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England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> DH v CY (Proceedings & Judgment) [2014] EWFC B204 (5 June 2014)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B204.html
Cite as: [2014] EWFC B204
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Claim No. SO10P10253
IN THE SOUTHAMPTON COUNTY COURT
The Courts of Justice
London Road
Southampton
SO15 2XQ
Thursday, 5th June 2014
Before:
HER HONOUR JUDGE SULLIVAN QC
Between:
D H
Applicant
-v-
C Y
Respondent
______________________
Counsel for the Applicant Father: MISS GILETTE
The Respondent Mother did not appear and was not represented
Counsel for the Guardian: MR HAWKINS
______________________
TRANSCRIPT OF PROCEEDINGS UP TO JUDGMENT
Transcribed from the Official Tape Recording by
Apple Transcription Limited
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INDEX TO TRANSCRIPT
Opening argument by MISS GILETTE...................................................................................... 1
D H – Sworn
Examined by MISS GILETTE................................................................................................... 3
MISS GILETTE: May it please your honour I appear on behalf of the applicant father in this matter, he sits behind me, and Mr Hawkins appears for the guardian, Miss Hughes, who sits behind him.
Your honour may recall that we were here on 3rd February this year on an application to commit. Your honour was not satisfied that the particulars in the application were particularised, the mother not being here and also the mother having a diagnosis of bipolar.
Your honour made a contact order on 3rd February. That is to be found at A88 to A90 in the bundle and that contact order allowed for sessions of telephone contact and also direct contact between the applicant father and C. As you can see from the father’s statement none of that contact, either the phone contact or the direct contact, took place. Mother did not phone the father and she did not bring C to the contact.
Your honour, as far as service is concerned we served the order of 3rd February 2014 and the statement of service in relation to that order can be found at B 55 to 58. We posted the order and because that was then returned we also sent the documents by email to [mother’s email address given]. That is an email that we had from the solicitors that she previously instructed. We then, and I am talking now about my instructing solicitor, Mr, Code attended the property that the mother has lived at for a long period of time, that property being [address A given]. He attended there on 7th February, 11th February and 13th February. On the 13th he saw the respondent mother, as you can see, getting out of her car, but when he knocked the door the door was not answered.
The application for committal that is before you today was issued on 14th April. There was initially a hearing listed for 29th April, but your honour made two orders on 28th April firstly listing the committal for today and also adjourning the review that was to be heard in this matter to today. Mr Code, who has met the respondent mother at court on a number of occasions attended the mother’s home at [address A given] on 21st May and he left the following documents: the father’s application for committal, the father’s statement, the two court orders made by your honour on 28th April and a letter from those instructing me dated 21st May. He says in that statement that he could see somebody moving around inside but nobody answered the door and he therefore left the documents in a post box. Again he emailed the documents to the same email address as on the previous occasion. That was [mother’s email address given]. However, on that occasion the email was returned to him marked as undeliverable. So it would appear that account by that point had been shut down. Mr Code was still somewhat concerned. He therefore attended at [address A given] again on 3rd June and he says there in that statement that he saw an older lady and also three women. At first the older lady seemed very reluctant to answer his questions. Then one of the younger women said that in fact C Y had moved to [address B given]. She also confirmed that the post that was left on 21st May was in fact handed by her to C Y. So it appears that although the mother may have moved by that stage, or had in fact it appears moved, she did get those documents.
My instructing solicitor then waited for the respondent mother. She arrived. She had with her C. We believe it was C although he is not known to my instructing solicitor. She had also a young baby with her and that fits in with what was said to the guardian some months ago, that she was in fact pregnant. She saw Mr Code who, as I indicated earlier, she would know from previous court hearings and then does what he called a double take. He explained what he had with him, that the matter was due to be heard in court on Thursday and she said she would not take the papers. She picked up the papers after Mr Code placed them inside the door but then threw them out and slammed the door. Mr Code carried on ringing at the door and it was answered by, we say, the grandmother, who said that it was not C Y and it was her other daughter, B. But Mr Code in fact does know the respondent mother and has seen her on a number of occasions.
Your honour, I would ask you to find that the mother has been served in this matter.
THE JUDGE: Yes, Mr Hawkins, do you have any submissions on the issue of service?
