England and Wales County Court (Family)

 

                                                                                            Case No: 13C00796 and 13C00819

 

IN A COUNTY COURT

 

IN THE MATTER OF THE CHILDREN ACT 1989

 

AND IN THE MATTER OF P (A MINOR)

 

                                                                                                                   Date: 2^nd April 2014

 

Before :

 

The Honourable Mr Justice Moor

 

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Between :

 

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Mr Matthew Rees for the Applicant Local Authority

The First Respondent did not appear and was not represented

Mr Stephen Wharmby for the Second Respondent

Mr Cennydd Richards for the Third Respondent

Mr Jeffery Lock for the Fourth Respondent

Mr Julian Hussell for the Children’s Guardian

 

Hearing date: 2^nd April 2014

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JUDGMENT

 

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JUDGMENT                                                                                                        2^nd April 2014

THE HONOURABLE Mr JUSTICE MOOR:

1.             This is an application for the committal to prison of Mr John McQueen, the maternal grandfather of P, who is fifteen years of age.

The background

2.             P is in Local Authority foster care as a result of a hearing before Her Honour Judge Parry on 25^th October 2007, when on the balance of probabilities Judge Parry made findings of sexual abuse against Mr McQueen on P.  I do not need to deal any further with that.  Mr McQueen appealed and his appeal was refused on 14^th January 2008.

3.             I am of course only concerned with the allegations in relation to the committal, but it is right to say that there came a time during 2013 when the Local Authority applied first for a Prohibitive Steps Order and then for an injunction pursuant to the inherent jurisdiction to prevent Mr McQueen from contacting P.  On 21^st November 2013 Mr Recorder Tillyard QC heard the application for the Order, pursuant to the inherent jurisdiction.  The maternal grandfather was present in Court and the Learned Judge gave the Local Authority permission to issue an application for an Order pursuant to the Court’s inherent jurisdiction.  The Learned Judge made an injunction that Mr McQueen was not to initiate (either himself or through any other person) any direct or indirect contact with P and he was not to communicate either through himself or through any other person with P.  The Order was set to expire on 6^th March 2015.  A penal notice was attached.  The Judge, as is clear from the transcript that I have, warned Mr McQueen that the injunction applied even if P was to contact him.  He had to have no contact with P.

4.             The Local Authority’s notice to show cause alleges contact in two separate respects:

(i)            via social media, namely Facebook; and

(ii)          attempted contact by telephone.

The law

5.             The burden of proof is on he who alleges the contempt, namely in this case the Local Authority.  The defendant does not have to prove anything.  The standard of proof is the criminal standard.  In other words, I must be satisfied beyond reasonable doubt before I can find contempt proved.  To use the language of the Crown Court, I have to be sure.

6.             I make it clear that Mr McQueen does not have to prove anything.  He has not given evidence. That is his right.  I draw absolutely no inferences whatsoever from that.  I merely consider the evidence that is brought before me by the Local Authority.  That consists of two statements, namely:

(i)            one from Ms PH, a senior social worker, who has given oral evidence before me; and

(ii)          one from Ms PS, who is another social worker employed by the Local Authority, whose statement is not in dispute.

7.             The allegations are in part admitted on behalf of Mr McQueen, albeit that when he admits the allegations he says that there is mitigation.  Obviously, I will have to consider that mitigation when I come to deal with the question of sentence.

The first series of allegations

8.             It is admitted by Mr McQueen that there was contact between him and P via Facebook on 16^th February 2014.  It appears that P’s mobile telephone had been cut off.  On 15^th February 2014, it is right to note that P attempted to contact Mr McQueen to discover whether or not he had paid the bill and whether or not that was the reason why P could not ring anyone or text anyone on the phone.  It is entirely right to say that on 15^th February 2014 Mr McQueen, quite properly, did not respond to P’s messages to him.

9.             On 16^th February 2014 P tried again at 10:50 in the morning, saying:

“What’s wrong with my phone, it’s saying the numbers are blocked cos you ain’t paid the bill” (although it says ‘bull’).

Mr McQueen responded at 10:58.  He said:

“Can I trust you not to tell anyone cos I could go to prison and I know you don’t want that to happen?”

10.         That is a clear breach of the injunction.  I find to the criminal standard of proof that it was a breach, although I accept that Mr Lock may have some mitigation in relation to that breach.

11.         At  10:58 P responded saying:

“No, I won’t, trust me. What’s wrong with my phone?”

At 11:02 Mr McQueen replied:

“I will phone you in a bit, ok”.

12.         That is a second breach of the injunction of which I am satisfied to the criminal standard of proof.

13.         At 11:02 P replied:

“You can’t, it won’t let no-one ring me or it won’t let me ring them”.

At 11:06 Mr McQueen responded:

“I’ll tell you tonight when I get home, ok”.

14.         That is a third breach of the injunction of which I am satisfied to the criminal standard of proof.

15.         P replied at 11:07:

“Ok”.

At 11:12 Mr McQueen said:

“You cannot tell a soul about this, I love you xxxxx”.

16.         This was the fourth breach about which I am satisfied to the criminal standard of proof.

17.         At 11:12 P wrote:

“I won’t dw”.

Mr McQueen answered at 11:14:

“Ok”.

And at 11:27 there was some further message from P about which I am unclear.

