England and Wales Family Court Decisions (High Court Judges)

IN THE HIGH COURT OF JUSTICE.
(FAMILY DIVISION)

		Royal Courts of Justice, Strand, London WC2A 2LL.
		28th February 2017.

Tuesday, 28^th February 2017.

1. Although this hearing takes place in public I will not identify the child to which the proceedings relate by his name. I will however identify his maternal grandmother because it is she that is before the Court today. She is Alison Moutiq. The Applicants are Bedford Borough Council with care proceedings concerning the child who is now three years of age. The child, a boy, has a Children's Guardian; the Local Authority is represented by counsel; the Guardian by her solicitor, and Miss Moutiq, as I will call the grandmother, is represented by Mr Michael Edwards of counsel, who stepped in yesterday at very short notice to advise and represent her.
2. The matter comes before the Court because on Friday 24^th February Mr Justice Baker made a Collection Order directed to the Tipstaff, who acts through the police, in order to seek the recovery of the child. That Order was served on the grandmother on Sunday morning and because it seemed to the police executing the Order that she did not comply with it she was arrested and brought before the Court yesterday afternoon, that being the earliest opportunity when she could appear with legal representation. The hearing took place over the course of some two hours or more yesterday afternoon. It was not completed and now comes back before the Court today, the grandmother having been in custody since Sunday morning.
3. The Order made last Friday required any person served with it to inform the Tipstaff of the whereabouts of the child and of the place where he resides within England and Wales if they knew it. That was para. (a). It also by para. (b) required such persons to inform the Tipstaff of all matters within their knowledge or understanding that might reasonably assist him in locating the child. At the hearing yesterday I was taken to the evidence filed by the Local Authority through its Social Worker which I will describe in a moment. None of it was disputed and so the Social Worker was not questioned on it. The grandmother was advised as to her rights, which include the right to remain silent and not to incriminate herself. She chose to give evidence and did so. She was questioned by counsel for the Local Authority and briefly by the Guardian's solicitor.
4. The background is that the child's mother, the daughter of the grandmother, is 21 years old; the father is 29 years old. He is a former serving soldier. The Local Authority has for a considerable time had concerns about the child's welfare because of serious domestic abuse within the household and indeed the grandmother herself has on occasions had cause to notify the authorities about that. The Local Authority's concerns increased because from around August 2016 they were unable to locate the child or his parents. They made a number of efforts to find the child which were unsuccessful; in particular they were in contact on a number of occasions with the grandmother and with her partner Mr Mark Hobbs, who they rightly believed were closely in touch with the parents and child.
5. The grandmother and Mr Hobbs live at an address with the grandmother's 18-year old son, who has serious disabilities. It is a feature of the case that the relationship between the grandmother and the Local Authority is a very poor one because they have been in conflict including through Tribunal proceedings about arrangements for the 18-year old son.
6. The recent milestones are these. On 17^th February the Local Authority applied for and was granted an Emergency Protection Order for the removal of the child with whom I am concerned and a Recovery Order authorising the police to enter the home of the grandmother and the home where the child was believed to be living with his parents to recover him. I will come to what happened before and after that Order in a moment. The failure of that Order led to the Order of 24^th February, the Collection Order with which I am directly concerned.
7. The Local Authority's evidence includes the following. On 21^st October last year a joint visit was undertaken by the Health Visitor and the Social Worker to the grandmother's address. The grandmother was present. She was hostile. She said that the child and his parents did not live there but had moved to Hereford. She refused to give further information and wished the Social Worker 'good luck finding them' before shutting the door.
8. Coming closer in time, on Friday 17^th February the grandmother was telephoned by Social Services in a last attempt to gain information. She refused to provide information and said that the Social Services were a waste of space before hanging up. A message was then left expressing concern for the child's safety and saying that the Local Authority intended to apply to the Court for an Interim Care Order and a Recovery Order. The grandmother replied, accusing the Local Authority of harassment, saying that she would not provide any details of the child's whereabouts; that she was in regular contact with them and that they were safe and well. She said that she would rather go to prison than provide her daughter's address before again hanging up.
9. On the same day but later the Local Authority obtained the Emergency Protection Order and Recovery Order. The Recovery Order was drawn up in such a way as to miss-spell the grandmother's surname Montique rather than Moutiq. It also gave an address 15 The Treet (Street with the S missing). That Order was presented by the police to the grandmother later that evening, the police being accompanied by the Social Workers. The grandmother refused to give any information or to confirm whether 15 The Street was the address. Subsequent visit to that address established that it was not.
10. On Monday 20^th February Social Workers and police went to the grandmother's address to find Mr Hobbs there. He lied, stating that the grandmother was on holiday; he did not know her whereabouts or the whereabouts of the child and parents. He said that he had recently seen the child and eventually described the address as being No 12 The Street. He said that he believed the grandmother to be on holiday. The police and Social Services then went to No 12 to find that it appeared the family had been living there and indeed that a car insured to the grandmother was parked outside. They returned to the grandmother's home. She had returned, having only been out locally, and she said that on 17^th February before the Recovery Order was served she had advised her daughter to get away. On the 20^th she said that they could be anywhere 'Try Southern Ireland.'
