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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> C (Children Appeal) [2014] EWFC B163 (30 May 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B163.html Cite as: [2014] EWFC B163

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IN THE FAMILY COURT
SITTING AT MANCHESTER

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: C (CHILDREN)

		Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		30th May 2014

JUDGMENT
1. THE JUDGE: This case concerns three children:

A, born on 31^st December 2002, who is 11 years of age;

B, a girl, born on 4^th February 2004, who is 10 years of age; and

C, born on 6^th June 2006, who is 8.

The mother was M who died on 6^th January 2013. She was a white British woman. The father is F. Father is a black British man who has told me that his family's roots are in Cuba and also the United States of America. Father is named on the children's birth certificates. He has parental responsibility for the children. The Local Authority in the case is Salford City Council. The children's interests are represented by their Guardian.

2. This is an application by the father for permission to appeal the decision and order made by District Judge Relph dated 3^rd January 2014. At that hearing, the father was assisted by a McKenzie Friend, Z, who is the McKenzie Friend development officer for Families Need Fathers Both Parents Matter. District Judge Relph gave Z leave to speak on behalf of F at the hearing in January. In her judgment the District Judge said Z conducted himself very well at that hearing. I have seen Z's curriculum vitae, his CV, and I gave Z leave to speak on behalf of F at the hearing before me.
3. At the outset of the hearing before District Judge Relph, it was agreed that there were three issues for the court to decide: whether care orders in respect of the children should be discharged with the result the children could return to live with their father; whether the section 34(4) order should be discharged so that the children could have direct contact with their father; and thirdly, whether upon the Guardian's application an order under section 91(14) should be made by the court of its own motion so that the father may not issue any further applications under the Children Act without leave of the court. That was not a written application. It was an oral application made by the Guardian on the first day of the hearing, asking the District Judge to make that order of the court's own motion.
4. The case was heard over two days. On 3^rd January 2014, the District Judge ordered first of all that the application for discharge of the care order was refused. Secondly, the application for discharge of the section 34(4) order was again refused, and thirdly the District Judge ordered under section 91(14) of the Children Act that no application under the Children Act could be made with respect to the children without leave of the court for a period of two years. The father seeks leave to appeal two of the District Judge's decisions. First of all, the father wants to have direct face to face contact with his children. He seeks permission to appeal the District Judge's decision refusing to discharge the section 34(4) order, so effectively refusing to grant him direct contact with his children. Secondly, the father seeks permission to appeal the District Judge's decision to make the section 91(14) order. The father does not, however, seek permission to appeal against the District Judge's refusal to discharge the care order.
5. So far as the history of this case is concerned, that is set out within paragraphs 4 to 15 of the judgment. The history sets out that there is a lengthy and complex history of Local Authority involvement with this family, going back over a number of years. There have been a number of concerns identified in respect of the children's care which included not only the father's situation but also the mother's drug and chronic alcohol misuse which led to the mother's significant health problems, and also the very real volatile nature of the parents' relationship where domestic violence was said to be a feature. The parents separated in 2008 and, following their separation, the parents both made allegations against each other and the children were initially the subject of private law proceedings between 2008 and 2009. Those proceedings took place in the Salford County Court before District Judge Relph. By July 2009, a residence order was made in favour of the mother. By March 2010, the Local Authority initiated care proceedings in respect of all three children. The children were made subject to interim care orders, although initially they remained in the mother's care.
6. A number of expert assessments were undertaken in relation to both the mother and the father. That included a psychological assessment of the parents and a psychological assessment of the children. The Local Authority, during the course of those proceedings, facilitated supervised contact between the children and the father. However, at a contact in March 2011, an incident took place between the father and the contact officer. The Local Authority stated that the father assaulted the contact officer, although this has been disputed by the father throughout. What is said by the children was that they witnessed the incident and that the father was shouting and pushing the contact officer. Since that time, although there have been a number of meetings between the father and the Local Authority, there has been no direct contact with the children and their father. The last occasion contact took place with the father is now over three years ago in March 2011.
7. In June 2011, an order was made under section 34(4) of the Children Act 1989 which gave the Local Authority permission to refuse contact between the children and their father until the final hearing. The father did not oppose either the making of the final care order or the making of the section 34(4) order and he did not challenge the evidence which was before the court at that time. The children were placed in foster care in November 2011. Fortunately, they have remained in the same foster placement since that date. The final care order was made by District Judge Relph on 19^th March 2012. The Local Authority proposed that the children should remain in foster care. The current carers have recently been approved as long term carers for the children. The Local Authority's application for care orders was not opposed by either the mother or the father at the final hearing in March 2012. The mother accepted that she was simply not in a position to care for the children and she expressed a strong wish that they should remain within their existing placement.
8. The father did not oppose the Local Authority's application, although it is recorded that he did not feel the existing placement for the children was meeting the children's needs and by that the District Judge meant that she understood he did not believe that it was meeting the children's ethnic needs. The long term foster parents are a white British family and I understand from the father that they are a Christian family. The children, however, were living with their mother prior to going into the care of the Local Authority who was a white British woman. At the time they came into care, I understand information was given to the Guardian by their mother that the children were not Muslim and of course they had been living with their mother for some two years.
9. The District Judge goes on within her judgment to record that the final order of 19^th March contained the following recording:

