AK v A London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Arnold LJ,Floyd LJ |
| Judgment Date | 18 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1755 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/1944 |
| Date | 18 December 2020 |
[2020] EWCA Civ 1755
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT GUILDFORD
HH Judge George
ZC20C00633
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Baker
and
Lord Justice Arnold
Case No: B4/2020/1944
In the Matter of the Children Act 1989
And in the Matter of Z (Interim Care Order)
Dorian Day (instructed by Morrison Spowart Ltd) for the Appellant
Richard Harris (instructed by Local Authority Solicitor) for the First Respondent
Trisan Hyatt (instructed by Marcus Malin) for the Second Respondent
Olivia Magennis (instructed by Creighton and Partners) for the Third Respondent
Hearing date: 17 December 2020
Approved Judgment
These proceedings concern a 15-year-old boy, Z. On 12 November 2020, HH Judge George placed Z in the interim care of the local authority on the basis of a care plan which provided that he should be removed from his father's home and placed with foster carers as a bridging placement with a view to placing him in due course in the care of his mother. His father now seeks permission to appeal against that order. On 4 December, I listed the application for permission to appeal for a full hearing, with appeal to follow if permission granted.
The background can be summarised as follows. Z is the younger of two sons of parents who separated in 2016 following a long marriage. Both Z and his elder brother, D, now aged 19, had been diagnosed as being on the autistic spectrum. Following the breakdown of their marriage, the parents have conducted extensive private law proceedings concerning the boys. During that period, the boys have resided with their father and have had only limited contact with their mother. The mother remains living in the former family home while the father and the two boys live in small rented accommodation.
In December 2016, the mother filed an application for orders under s.8 of the Children Act 1989. The application was initially listed for a fact-finding hearing to determine cross-allegations by the parents. In the event, however, that hearing did not take place. A children's guardian was appointed at that stage and has remained involved in the proceedings ever since. Her initial analysis in 2017 included the observation that the boys had aligned themselves with their father who was “unable emotionally to give his permission for the children to have a relationship with their mother”. She proposed a child arrangements order for the boys to live with both parents under a shared care arrangement, supported by therapeutic intervention and local authority support in the form of a family assistance order. On 3 October 2017, the court made a child arrangements order providing for the boys to live with both parents, spending alternate months with their mother. In addition, with the support of the local authority, the court made a family assistance order for 12 months.
In the event, the shared care order never took effect. The boys continued to live with their father and their contact with their mother was only intermittent. In July 2018 the mother applied for the renewal of the family assistance order and in September 2018 for enforcement of the child arrangements order. In the course of those proceedings, a report was commissioned from a child and adolescent psychologist, Ms Alice Rogers, who reported that Z was alienated from his mother and displaying signs of emotional harm. There were also concerns about his school attendance. This led the court, on the application of the guardian, to order a report from the local authority under s.37 of the Children Act. That report, completed in March 2019, concluded that Z was suffering significant harm as a result of the care provided by his parents. Despite this conclusion, the report did not recommend any proceedings under Part IV of the Act but, rather, a series of other measures under a child protection plan. At a hearing in April 2019, at which the guardian expressed the view that a supervision order was required, the court stated that it had grave concerns that no public law proceedings were being issued. Under the statutory scheme of the Children Act, of course, the court has no power to direct a local authority to issue proceedings,
Attempts at therapy and mediation failed to bring about any improvement in the relationship between Z and his mother. Face-to-face contact stopped in September 2019. Despite the guardian's efforts, no progress was achieved and it seems the proceedings were drifting. Notwithstanding concerns about the father's failure to promote Z's relationship with his mother, and Z's attendance at school, it was the local authority's view that the child protection plan was sufficient intervention and that no court order was required.
