England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT BOURNEMOUTH

		22nd January 2015

1. This case concerns a child (A) who is 7 months old. His mother is AW (the mother) and his father is C (the father). The local authority (the Borough of Poole) issued an application for a care order on 24^th October 2014. A is placed with his mother with foster carers pursuant to an arrangement under section 17 CA.
2. On 23rd December I heard an application by the mother that she should be allowed to take A to spend the Christmas period with the maternal grandmother at her home in Poole. This was opposed by the Local Authority. I allowed the mother's application on the basis of certain undertakings. I am told that the visit was satisfactory and that the mother returned with A to the foster carers as had been intended.
3. I am dealing with a Fact Finding hearing. The schedule of allegations is at B60 of the trial bundle. The final allegation is worded to the effect that the mother falsely alleged that police forced her to sign the pocket note book of the officer who attended the scene on 28^th July. It emerged that the mother alleged that on 29^th July she said that she was forced to sign a statement to the effect that the contents of the pocket book were true.
4. The main allegation is that on 28^th July the father, who it is said has a short temper and is prone to violent outbursts, stuffed A's bib into A's mouth in order to stop him crying. When the mother attempted to intervene it is said that the father pushed her so that she fell against the wall, banging her head. She sustained a bruise.
5. The police were called and PC Dinsdale attended at 14.20 on 28^th July. She arranged for the mother and A to be taken to the police station and thence to Poole hospital A & E. PC Dinsdale's statement is at F23.
6. The mother is therefore withdrawing (or does not wish to pursue) the allegations which she apparently made against the father. The mother wishes to continue her relationship with the father. The Local Authority has taken the view that the matters as originally alleged are serious and has adopted them. It is asking that the court make the findings in accordance with the schedule.
7. The burden of proving the matters alleged rests upon the Local Authority. The standard of proof is the civil standard i.e. upon the balance of probabilities. The father was prosecuted before the Magistrates in respect of the incident of 28^th July. He was acquitted.
8. The first witness was DC Langford. At F 12 is her summary of the evidence which she had prepared to help the CPS in deciding whether or not to charge F. The circumstances are described as follows:

"At approximately 1411 hours [the father's] mother Julie McAvoy contacted the police saying that her son [the father] was having a domestic with his partner the [mother] at their home address….

Police attended the address and spoke to [the mother] who stated to the police that [the father] and her were getting ready to go out when [the father] became cross because the baby was crying. He went to the baby and [the mother] heard a muffled noise coming from the baby. She approached and saw [the father] shove the babies (sic) bib into his mouth, about 1/3 of the way into his mouth. While he did this he said word similar to 'this should shut him up'. [The mother] pushed [the father's] hand away and questioned him about what she had seen. He then turned his attention to her and pushed her backwards into a door frame causing her to hit her head, causing a lump.

[The father] was not at the property when his mother and the police arrived. He phoned his mother who put her phone on loud speaker which allowed the officer PC Dinsdale to hear the conversation. She heard [the father] say: 'I'll come back if she's not going to press charges' ".

