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Re Y (Private Law: Interim Change of Residence) [2014] EWHC 1068 (Fam)

Date:15 APR 2014
Law Reporter

The full judgment is available below.

(Family Division, Pauffley J, 2 April 2014)

Residence - Contact - Change of placement pending final hearing

The father of the 22-month-old child was granted an interim residence order based upon the mother's inability to support contact with the father.

A fact-finding hearing had taken place in relation to the 22-month-old child and a final hearing was scheduled for 6 weeks' time. The child was currently living with the mother but the local authority submitted that her continued placement there was neither sustainable or conducive to her wellbeing if contact with the father were to take place. The mother believed the father had sexually abused the child and there was a mounting concern about the mother's mental state, in particular, her obsessional anxiety which at times made her emotionally unavailable to the child.

The guardian supported a change of residence to the father and noted that the mother had been unable to support the child in developing a relationship with the father by moving towards unsupervised and overnight staying contact.

On the facts of the case to do nothing was not an option. The court would be failing in its duty if it were to conclude that the child could remain with the mother. She was unable to accept that the father had done no harm to the child, sexually or otherwise. Her beliefs were entirely without foundation and were the product of distorted thinking. She continued to make allegations against the father to social services.

In these circumstances the right welfare decision for the child was to move to live with the father until the final hearing under an interim residence order. He had built up a good relationship with the child since contact was reinstated and had been assisted by the paternal grandmother. The mother would have contact with the child 3 times per week on a supervised basis.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.


Neutral Citation Number: [2014] EWHC 1068 (Fam)

Case No: FD13P01160


Courtroom No. 32




Date: Wednesday, 2nd April 2014



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B E T W E E N:

Re Y (a child: private law: interim change of residence)

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Transcript from a recording by Ubiqus

61 Southwark Street, London, SE1 0HL

Tel: 020 7269 0370

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MISS C HARTLEY appeared on behalf of the FATHER

MR P HORROCKS appeared on behalf of the LOCAL AUTHORITY

MISS M JONES appeared on behalf of the MOTHER

MISS S LITTLE appeared on behalf of the GUARDIAN

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JUDGMENT (Approved)


[1] Following on from the 25 February fact finding judgment [2014] EWHC 486 (Fam) and six weeks or so before the final hearing, scheduled for 14 of May, it has become necessary to consider the interim residence arrangements for Y, now one year and 10 months old. And whilst I quite accept that it is most unusual to contemplate an alteration in the residential arrangements for any child so close to a final hearing, clearly the recent history justifies renewed judicial consideration.

[2] In summary the parties' positions are these. The mother, represented as before by Miss Jones, suggests that if Y were to be left as now, living at home with her mother and her brother, L, there would be no risk of the kind that would be needed to justify removal in the public law arena. Moreover Miss Jones submits that on an evaluation of Y's welfare interests, balancing any risks with the advantages of maintaining the status quo, it would not be in her interests to move now to live with her father.

[3] The father suggests the mother's attitude towards him and particularly in her responses to the notion of unsupervised overnight contact are such that Y should now be moved to live with him. If that were to happen then it is the father's position that he would facilitate contact between Y and her mother in accordance with advice from the Local Authority and the children's guardian, Miss Nicholls.

[4] The Local Authority, represented as before by Mr Horrocks, has no confidence, in the light of the history, in the mother's ability to comply with orders for staying contact, even with the active support of the social work team. There is, furthermore, mounting concern on the part of the Local Authority about the mother's mental state and that, because of her own obsessional anxiety, at times she has been emotionally unavailable to Y. The Local Authority considers that Y's continued placement with her mother is neither sustainable nor conducive to Y's wellbeing if contact between her and her father is to take place as intended by the court.

[5] Y's guardian, Miss Nicholls, balancing the risks and welfare issues, supports the move to the F, conscious that this would represent a significant change for Y. Miss Nicholls has become increasingly concerned about the mother's emotional wellbeing. She, too, is mindful that the mother has been unable to support Y in developing her relationship with her father by moving towards unsupervised and staying contact.

