – is that I am dealing with two children who are suffering what I think is avoidable significant harm, and for whom the criteria laid down in section 31 of the Act are met. I therefore very much hope that the outcome of the local authority’s investigation will be a plan for the children which will alleviate their difficulties.

I also say to Mrs. M that she must co-operate with the local authority’s investigation, and that it is not too late, even now, for her to reconsider her position and recognise the harm she had been and continues to cause the children. However, neither the court nor the local authority will be fooled by protestations which are manifestly false or insincere, or which are not backed up by action on her part.

It is also essential that all the other relevant family members cooperate with the local authority in its investigation, and that Mr. M and his parents think carefully through any proposals, which they put to the local authority in the course of its investigation.

My order will, accordingly be: -

This is what I hope will be the final chapter in court of a case concerning L M and D M. L was born on 11th May 1988 and D was born on 2nd December 1991, so the two children are now 14 and 11.

This case has been in my court on a number of occasions, and, for the purposes of this judgment, I do not think it necessary for me to set out the history. The history is set out in a long, reserved judgment which I handed down on 27th March 2002, following a hearing on 14th and 15th March 2002. Before me on that occasion was a contact application by the children's father, Mr. M. The children, by then, had for some time been separately represented in the proceedings by their CAFCASS guardian, and they had the benefit of representation from CAFCASS Legal. The children's mother, Mrs. M was also represented.

I do think it important, however, for the purposes of understanding what happened after 27th March 2002, for me just to summarise a number of findings which I made on that day. I had deliberately reserved judgment, for two reasons. First of all, I had formed the very clear view that the children were suffering significant harm in their mother's care and I wished the local authority to investigate the case under s.37 of the Children Act, with a view to taking care proceedings relating to the children. I therefore wished to put my views carefully and forcefully.

The second reason I reserved judgment was because I wanted both parents to have a copy of a document which they could read and, I hoped, understand relatively easily. I deliberately tried to write it in plain English. This was particularly important, so far as Mrs. M was concerned, because I made a number of very serious findings of fact against her and I wished her, in the investigation which was to take place by the local authority, to be very clear about the court's view. Also, as I say in terms in the judgment, I wished to give her the opportunity to reconsider her position in the light of my judgment and in the light of the evidence given to me by the consultant psychiatrist instructed by CAFCASS Legal, Dr. W

It is an important feature of this case that it began as an application by Mr. M for contact and it was contact throughout which Mr. M sought. I am in no doubt at all that had Mrs. M been able to shift her position and accept the thrust of what was being said by myself, by Dr. W, by the children's guardian and, subsequently by the local authority, it might have been possible for the children to have remained in her care. Certainly had she done so, I am reasonably confident that Mr. M - and this is no criticism of him - would have been content for the children to remain in her care, provided he was permitted to enjoy a proper relationship with them and they with him. That is what he was seeking to achieve.

I emphasise this point at the outset of this judgment because I have to say - and it will be a theme of the judgment - that, despite what she says - and I will analyse it later - Mrs. M has not fundamentally changed at all. I am quite satisfied that she takes no responsibility whatsoever for the significant harm suffered by the children and takes no responsibility whatsoever for the false belief which they had that they had been sexually and physically abused by their father and had also been abused by their paternal grandparents.

The fact that she retains that stance at this late stage is, in my judgment, of the highest significance. Of course I accept the point made on her behalf by counsel, that it is very difficult for parents to change; people do not undergo conversions like St. Paul on the road to Damascus with flashes of blinding light. Nonetheless her total inability to change, to date, is, to my mind, extraordinarily worrying.

It is particularly worrying in the light of the findings which I made. In an attempt to be completely fair to her, because I fully recognised that being in the witness box is very stressful, and answering questions from clever lawyers is very difficult to deal with, I suggested that, overnight, she should read passages from my judgment handed down on 27 March 2002 and that she should discuss them with her lawyers. For this purpose, I waived the rules relating to the fact that she was under cross-examination.

