Private Law Children Act Proceedings – S.8 -R.16.4 Guardian – Care Proceedings

A reminder of Court’s Power to Intervene of its own motion.

1. IMPORTANT NOTE: This article is based on a case I was recently involved in to represent the child on behalf of NYAS, the National Youth Advocacy Service, and is still ongoing. It has not been reported and every effort has been made to anonymise the parties and the child and ensure confidentiality.
2. The case concerns the welfare of a young child, now aged 6 and referred to throughout this article as A, following a C100 application for a Child Arrangements Order brought by the father in 2022 following alleged disclosures from the child in respect of sexual abuse while in the care of the mother. By the time I was instructed there had been numerous hearings, mostly all before different judges, and the matter had been listed for a 2-day hearing in early October 2023 before another new Circuit Judge to consider the following

• • Mother’s application for enforcement of the orders dated July 2022 and December 2022
  • Father’s application to change the child’s school.
  • Father’s application to vary the interim Child Arrangements Order made in his favour in April 2023.

The mother was represented by solicitor and counsel. The father was in person.

NYAS had not had sufficient time to allocate the matter to a Case Worker and the court vacated day 1 of the 2 day substantive hearing referred to above but retained day 2 before the same circuit judge to consider the application by NYAS for more time and to make any further necessary case management decisions.

I should add that the mother’s partner had been joined as an intervenor due allegations made against him by the child according to the father, and the matter listed for a 5 day Fact Finding Hearing in early January 2024.

Relevant Background

3. The history to the proceedings is extensive and the bundle currently comprises over 1000 pages.
4. The child, A, was previously subject to Children Act proceedings which concluded by way of a final order for a shared care arrangement between the parents by which A  spent alternating weeks with each parent. Father brought fresh proceedings, on the basis of allegations of serious sexual harm caused to the child while in the care of the mother, in April 2022. Following this an order was made by a District Judge in April 2022 for A to live with the father and spend time with the mother, such time with mother progressing from supervised to unsupervised through the proceedings.
5. The matter came before another DJ in July 2022 who ordered weekly sessions of unsupervised contact for a period of 3 hours at a time every weekend (alternating between Saturdays and Sundays). In December 2022 another Deputy District Judge provided for holiday contact and reiterated that the order of made in July remained in force in respect of the ‘usual’ pattern of contact.
6. The father refused to comply with these orders and the mother made her application to enforce the orders, having had no contact with A since mid December 2022. At a hearing before yet another DJ in March 2023 the father admitted the breach and sought to rely on ‘reasonable excuse’. The DJ re-ordered weekly contact for a period of three hours and attached a penal notice to this aspect of the order. The father was ordered to prepare a statement setting out his ‘reasonable excuse’.
7. The matter was then listed before a Circuit Judge in April 2023. At this hearing the Local Authority made clear that it had no safeguarding concerns for A whilst in the care of the mother and the Judge ordered weekly contact, unsupervised in the community for a period of 6 hours every weekend, attaching a penal notice. It was at this hearing that the mother’s partner was joined as an intervenor and the matter listed for a 5-day fact-finding hearing to commence in early January 2024. Father sought to appeal this decision but his appeal was dismissed by the High Court for the following reason:

“Refused as being totally without merit and the proposed appellant may not request the decision to be reconsidered at an oral hearing.”

8. The father again failed to comply with orders of the court. He did not make A available for contact with the mother. Rather than making a further application for enforcement, given the number of applications extant within these proceedings, the mother’s solicitors wrote to the court in June 2023, requesting an urgent hearing. The father had suspended contact on the basis of yet further allegations, all of which were utterly refuted by the mother.

The father’s further allegations included the following:

• • Mother had been wobbling one of A’s baby teeth during contact and had suggested that the tooth would be removed with ‘special tweezers’. According to the mother the tooth came out naturally while A was eating.
  • A had not been in an appropriate car seat during contact.
  • Mother had rubbed an inappropriate hand cream on A’s genitals and bottom during contact.

