England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN HULL
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF DE

		29 September 2014.

1. I am asked to consider an application brought by North East Lincolnshire Borough Council (LA) for an Interim Care Orders in respect of DE (13.3.2012)
2. D's mother is LE and his father is CE. The parents are married and share parental responsibility for D.
3. These proceedings were issued on the 9^th June 2014. On the 19^th June a prohibited steps order was made, prohibiting Mr. E from any direct or indirect contact with D other than that arranged by the LA. D was made subject to an interim supervision order on the 23^rd June 2014 and has remained subject to such an order since that time. He has remained in his mothers care. The supervision order was made on the basis that CE would have no unsupervised contact with D and a child protection agreement to that effect was signed by Mr. E. The LA made a further application to the court seeking the removal of D following concerns that the agreement had been breached and Mr. E had had contact with D. The matter was before the court again on the 17^th July when Mr. E gave a formal undertaking to the court "not to contact LE in any way until further order". The consequences of the breach of an undertaking were explained to him.
4. This did not resolve a settled position for D and on the 5^th August the matter was once again before the court with the LA making clear their plan now was to seek the removal of D under an interim care order due to concerns in relation to further breaches of the agreement, undertaking and prohibited steps order. This matter was set down by DJ Whybrow for a contested hearing before me.
5. The position today therefore is that the LA says that D's' safety in his mother's care can no longer be protected under the exiting orders and that his protection needs now require him to be removed from Mrs. E care.
6. The mother opposes the making of a care order. She accepts that the agreement, order and undertaking have been breached on 2 occasions – once in July when the couple were seen by the social worker and once on 11th September when she says that Mr. E called at her home. She tells me that she will move into her new home and will not disclose the details to Mr. E and will now abide by any contract or order. The other 2 alleged breaches are denied by her.
7. At the outset of this hearing, the father opposed the making of an interim care order. He accepted that breach that occurred on the 11th July when the couple were seen by the allocated social worker. He denied the other alleged breach on 8^th July when Danielle Turner reports seeing the couple. He also denied both alleged breaches in September although he accepts that he attended at Mrs. E home to undertake some work in the garden shed. He denied that he came into contact with Mrs. E on that day. I note therefore that in relation to the allegation that the order, undertaking and agreement were breached on the 11^th September, the parents themselves were unable to agree what occurred on that day. Both parents deny the allegation that they were together on the 5^th September as reported by Ms. Brockelbank. The father was clear that he has had 2 contacts with the mother by phone since the orders and undertaking were made.
8. The CG had not filed anything prior to today's hearing. I asked that she prepare a short positon statement before the evidence was heard for my benefit but importantly so that the other parties knew what position she was taking as D's guardian. Her position is that in the event that the breaches are found to have occurred, then D's safety demands separation from his mother.

Background

9. Ms E is a young and vulnerable woman. There have been concerns about her capacity during these proceedings that have lead to 2 capacity assessments being conducted by Dr Paul Hunt. These ultimately concluded that she does have capacity to conduct litigation and he goes on to advise about how she may be assisted in the process.
10. In addition, there has been a psychological assessment by Dr. Veronica Milton of both parents. It is important for me to note that she has identified Mrs. E as a "very vulnerable young woman who has areas emotionally and psychologically where she does not quickly and easily understand complex situations. She is also in many respects childlike in presentation and can lack sophistication in her thinking. She does however have the capacity to recognise right from wrong, to form a view and to explain her rationale and to remain consistent in this view"
11. She goes on to report that Mrs. E is an individual who from early childhood has lacked both self confidence and self esteem. She is however, "warm open and responsive" but when under pressure, when anxious or feeling threatened, she can become less effective in her thinking.
12. Dr Milton feels that Mrs. E can learn new skills but is concerned that if domestic violence did exist, in the light of the parents' denial of this "a real and continuing risk would exist. Children cannot be protected where danger or threat of danger is not acknowledged".
13. The parents do deny that there has been any domestic violence or abuse in their relationship. They both say that the mothers previous allegations made to a number of different professionals on a number of different occasion over a period of some 7 months from March 2013-October 2013 were fabrications on mother's part and that the bruising observed on a number of occasions was as a result of some other cause.