"In terms of the father's contact with the children, the Local Authority is not recommending that any direct contact takes place between the children and their father. It seeks that the section 34(4) order remains in force and the children continue to be of the view that they do not wish to see their father at present, although B has said that she would like to see her father in the future. The Local Authority will continue to facilitate indirect contact once a month. The frequency of indirect contact will be reviewed and contact generally will be reviewed at each LAC review."

The court also approved the Local Authority's final care plans and the order under section 34(4) was confirmed by the District Judge. The previous order had only been an interim order. The District Judge then goes on to say that since the making of the final order in March 2012, the contact has not progressed as one would have hoped and has continued to be problematic. There has therefore been limited indirect contact between the father and the children.

10. In July 2012, A and C wrote letters to their father, although the father has stated throughout that he did not receive those letters. In November 2012, A wrote another letter to his father. Again, the father states he did not receive that letter. A and C have received birthday cards from their father over the past year and the children also received a joint card from him, although they did not receive separate cards. In return, the children sent their father a joint Christmas card. In addition, the Local Authority has sent the father quarterly progress reports in respect of the three children every three months.
11. The relationship between the father and the Local Authority during this period has been problematic. The Local Authority indicated in their evidence that the father has bombarded them with email communications of an inappropriate nature. Following a short and difficult meeting in April 2013 between the father and Y, who is the independent reviewing officer, and X the independent reviewing officer said that she felt intimidated by the father.
12. The Local Authority allocated the case to the present social worker, W, in June 2012 and there has been no direct contact between the social worker and the father since she was allocated the case because she was instructed by senior management within the Local Authority that the only form of communication with the father is by written correspondence. Similarly, there have been statutory reviews which have been held in respect of the children since November 2012 and the father has not been invited to either of those reviews. It is understood the father has not responded to the documentation forwarded to him to provide the reviews with information about himself.
13. Sadly, on 6^th January 2013, the mother died. The Local Authority has maintained contact between the children and the maternal family. On 26^th September 2013, there was a meeting between the Local Authority and the father on the issue of contact. That meeting was not successful. A useful chronology is set out in the District Judge's judgment and I have read that into this judgment. The key documents in the case are the judgment of District Judge Relph dated 3^rd January 2014; skeleton arguments from the father, the Local Authority and the Guardian and a core bundle of documents in respect of the care proceedings which concluded by the making of the care orders on 19^th March 2012.
14. So far as the evidence which the District Judge heard, she heard evidence from the key social worker, the father and the Guardian. The Local Authority and the Guardian opposed a discharge of the care order. There were four important facts set out in the judgment which were established by the evidence which the District Judge heard. First of all, the children had a significant need for stability which was being provided by their current foster parents; their long term foster parents now. They had suffered much instability due to the breakdown of their parents' relationship, mother's abuse of alcohol and drugs, father's problems and being moved in to the care of the Local Authority and then the death of their mother. The evidence was that the children were happy and settled with their foster parents. They had been in that placement for over two years since November 2011. The District Judge found that they needed to continue in that placement, that they needed stability, and it was also noted that the children wanted to stay with their foster parents.
15. The second important fact is that indirect contact with the father had not been successful. The District Judge said in her judgment that the father did not engage appropriately with the children's letters. He did not answer the questions they posed. He wrote what he chose and not what they asked to hear about. Thirdly, the children in the past had said that they would like direct contact with the father but not at that moment. The Guardian said in evidence that the position of the children was that they did not wish to see their father and B was saying she did not even want to write to her father. Fourthly, the father's evidence was that indirect contact was pointless and of no benefit. He described the process of indirect contact as abusive and destructive. The District Judge, however, decided that it was in the children's best interests to establish a relationship with their father through the means of indirect contact and then move on to direct contact after a period of indirect contact.
16. It is apparent from the finding of the court that the children have an overriding need for stability. The children do not know their father and do not want to see him at present. In these circumstances, it was clearly not in their best interests for the children to move to live with a father they do not know, who they do not want to see and to whom they have been reluctant to write. In addition, in any event, they wanted to stay and still want to remain living with their foster parents. Given these findings, there was of course no real prospect of an appeal succeeding against the District Judge's refusal to discharge the care orders and to his credit the father has not pursued that application at this appeal.