MR HAWKINS: Most certainly, your honour. The difficulties there were with service reflect precisely the difficulties the children’s guardian has in terms of trying to speak with mother and meet with mother. The children’s guardian did send a letter to her on 10th April to her previous address [address A given] and I have the letter here. It was returned – it had clearly been opened but was marked as “not at this address”. So clearly somebody has opened that and returned it. Similarly I had written to mother after the previous occasion and the letter I sent was just returned saying “no longer at this address”. So clearly mother would on the face of it appear to be evasive and difficult, but it would seem that every effort has been made to serve her and certainly she has received notice of today’s hearing.
THE JUDGE: Yes, thank you. Well, on the basis of those statements of service I am satisfied the mother has been served and therefore is aware of these proceedings and therefore it is appropriate to continue with the proceedings in her absence. She has clearly chosen not to engage. All the letters of service I am satisfied indicate that the mother is aware of this hearing and she clearly has refused to engage and I accept what Mr Hawkins says on behalf of the guardian that the letter sent by the guardian was opened and returned saying “not at that address” and that Mr Hawkins, representing the guardian, also wrote to the mother and that letter was returned “no longer at that address”. I am satisfied that Mr. Code saw the mother and not B and that this was a further attempt to evade service of these proceedings.
Yes. So what are you asking me to do, Miss Gilette?
MISS GILETTE: Your honour, I am asking you to make an order today. Do you wish me to call my client to confirm his statement of 14th August?
THE JUDGE: Yes, please.
DH – Sworn
Examined by MISS GILETTE
Q. Can you give your full name and address to the court please?
A. D H, [address C given].
Q. In front of you is a document. Do you recognise that as your statement? Could you look at page 61? The numbers should be at the bottom or the top perhaps.
A. Yes, I do.
Q. Do you recognise the signature?
A. Yes, I do.
Q. And are the contents of that statement true to the best of your knowledge and belief?
A. Yes, they are.
Q. Now, in that statement you tell us that following the court hearing on 3rd February you did not receive any phone calls from the respondent mother. Is that correct?
A. That’s correct.
Q. You tell us also from paragraph 6 through to paragraph 8 that you attended at R R on 15th, 19th and 22nd February.
A. That’s correct.
Q. Did mother attend with C?
A. No, she didn’t. No.
Q. If you wait there, there may be further questions for you.
A. Okay.
MR HAWKINS: I have no questions on behalf of the guardian, thank you.
THE JUDGE: No, thank you very much. Go and sit down. The court needs to know what the application is.
MISS GILETTE: Yes. The application is for immediate committal, your honour. The father is aware that mother has a very young baby, that the court is unlikely at this stage perhaps to make that order, but that would be his primary choice. He does not believe that the mother is going to listen to a suspended order, that is his concern. This application has been continuing now since 3rd November. The application for contact was made on 3rd November 2010. C is now nearly 6 years old. He last saw C on 17th August of last year and he is very concerned at the time that has elapsed and he also has great difficulty funding this matter.
So, your honour, that would be his preference. If your honour is not minded to do that we would ask for a suspended sentence.
THE JUDGE: Yes. Mr Hawkins?
MR HAWKINS: The children’s guardian, I should have said, has contacted C’s school and she has had to be very careful in terms of how she has got information from the school because it is clear that mum has made it known to the school that she is very cross and angry with them and does not want them to share any information. So the guardian was, for example, asking in terms of the address, she was giving an address and then asking the school to confirm if that is still the address they have, for example. But what she has gleaned from that conversation is that, you know, C is, you know, a happy little boy, he is developing well at school and there seem to be no concerns from the school. You know, if anything C is very settled there and doing very well at school which the guardian feels points to the fact that certainly on that level the parenting provided to C would appear to be, you know, good parenting.
That obviously then leads on to the guardian’s position. Of course, a committal is the most draconian order that the court could make.
THE JUDGE: I do not need to hear you on an immediate order for committal. I have no intention of sending this woman immediately to prison. But bearing in mind her clear behaviour to breach any order of the court a suspended committal order is what the court is considering. So I would like to hear your submissions on that.
MR HAWKINS: Certainly. If I can remind your honour of the children’s guardian’s position statement of 24th January.
THE JUDGE: Yes, I appreciate that, but at that stage the guardian was saying not any kind of committal order, but an enforced work order.
MR HAWKINS: Yes.
THE JUDGE: The trouble with an enforced work order is that it will be easy for her to do and will not ensure future compliance, but a suspended committal order does hold a threat over her such that she knows that if she does not comply she will be sent to prison.