9. DC Longford first met M on the morning of 29^th July. She described the Mother as emotional, arrogant and not respectful of authority. She appeared well. The Officer knew that the Mother had been at hospital on the previous day. She was aware that the Mother had a lump on her head but had no reason to think that she was concussed.
10. At F13 is a summary of the police interview of the father. He and the mother had errands to do in town. The father described how during the morning of 28^th July he had been looking after A while the mother was getting ready to go out. The father was not yet dressed. He had had to change A completely because he had soiled himself. The father asked the mother to wait for him while he dressed. The baby was crying. The summary continues: "He went to the baby and closed the front door and took him out of his car seat to settle him. He picked the baby up and [the mother] came into the room. She turned around and tripped and fell over which caused a bump to her head. [The mother] then became hysterical and he offered to help her but all she wanted to do was to leave the flat. [The mother] left with the baby and he went to look for her around Poole. He could not find her so went to his mums. His mum was not there so he called her…".
11. At F20/1 is a statement written by the officer who told me that she wrote down what the Mother told her on 29^th July. The statement reads in part: "[Father] had assaulted me and our seven week old sun [A], so I called [the paternal grandmother] for help who in turn called the police. I told a female police officer PC Dinsdale what had happened to me and she recorded this in her pocket note book. I signed the note book and read what she put and can confirm what was written is a true and accurate account." Later in the same statement the mother said that she did not want prosecute the father because she could "protect A by not letting him see A and [father] has no one else but me".
12. At F26/7 is a further statement taken from the mother on 25^h September. Part of this statement reads as follows: "A started crying so I said to [father] that I would just take him out now and [father] could meet me at Starbucks later. [Father] wanted me to wait until he was ready to leave but I said I would take him now because A was crying and the motion of the push chair soothes him. [Father] then pulled the push chair back towards him facing away from me and said something like: "May be this will make him quiet". I then went over to where [father] and A were, pushed [father's] hand away assuming the worse (sic). I didn't actually see what he was doing it happened very quickly I didn't know what he was doing. I then said: "Right then that's it I am taking A". [Father] then pushed passed me to get to A causing me to fall and bang my head on the doorframe which caused a bump on my head. [Father] then offered to ring an ambulance for me and said we weren't going to do what we needed to today and that he was going to take me to A&E. I was just so upset at the time, tired and hungry. All I wanted to do at the time was leave. I rang [father's] mum to tell her what had just happened and come to the flat. I went back into the flat to get A and take him to my mum. [Father] was on the sofa burping A and said something like: "This is all I was going to do while A was crying". I then took A to my mum at Starbucks and left [father] at the flat".
13. Later in the statement the mother said: "I have previously signed a police pocket note book entry which I do not remember doing because at the time I was being examined by a doctor and I had concussion. I only heard the pocket note book statement when I had a core meeting with social workers and I couldn't remember saying any of it to the police".
14. In her discussions with the Mother it was DC Langford's impression that the Mother was sorry for and protective of the Father. She referred to his difficult childhood but also said that he had a bad temper. The Officer said that she had considerable experience of dealing with Domestic Violence. She had never before seen a case, which also involved a child, where the alleged victim/mother was so protective of the alleged perpetrator. The Mother's focus in this case was on the Father
15. The Officer denied that she had threatened the Mother that A would be removed if Mother did not sign the statement at F20. She did say that A would be removed if he was thought to be in danger.
16. The next witness as PC Dinsdale. She is not a qualified doctor but is medically trained and experienced. In particular she is experienced in assessing a person's reactions and general state of awareness after accident or trauma.
17. The Officer verified the contents of her pocket note book which is reproduced statement from the mother at F26. She also wrote the safeguarding referral in respect of A at G16.
18. She was one of a number of Officers who arrived at the scene following an emergency call for police attendance. The report received over the radio was to the effect that a male was trying to suffocate a baby. PC Dinsdale remained with the mother from about 14.23 until the Officer left the hospital at about 19.30. During this time she was with the mother outside the address, in the police car, at the police station where she was reunited with A and the maternal grandmother, and at the hospital.
19. At the scene the officer met the mother who said that A had been taken to the maternal grandmother. The mother was described as in tears. Her eyes were red and she was very upset.
20. According to the officer the mother told her that the father had pushed a bib into A's mouth saying: "May be this will shut him up." The father had pushed the mother with the result that she had fallen and banged her head against a door frame. The officer felt a lump on the mother's head. When the officer saw A he was wearing a bib which the officer seized for analysis.