[6] Since the fact finding judgment when I made clear there was no reason for contact to remain supervised and nothing to prevent overnight staying contact, a whole series of difficulties, impediments to progress, have arisen. Some might best be categorised as attitudinal; a fixed and unwavering resistance on the part of the mother to permitting unsupervised staying contact because of her beliefs about sexual wrongdoing. Other problems have arisen in that Y, once more, has sustained a number of very largely unexplained injuries, particularly bruises to her buttocks and close to her genital area, sufficient on the last occasion to cause the Local Authority to initiate a s 47 investigation with an associated child protection medical.

[7] Charting the recent history in summary form -

On 4 March there was a Local Authority strategy meeting to consider contact proposals leading up to the hearing in May.

On 10 March, prior to the first occasion of planned unsupervised contact, Y was noted to have a bruised and swollen leg. The mother and maternal great grandmother suggest Y had slipped and hit her face on a coffee table.

On 11 March the mother told the social worker there was a bruise on Y's right buttock.

After the second occasion of unsupervised contact on 12 March, the mother informed the social worker that Y's nappy was ripped down one side and the sticky tab had been moved. She said she had photographed the nappy before Y went for contact and wanted ‘to understand the logic' behind the presentation of the nappy. It did not make sense to her unless the father had changed Y's nappy.

On 12 March, whilst Y was in a children's play area with her father and paternal grandmother, she tripped over and scraped her face on rubberised matting.

On 13 March the mother reported to Social Services that Y had a bruise close to ‘her private parts.' A s 47 investigation was initiated. Y was seen by a consultant paediatrician who concluded that the bruising pattern - in the nappy area, thighs and buttocks - was not consistent with normal, daily activities or nappy changing.

On 19 March the proceedings were restored for hearing. The Local Authority indicated it would invite the Court to convene a further focused fact finding hearing and/or consider a change of the interim residence arrangements. There was discussion about the programme of intended contact. Agreement was reached that the first occasion of overnight staying contact would occur between 26 and 27 March. I listed the proceedings for one day, on 15 April, to consider contact and placement issues.

On 25 March Y was noted by her GP to have a new bruise at the base of her spine, the size of two fingernails and the width of an adult finger.

On 26 March the mother would not permit Y to go with the social worker for overnight contact, notwithstanding that Miss Illston spent about two hours in the mother's home attempting to persuade her to allow Y to leave for contact. She was unsuccessful.

The proceedings were restored before Theis J on 27 March. She adjourned the application to yesterday, 1 April, for consideration of the breach of the contact order, the cause of the bruises, contact and interim residence.

[8] So much then for the very recent background. At the risk of stating the obvious, Y's welfare is my paramount consideration. These are not public law proceedings, the test for interim removal, as articulated in Re L‑A (Children) [2009] EWCA Civ 822 does not apply. Nonetheless it seems to me that there are some useful parallels between public and private law interim removals. I would always apply the closest and most stringent scrutiny to an application for an alteration of interim residence; and would only order such a change on the basis of compelling reasons - where the child's physical and emotional safety needs required that alteration to be effected.

[9] In this instance I am altogether persuaded that to do nothing, to leave arrangements as they are, is not an option. I would be failing in my duty to Y if I were to conclude that she should remain living with her mother even for the next six weeks.

[10] All the signs are that if I were not to make alternative residential arrangements the same pattern of the last five weeks or so would continue. There is no indication whatever that the mother will be able to re‑evaluate her position, adjust her thinking and respond positively to the father. Quite the reverse.

[11] In her discussions with Dr Asen, with Miss Illston and on many, many occasions in her evidence, the mother has made clear her fixed, unshakeable, persistent and enduring belief that Y has been sexually abused by her father. The following extracts from the Local Authority's case recordings are highly relevant.

On 4 March, six days after the judgment, at a strategy meeting the mother said she wanted contact to remain supervised until Y was old enough to speak. She felt she had failed Y and would not be able to protect her.

Three days later, on the 7 March, the mother repeatedly told Miss Illston that it did not matter what the social worker or the judge said, something (sexual) had happened to Y.

On 10 March the mother said she wanted ‘to slow contact down until Y is able to speak properly.' She wants her to have ‘the tools to know about her own body' and to protect her from the perceived risk of sexual abuse.