17. At this hearing, Z, on behalf of F, argued that the father should be given permission to appeal because they were taken by surprise by the making of the section 91(14) order. They were not expecting the District Judge to make an order under that section because there was no written application and so they were not ready or prepared to deal with that argument. It was also drawn to my attention that on 9^th August 2013, District Judge Relph had ordered that if the Local Authority wanted to apply for a section 91(14) order, they must do so before 31^st October 2013. Z pointed out that the Local Authority did not make such a written application.
18. Secondly, it was argued by the father that the District Judge failed to deal with the father's application for contact and went down the wrong route considering a discharge of the section 34(4) order authorising the Local Authority to refuse father contact. Thirdly, all eight of father's applications should have been dealt with by the District Judge, said the father. Fourthly, it was said that the District Judge failed to give proper weight to the fact that these are black Muslim children living with white Christian foster parents. Fifthly, the effect of the order made by the District Judge was to bar the father from contact and leave the father with nowhere to go which was unfair to the father and the children who were curious about him. The District Judge had said in the course of her judgment that some of the children's letters which she had seen were full of curiosity about their father.
19. The father was not invited to LAC reviews, Z pointed out. The independent reviewing officer would not speak to the father and the Local Authority says that that was due to his animosity towards the Local Authority. Z argued on behalf of the father, if the father could not bring his case back to court for two years, he would have nowhere else to go. In effect, he would be left without a remedy. Finally, Z confirmed that the father was not seeking to remove the children from their current home. What he wanted was face to face contact with a view to the children returning to his care eventually. I remind myself of the law applicable. Permission to appeal should only be granted where there is a real prospect of success of the appeal or some other compelling reason.
20. I turn to the issue of contact and the District Judge's findings in respect of that issue. District Judge Relph has been involved as the District Judge in respect of these children from the time of the private law proceedings in 2008, the care proceedings in 2011 and 2012 and now these proceedings which have taken place in 2013 and 2014. She was acutely aware of the problems which these children have had to face during their short lives. They have lost their mother. They are not seeing their father, although they do have contact with their maternal relatives. The District Judge found that as the children had not seen their father since March 2011, contact should recommence through a period of sustained, good quality, indirect contact. The District Judge also was clear that the father should demonstrate a willingness to work with the Local Authority in establishing direct contact by signing a written agreement with the Local Authority. These paragraphs are set out in paragraphs 66 and 67 of her judgment and paragraphs 70 to 72, and I am going to read those paragraphs into the judgment because they are significant.
21. The District Judge found that she had no doubt about the love that the father bears his children but it was quite clear to her, as is evidenced from the psychological report which had been referred to in paragraph 31 of the judgment, that the father has been engaged in a battle and a litigious process and much of this, I have to say, is largely of his own making. Whatever his reasons, he must accept the responsibility for the predicament that he now finds himself in. I accept the actions of the Local Authority in terms of their communication with this father are unusual but given the volume of communications, the nature of those communications and the aggressive and intimidating behaviour by the father, it is perhaps not surprising that those steps had to be put in place. I would hope that this is not an insurmountable problem and I hope that if these proceedings have served any purpose, the father will have understood that there needs to be a change in his attitude and behaviour if we are to make the real progress which he wishes and which would be in the children's best interests.
22. She goes on to express the hope that the proceedings have provided an avenue and opened up some lines of communication between the father and the Local Authority which can only be for the future benefit of the children. She accepted the evidence and the submissions of the Guardian and the Local Authority that nothing has materially changed in this case since the order was made in 2012, save that the mother has very sadly died. It was clear to the District Judge that the father remained locked in this litigious battle. There are elements of his personality which appear obdurate and unreasonable and his style, whether it is born of frustration or otherwise, can be confrontational. Until he decides to change and emerge from that then I suspect very little progress will be made, but, she said, there is progress that can be made and she accepted the Guardian's evidence that the children have not yet reached a point where they do not wish to engage with the father; rather the opposite.
23. District Judge Relph says:

"The letters that I have read tell me that these children are very curious and with careful handling and with patience, I would hope that contact could be re-established but very much of this is in the father's own hands and he must accept that. The children's letters, I accept, are charming. They are curious. They are full of cues which an intelligent man such as the father can pick up on in order to establish a relationship. A generic letter back to the children is not acceptable given the father's intelligence, and I accept the Guardian's evidence on that.

The father is plainly an intelligent man. He has his own agenda, it seems to me by the way he has responded to the children, and he chooses not to correspond. There are two conversations going on here. There is the children's conversation and there is the father's conversation and there needs to be one. This, I am afraid, is reflective of the way the father chooses not to engage with the Local Authority unless it is on his terms. It is pointless agreeing an agenda. It is pointless attending a meeting unless you are prepared to discuss matters properly and sensibly and to listen to a different point of view."

24. The judgment goes on at paragraphs 70 to 72 as follows:

"In terms of the section 34(4) application, I think the father must understand that this is a permissive order. It is not an order for no contact. The real key to progress in terms of contact lies very much in his hands. I do not believe that indirect contact is a waste of time. The letters from the children are a real cue to the father that he can take up and build a relationship and there has been indeed a lost opportunity between July and today. We could have been very much further down this road but the father has chosen not to engage in the children's conversation. He almost seems determined to have a conversation with the children on his terms. I am satisfied that he has sufficient intelligence to know the difference between the two. The concern I have is that this is a reflection of the father's personality."

25. She went on to say:

"I accept the evidence of the social worker and the Guardian that there needs to be a flow of proper correspondence which I hope very much will lead to direct contact should the children wish it but this will have to be dealt with cautiously and there will indeed have to be at some point a meeting between the father and the Local Authority, at which I would expect the father to agree and sign a written agreement so that everyone knows where they are."