21. The father's mother (JM) arrived. She told the officer that she had had difficulties with her son. It was said that he suffered from Aspergers Syndrome and could be aggressive particularly to the police. During this conversation the mother's mobile phone rang. The phone was held so that the officer could hear what was said. The male caller was the father. It is said that he spoke abruptly and said that he would come back if the mother agreed that she would not press charges against him.
22. When the mother was with PC Dinsdale in the police car on the way to hospital the mother said that she was not comfortable leaving A alone with the father. The mother said this was because when the father held A, the father easily became distracted and shouted.
23. After they had arrived at hospital, the officer took the mother through the questions in the Domestic Abuse Form. According to the officer the mother spoke of being pushed by the father on two or three occasions before she was pregnant with A.
24. According to the protocols which governed the police's actions on such an occasion, it was important for the officer to obtain from the mother an initial account of what the mother said had happened. This is what is recorded in the Pocket Book.
25. The officer says that she both read to the mother the Note she had made in her pocket book and allowed the mother to read it to herself.
26. The mother says that although she made some alterations which she initialled and then signed the officer's pocket book, the mother does not recall saying the things which are recorded in the pocket book. The mother says that she was concussed, shocked and emotional. In any event says the mother, the Note is not a true account of what the mother says in fact occurred in the home on 28^th July.
27. The officer told me that she was not aware that the mother had been diagnosed with "slight concussion". She told me that nevertheless she did go through the procedure to check the mother's response level with reference to the Glasgow Coma Scale (GSC); checked if she was alert and whether she could recall earlier events. I accept that evidence.
28. I was impressed with the evidence of the two police officers.
29. Susana Barrell is a member of the Referral and Assessment Team. She was A's social worker until 14^th August 2014. She first met the Mother at the family home on 29^th July. At C55 is a case recording summary which deals with this visit. The note contains the following: "[Mother] explained that she was getting A ready to go out as she knew [Father] was getting angry, I can tell when he's going to get angry". [A]was in his car seat in the hallway, and started crying. [Mother] was going to take him to her mother's. [Father] said "this will shut him up" and pushed the bib into [A's] mouth. [Mother] went to stop him, and he pushed her over-"I knew as soon as he pushed me over I had to get up to check [A]".
30. In her oral evidence Susanna Barrell confirmed that this is an accurate record of what the mother had told her on 29^th July. During this meeting it was also reported by the maternal grandmother that during the previous week the father had shouted at the mother. She reported that the father had on two occasions thrown a remote control across the room.
31. In her oral evidence the social worker conceded that it was possible that the recording about the bib may have come from the police report rather than being what the mother had said on 29^th July.
32. Mrs. Samuels is A's current social worker. Her statement is at C74. The mother had told her that the police had coerced the mother into signing the statement confirming the truth of the pocket book. If the court makes the findings which the local authority seeks, an application may be made for an Interim Care Order. As matters are at present A is safe with his mother in the foster placement.
33. The mother's principle statement for this hearing is at C24. At the start of her oral evidence the mother told me that she signed the pocket book at the hospital on 28^th July and no pressure was put upon her to do so. In her statement at C28, paragraph 16 she says that it was on the following day (29^th) that she was asked to confirm the contents of the pocket book the book and did so only because the police threatened to remove A if she did not.
34. She told me that she did could not earlier remember what she had said to PC Dinsdale. It had all been a blur. The notes at F40(b) described what the mother thought had happened but the incident as recorded in the pocket book did not in fact happen. The mother had only thought that the father had put the bib over A's mouth but when she went over to see the bib was not in A's mouth.
35. In her oral evidence the mother told me that her statement of 25^th September was her true statement. The circumstances appear to be that having heard the contents of the pocket book being read at the CPC on 14^th August (although in the statement she refers to a "core meeting with social workers") the mother realised that the contents were untrue. She therefore attended at the police station on 25^th September with a note of what she wanted to say.
36. The mother told the court that she had known the father for 6 years and they are engaged to be married. She was aware that he had a short temper. She described the father being subject to a number of stresses. He does not sleep well and is therefore often tired. She was referred to paragraph 22 at C30. In that paragraph she accepted that the Father has a problem in managing his temper and that he needs to seek help so that everyone can be assured that the father presents no risk to A. If the Father does not get the necessary help, the mother stated that she would sever ties with the father.