My findings in March are set out in paragraph 29. As a result of that judgment, the local authority filed a s.37 report in which in essence it agreed with my analysis of the risk to the children and the fact that they were suffering significant harm. The result of that was the institution by the local authority of care proceedings which were immediately transferred to my court and a hearing for an interim care order took place, the purpose of which was to remove the children from their mother's care to foster parents where a full assessment of the children could be made in the absence of their mother's influence. An attempt could also in those circumstances, of course, be made to re-introduce the children to their father.

I recall, although I do not think I have a transcript of the judgment, asking Mrs. M, clearly hostile as she was to the order which I had made, nonetheless to consider carefully the position of the children, to use her best endeavours, if she could, to facilitate the move into care and to co-operate with the assessment, once again, with the possibility that if she did and if she recognised her role in the past, she might still resume the care of the children. When they went into foster care it was by no means a foregone conclusion that they would end up living with their father rather than their mother; everything was still to play for.

I have not, in this hearing, investigated in detail the circumstances in which the children were removed from their mother's care. It may well be that the local authority could have done it in a more subtle way and it may be that the local authority is, to an extent, to be criticised for the head-on way in which it went about it but, equally, in my judgment, criticism falls very heavily on Mrs. M. Of course, counsel for Mrs. M is entitled to say that a parent whose children are being taken away under an order of the court is unlikely, unless they are remarkable, to co-operate and facilitate; but, to my mind, Mrs. M's conduct was most unfortunate. She brought in other members of the family and eventually directly involved the children. She described herself as a mother fighting for her children and so unable to hand them over or help them move. The result was that the children had to be removed by force and they were removed only after the local authority had been required to come back to the court to ask for a recovery order. Once again, I regard that as wholly unfortunate and entirely misplaced thinking by Mrs. M; but there it is.

The children were placed with foster parents, in particular Mrs. L, and I should like the local authority, when it reports back on this case, to express my gratitude to Mrs. L for the excellent job she has done in fielding these two very damaged children. Not surprisingly, the early stages of staying with her were very difficult. The children absconded on 16 June 2002. Again, I have not investigated the terms and history of that absconsion and therefore make no findings about it, but the children were returned and, once they had been returned and perhaps realised that this was for real, they settled down and the core assessment of them began. On 4 July 202, they were re-introduced to their father. On 11 July 2002, they were re-introduced to their paternal grandparents.

The matter came back to court at the very end of term, on 31 July 2002. At that point, I had previously thought we could have dealt with the matter fully in September but it was quite clear that the emotional disentanglement which needed to take place was complex and needed more time, with the result that I had the matter put in for a short appointment in September and set aside the substantive hearing to Wednesday of this week, with three days set aside.

The core assessment was completed by 26 August 2002 and, on 30 August 2002, Mr. M filed a position statement indicating that he would seek a residence order. On 2nd September 2002, D chose to stop having contact with his mother. On 4th September 2002, I conducted a review in which I made a number of directions for the final hearing, to make sure that everything would be ready, including filing of evidence and the guardian's report and so on.

On 11 October 2002, L also stopped seeing her mother. On 26 October 2002, there was the first overnight contact with Mr. M at his parents' home. There was staying contact for two nights on 15 November 2002. By 22 November, Miss W of the local child and family centre was reporting that both children wanted to live with their father.

The care plan and the statement of Miss M, the social worker (dated 25 and 26 November 2002) made it clear that the local authority did not think it necessary for there to be a care order in relation to the children and that, in its judgment, the proper disposal was for the children to be the subject of a residence order in favour of Mr. M, combined with a supervision order. There would need to be a process of rehabilitation, complicated by the fact that Mr. M would have to sell his own accommodation, which was unsuited for the children, and, in addition to which, would have to conclude proceedings for ancillary relief in the divorce proceedings with his former wife and then, he hoped, with those two sources of funds following what he argued should be a sale of the former matrimonial home in which Mrs. M lives, he would be able to purchase accommodation suitable for himself and the children, near his parents. In the meantime, his parents would care for the children, with regular daily attendance by himself, depending on his shift work. The children's places at their respective schools were to be maintained. L was not in mainstream education and D would go to a secondary school next year. It was proposed that there should be supervised contact to the children's mother and the maternal grandparents, at a contact centre.