26. The judgment continues in that tone. Clearly, the District Judge had at the forefront of her mind that the father wanted direct contact with his children immediately and that the father thought that indirect contact was a waste of time. She found direct contact at this time was premature. The children do not know their father. They have much to learn about each other and that can be done, she said, through indirect contact. Judges who sit in family courts know that restarting contact after a break of over three years is a delicate process. In this case, that process has faltered. The father thought indirect contact was a waste of time and the District Judge found that he did not commit to the process as he should have done, and I am paraphrasing her judgment. The District Judge is clear that now this was the last opportunity for the father to commit to indirect contact and so progress to direct contact via that route. It was up to him, she said, to make a success of it. Judges in the family court regularly order a period of indirect contact in the hope of establishing direct contact. That is a well-established method of moving towards direct contact.
27. The evidence is that these children do not want to have direct contact with their father yet. The Guardian's evidence set out at paragraph 49 of the judgment is illuminating. The Guardian said that the children said they would like direct contact but not at the moment. In fact, all three children were saying at the moment that they did not wish to see their father, and B at the moment was saying she did not want to write to her father, but again the Guardian felt that the children could be persuaded.
28. The children's interest in the father therefore needs to be stimulated by his letters. As the District Judge said, it is up to him now. The District Judge had delivered a thorough, well-balanced and thoughtful judgment. She made clear findings on the evidence that it was premature to order direct contact and that indirect contact should continue in the hope of re-establishing direct contact. I cannot fault the findings of the District Judge that indirect contact should continue as a route to direct contact. There is no prospect of an appeal on this ground succeeding. The argument of the father that the District Judge failed to deal with father' application for contact is misguided. The District Judge clearly had that issue of father's wish to have direct contact at the forefront of her mind throughout her judgment. However, she said it was premature. Furthermore, she did not go down the wrong route when she refused to discharge the section 34(4) order. She said at paragraph 72 of the judgment that the Local Authority needed the section 34(4) order in place to continue to regulate contact and promote the children's welfare. That is why she refused to discharge the section 34(4) order.
29. I also bear in mind the father's argument that these children are black children living with white foster parents. They are also the children of a Muslim father living in a Christian home in which they are being sent to Sunday school, I was told. The father's case is best put by saying that the children need to have contact with their father in order to gain knowledge of their racial and ethnic origins and the Muslim religion. I find that this argument does not assist in the method of establishing contact. It does not follow that because of the issue of race and religion, there should be immediate direct contact. Of course, those issues may determine the need for contact but the method of establishing contact is still via a successful, indirect, sustained period of contact, as found by the District Judge.
30. If, for example, in their letters any of the children ask their father questions about his family history and religion or about his background, he should answer their questions as best he can. He should try to spark within them a wish to talk to him and meet with him and learn more about him. I return to the father's application for permission to appeal on the issue of contact and the District Judge's refusal to discharge the section 34(4) order. For all the reasons I have given above, I find that there is no real prospect of success of an appeal on that point. I find that there is no other compelling reason for granting permission to appeal.
31. I turn to the father's application for permission to appeal against the section 91(14) order. The District Judge found at paragraph 68 that the children have had a very unsettled start in their early life, their parents' relationship problems, the mother's substance abuse, the removal from mother's care and then her death. She also found that the children have a desperate need to be calm and free from litigation and the anxieties that litigation brings. They are all of an age to understand that something is going on. It was the Guardian who in the course of his evidence set out at paragraph 55 informed the court that he felt he was asking the children the same questions as the previous Guardian. He was concerned that following his visit, the report from the foster carers was that the children were very unsettled. He felt that the children had been involved in the litigation process now for a considerable period of time and that they should be shielded from the anxieties and uncertainties that litigation brings.
32. At paragraph 73 of her judgment, the District Judge set out a careful, sound analysis of the law relating to applications under section 91(14). She said it was a power to be used sparingly and should be the exception and not the rule. She also sets out the court's power to impose a restriction under section 91(14) in the absence of a specific request subject to the rules of natural justice, allowing any party to be heard. Counsel for the Guardian has referred me to page 685 of the Red Book in respect of litigants in person. It is of course of utmost importance when dealing with litigants in person that they first of all understand that the application is being made or that consideration is being given to making a section 91(14) order; secondly, that they understand the meaning of the order; and thirdly, that they have a proper opportunity to make submissions to the court.