37. In her oral evidence the mother said that she had meant something different: if others think the father poses a risk to A she would not leave A alone with the father. The mother said that she does not believe that the father poses a risk to A. The father's anger is aimed at her, not A. If the mother really believes that it shows a worrying lack of understanding of the likely effects upon a child of being in a household in which the father aims his anger at the mother.
38. As to the schedule at B60 the mother agreed that there was an incident which related to A's safety. She had thought at the time that A might have been harmed by the father but had not been.
39. The mother said that she did not see the father pushing a bib into A's mouth.
40. She agreed that the father had assaulted her.
41. She agreed that the father had breached his bail conditions on two occasions.
42. In her oral evidence the mother described the events of 28^th July. The father had a day off from work. The parents needed to go into town. The mother had asked the maternal grandmother to look after A. The mother was ready in the narrow hallway with A in his push chair. She had put A's bib onto him. The father was not dressed and wanted the mother to wait. The mother wanted to leave and suggested meeting the father later. A was crying. The father pushed the push chair so that it was facing away from the mother and said something like: "May be this will keep him quiet". The mother said that she did not understand what the father meant. She said that she could not see properly as her view was obscured by the hood. In her statement at C28 the mother said that she went to the other side of the push chair and pushed the father's hand away. The mother said in her oral evidence that the father's hand was at the side of A's face.
43. In PC Dinsdale's pocket book (F40(b)) the mother is recorded as saying: "[F] pushed part of [A's] bib into his little mouth. [A] was crying but the cry then sounded muffled as if something was in his mouth. I came up to the buggy and saw [F] pushing the bib in with his fingers, two fingers, [F] said: "May be this will shut him up". I pushed his hand away and questioned him. I said "I am going now. [F] then pushed me in the hallway into the bedroom door frame. He used both hands…". In her oral evidence the mother said that when she went to A the bib was not in his mouth.
44. In her oral evidence the mother denied that she had informed the Officer who took the statement dated 29^th July at F20 that the father had assaulted her.
45. Both in this statement and in her oral evidence the mother said that she had suffered concussion on 28^th July and had no recollection of signing the pocket book. There is no medical report as to the mother' condition. Towards the end of her cross examination on behalf of the local authority the mother said that the police had forced her to sign a piece of paper which said that the contents of the pocket book were true but that she did not know what was recorded in the pocket book. PC Langford did not have the pocket note book with her.
46. When asked questions on behalf of the Guardian the mother agreed that the father was very upset on 28^th July. The mother feared for A's safety on that occasion and wanted the paternal grandmother to comfort the father.
47. The mother was neither an impressive witness nor a reliable historian. I find that the account contained in the pocket book is an accurate account. The mother was clearly frightened of the father's temper on 28^th July. She was rightly concerned for A's safety and at the time took steps to protect her son. Her subsequent attempts to minimise the father's behaviour, the danger that he then presented to A and the possibility of such an event re-occurring do her no credit. As matters are at present I fear that the mother is unable to accept that if she is to care for A his safety and welfare must come before her relationship with the father. He requires professional help and assessment in respect of his difficulties.
48. The father's main statement is at C33. He has a criminal record (F33). In 2007/8 he was aged 14-15 and was convicted of one charge of battery and four of assault. Some of these were upon his mother. He agreed that he had had difficulty in controlling his temper in the past.
49. The father admitted the two breaches of his bail.
50. He wished to qualify paragraph 13 of his statement at C36. Where he used the word manipulation he explained that this referred to the circumstances in which the mother signed the pocket book, not to the mother's allegation.
51. As to the events of 28^th July he could not recall if A was wearing a bib. I find that he was. He went to A who was crying in his push chair. The father thought that A was suffering badly from wind. He had recently been fed. The father therefore was going to wind A. He agreed that he said something to the effect that he knew what would keep A quiet (i.e. winding). The father said he was not angry. The mother had misunderstood his intention. He had put his hand into the push chair to stroke A's cheek when the mother snatched his hand away. He was confused by the action of the mother who had pushed him back. He pushed past the mother to go to A in order to wind him. The mother fell over. He could not recall that he had ever pushed the mother before so that she fell.
52. The passage in the pocket book at F40(b) was put to the father. He denied pushing the bib into A's mouth.
53. The father remained calm in the witness box. He was an articulate witness. He did not generally give a direct answer to a question. I did not find his account of the events of 28^th July to be reliable.
54. SUBMISSIONS: On behalf of the mother Mr. Thorne accepted on behalf of both parents that the father had been in breach of his bail conditions and therefore allegations 4 & 5 are made out. It is submitted that the breaches were not, in the scale of such matters, very serious. I understand that point but nevertheless they should not have occurred and the parents had a duty to ensure that such a thing did not happen.
