P v C  EWHC 693 (Fam)
Family Division, 28 March 2018, Russell J
The parents had two children, now 14 and 12; the parents separated when the children were very young. The elder child had been diagnosed with Asperger’s syndrome. Both children lived with the mother in England under a Swedish court order; after the mother’s remarriage, they shared their English home with their stepfather and two younger siblings. The court order also provided for regular contact with the father in Sweden but there were very significant problems with this contact from an early stage. The mother had made a series of very serious allegations against the father, including violence and sexual assault by him against her and by others against the children; all of these had been rejected by the court as unsubstantiated. The mother had a history of repeating what the court considered to be exaggerated and inaccurate accounts of events. Nonetheless, until the summer of 2016, over a period of about 7 years, the children had, with apparent enjoyment, been spending most of their school holidays in Sweden with the father, paternal grandparents, relations and friends.
In the summer of 2016, the elder child complained that he had been physically abused by the paternal grandmother and the younger child complained of bullying by the father; both were very clear that they did not want to go back to Sweden at all. The father responded by asking for an order providing for the children to live with him in Sweden and to have contact with the mother in England. The father and the paternal grandmother denied all the complaints and allegations made against them. At the conclusion of the hearing, the judge made findings that the mother had deliberately influenced the children to make their claims, rejecting the claim that the child had been physically abused by the paternal grandmother. In the judge’s view, the mother was determined to bring all contact with the father to an end and the children had suffered significant emotional harm as a result of the mother’s behaviour. The judge went on to make orders for work to begin with the children to reinstate direct contact with the father, with consideration to follow of an order for the children to move to live with the father.
Contact between the father and the children resumed almost immediately and the case was referred to the Anna Freud Centre for assessment; further assessments were carried out by the local authority. According to the local authority both children went, within a matter of weeks, from being distressed and crying at the suggestion of contact with the father to staying with him, seemingly without complaint. Both the local authority and the guardian, concerned about the children’s apparent alienation from the father, their paternal family and their Swedish heritage, considered that it was likely to be necessary, in the children’s best interests, to move them to live with the father in Sweden. The Anna Freud Centre also recommended transfer of residence to Sweden. The children were already parties to the proceedings; neither of them agreed with the suggestion that they should relocate to Sweden. The younger child was granted separate representation but the older child was not considered competent to instruct a solicitor. Contact continued as ordered, including a week in Sweden, and both children were supported by direct work with both an allocated social worker and a family assistance worker.
At the hearing, the mother resisted the father’s application for the children to move to Sweden to live with him, arguing that she had now realised the harm she had caused the children and would seek and engage with appropriate therapy to ensure that she changed her behaviour in respect of the children’s contact with the father. Both the local authority’s and the guardian’s position had changed; neither now supported a move to Sweden as both had concluded that whatever the mother actually felt or thought, she had demonstrated that she was likely to be able to put her own feelings to one side and extend to the children the emotional permission to relax into and enjoy an enduring relationship with the father. The local authority was now seeking a family assistance order to continue to support the family in England while the guardian was seeking a supervision order.
The mother attempted to improve communication with the father by sending him emails containing information about what the children had been doing. The father was sceptical about her motives and continued to complain that he was not being kept informed. Although the father believed that the children were now able to speak to him unhindered or monitored without the mother or any other family member being present, he also complained that the children were not interacting with him for very long (about 10 minutes or so) in the way he would like and expect. In particular the father was concerned that his relationship with the younger child was now much more strained and somewhat difficult. In the guardian’s view, the children had moved from expressing what amounted to an abhorrence of contact with the father to discussing him in a calm and rational way, able to identify positive aspects about him and about Sweden and their time there.
The High Court judge dismissed the father’s application for the children to relocate to live with him in Sweden; she also made a supervision order and a s 91(14) order.
While the father’s scepticism was understandable, given the history of the case, the fact that emails had been sent containing straightforward information about what the children had been doing was a considerable change to the situation that had prevailed when this case was last before the court. The most recent emails, including information about what the children were going to do in the following weeks, as well as what they had been doing, were acceptable to the father. The fact that the children now had unimpeded and frequent video contact with the father was another improvement. It was more than likely that there were several reasons why the children did not interact with the father as he would wish and expect. The children were, after all, children, and would not always be as interested in talking to the father as he was in talking to them. They would have other things they wanted to get on with and do. Children were easily distracted by other more immediately interesting (to them) things, and parents often found their children’s concentration on talking to them disappointing and even hurtful. It was not realistic or reasonable for the father to expect the children to ignore what was going on at home and to concentrate exclusively on their video contact with him.
Notwithstanding the mother’s role in any disaffection felt by both children towards the father and his family, it was more likely than not that their relationship with him would
have been influenced by their expressed wish to remain living in England. They were aware that the father was asking the court to move them to live in Sweden. Nonetheless, the younger child had managed to maintain a relaxed enough relationship with the father to send him WhatsApp messages when she wanted to change the time of a video call and there had been a recent occasion when the two of them had gone shopping, and had enjoyed this very much.
The children should remain in England living with their mother and their English family. The children had both expressed their wishes and feelings clearly and repeatedly to independent witnesses. The court did not accept the father’s assertion that that they were merely acting as mouthpieces for the mother. In fact it was demeaning to these children to suggest that they were incapable of independent thought at their ages and with their individual abilities and qualities. The children could not be dragged to Sweden against their wishes; if they were, how on earth could their distress and consequential behaviour be coped with in the short or medium term? Such a placement would face a high risk of breakdown; and would be more likely than not to lead to a decrease in the children’s ability to fulfil their potential.
Contact would continue to be as set out in the court order. The younger child would have to understand and accept that the court considered that her relationship with her father and her Swedish family must be given priority. As she got older the court expected that she would be able to negotiate some changes to the regime, if there were special events at school or with her friends which coincided with contact visits; but, for the present, the time spent with her father and her paternal family must come first.
A supervision order would fit best with the need for the local authority to return the case to court if it was necessary to do so. The making of a s 91(14) order in the case placed the onus on the local authority to return the matter to court if the mother did not maintain and support the children in their relationship with the father. Furthermore, a supervision order emphasised the seriousness of the findings in this case and was proportionate to the level of harm caused to the children in the past by the mother. It involved a level of compunction in law, absent from a family assistance order, which was both necessary and proportionate given all the circumstances of the case.
A s 91 (14) order would be made because the children needed to know that neither parent could start any further litigation without the court’s permission. Lifting that burden from them would help them to enjoy their time in Sweden and with their Swedish family without feeling that their behaviour would be subjected to oversight and interpretation.