11. When the Order of 24^th February was served on 26^th February the grandmother is recorded as saying that the child was in Northern Cyprus. When she was asked why she had said previously that the child was in Southern Ireland she said that these were two countries that she had researched and that they have, as she understood it, no extradition treaty with the UK. Her mobile phone was checked; there were no messages on it. Her business mobile was checked; there were four calls from her daughter on it shortly after the police had been on the 17^th. Both the grandmother and Mr Hobbs said they could not remember receiving or answering any of those calls. That broadly is the evidence from the Local Authority.
12. The grandmother says that she had known since August 2016 where her daughter and grandson were living. It was the address at 12 The Street; that she had seen them at least twice a week both at her own address and theirs, and they were in telephone contact every single day. She said that the family had been in her words 'going exceedingly well.' She described how she and her daughter had watched a television programme last autumn which apparently described the activities of an organisation that counsels or encourages individuals to take their children abroad, specifically to Ireland, in order to escape from proceedings and from Social Services. She said that she had last seen her daughter and grandson on Thursday 16^th February. She gave as her opinion that the care system in this country is broken beyond repair and that she would not wish that for her grandson. She said that when the Social Worker had informed her of the possibility of proceedings she had immediately telephoned her daughter and said two words 'Get out!' To that her daughter screamed and there was no more communication nor has she had any other communication except an exchange of email to which I will come since that moment.
13. She refused to assist the police in the execution of the Recovery Order, relying on the trivial mistakes that she saw it contained. The telephone calls that were found on her business phone were not received by her because she had lent it to her disabled son in place of his own phone. She herself very shortly after telling her daughter to get out had obtained a new telephone herself. She said that on Sunday 19^th or Monday 20^th February she had had an email from her daughter authorising her to instruct a solicitor on the daughter's behalf and that she had an appointment with a solicitor on Wednesday 22^nd having replied that she would do that. She agreed that she had told Social Services that if they agreed to remove the Order she would ask the mother to a meeting. She told me that she was 99% sure that the child was in Ireland because she and the mother had discussed this months ago if the situation should arise. She told me that if she had further information about the child's whereabouts she would give it.
14. The Local Authority at first accepts that on the evidence available to it, it cannot establish a breach of para. 12(a) of the Order under which the grandmother is to inform the Tipstaff of the whereabouts of the child or of the child's place of residence in England and Wales. However, it alleges that there has been a breach of the obligation to inform the Tipstaff of all matters within the grandmother's knowledge or understanding which might reasonably assist in locating the child. In that, the Local Authority points to the consistent admitted failure to cooperate throughout. It invites the Court to infer that the grandmother and mother are likely to have planned the detailed escape route; that on Sunday the grandmother referred to Cyprus and only to Ireland when challenged; that the account given in relation to the four phone messages and the switching of the phones and the new phone should be considered; and that the account of a conversation consisting only of 'Get out!' followed by a scream is implausible.
15. On behalf of the grandmother Mr Edwards invites me to the view that she gave honest evidence and that she has told what she knows, namely, on 20^th February Ireland and on 26^th February Cyprus.
16. I was not at all impressed by the evidence of the grandmother although she is clearly pleased with herself. Her stupidity has led directly to the current situation. If she had played the part of a responsible grandparent this situation would never have arisen. The Social Workers would have been able to speak to the mother and the father and assessed whether the child was at risk or not, and to form an independent judgment of whether the child was 'exceedingly well.' Instead the grandmother has chosen to put her grandson's welfare behind her own selfish and ill-informed views about Social Services. She would no doubt be the first to complain in any case where Social Services failed to protect a child from harm, and look where we are now – a three-year old child on the run, a grandmother in prison; all this is the result of Miss Moutiq's brazen arrogance, carefully dressed up by her to look like principle.
17. This Court when faced with an application to commit applies the Criminal burden and standard of proof. The Local Authority must establish so that I am sure that the breaches it alleges are made out. I refer only to the allegation that is pursued. Miss Moutiq was obliged to inform the Tipstaff of all matters within her knowledge or understanding that might reasonably assist him in locating the child. For the reasons given by the Local Authority I think that it is very probable that the grandmother knows more than she is telling and that the cloak of candour disguises a fuller story. I also think that it is more than possible that the grandmother, the daughter and the father put in place a plan to keep the child out of reach if Social Services got too close.
18. However, the allegations in a case of this kind must be made out to the Criminal standard. I refer to the decision of the President in Canberra v Jones [2014] EWHC 2264 (Fam) paras. 11-14. I must be sure what the alleged contemnor was required to do and that it was in her power to do it and that she failed to do it. The fact that she herself has created the problem is neither here nor there. In this case I have a high degree of suspicion that the grandmother knows more. I would even be prepared to say that I think it probable. But I am not sure of it. It is possible that she told her daughter to go, being careful not to know where she was going to go. Accordingly, I dismiss the application for the further committal of Miss Moutiq and I shall in a moment direct her release. She should consider herself extremely fortunate and the time that she has spent in custody has been richly deserved.
19. Having heard from the parties in a moment I will make further Orders to cover matters in the future. I will amongst other things direct a transcript of this judgment and permit the disclosure of the relevant documents to the police so that consideration can be given to the obvious possibility that the grandmother has committed a Criminal offence in the manner in which she responded to the Recovery Order of 17^th February.