55. It is accepted by the mother that the first allegation in the schedule was made out although she does not now recall making the allegation as recorded. It is not said that the PC Dinsdale fabricated the account recorded in her pocket book but that the mother assumed at the time that the account which she gave is what had in fact occurred. The basis for this submission is that the mother was in a vulnerable physical and emotional state and was suffering from mild concussion at the time. She was confused and frightened. She heard what the father said; she heard the tone of his voice; she saw his hand by the bib and leapt to the wrong conclusion.
56. Allegation 2: this is to the effect that the father pushed the bib into A's mouth. It is said that the mother could not have seen what the father was doing because at the start of the incident her view of A was obscured by the push chair. It is submitted that this supports the mother's present stance that she assumed rather than saw what she at first said had occurred.
57. Allegation 3: in her response in the schedule and in her statement the mother agreed with this allegation. In her oral evidence I understood the mother to moderate the allegation by saying that the father pushed past her and agreed with the father's evidence to the effect that he pushed past her to get to A in order to wind/comfort him. I infer from this that the mother's case now is that the father did not act in temper as originally alleged and accepted by the mother.
58. Allegation 7: Mr. Thorne attacked the evidence of PC Langford. It is said that she forced the mother to sign the document which asserted the truth of the account in PC Dinsdale's pocket book. It is said that it was made clear to the mother that if she did not sign A would be the subject of Police Protection Procedures. It is said that the question of Police Protection was raised before the mother was asked to sign the statement. The Officer was unable to explain why a possible placement of with family carers was not raised. It is also submitted that the Officer took a dislike to the mother and this affected her approach to the mother who became confused and nervous.
59. It is submitted on behalf of the mother that allegations 6 and 7 are not established.
60. Mr. Carroll, who acts for the father, adopted many of the points made on behalf of the mother.
61. Allegation 3: the father has always maintained that he did not push past the mother in temper. The mother originally accepted that he did. It is submitted the father's focus was upon A who was in pain because he had not been winded. When the mother pushed his hand away from A's face the father, using more force than he realised, merely wished to move the mother out of the way so that he could safely pick up A.
62. The father said in oral evidence that he had been caring for A in the morning although this was not said in his statement. The mother said that she had breast fed A and kept him with her while she got ready to go out. She had no recollection of the father feeding A or that the father changed A's nappy. The mother was clear that she had put a bib on A. In his police statement the father denied that A was wearing a bib. In his oral evidence the father said that he could not remember. It is submitted that the evidence does not support a finding that the father lost his temper as alleged. I do not agree.
63. Mr. Carroll urges caution when the court is asked to consider the father's criminal record. It is pointed out that the offences related to a time when the father was aged 14/15. There were clearly difficulties between the father and his mother at that time. Such behaviour has not occurred since he moved from his mother.
64. As to the events of 28^th July, it is submitted that the father's account should be accepted and that the mother, upon mature reflection, agrees with that. No assault or dangerous actions with A's bib took place. There is no evidence other than the parents' as to what occurred in the flat that afternoon. The mother in her confusion misunderstood the father's real meaning and proper concern for A when he used words such as "I know what will make him quiet". The incident it is submitted was no more than a typical spat between young parents who were about to leave the house with a child who needed to be winded.
65. On behalf of the local authority Miss Hepworth submitted that the critical and primary evidence about these events is contained in PC Dinsdale's pocket book. I agree. In cross examination it was pointed out to the mother that she had initialled amendments which she had asked to be made. In reply she mother said that she did not know why she had done this.
66. Miss Hepworth pointed out that it was not until 25^th September that the mother gave a different version of the events of 28^th July. If in the mother's view the police were working the case upon a mistaken basis she should have told them earlier. At the initial child protection conference on 14^th August the mother was present with her solicitor. At G11 is the record of that conference. The team manager asked the mother if there was anything the mother disagreed with in the report which the social worker had prepared for the conference. The mother replied that the father had not put the bib into A's mouth. He had just held it over A's mouth.
67. Miss Hepworth submitted that PC Dinsdale's evidence gives a clear account of the events of 28^th July. I agree that the Officer was a truthful witness. An important point is that A was wearing a bib when seen by the Officer. The Officer also conducted a "DASH" risk assessment in order to consider the risk of domestic abuse/violence to the mother.