At 12:31, however, Mr McQueen sent a much longer message.  It is as follows:

“I did not pay bill on time.  I will pay bill on Thursday and the phone will be back on then.  I know it is in Court about you.  We are waiting for funding then our solicitors can fight to bring you home to live with us if that is what you want.  But before that can happen you need to tell the truth that I neither did those things to you and they made you lie, and we will be on your side, and if you want to see us you will have to ask for Contact Order then I will be able to see you.  That’s all I can say.  You are a clever girl, you know what to do for you to be able to come back home where you belong and where you are loved.  You are part of our family and once it is sorted we would welcome you back with open arms, so I will wait for it to happen.  That’s all I can say for the time being, we love you xxxxx bye for now”.

18.         Again, that is a clear and serious breach of the injunction of which I am satisfied to the criminal standard of proof.

19.         At 12:33 P responded:

“I can’t try and yet I know what to do, but the thing is no-one listens to me, not no-one.  I tried to tell it 100 times but they don’t listen to me, and yet I want to come with you, but they won’t allow it”.

At 12:40 Mr McQueen replied:

“The Court will decide and not them, where you can have your say what you want and where you want to live.  Happy birthday for (date)”.

20.         That is another clear breach of the injunction of which I am satisfied to the criminal standard of proof.

21.         At 12:42 P wrote:

“Ah, thanks, my birthday ain’t till (month), it’s (different month), and they decide what they want for me, that’s what they reckon”.

Mr McQueen then failed to answer a call from her.  At 21:04 he sent a message to her:

“What’s up?”

She replied:

“Nothing dw”.

And she later, at 21:13 said,

“Tell Nan to add me on Facebook”.

22.         That concludes the allegations in relation to Facebook, and as I have already indicated, I find them proved to the criminal standard.

The second allegation

23.         The second allegation concerns the evening of 5^th March 2014 when Ms HP visited P in the evening at her respite placement.  This allegation is in dispute.

24.         Whilst Ms HP was present with P her telephone rang.  The telephone monitor indicated that the call was from Mr McQueen as his name came up on the telephone.  P showed Ms HP the phone, and Ms HP asked her if she wanted Ms HP to answer it.  P said,

“No, I will get into trouble”.

So the call ended.

25.         About 20 minutes later the telephone rang again, and again the monitor said it was Mr McQueen calling.   P on this occasion told Ms HP to answer it, which she did.  Ms HP did not say anything and Mr McQueen said,

“Hello”.

26.         Hereafter Ms HP’s evidence is in dispute.  Ms HP says that she said, “Hello” back, and that the man on the other end of the phone said,

“Who is this?”

And then said,

“I think I have the wrong number”.

Ms HP asked him who he wanted to speak to, and he again said he had the wrong number.  Ms HP asked him again who he wanted to speak to and he replied,

“I didn’t phone anyone called P”.

So Ms HP replied,

“I know this is Mr McQueen”,

and she said that she was P’s social worker.  Upon informing him who she was, she says Mr McQueen immediately ended the call.  She says she knows for certain it was Mr McQueen as she has met him previously.  Indeed, there is no dispute that it was Mr McQueen who had telephoned.

27.         I have already indicated that Mr McQueen does not have to prove anything, and he has not given evidence, but he has filed a statement in which he says that on that evening he accidentally called P on two occasions.  He says he did not realise his mistake until a female voice answered the phone.  He says he had intended to call his son R, but he was walking in public when he made the call, and did not have his glasses to see the phone correctly.  Of course I interpolate here to accept that it was in the evening and it would have been dark.

28.         Rather than calling R he says he had accidentally called P as the numbers are saved in his telephone next to each other.  He adds that he was not able to read the names properly without his glasses.  He says it was entirely accidental. 

29.         Ms HP gave oral evidence before me and was cross-examined.  Through Mr McQueen’s solicitor  advocate, Mr Lock, it was put to Ms HP that her recollection is incorrect and that Mr McQueen did not say,

“I didn’t phone anyone called P”.

30.        I accept Ms HP’s evidence.  I find that she has absolutely no reason to fabricate this part of her evidence.  She noted it down in a hand written note very shortly afterwards.  My recollection is that she said she did this between 10 and 15 minutes afterwards when she got back into her car.  She then sent an email on 6^th March at 08:08 in the morning, which again repeats verbatim what happened.

31.         I am quite satisfied, having heard Ms HP’s evidence, that she is a witness of truth and that she told me exactly what had happened on that evening.

My conclusions

32.         I therefore have to consider where that takes me.  I have admitted breaches from Mr McQueen in relation to Facebook.  I have not one, but two occasions on which he alleges he dialled the wrong telephone number, approximately 20 minutes apart.  When the phone was answered he did not immediately (or at any time) say, “Is this R?  I’m terribly sorry.  I was trying to phone my son R.  I have got the wrong number.  This is a terrible error”.  He said,

“Who is this?”

And then he said,

“I think I have the wrong number”.

33.         I am satisfied so that I am sure that he twice said he had the wrong number, but when asked who he wanted to speak to, he replied,

“I didn’t phone anyone called P”.

34.         Given that my finding to the criminal standard is that he said,

“I didn’t phone anyone called P”,

I am satisfied so that I am sure, that he did deliberately attempt to telephone P on two occasions on that evening.

35.         He was, as a consequence, in breach of the injunction, and when he realised that the social worker was on the other end he hung up.  I am therefore satisfied to the criminal standard that the Local Authority has proved both sets of allegations, namely the allegations in relation to Facebook, and the two attempted calls on the evening of 5^th March 2014.

End of judgment