Strand, London, WC2A 2LL
B e f o r e :
|- and -
Markanza Cudby (instructed by Barrett and Thomson) for the Respondent mother
Hearing dates: 10 11 and 19 February 2015
Crown Copyright ©
Mr Justice Keehan:
a) SaU dob 28.7.00 (14)
b) ShU dob 7.11.02 (12)
c) FU dob 25.5.04 (10)
d) YU dob 9.10.10 (4)
Preparation for the Fact Finding Hearing
i) by a letter dated 29.1.15 they were notified by the mother's solicitors that her legal aid certificate had not been extended to cover any further hearings after the hearing on 15.12.14 until 13.1.15;
ii) accordingly an application had not been made to the police for disclosure, as per the order of 15.12.14 until 14.1.15;
iii) the mother's solicitors contended that they were unable to file and serve a schedule of findings sought and/or a statement until they had received disclosure from the police; and
iv) no application had been made by the mother's solicitors to the court for a variation of the directions given on 15.12.14 and/or for an extension of time in which to comply.
a) the mother alleged the father assaulted SaU on two occasions in late 2013. On the first occasion she said the father beat SaU on the head and then locked her in a cupboard or storage room. In evidence, however, the mother said the father slapped SaU so many times in the face and she was crying so much that she could not talk. The mother could not explain why this later account of the event was not in either of her statements;
b) the older 3 children spoke to Ms Odze about an event when the father locked SaU in a cupboard. The father denies he did so. There may have been an event when the father had cause to discipline SaU – perhaps inappropriately – but given the degree to which the mother, by her own admission, has involved the older three children in the parental dispute, I am of the view I should be very cautious in placing any weight on comments made by the children to the CAFCASS Officer or other professionals.;
c) on a another occasion it is alleged the father pulled SaU's hair and slapped her. It is agreed there was an incident between SaU and the father which caused SaU to call the police. Given the alacrity with which the parents have involved the police in their marital disputes, I am less surprised than might otherwise be the case that SaU followed the course so frequently taken by her parents. In evidence the mother confirmed that the father had pulled SaU's hair and beaten her. This account of events does not accord with the police log of the incident, namely:
"Father was spoken to separately who stated that he had found messages on his daughter's phone which he didn't approve of and the messages were between this daughter and some unknown person. When questioned and told that he was going to ring the number the subject began crying and wanted the phone back, as the father paid the bill he kept the bill she was clipped softly around the ear and sent to her bedroom.
The subject and mother were also spoken too and confirmed that this was what happened, and now the subject is upset because she is no longer allowed the phone.
Subject was safe and well and had no visible injuries and was spending the day in her room. I've no concerns over the subject as she was punished according by her father."
The mother denied she had confirmed the father's account to the police. This is another occasion when the mother has disputed a police recording of events. I am satisfied that the police log is accurate and that the mother is once again lying in her evidence to the court;
d) The mother sought to suggest in evidence that there were subsequent incidents, post September 2013, involving the father and the children. She could not explain why there is no reference to any such events in either her statements or her schedule of findings sought. The excuse that she 'ran out of time' with her solicitor will not do. The mother is lying;
e) The mother's evidence about when she found out the father had married a second wife and her account of the events of 24 July 2014 are confusing and contradictory. At one stage in her evidence she asserted she found out about the second marriage on 23 July 2014. Some minutes later she said it was a few weeks before 24 July;
f) on 6 August the mother went to the police to report that her husband had been harassing her. She told that on 24 July he had started hugging and kissing her. When she refused his advances she alleged he threatened her that unless she did as he wished he would show photographs and recordings of her on his mobile telephone to he children. (I note the police later seized the father's mobile phones and forensically examined the contents. No inappropriate or other photographs or recordings of the mother were found).
g) The following day she returned to the police and made further allegations that the father had engaged in sexual activities with her without her consent, including having sexual intercourse with her when she was asleep. In her evidence she alleged, that the father had been violent to her on 24 July. Further when pressed why she had not reported his violence to the police there was a very very long pause; no answer was given. Eventually the mother asserted she had explained everything to the police and had been present at the police station for 5 or 6 hours. I do not accept that explanation. It is far more likely, in my judgment, that if the mother had made allegations of violence they would have recorded the same. They did not because no such allegations were made. They are, I find, of recent invention by the mother in a misguided attempt to bolster her case against the father. Once more she is lying and is exaggerating events;
h) the mother knew she and the children would have to leave the family home after the landlord served a notice to quit. She had started packing up the family belongings. All of this occurred at a time when, as a result of her complaint to the police on 6 August, the father was on bail with a condition that he must not reside at or visit the family home. On 11 September, the day after his police bail had been cancelled he returned to the family home. It was immediately apparent that the mother had caused considerable damage to the property and furnishings. The father changed the locks. The mother returned. There was an argument and both called the police who attended. The mother was advised that because the tenancy was in the father's name, she would need to secure alternative accommodation. It is recorded in the police log that the parents reached an agreement that the children would remain living with the father until the mother was able to obtain her own property. The father agrees with this account. The mother denies there was any such agreement. I am satisfied there was such an agreement but that the mother almost immediately reneged on the same and went and collected the three older children from school. She took them to a friend's home. YU had remained in the care of his father. I find the mother's actions that afternoon to be inappropriate and not in the best interests of the children. Further she greatly compounded matters by telling the three older children that their father had thrown them out of their home and that he had told the mother that she and the children could sleep on the streets. That was not only untrue but was cruel to the children.
Wasted Costs Order
"51. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child)  EWCA Civ 1227, para 74."
"53. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it."
i) court orders must be obeyed;
ii) a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and
iii) any application to extend the time for compliance must be made before the time for compliance has expired.
"a) Had the legal representative of whom complain was made acted improperly, unreasonably or negligently?
b) If so, did such conduct cause the applicant to incur unnecessary costs?
c)If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?"
i) the letter to the court was not noted to be for the attention of me or my clerk and it was incorrectly addressed. I did not receive it;
ii) the solicitors had decided that the statement and schedule would be filed after police disclosure had been received. No such linkage or sequential process was made or set out in the order of 15.12.14; and
iii) no application was made for an extension of time to file the police disclosure and/or the mother's statement and schedule.
i) set out what steps had been taken to secure disclosure from the police;
ii) it did not set out any date or likely timeframe by which disclosure would be made by the police;
iii) seek an extension of time in which to file the police disclosure and/or the mother's statement and schedule; and
iv) a revision of the timetable set by the court on 15.12.14.