33. At paragraph 16 of the judgment, the District Judge identifies that at the outset of the case, the parties agreed that one of the issues to be decided was whether she should make an order under section 91(14). The position was that the Guardian had asked the court to make such an order of its own motion. The father and Z knew that the District Judge was going to consider making an order under section 91(14). It was one of the three issues for the court to decide, agreed by all the parties. They knew that on 2^nd January 2014. The hearing concluded with the judgment on 3^rd January 2014. Consequently, the father and Z had the opportunity to give evidence on this issue and make submissions against it.
34. The father is described by the District Judge as an intelligent man. Z, his McKenzie Friend, has been an able representative for the father at two hearings now. In these circumstances, the father knew that the District Judge was going to decide whether to make an order under section 91(14). It was one of the three issues specified by the District Judge. They understood the meaning of the application and had an opportunity to make submissions to the court. The fact that there was no written application for a section 91(14) order is not relevant on the specific facts of this case.
35. Of course, had the Local Authority been aware of the seven additional applications issued by the father which were not served upon them, the Local Authority may well have made a written application under section 91(14). As it was, the Local Authority did not find out about those applications until 2^nd January 2014 as they had not been served upon them, or the Guardian. Consequently, on 2^nd January, the Local Authority decided to support the Guardian's application that the District Judge make the order of its own volition under section 91(14). The District Judge's reasons for making the order are set out at paragraphs 74 and 75 of the judgment.
36. First of all, the District Judge found that the children's welfare and security has been put in jeopardy by the continued litigation and the anxiety which it has caused the children. Secondly, she referred to the number of applications the father made, set out at paragraph 17 of the judgment, a number of which were not tenable, she said. Thirdly, the District Judge found at paragraph 66 that the father was engaged in a battle and a litigious process, and at paragraph 58 she said father was entrenched within the litigation process. She referred at paragraph 75 to the number of emails sent by the father and received by the court, the Guardian and the Local Authority. She said in terms all of that had to stop if there was to be any progress in this case.
37. On these facts, the welfare of these children require the court to make an order preventing the father from making an application under the Children Act without leave of the court for a period of two years. Once again, the District Judge provided a well-balanced, careful judgment on the issue of section 91(14). There were sound reasons for making the order. The welfare of the children is the paramount consideration of the court. Their welfare required them to be free from litigation to which they had been exposed since 2008. The children have an urgent need in this case for a period of stability in which they are free from the litigation process.
38. The District Judge was clearly of the view that the risk to the children was that the father is of a litigious character who would continue to issue applications resulting in social workers and a Guardian visiting the children again and talking to them about their wishes and feelings. All of this would disturb their need for stability and their need to be free from the stress of being the centre of litigation. They have suffered from being the centre of litigation since 2008. In these circumstances, a two-year period, I find, was a wholly reasonable period of time to prevent father from making an application under the Children Act with respect to the children. The District Judge has been proved right about that risk as the father has appealed the decision of 3^rd January 2014.
39. It was also argued by the father before this court that if he could not bring his case to court for two years, he would have nowhere else to go as the Local Authority and the independent reviewing officer were not engaging with him. I find that that argument is unsound. The order does not prevent the father from applying to the court for leave to issue an application under the Children Act within the two-year period. The order only prevents the father issuing an application without permission of the court within the two-year period. The father is not left with nowhere to go.
40. In any event, the Local Authority intend to arrange another meeting with the father about contact in the future. They are happy for the father to be assisted by Z or another person at that meeting. The father should view this offer as a positive development and another opportunity to make progress towards direct contact. That of course has nothing to do with the appeal but nevertheless is an important and optimistic piece of information for the father which I gleaned in the course of this hearing.
41. I return to the father's application for permission to appeal on the issue of the order made under section 91(14). For all the reasons I have given above, I find that again there is no real prospect of success of an appeal in respect of this point being successful. I find that there is no other compelling reason for granting permission to appeal. Finally, I turn to the father's complaint that the District Judge should have made orders in respect of all eight of father's applications set out at paragraph 17 of the judgment, and some of them are extraordinary. The Local Authority and the Guardian were not aware of seven out of eight of the applications because they had not been served upon them. In any event, the father agreed that there were three issues for the District Judge to decide and those three issues were set out at paragraph 16 of the judgment and the District Judge went on to decide those three issues. It is therefore misguided of the father to seek to go behind that agreement and complain that the judge did not decide a number of other issues as well.
42. Therefore, to conclude, I refuse to grant the father's application for permission to appeal on all the points he has raised on the basis that there is no real prospect of success and no other compelling reason for granting permission to appeal. There will be a transcript of this judgment at public expense.
[Judgment ends]