The evidence

14. I have read all of the papers filed in the 2 lever arch bundles and have considered with care the statements from the parents.
15. I heard oral evidence. The first witness was the allocated social worker – Lauren Smith. She had prepared a number of statements, 2 of which were relevant for today's hearing. These were her statements of the 14^th July and the 16^th September which detailed the allegations of the breaches of agreement and order.
16. She confirmed the contents of those statements and in particular the interactions she had had with the mother on the 11^th September when she had been denied access to the home. She confirmed that Mrs. E had not made any mention to her of Mr. E attending at the home to carry out maintenance work on either the 11^th or 12^th September, nor had Mrs. E sought any assistance in asking Mr. E to leave.
17. She confirmed that Mrs. E has a loving relationship and a positive attachment to D and this had clearly formed part of her decision making. She accepted the positives in mothers care for D.
18. She was asked about the plans and whether in the light of Mr. E's recent move to Sheffield and willingness to submit himself to a county wide injunction preventing him from returning to the area D could remain in his mother's care. She felt that such an order or commitment could not be relied up in the light of the breaches of a previous court order, undertaking and agreement.
19. She had not been aware until today, that the parents had had telephone contact on two occasions, as disclosed by Mr. E this morning, in August and September. This constitutes two further breaches of the agreement, order and undertaking.
20. She told me that neither of the parents had to date told her of any intention to permanently separate.
21. I found Ms. Smith to be a careful and considered witness who clearly had a lot of sympathy for the mother and had given careful consideration to the positives in allowing D to remain in his mother's care. This is further evidenced by the fact that the LA gave the parents a further chance so to speak after the 2 alleged breaches in July, one of which had been accepted, as it had to be given that she had come face to face with the parents on that occasion.
22. The next witness I heard from was Ms. Brockelbank. She had prepared a short statement detailing her involvement. Her evidence related purely to the alleged breach that occurred on the 5^th September when Ms. Brockelbank reported seeing the parents together.
23. She confirmed her statement and told me that she had met Mr. E on approximately 50 occasions as she had, until July this year, been employed at the pre school that D attends. She was 100% certain that the 2 people that she had seen on that day were Mr. and Mrs. E. There were no obstruction to her view. She was less than 8 metres from them. She was in the passenger seat of her sister's car. It was moving although quite slowly as it was just coming out of a school entrance. The weather was clear. There was not much through flow traffic. She told me that she recognised the car as belonging to Mr. E as she had seen him drop off and collect D from Pre School. She did not see any taxi signs on the car that she saw on the 5^th September. She confirmed that she had had not negative interactions with Mr. and Mrs. E in her previous contacts with them (and indeed it was not suggested by either parent that she had a malicious intent). It was put to her that she was mistaken in her observations. She remained clear that the people she had seen on that day were Mr. and Mrs. E.
24. I remind myself as I must do of the potential dangers in relying on identification evidence and in effect give myself a warning akin to that given in criminal trials known as the "Turnbull warning" following the case of R v Turnbull and Others,. In particular I remind myself of the words of Lord Widgery CJ at 228:

'First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his appearance?'