The care plan in its original form is much more skeletal than it has subsequently become, because, as a result of questions asked and points put during the course of the hearing, I have now been provided with a much more detailed plan and one which addresses a number of issues which it is important should be addressed. I will come back to that in just a moment.

The stance taken by the father and his parents is supported by the children's guardian, and the care plan of the local authority is supported by both the father and the guardian.

The mother's position is, firstly, that the father's proposal is premature and very uncertain. Her primary preference is that the children should be returned to her care. She argues that, partly at least, on the proposition that her thinking has changed since the hearing before me in March. She now accepts, she says, that the children have not been sexually abused. She also accepts that they love their father.

That, on one level, as her counsel is acute to point out, is clearly progress, but what troubles me profoundly about it is the thinking which lies behind it, which, in my judgment, demonstrates on proper analysis that really very little progress, if any, has been made at all. What Mrs. M says to me is that the reason she now thinks the children have not been sexually and physically abused is because they are now saying they have not been sexually and physically abused and, because they are now saying that they want to see their father, that is not only what they want but reflects the fact that they have not been sexually abused by him.

The difficulty about that line of thought, to my mind, is that it takes no responsibility whatsoever for the damage which the children have suffered. Why did the children make those allegations? Mrs. M said to me in terms that, in her mind, she bears no responsibility at all for the significant harm which the children have suffered and no responsibility at all for the fact that they alleged or believed that they had been sexually abused. So when the early passages in my March judgment were put to her - and these were my findings which represented the factual basis upon which the case was to proceed and which were not to be altered - Mrs. M, whilst accepting that the children had become alienated from their father and grandparents, denied flatly that the responsibility for that state of affairs was anything to do with her. She also denied flatly that she had done her best to instil in the children the false belief that they had been sexually and physically abused. Whilst she now accepted that they had not been, she denied that it was her conduct in seeking to instil in the children the false belief that they had been abused which had caused them to suffer significant harm. She denied that they would continue to suffer significant harm if they were in her care, and said that, now, she did not have a problem with contact to their father, were the children to resume residence with her.

I have to say that, having listened to Mrs. M and watched her in court and in the witness box, I remain firmly of the same view which I expressed in subheading 8 in paragraph 29 of my judgment, that she lacks all insight into the children's plight. It may be, I do not know, that her views about Mr. M have softened. I am sceptical about that, but what I am absolutely clear about is that she has no insight into the damage she has done her children; and no insight into the unscrupulous and manipulative way in which she induced them to believe that they had been physically and sexually abused; and caused them the sort of harm which, had it not been reversed by the previous orders, would undoubtedly in my mind have led to the children growing up as emotionally very damaged adults. It seems to me that until Mrs. M can bring herself to recognise my findings and the findings of Dr. W, there is absolutely no prospect whatsoever of her having the residence of the children; and her contact with them, even, is going to be fraught with difficulty.

I do not wish to demonise Mrs. M. As a mother, she had many good qualities and, as I made clear earlier in this judgment, had it not been for her behaviour in inculcating in the children the damaging belief systems they adopted for some years; and had she been able to allow Mr. M to enjoy a proper paternal relationship with them, these children would still be living with her. I recognise also that I have said very harsh things about her, which it is difficult for any human being to take on board, but her incapacity to do so, to my mind - and I am going to use a technical term here - is pathological: there is something really wrong about her that she cannot take what I and others have said on board - or even begin to take it on board. To do so will, of course, be enormously painful. To recognise that she has damaged the children she loves, and almost irreparably damaged them - not quite, but almost - is an enormously difficult thing for a mother to do; but, as I say, unless and until she can begin to do it or even begin to do it partially, I see very little hope of restoring a meaningful relationship between her and the children, and I certainly see no hope at all of the children safely living with her, despite her protestations, now, that she does not hate her former husband and that she has no problem with contact.

Despite the able submissions of her counsel, I have to rule Mrs. M out as a carer. I think, if I put these children back into her care, the situation might well revert very rapidly to emotional pressure of an extreme kind, which, whilst it might not be successful on the children, would nonetheless damage them further. I say that despite her apparent current recognition that they have not been sexually and physically abused.