On the guardian's further application, the court ordered a supplemental report from Ms Rogers. Because of restrictions imposed as a result of the Covid-19 pandemic, her assessment was carried out via a telephone conversation with Z and a Skype call with his father. In her supplemental report, dated 16 April 2020, she summarised her opinion in these terms:
“Z remains extensively alienated from his mother; indeed, the situation is much worse than the last time I saw him, and he has had no contact with his mother for over six months now. He has attended school very little during year 10, which will have deeply damaged his educational prospects. Z's presentation during clinical interview was somewhat improved, and he is no longer talking repeatedly of hurting other people or reporting suicidal thoughts ….
[The father] remains rigidly preoccupied with his sense that his wife should go and live with her family and give the house to him and the boys. Although he denies having influenced the boys, it was striking how similar his complaints are to Z's; both use the same words …. It is quite possible that [the father] doesn't have to say much now in order to alienate Z, but it is likely that he continues to say things, and to subtly reward rejection of [the mother]. I am absolutely clear in my opinion that he tries to obstruct the relationship ….
If the situation is left as it is, this fundamentally means the acceptance of [the mother] entirely losing all relationship with both of her sons, and Z losing any chance of a relationship with his mother. It also means accepting that this 1- year-old-boy will not attend school or get an education. This is not tenable, and there should be a transfer of residence for Z to live with his mother. This will need to be done via a bridging placement; Z will need a chance to be parented effectively by trained carers, in order that he can learn that a typical boundary (you need to go to school even if you got a detention) is not abuse. He needs opportunity to reconnect with his mother, and develop a relationship with her.
There is clearly a concern about [the father] setting out to poison Z against his mother further by telling him that this is her fault and what she wants. The social worker will need to intervene robustly to prevent this, but I would also recommend that action is taken as soon as is possible.”
At a case management hearing in April following the filing of this report, the guardian supported Ms Rogers' recommendation. The local authority acknowledged that the threshold criteria under s.31 of the Children Act were satisfied and indicated that it intended to instigate pre-proceedings procedures under the Public Law Outline in the Family Procedure Rules. A supplemental s.37 report was ordered to be filed by 20 July 2020 and the proceedings were listed for a final hearing in September 2020. In the event, the s.37 report was not filed on time and indeed not available when the matter came before the court for a pre-trial review. At that review, the father indicated he wished to pursue findings of fact against the mother and was directed to file a schedule of the findings he would invite the court to make.
Meanwhile, parenting assessments had been prepared by an independent social worker, Ms Francesca Serrette. Her report about the father had concluded that he remained fixated on historical issues about the marital relationship and had demonstrated that he was unable to separate his own emotional responses from the well-being of his child. He consistently cited the mother's behaviour as the catalyst for the current situation and the harm allegedly caused to Z. Ms Serrette observed that Z had begun to make identical complaints about the mother and there was a view that he was being unduly influenced by his father's views. It was considered that his diagnosis of autistic spectrum disorder left him more susceptible to influence and significantly vulnerable. The father's own rigid thinking rendered him unable to understand or accept the impact of his parenting style. Ms Serrette concluded that, as a result, the father would be unable to support Z's healthy growth and development. Although there were positive aspects of his parenting, in particular his basic care and his emotional warmth towards his son, he continued to find it difficult to separate his own feelings towards the mother from Z's need to have a relationship with her. Ms Serrette also raised concerns about the father's management of Z's psychological development, specifically around the area of resilience, and noted that Z appeared to be under-stimulated and that there were issues around guidance and boundaries. Ms Serrette noted Ms Rogers's recommendation but raised concern about the impact of such a significant change for Z and whether such a move would potentially generate further harm, given his current views and understanding of the world, his parents and his experiences.
Ms Serrette also produced...
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C (Child: Ability to Instruct Solicitor)
...are found in Part 16 of the Family Procedure Rules 2010 (‘the FPR’) and PD16A. As noted by Baker LJ in Re Z (Interim Care Order) [2020] EWCA Civ 1755, [2021] 2 FLR 830, they are far from straightforward. Under PD16A 6.2, the guardian must appoint a solicitor for the child unless one has al......