25. That is an authority in relation to the function of the judge in directing juries in crime, but there are obviously considerations that can usefully be extracted to assist a judge who has to decide whether an identification in public law proceedings is reliable, particularly an identification with such crucial consequences as the present.
26. Mrs. E was the next witness to give evidence to me. She was understandably very distressed and found the whole process of giving evidence very hard. She struggled to recollect matters and had to be assisted by her solicitor. She did however confirm that Mr. E had visited her property on the 11^th September and that she had not disclosed this to anyone as she had panicked. She does not want to lose D.
27. She could not remember if she had been to school with Mr. E on more than one occasion in July and on an occasion in September. She told me that if Mr. E contacted her again she would tell the LA.
28. She confirmed that there had been at least 3 telephone contacts between herself and Mr. E although again on this she was unclear as she appeared to refer to a 4^th occasion when she recalled contacting him as she felt unwell. I was left with the impression of a woman who loves her son very much but has been unable to develop sufficient alternative supports and self confidence to avoid contact with Mr. E. It seems he is still the one that she turns to for help and support. When he attended at her property she was not able to force him to leave or to tell the social worker. She had not disclosed the telephone calls to anyone prior to today.
29. Mr. E then gave evidence to me. I am afraid to say I found him a far from reliable witness. Whilst in the witness box Mr. E's evidence changed. He had signed and filed a statement only 2 days ago in which he denied the alleged breach on the 11^th September, however, whist giving his oral evidence he accepted that he had indeed entered the house whilst Mrs. E and D were there and had been present (although outside in the shed) when the social worker visited. This was in direct contradiction to the statement that he had filed and his confirmed position this morning. I found Mr. E to be insincere in his assertions that he wanted to do whatever he could to enable D to remain with his mother and found myself unable to accept any assurance that he gave in respect of future conduct bearing in mind his acceptance of at least 2 breaches in which he had had direct contact; and telephone contact that in the witness box he accepted could have occurred on at least 3 occasions. All of these were in breach of the orders and undertaking that had been given to the court. He told me that he would now promise me that he would obey court orders. I am afraid that the impression I got is that Mr E will say whatever he feels is needed whilst at court but then does not abide by the assurances and promises he makes. I am afraid to have to find that he is responsible for my decision today and his failure to comply with his own undertaking, and the previous court orders has directly lead to the orders I am making.
30. Given his lack of credibility and my own assessment of his evidence I prefer the evidence of Ms Brocklehurst and the written evidence in relation to the earlier visit to the pre school in July this year.
31. Both parents in submissions effectively said that this was the first time that the actual removal of D had been pursued and that this hearing will be sufficient to enable the parents to realise the gravity of the situation and the need to abide my orders and agreements.
32. The final witness was the Children's Guardian, Ms. Hardy. She confirmed that in the light of the evidence that she had read and heard, she could not support D remaining in his mother's care. She felt that the parents could simply not be relied upon to be open and honest with the Local authority and professionals. She felt that 24 hour a day policing would be necessary to ensure that there were no further breaches of orders and agreement. She did not think that an injunction requiring Mr. E to remain outside of the county and the assurance of mother that she would keep her address a secret were sufficient to convince her that D could be kept safe. It was put to her that there was no evidence that D had been exposed to any domestic violence or had suffered any harm for many months. She accepted this but pointed out that the parents having illicit contact with each other put D at risk of harm every day and she was concerned that the lack of openness and honesty meant that what the parents said could not be relied on as evidence that there had not been any further incidents. We simply do not know.
33. She was clear that there should be further assessment of the mother's ability to separate from the father and to begin to be fully open and honest with the LA. She did not feel that sufficient safeguards for D could be put in place to enable him to remain in his mother's care.

My consideration and decision

34. The threshold criteria dated 13^th May 2014 is not challenged by the parents. Whilst they do not accept the truth of the allegations, they accept that the legal test that I must apply, as set out in S38(2), i.e. that there are reasonable grounds for believing the matters set out in the threshold document, is passed. On that basis I accept and adopt the threshold document as drafted as I find that there are indeed reasonable grounds to find that D has suffered and is at risk of suffering harm by reasons of the matters set out in that document, namely the history of domestic violence between the parents as reported by the mother.
35. It is well established that the impact on children of being exposed to and witnessing domestic violence can have significant and long term harmful effects on their psychological well-being and of course, being present when violence occurs places children at risk of physical harm. .
36. The issue of whether the threshold is crossed is the first stage of my considerations. I now have to consider what would be a proportionate response to the harm alleged, balancing all the factors I have to consider and thus in the circumstances would an ICO be appropriate. Further do I approve the LA's care plan?
37. I have no doubt that both parents love D very much and it is noted that Mrs. E shares a close relationship with D. I have no doubt of his love for her. He has always been in the care of their Mother and thus to leave her care will be distressing for him as well as for the Mother. The issue of disruption and distress has been carefully considered by me.
38. In reaching my decision I have considered the law relating to interim care orders and removal. I must decide if the child's welfare requires the making of an ICO. I am seeking to establish a holding position, after weighing all the relevant risks, pending a final hearing. Of particular relevance in any interim care hearing is the balancing of risks for and against removal.
39. The general propositions from relevant case law are:

The decision taken by the court on an interim care application must necessarily be limited to the issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture – Re H [2002] EWCA Civ 1932.

Separation is only to be ordered if the child's safety demands immediate separation – Re H [2002] EWCA Civ 1932.

An LA in seeking to justify the continuing removal of a child from home necessarily must meet a very high standard – Re M [2005] EWCA Civ 1954, [2006] 1 FLR 1043.

At an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection – Re K and H [2006] EWCA Civ 1898, [2007] 1 FLR 2043. "Safety" in this context can be used in a broad sense to include the child's physical and emotional and psychological safety. I am conscious also that the words "an imminent risk of really serious harm" used by the judge in Re L [2008] 1 FLR 575 did not raise the bar to a new standard or alter the approach as outlined above taken by the Court of Appeal.

40. I have also considered with care the 2 separate questions to be considered as set out by Hughes LJ in Re B (children) [2012] EWCA Civ 1275, essentially that despite the threshold being met, it is a separate question as to whether the facts justify immediate removal
41. At an interim stage I should rarely make findings as to disputed facts. If however any primary facts are sought to be found the burden of proof is on the LA to establish them on balance of probabilities.
42. This is a case where it has been necessary to make findings in relation to disputed matters as the basis of the LA concerns relates to the 4 alleged breaches of the orders and agreements which are not all accepted by the parents. Further breaches have come to light during the course of this hearing in respect of telephone contact between the parents. Given my assessment of the father and his evidence and the assessment of the other witnesses I find that the father has breached the child protection agreement/prohibited steps order and undertaking on at least 7 occasions, with 4 occasions of direct contact with Mrs E and D (the two alleged in July and the further two on the 5^th and 11^thSeptember). In addition there are further breaches by way of telephone contact on at least 3 occasions. My suspicion is that there has been further contact between the parents and between Mr. E and D and that the occasions that are known are the ones when the couple were actually seen. However, I cannot make findings on the basis of mere suspicions. I should add that I was disturbed by father's evidence of letting himself into the home of Mrs E and D in order to have a shower and get changed, using his own key and then leaving his washing for Mrs E to do. This showed a marked lack of understanding of the implications and risks of such subtle indirect contact.
43. I have applied the welfare checklist in my considerations, D's welfare being my paramount consideration and I have in particular considered the strong bond between D and his mother and the range of powers available to me to determine whether it is possible for him to remain in the care of their mother with appropriate supports in place.
44. I have considered whether the risk can be managed by alternative orders and monitoring. Sadly, I do not feel at this stage that the mother has the capacity to make safe decisions and protect D from the risks of domestic abuse. The Father is unable to control his behaviour to abide by orders and agreements. Whilst ever the couple are having unregulated contact with each other, there is a real risk of harm to D. The risks cannot be managed unless the LA were in effect to provide 24 hour a day support and services. This would be unrealistic and unmanageable.
45. D will suffer harm in being removed from his mother; However, I have reached the decision that the balance of risk is too great for D in remaining in his mother's care, I therefore grant the LA's application and place D in the care of the LA.
46. I wish to make it clear that this is not the end of a process, and that I very much hope that assessments can conclude a way in which D can be reunited with his mother in due course. That is a decision for another day and will be very effected by both parents' future conduct, honesty and openness.

HHJ Pemberton

Monday, September 29, 2014