Medway Council v G and Others
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT |
| Judgment Date | 18 July 2008 |
| Neutral Citation | [2008] EWHC 1681 (Fam) |
| Docket Number | Case No: NME05C0016 |
| Court | Family Division |
| Date | 18 July 2008 |
[2008] EWHC 1681 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The President
Case No: NME05C0016
Stephen Bellamy QC and Graham Crosthwaite (instructed by the Local Authority Legal Department) for theLocal Authority
Adam Wolanski (instructed by Times Newspapers Legal Department) forTimes Newspapers Ltd
John Reddish (instructed by Stephens & Sons) for the Mother
Dylan Evans and Sara Hammond ( instructed by Stantons) for the Guardian of S
Marcus Scott-Manderson QC (instructed by Martin Tolhurst Partnership LLP) attended on behalf of M but was not a party in the proceedings
Hearing dates: 12th and 13th June 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 18 July 2008 It consists of 22 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Mark Potter:
The Application
The application before me is an application by Times Newspapers Ltd (TNL) made for the purposes of clarifying the extent to which TNL are entitled to report and comment upon care proceedings brought by the applicant Local Authority (“The Council”) in respect of S, now aged 8 years and 9 months who is presently living somewhere abroad with his mother (“the mother”). S is the child of the mother's former husband (“the father”) from whom she is now divorced. On 23 July 2007 the mother was remarried to M at a time when S was living with foster parents, having been placed there following prolonged and difficult care proceedings taken by the local authority as a result of the stormy and embittered relationship between the mother and the father, the poor physical conditions in which S was living, and the extreme conflict between the mother and father prior to and following the time of the break-up of their marriage which had harmful effects upon S.
The Background
A history of the care proceedings is as follows. I set it out in some detail in the light of the criticisms of “Secret Justice” which have been raised in relation to the proceedings, which have been long drawn out and are not yet complete for reasons which will appear. The care proceedings had their origin in private law proceedings following the break-up of the marriage. In August 2004 the mother applied for non-molestation and occupation orders against the father pursuant to the Family Law Act 1996 and the father left the family home, S continuing to live with the mother. The mother applied for a residence order in respect of S under the Children Act 1989 and the father cross-applied for a contact order. A guardian for S was appointed. There were heavily disputed allegations made by the mother of domestic violence and physical and emotional abuse of herself and S by the father and an eight-day fact finding hearing resulted in a long and careful judgment of Her Honour Judge Cox dated 10 June 2005 at the end of which the Judge expressed considerable concern about the emotional harm which S had clearly suffered as a result of the conduct of both parents over the years, with the risk of continuing harm in the future unless the parents could forget their destructive histories and look to the future of S.
Judge Cox found that the mother had been exaggerating many of her allegations against the father and the social worker was found to be at fault for only taking the mother's point of view. However, it was found that the father on occasions acted irresponsibly and in an aggressive and intimidating manner, which had placed S at risk of harm. The mother was found to have a tendency to play the role of a victim and the conditions of the matrimonial home were unsuitable (i.e. it was like a building site). There was no doubt that S was suffering emotional harm due to the conflict between the parents and that the mother and maternal grandmother had been responsible for placing seeds of a real fear of the father in S's mind. The matter was adjourned to allow a psychologist to report on the matter.
Following a report obtained from a psychologist about the family situation and the effects on S, by which time a guardian had been appointed to represent S in the private law proceedings, the matter returned before HH Judge Cox who was satisfied that as a result of the then position, threshold criteria for the making of an interim care order were established and an interim order was made with a direction for a Section 37 report to be prepared by the Council. Meanwhile it was ordered that S should be taken into foster care with an order for regular and equal contact for the mother and father.
The reasons for that course were again fully set out in a judgment of HH Judge Cox dated 5 October 2005.
In summary, the conflict between the parents had continued and the mother was further involving S in the conflict due to her entrenched position. S was still living in an atmosphere of fear and the judge had considerable worries about the mother's ability emotionally to separate from S sufficiently. S over-identified with the mother's point of view. The father was also unable to put S's needs first during contact and would cross-examine him and lose his temper at times. When S had contact with the father “it was as if the mother didn't exist”. S had an equally insecure attachment to both parents. The psychologist thought S was in a “very bad place”. S was therefore removed from the mother's care and placed in foster care. The local authority issued proceedings shortly thereafter.
The matter returned before HH Judge Cox on 26 April 2006 when the mother challenged the Council's application to renew the interim care order. The hearing took 5 days and was again the subject of a full and careful judgment.
Each parent was paying privately for therapeutic work with personal counsellors. The father had issues with his gender identity which were becoming more pronounced. The Judge found that the mother had not made sufficient progress to merit the return of S to her care at that stage and the Judge was troubled about S “keeping secrets” with his mother and her manipulative behaviour. The Judge also found that the mother had a habit of distorting the truth and a tendency to present herself as a wronged victim. The father had made progress and the Judge wished therapeutic work with S to deal with the father's gender issues to start as soon as practicable. It became clear that S's successful and happy foster placement was going to have to be changed because of the mother's attitude and behaviour towards the foster parents. That move took place on 30 May 2006.
There was a final hearing of the care proceedings in June/July 2006, judgment being delivered by HH Judge Cox on 13 July 2006.
It was clear by that stage that, despite the work being done with the parents by the professionals to address their issues, the parents had “expended their energies in continuing conflict”. The mother wanted S returned to her care immediately, but on the second day of the hearing she indicated she would not be opposing a final care order on the basis that the Local Authority supported the rehabilitation of S to her care. The mother then changed her mind. She sacked her legal team and attended court with a new position which was the immediate return of S to her care under a residence order. The father sought a residence order and was disruptive throughout the entire hearing.
The Judge found that there had been no improvement as far as the father was concerned. As far as the mother was concerned, the Judge followed the recommendation of the psychologist (supported by the Council and the guardian) that, if the mother did not make sufficient improvements within 6 months of 6 July 2006, everything must be done to secure S's settlement with his current foster carers. S should only return to his mother if that return was going to be safe, secure and long term. A return to either parent followed by a period of conflict would cause S significant emotional harm and a further removal from either parent's care would inevitably be emotionally devastating and significantly emotionally damaging for S. The Judge found that S had lived his whole life in conflict until he was taken into foster care. “S deserved better than for history to repeat itself”.
A final care order was made which provided for the preconditions to rehabilitation of S to the mother's care. These were:
a) Mother to continue to have contact with S and would sign a contact agreement.
b) Contact to be reviewed on a regular basis and would be dependent on mother's promotion of S's foster placement.
c) Mother not to place S in a position of conflict upon separation.
d) Mother not to mention or suggest to S the possibility of returning to her care unless agreed with social worker.
e) Mother to have counselling once per week.
f) Mother to co-operate with counselling with S concerning the father's gender identity issues.
g) Mother to conclude her ancillary relief proceedings.
h) Mother to obtain secure appropriate accommodation and the present former matrimonial home to be sold.
i) Mother to maintain a settled lifestyle in her new home environment, free from conflict for a period of three months...
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