I repeat that I think the local authority has done its best here to be neutral and to ensure that its assessment was fair and objective. I appreciate that the views of the children not to see their mother are new and I think the re-introduction of the children to their mother will be very difficult but I am quite sure it must be attempted. The difficulty is - and again I put this from an amateur point of view - that if Mrs. M goes to the children and says "I'm very sorry" and apologises to them for the events of the last three years, she is quite unable at the moment to say, "I am very sorry, it was my fault. I got it wrong." What she will be saying is, "I am very sorry that you think I lied to you. But I didn't get it wrong at all. You got it wrong. You, the children, got it wrong. You wrongly thought you had been abused." That is a hopeless starting point for a proper relationship.

I am quite satisfied that both Mrs. M and the children need skilled intervention to re-establish their relationship. I was pleased to see that, in the latest version of the care plan, a referral was to be made by the local authority, of the children and their mother, to the mediation service, which would help them with relationship issues. I was told they were currently booked up until mid-January 2003, so that a referral in the New Year would be acceptable. This service would be free for the children but may make a charge to Mrs. M, dependent on her income.

Counsel for Mrs. M, of course, also attacks on the other side of the coin the uncertain arrangements which Mr. M puts forward with his parents. She invites me to view them with grave circumspection. She points to the fact that Mr. M himself is very critical and, indeed, bitter about Mrs. M's conduct and cites examples of that. She says he is ill-equipped to care for two difficult children aged 11 and 14 and the generational difference between the grandparents and the children is likely to present a major stumbling block. She submits that the children are likely to feel, within a short time, highly repressed in the grandparents' household, where they have to spend some six to nine months before he is likely to be able to find accommodation of his own. Currently, they are on their best behaviour and Mr. M and his parents have not seen them at their worst. She also points out that he works shifts, his parents are elderly and the forthcoming period, the interregnum, will be extremely testing. She submits that it would take only one part of the equation to collapse (either grandparent, for example, falling ill) for the whole package to fall apart. Accordingly, she says, in those circumstances, given her client's change of stance, it is reasonably safe for me, and in the interests of the children, to return them to her.

I have of course dealt with the emotional security of the children in their mother's household but I do not share counsel's pessimism. Mr. M was described by Dr. W as a "ordinary bloke". I agree with that analysis, having now seen him in the witness box. I accept counsel's argument to this extent: that I think Mr. M may not quite realise what he has to learn in helping and, ultimately, taking over the care of two, effectively, teenage children. But I was impressed by both of his parents, who struck me as decent, thoughtful, experienced, competent people.

I am also reassured by the local authority's care plan which proposes that the transition into the father's care will be supported by a local centre; there will be six, weekly sessions for the adults caring for L and D early in the New Year, which will be designed to assist by identifying aspects of the children’s behaviours they may experience and find difficult to manage. They will be assisted them to deal with these aspects. For example, issues such as setting boundaries, consistency of care, assisting the children to have positive feelings about their mother and so on - will all be addressed.

Although the plan is for six weeks, the Centre can offer follow-up sessions and so there is that very practical support available, which reassures me. Also there will be reference to the local authority’s children and family contact service, in the New Year, for therapeutic work to be done with the children.

All of that is in place and I accept the evidence of both Mr. M and his parents that they will do their best; and if they get out of their depth then they will go to the local authority for assistance. It seems to me also that the social worker on the ground, Ms M, who has been in the case now for some time, is likely to remain in it. Although in the witness box, I have to say, I thought some of her answers more generalised than they needed to be, I am reasonably confident that, on the ground and working with people, she is able to get her views across with clarity and force and that she will be available, also, to assist.

I entirely agree with the local authority that this is a case which requires not only a supervision order but for one beyond the normal length of 12 months. In all these circumstances, I have come to the view that the proper way of dealing with this case now is for there to be a residence order in the father's favour, to take effect at a date to be agreed between the father and the local authority when the interim care order will be discharged and for there to be a supervision order to the local authority for a period of two years.