On 11 March the mother was in touch with the social worker to report a bruise under Y's right buttock, which she said was ‘definitely not there before contact.' The mother said she had ‘a horrible feeling in her tummy' because, upon inquiry, Y's father had said he did not change her nappy and the bruise did not happen whilst she was with him.

On 12 March, during a call to Social Services to report the tear in Y's nappy the Mother asked Miss Illston to go to the father's house, unannounced, and ask him about her belief that the nappy had been removed. The mother wanted Miss Illston to gauge the father's reaction, particularly to see ‘if he goes red'. During the course of the same call, the mother also conveyed that it was obvious to her that Y does not want unsupervised contact. She had said, ‘Mummy', before leaving the house in a ‘worrying way' and she had seemed odd.

During the child protection medical on the 13 March the mother told Dr C she had not wanted to look any further at Y's bottom because she was ‘scared.' She knows what happened before, ie sexual abuse.

On 16 March, when talking about the bruises with a sessional worker, the mother said that discussion about them brought on feelings of panic. She took a deep breath and held her stomach.

On 25 March the mother was visibly distressed during a family support worker's visit, struggling to control her emotions and close to tears. She looked very tired with dark circles under her eyes; she made clear her belief that Y is at risk from her father and that she cannot protect her daughter.

On 26 March, a week ago today, when the mother refused to allow Y to go for contact she reiterated that she could not accept the judgment. She ‘knows what (she) saw' and therefore knows that Y will not be safe at contact. She will be abused by her father and thus the mother is scared. Her ambition, she explained, was for Y to have only supervised contact ‘until she can speak.'

[12] During the course of her evidence, the Mother, and for the first time, said she thought she could support unsupervised contact. She would make that happen so that ‘things could stay the same'; but she also said, repeatedly, that she ‘knows what (she) saw,' a reference to the event when she believes the father abused Y, and she knows what ‘she saw on the father's phone,' a reference to ‘incest porn.'

[13] The mother sought to persuade me that she will overcome her fears, she will deal with them but she also said she is ‘not a robot;' she cannot ‘excise' what she saw. She was not going to lie; she does believe the father's contact should be supervised until Y is able to talk. The mother continues, notwithstanding the judgment, to believe the father and paternal grandmother are untrustworthy. She is, she said, ‘really scared' that because her version of the truth has not been believed by me, three lives, her own, L's and Y's, will be ‘practically destroyed.' The mother continues in her quest for ‘a miracle' which would involve the father telling the truth, by ‘being totally honest.' I would then be able to come to a different judgment and the mother would accept that judgment.

[14] It must follow that the mother, at this juncture, has repeatedly demonstrated, in the clearest way possible, that she simply cannot meet an important element of Y's emotional need. She has no ability, currently, to accept that the father has done no harm to Y, sexually or otherwise. The mother's response to the father and the risk she has convinced herself he poses can only be profoundly unhealthy.

[15] Dr Asen's view as to the mother's beliefs is that they have an almost delusional quality. His fear was that sooner rather than later the mother would make further allegations of sexual abuse or misconduct against the father after unsupervised contact. Subsequent events have proved that forecast to be entirely accurate.

[16] I remain convinced that the mother's beliefs are entirely without foundation. They would seem to me to be the product of distorted thinking and to have their origins in the mother's own psychological problems. Her strong opposition to the father and to the role he should properly be playing in Y's life are based upon beliefs which do not connect with reality. They are intensely problematic from Y's perspective. The chances of her being able to make healthy progress in her relationship with her father would be severely limited if she were to continue to be exposed daily to the mother's beliefs and the florid manifestations of her own distress.

[17] Interestingly, in the current context, Dr Yates, consultant child and adolescent psychiatrist, said this about the mother in October 2008. That he had identified times when she was ‘emotionally unavailable, unresponsive and neglectful and there were occasions when she had used L for the fulfilment of her own psychological needs. I agree with Dr Asen when he opines that very similar issues and dynamics are present now in relation to Y and her father.