MR HAWKINS: Certainly that is something that the guardian is aware of and she can fully understand why the father is making this application and why the court has that possible outcome in mind. But the points which she would make, or I would make on her behalf, are that mum has clearly a very young child who is 2 months old. It is a very important time for the child in terms of bonding with mum and the guardian is concerned of the impact on that child of a committal to prison which your honour has obviously said is not going to happen, but the obvious next step would be if there is breach of a suspended—
THE JUDGE: Well, if there is a breach the matter will have to come back to court and the court would then look at it. But at this stage if the mother is ordered to carry out work she is likely to do that and it is not going to actually result in the father seeing C.
MR HAWKINS: Part of the rationale of it is that this mother does have a certain kind of personality where it is reflected in terms of obviously she wants the best for C and she cannot be criticised for that and sends C to a fee paying school. But mother does see herself as being, I suppose, a cut above other people and the guardian’s rationale was that if she was sent to do work which would be clerical work, demeaning work for her, she would see it as being beneath herself. So that may actually have an impact with this mother. Of course, nobody knows in truth what the outcome will be. You could make that order and mother may not turn up or she may, as you say, turn up and do the work and it may not take us any further forward. So the guardian can see why the court would also consider, you know, a suspended committal as well. But those are the points the guardian would make about that, your honour.
THE JUDGE: Yes, thank you very much. Miss Gilette, so what are you relying on in terms of actual breaches with penal notices, because you need to be specific? I mean, no doubt you have the form in front of you, or you have access to the form of a suspended committal order.
MISS GILETTE: I am relying on the order you made, the contact order, 3rd February to be found at A88 to A89 and the breaches in relation to the phone contact on the 8th, 11th and 13th February of telephone contact and the breaches in relation to direct contact. Mother was ordered to make the child available for contact with the father: (i) by way of telephone contact. They were all breached.
THE JUDGE: Yes.
MISS GILETTE: And 1(iii) on the 15th, 19th and 22nd February the direct contact provision was also breached.
THE JUDGE: Yes. So it is paragraph 1(i) and 1(iii)?
MISS GILETTE: Yes. Can I help your honour any further?
THE JUDGE: No
JUDGMENT
1. THE JUDGE: I am satisfied that the mother was served with the order of 3rd February, which required her to make the child, C, available for contact with the father, D H, on 8th February, 11th February and 13th February for Facetime telephone contact and that she failed to do that, I accept the sworn evidence of the father in respect of that, and she failed to take C to the R R swimming pool on 15th February, 19th February and 22nd February in breach of paragraph 1(iii) of the order. As a result of that the father issued the application to commit on 29th April 2014. I am satisfied that that order was served on the mother and I accept the three statements, I think, of Mr Code in relation to his service upon her, namely, his statement at B55, which is his statement dated 17th February, his statement of 22nd May in which he makes it clear that he served the mother on 28th April with Mr H’s application for committal together with a statement in support and the two court orders of 28th April which listed this matter for today and also a letter to CY dated 21st May.
2. I am also satisfied that the following day, on 22nd May, Mr Code did serve the mother effectively by handing her the same documents I have referred to although she, so to speak, threw them back in his face. I accept his statement dated 3rd June 2014.
3. In those circumstances the court is faced with a mother who is intractably opposed to the father having any form of contact with C. The father has been seeking to obtain contact through the courts since 2010. He last saw C, who is now 5 years old, on 17th August of last year and that caused no problems to anyone. I am satisfied from what the guardian has told me that C is doing well at school and that the mother is providing appropriate parenting for him, that he is settled and happy and developing well at school and the school has no concerns about him.
4. Therefore the court has to look at the ways of enforcing this order. The guardian quite rightly submits that the committal order is draconian for the mother. She has given birth recently to a baby who I think is about four months old now and clearly it would not be either in C’s or the other baby’s interests if the mother were committed to prison. The guardian submits that the mother should be ordered to carry out work which the guardian considers the mother would consider to be demeaning and would therefore be likely to comply with any further order. However, looking at the history of this case taken as a whole and the mother’s ability to change addresses, to lie, to pretend she is her sister to evade service, I am quite satisfied that the mother either is, on the balance of probabilities, not going to attend to carry out the work or carry out the work and continue in her opposition to any form of contact. Therefore I regard that as being not appropriate in the circumstances.
5. Therefore it is proportionate and appropriatte that I take into account the father is privately paying for these proceedings. He has to pay for all the times he attends at contact when C does not and the necessity to come back to court again and again and again. In those circumstances it is necessary and proportionate that the mother should be subjected to a suspended committal order of 14 days duration. It will be suspended upon her complying with an order for contact and I will hear counsel in terms of what they propose in terms of what that contact should be.
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