Contact, it seems to me, is simply not something over which I can legislate. The situation is too fluid. At the moment, both children are refusing to see their mother, partly, at least, for the reason that they feel, with some reason, that she has lied to them about what happened in the past. As I indicated forcefully in submissions, that issue, in my judgment, must be addressed by both the local authority and by Mrs. M. If Mrs. M is able, through her general practitioner or otherwise, to obtain psychiatric advice or psychological assistance or, even, counselling, she would, in my judgment, be wise to do so.

However, counselling, advice, psychiatric assistance will only be of value if Mrs. M is open to the proposition and can take on board the need for her to think that she might be somewhere, somehow at fault for what has happened to her two children. For as long as she says, "It's nothing to do with me. It's not down to me. It's not my fault. I'm not responsible," then there is no hope for any form of psychiatric assistance or psychological help.

I agree, as I said earlier, with Mrs. M’s counsel that I do not expect a blinding flash of light and an overnight conversion. I think it highly unlikely that we will ever get to the position where Mrs. M will be able to accept what I said in my judgment in March of this year. But it is very important that those more skilled than I are able to produce, in these circumstances, a basis of some kind, a modus vivendi which enables the children and their mother to meet on terms which are mutually satisfactory, or at least on which both can work and contact can operate.

I regard it as very important that that should be done. I would be bitterly disappointed at the end of this case if, having rescued the children from the significant harm in which we found them in the earlier part of this year, the court were then to be left with a situation in which they had found their father and restored their relationship with him, only to lose it with their mother. I trust the local authority to do their best to ensure that that does not occur but I say once again to Mrs. M, in as simple language as I can, that much of this is down to her and that if she cannot recognise her part in what has happened then there is very little hope.

In all those circumstances, I have come to the view that the correct course is that proposed by the local authority, namely a residence order to take effect from a date to be fixed, in Mr. M's favour; a supervision order in favour of the local authority for two years and contact between the children and Mrs. M to be in the discretion of the local authority.

For completeness, I simply add there was discussion of a residence order being made in favour of Mr. M and his parents (as it were, a joint residence order to the three of them). The advantage of that is that it would give his parents parental responsibility in a crisis; but, psychologically, I agree with the local authority that the underlying thinking behind this order is that Mr. M is taking parental responsibility for his children and it is his responsibility, not the responsibility of his parents. I think the message which goes to him about that and the difficulties involved are best brought home if the order is solely to him. I do urge him, much as he may think that this can be dealt with by common sense and by instinctive parental reactions, to recognise that it will be very difficult and, therefore, it is essential that he co-operates with the local authority and the work being done at the Centre.

I was also concerned - and this is the coda, as it were, to this judgment - that both Mr. M and his parents were in danger of falling into the same trap which Mrs. M fell into in saying that, although they were very bitter about Mrs. M’s conduct, the children were not aware of the fact that they had that degree of bitterness. That is nonsense and they must recognise that it is nonsense. I think the paternal grandmother, in a discussion with me, in the witness box, clearly did.

I do not expect Mr. M or the paternal grandparents immediately to reverse their feelings any more than I immediately expect Mrs. M to do so. But it is very important, I think, in the context of contact being restored to their mother that Mr. M and his parents should accept the advice they are going to get through mediation and therapy, and use their best endeavours to reach a state of mind which can provide a basis, a modus vivendi which they and the children can live with, and which will enable the children to feel they are able to go to see their mother with the permission of Mr. M and his parents.

The evil of the past was that the children's loyalty was so split, and their love for their father so overborne by their mother that they simply could not go to see their father or have a relationship with him. I would hate to see that situation reversed. I do not think it will be, but I look both to the local authority and to Mr. M and his parents to ensure that it does not occur.

I do not think it necessary for the court to have a further review of this case. If everything goes disastrously wrong or if contact becomes an issue which has to be litigated, of course the court is open to further applications but I hope that will not happen. Equally, although I technically have jurisdiction to keep the guardian in for the duration of the supervision order, I do not think this is a case in which it is appropriate for me to do so, so the guardian will go as soon as the interim care order is discharged. I express my gratitude both to counsel and to all those professionally involved in the case, for the great care which they have given to it.