[18] Since the February judgment there are several notable examples of the Mother being quite incapable of governing her own emotions. At the strategy meeting on 4 March she shouted and swore at the father and paternal grandmother, calling her - so it is reported - ‘a fucking smug bitch'. Y was in her mother's arms at the time and was distressed. Miss Illston, a very experienced and sympathetic social worker, was worried about the impact upon Y of the mother's emotional state, so graphically described in the case recording for 26 March.

[19] I have no doubt at all that the situation within the mother's home in relation to the issue of Y's contact has been deteriorating. I agree with Miss Nicholls when she describes the likelihood of the mother behaving in an unpredictable way if there is not now a change of residence. The tipping point for Miss Nicholls' recommendation as to a change in the interim arrangements undoubtedly was the mother's outright refusal to permit overnight contact last week, but that should not be seen in isolation.

[20] Since 10 March a picture has been building of the mother seeking out matters to draw to the attention of the social workers; and however she has described whatever it was, the innuendo she invites is plain for all to see. For me there is real importance, not so much in the cause but in the number of emerging physical symptoms since 26 February. I mention them in summary form.

References by the mother to previous red marks on Y's bottom at the time when the bruise was noticed on the 10 March.

The ‘funny discharge' the mother says she had found in Y's nappy after contact.

The bruises which caused the Local Authority to instigate child protection procedures on 12 March.

The claim that Y had a urine infection, blood in her urine, on 25 March.

Just last week, on 29 March, the mother's claim that Y had not wanted her nappy changed, or to be undressed, or have a bath which she normally enjoys. Asked by a family support worker as to her explanation for that behaviour, the mother said she did not know but insisted Y's behaviour was unusual.

[21] Those events, those physical signs, drawn to the attention of social service in the last two weeks or so cause me to have the gravest anxiety for the future if Y were to be left with her mother. I entirely agree with Mr Horrocks when he suggests the overwhelming likelihood is that there is no link between any bruise and any sinister sexual interference by the father. I am sure that the right welfare decision for Y is that she should now live with him until the May hearing.

[22] In so concluding I bear in mind all of those positive factors emphasised by Miss Jones and by the mother herself. Until now it is of course the reality that Y has always lived with her mother and L. In other areas of her development she is doing well. But the risks that she will never be able to consolidate a proper relationship with her father, as the result of her mother's overt and also her subtle attempts to undermine that relationship are so great, so transparently obvious, that the father should now have an interim residence order.

[23] I so conclude against the background of the most recent scientific testing of the father for alcohol misuse. I bear in mind that one of the indicators was above the normal level which could be due to chronic excessive alcohol consumption but may also have been caused by other factors or diseases. The results of the father's liver function test indicate that in most areas the results are within the normal range. It is also highly material that in every contact he has had with professionals - social workers, the guardian, family support workers, contact supervisors - the father has never once appeared to be either under the influence of alcohol or suffering from the effects of too much to drink on the previous evening. He assures me there will be no occasion, whilst Y is with him, when he will drink any alcohol at all.

[24] His relationship with Y self‑evidently has flourished since contact was re‑instated last November. He has benefitted, hugely so, from good guidance given by Mrs Grummitt, in the first place, and then by a succession of other social workers. His contact is uniformly good; he has been able to forge a very pleasing relationship with his daughter. Doubtless also he has been assisted, to some extent, by the assistance given by his own mother.

[25] It is a reassurance that the decision to which I have come is supported by all the professionals who have had recent involvement with Y's life. No one, other than the mother, recommends that the result of this hearing should be a continuation of the status quo. The professionals are united in suggesting that Y should now live with her father and I so order.

[26] In relation to contact the Local Authority's proposals were explained by Mr Horrocks. The suggestion is that on not less than three times each week Y should see her mother for three hours on the basis that the contact will be supervised. There is good reason for the requirement of supervision, it seems to me. It is extremely likely that the mother will be very distressed as the result of the impact upon her of recent events. She will find it deeply upsetting that Y will now be living with her father. It will be vital to monitor the extent to which she is able to present herself in a way that Y will not find disturbing. The Local Authority will make appropriate arrangements as the result of gauging, at every stage, how the mother responds. That is my judgment.