England and Wales County Court (Family)

IN LEICESTER COUNTY COURT

Case No: LK12P60003

Monday, 19^th August 2013

Before:

HIS HONOUR JUDGE BELLAMY

B E T W E E N: 

WAYNE ALAN BARRY COOK

and

LOUISE ANDREA BROOKSBY

Transcript from a recording by Ubiqus

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JUDGMENT

HHJ BELLAMY:

1.               These proceedings relate to a little boy, M, who was born on the 30^th April 2008 and who is therefore now five years old.  His mother is Louise Brooksby (‘the mother’), his father is Wayne Crook (‘the father;). 

2.               In February 2011 the father issued an application for contact with M.  That application was issued in the Family Proceedings Court. It was transferred to the County Court and led to orders made by District Judge Merriman, firstly, on the 9^th June 2011 for the father to have contact on an alternate week basis one week from Friday through to Sunday, the next week from Friday through till Saturday.  The mother did not attend that hearing.  There was a further hearing before Judge Merriman on the 28^th July 2011 and in essence he renewed the order that he had made the previous month.  The mother again did not attend that hearing.

3.               Notwithstanding the mother’s failure to attend those hearings she did comply, I am told, with the orders made by District Judge Merriman or, that is, she did comply with them until the end of November 2011 and for reasons which are, at this stage, unclear, came to the view that it was appropriate that she should stop complying with those orders.  That led to a further application being made by the father.  That application has been before the court now for in excess of 18 months.  There have been a number of hearings within the latest proceedings.  The mother has not attended any of them.

4.               On the 21^st March District Judge Hedley adjourned an application by the father for an enforcement order and for a residence order, to the 16^th April, He went on at paragraph two of his order to order the mother to attend the hearing on the 16^th April and attached a penal notice to that order.  That order was personally served upon the mother but she failed to attend that hearing. 

5.               The case next came before His Honour Judge Inglis on the 16^th April.  Judge Inglis made an order requiring the mother to make M available for contact on the 4^th May for six hours and again for six hours on the 11^th May and adjourned the application to the 23^rd May. He again ordered that the mother should attend the hearing on the 23^rd May and attached a penal notice to his order.

6.               The application came on for hearing before District Judge Severn on the 23^rd May.  Again the mother did not attend.  She had not complied with the order for contact made by Judge Inglis.  The application was listed for further directions on the 11^th July.  The mother was ordered to attend the hearing on the 11^th July and again a penal notice was attached.

7.               The matter came back before Judge Inglis on the 11^th July and he adjourned the case for further hearing today and again he ordered the mother to attend.  Again he attached a penal notice to the order.  Again the mother has not attended. 

8.               There is evidence from a process server of service of the relevant orders upon her including the order appointing this hearing today.  I am told by counsel who appears for the father, that as recently as last Friday the mother telephoned her clients, that is the father’s solicitors, to double check that there was to be a hearing today and this morning I am informed by a clerk that the mother has telephoned the court office today to say that she cannot attend today’s hearing because, firstly, she has no‑one to look after her children;  secondly, she is concerned about the risk of domestic violence; thirdly, that the police have been investigating two serious issues, an allegation of child abuse against the father in respect of an older child and an allegation that he has raped the mother.  I come back to those matters in a moment.  The fourth basis of her request for an adjournment is that she is without legal representation.  She has consulted local solicitors, Dodds, and is hoping that they will represent her once she can satisfy Legal Aid authorities that she has grounds for obtaining Legal Aid.  I say no more about the Legal Aid issue.

9.               As for the issues that involve the police I am told that on the 3^rd May this year the mother alleged to the police that she had been raped by the father in the past and that he had sexually abused her daughter, EM.  The police have investigated those allegations and within the last few days have confirmed to the father that they intend to take no further action in respect of either of them. 

10.            I cannot recall another case that I have dealt with where a mother has so wilfully refrained from attending every court hearing that she has been ordered to attend, even in circumstances where there was a penal notice on the order and it was made plain to her that not attending would have consequences.  It is concerning that those consequences have not been visited upon the mother before today but the time has come for the court to take robust action and I do, therefore, propose to make a committal order. I am entirely satisfied that the mother is in contempt of court: she has had due notice of the various orders made to which I have referred and due notice of today’s hearing and of the purpose of today’s hearing.

11.            However, a committal order only really addresses a superficial issue.  The underlying issue is the fact that this father has had no contact with his son since November 2011, that is a period of some 18 months and that in circumstances where prior to that time he was having regular contact including overnight contact.  There is a real issue here about reinstating his contact with his son and that is an issue to which the court needs to give priority. 

12.            It is, it seems to me, abundantly clear that the circumstances in this case fulfil the criteria set out in part 16 of the Family Procedure Rules 2010 and it is appropriate, therefore, that I should make an order under rule 16.4 which I intend to do.  I shall direct that M be made a party to these proceedings and that pursuant to rule 16.4 Family Procedure Rules 2010 an officer of Cafcass shall be appointed as children’s guardian for him.  I have been in contact with Cafcass before this hearing started to alert them to the order that I intended to make.  I am told that they would ideally, because of the time of year that we are in, like three weeks before the case comes back before the court.  I am told by my clerk that the case can be heard before me again on the 12^th September and I shall therefore adjourn this hearing until the 12^th September at 10.30 with a time estimate of 30 minutes. 

13.            As for the enforcement proceedings I shall commit the mother to prison for a period of 14 days.  That order will be suspended upon condition that she attends the court hearing that I am fixing for the 12^th September.  It is clear from the recent practice directions given by the President and the Lord Chief Justice that there ought to be a transcript of the judgment that I have just given at public expense.  I make a direction for that transcript.  Nothing should be published which might identify the child involved in these proceedings but I do direct that my judgment should be posted on the BAILLI website.  Are there any other issues that I need to deal with today?

CLAIMANT COUNSEL:  I think not.  May I invite you to order the mother to attend slightly in advance of 10.30 because we all know what the lists are like and it would be helpful for everyone‑

JUDGE BELLAMY:  I am very happy for you to require her to attend at 9.30 and we live in hope.

CLAIMANT COUNSEL:  And then if we are going to make some progress that we would have a guardian by that stage we might at least have the facility.

JUDGE BELLAMY:  You have told me you are publicly funded so I am not going to make an order for costs other than a Legal Aid direction.

CLAIMANT COUNSEL:  I'm grateful.

End of judgment.