9. At an urgent directions hearing before another Judge, this time a Recorder, in July 2023 the parties made submissions on interim arrangements, but no decisions were made. This was due to the ongoing involvement of the police in investigation the allegations relied upon by the father, and the position of the local authority requiring further clarification. The court’s hands were to some extent tied until further information could be obtained from both organisations, which led to the matter going part heard to account for this. The parties returned to court in early August 2023. At this hearing the court ordered that contact resume albeit on a weekly basis, with the safeguard of being supervised at a local Family Centre. This was to occur weekly for three occasions during what remained of the summer holidays, and it was the Court’s hope that this arrangement could continue for (albeit for shorter durations) once term commenced. Again, the Court attached a penal notice to the contact ordered during the school holiday. The reason for the need for supervision at that time was because mother was on conditional police bail not have any unsupervised contact with A.
10. It was at this hearing in August 2023 that the court ordered that the child be joined to these proceedings and appointed NYAS to allocate a R.16.4 Guardian. NYAS was directed to prepare a detailed position statement by early October 2023 dealing with the issues to be considered by the court. In addition, the Recorder made a further Order for Police Disclosure in respect of the father’s recent allegations.
11. The supervised sessions as ordered by the Recorder in early August 2023 for the school holidays did take place, and was considered to be very positive by the mother but no contact then took place from the beginning of September despite this being the expectation of the court. The mother was unable to afford to fund any contact at a contact centre.

15. The mother also became increasingly concerned that, despite repeated warnings not to record or track A during contact, (made explicit by the Circuit Judge at the hearing in April 2023, referred to in para 7 above) she had discovered what appeared to be a recording device in one of A’s toys during one of her contacts in August 2023.
16. NYAS made a C2 application at the end of September 2023 to adjourn the 2 day hearing at the beginning of October 2023 on the basis that no caseworker had yet been appointed and, consequently, there was no detailed position statement from NYAS addressing the issues as ordered by the Recorder at the hearing in August 2023.(para 9 above).
17. Police Disclosure in respect of the father’s latest allegations was only received the day before the interim/directions hearing referred to above (para 2 above). Whilst a charging decision in respect of the mother remained outstanding the police disclosure revealed text messages sent by the father to the mother in July 2022 propositioning the mother for sex.
18. At the interim/directions hearing I dealt at the beginning of October 2023 the senior Circuit Judge, who had not previously dealt with any of the previous hearings expressed concerns about a number of matters, in particular the following:

i) why the proceedings had taken so long, now nearly 2 years;

ii) the number of hearings;

iii) the lack of judicial continuity and the impact on the progress made with numerous    directions not being complied with.

iv) what the court was being asked to actually do at the 2 day hearing listed but now vacated.

v) why had a private law matter been listed for a 5 day fact finding hearing which cannot be justified when public law matters are now waiting many months for a final hearing.

vi) where was the welfare of the child amidst all this, why was contact not taking place and when was it being proposed there would be a final welfare hearing.

16. Having expressed all the above the Judge was particularly concerned that the young child was effectively stuck in the middle of the parents’ disputes and had either suffered or was at risk of suffering significant physical and/or emotional harm if matters were to continue as they were.
17. A social work team manger had also attended this hearing on behalf of the Local Authority (having also attended the last two or possibly three hearings), and confirmed that the LA had no concerns when A was in the mother’s care.
18. Matters were dealt with maters as follows:

UPON the court of its own motion considering that an application should be made for an Interim Care Order at the next hearing;

                 AND UPON the court indicating that the fact-finding hearing in January 2024 would not be effective;

               The LA to file and serve an application for an ICO within 3 day and the matter was listed the following day before the same Judge to consider whether an ICO should be made.

19. The LA issued care proceedings and filed a lengthy threshold document relying exclusively on the actions of the father and his numerous and serious unsubstantiated allegations against the mother and her partner by virtue of which the LA alleged A had both suffered and was at risk of suffering from significant emotional harm.
20. The decision of the LA to issue care proceedings meant that NYAS involvement ceased and CAFCASS took over with immediate effect.
21. The position of the LA was for A to be removed from the father’s care and placed with the mother to protect A from further emotional harm. The LA did not seek an ICO but felt that the matter could be dealt with by way of an ISO together with a PSO to prevent the father from removing A from the mother’s care, a SIO for father to hand over A’s passport and a Non Molestation Order to prevent the father from further harassing the mother.

The LA proposed that the father should have supervised contact.

22. At the ICO hearing the judge heard submissions and made an ICO and approved the care plan for A to be placed with the mother. The father’s contact was suspended for 2 weeks to allow A time to settle. As stated above the proceedings are ongoing.
23. The appointment of a R.16.4 Guardian in private law proceedings is not, unfortunately, unusual. The decision of the court to invite the Local Authority to consider making an application of its own motion and to make an ICO with a plan for the immediate removal from the resident parent and place with the other parent is.
24. The circumstances of this particular case and the concerns of the court are highlighted above in this article as a reminder of the need for more judicial continuity in private law children cases and the need for clear and firm case management throughout the proceedings to ensure the welfare of the child is not lost along the way.