68. As to DC Langford's evidence it is pointed out that this is the moment that the mother began to resile from her earlier stance as to the father's behaviour. Although I accept that at F20 the mother did sau "[Father] had assaulted me and our seven week old son [A]…" It is submitted that it was clear to this experienced officer (F6 and in her oral evidence) that the mother was protective of the father. The Officer had visited the mother to take a statement because of what the mother had told PC Dinsdale on the previous day. It is clear to me that DC Langford was surprised at the stance taken by the mother on 29^th July.
69. Given the information which the Officer understood that the mother herself had provided, it was part of the Officer's role to ensure that the mother and A were protected. I am sure that given what now appeared to be the mother's new stance, the Officer urged upon the mother the need to be protective of A and pointed out that if the father had not been in custody, DC Langford would have exercised the powers of police protection. I do not accept the assertion that the officer applied improper pressure upon the mother.
70. DC Langford did not have the pocket book with her so that the mother was not on 29^th July able to read it again. On the other hand the mother did not tell DC Langford that she (mother) had reservations about the account that she had given to PC Dinsdale on 28^th July.
71. Miss Hepworth is properly critical of the quality and reliability of the parents' evidence. It is said that the mother was avoidant and frequently resorted the answer: "I can't remember" or her accounts varied and diminished in detail. It is pointed out that the mother's assertion that she suffered from concussion during her discussion with PC Dinsdale is self-serving and not supported by medical evidence. Indeed it is said that in so far as there was any sort of medical appraisal of the mother's condition it was carried out by PC Dinsdale as I have earlier described.
72. As to the father, while he sought to present a favourable image of himself in court it is submitted that the reality is different. I agree. Miss Hepworth referred to the statement (E5-7) of Alison James a social worker in the Family Support and Safeguarding Team. The contents of this statement were not the subject of challenge. Alison James was not required by any party to attend court. I bear in mind the submissions made by Mr. Carroll on behalf of the father and the father's own evidence about his past but there is in my judgment sufficient in Alison James' statement which shows a number of worrying features in the father's attitude and behaviour. It suggests that the father is capable of the sort of actions of which the mother first accused him.
73. On behalf of the guardian Mr. Nother pointed out that a court would generally place significant reliance of a contemporaneous account such as the mother gave to PC Dinsdale. The conversation ranged over some 5 hours at four locations. In her evidence the mother initially said that the events of 28^th July were a "blur". She later said that she had a clear memory of events before arriving at hospital. Having heard the mother and considered the whole picture I reject the mother' assertion that she had suffered a head injury which made the account which she gave to PC Dinsdale unreliable. It is unlikely in my judgment that the quality of her recollection will have improved in the period following 28^th July.
74. In paragraph 16 of his submissions Mr. Nother sets out a number of matters which he suggests that the court should consider when analysing the events of 28^th July. I agree that if A had soiled himself as badly as the father says the mother would have both remembered this. She said that she kept A with her while she was getting ready to go out. In this situation I do not see how the father could be certain that the cause of A's crying was wind. In her statement at C28 the mother says the father used the words: "Maybe this will shut him up". The mother went on to say that she was concerned as to what the father was doing (to A).
75. I find that the atmosphere in the flat was tense. A was wearing a bib. The mother was becoming increasingly concerned and frightened about the father's deteriorating mood: (Case Recording Summary at C55). Because of the situation she was anxious to leave with A before the father became angry. Whether A was crying because of wind or because the parents were arguing or for a variety of reasons, I find that the father lost his temper with the result that he behaved and used the words as the mother told PC Dinsdale. I find that the mother called the paternal grandmother because she hoped the grandmother would be able to calm the father. I accept PC Dinsdale's account of the telephone call made by the father to the mother's mobile phone but answered by the paternal grandmother.
76. The mother admitted to Susanna Barrell that she (mother) is not always open with the family about the father's behaviour and also admitted to Susanna Barrel that the answers that she had given to the police in the DASH assessment were correct.
77. Following the handing down of this judgment the future management of this case will be considered.
78. The allegations:

(i) Proved: there was clearly an incident at the family home which required the attendance of the police.

(ii) Proved: I find that PC Dinsdale accurately recorded what the mother told her and that the mother was aware of what she was saying and gave clear account of what she had witnessed. I reject the mother's later assertion that the reliability of her account was destroyed by concussion. She was not being truthful about that.

(iii) Proved: as I have earlier said the father lost his temper. He pushed the mother.

(iv) & (v): Proved as admitted.

(v) Proved

(viii) Proved:

HHJ BOND 22^nd January 2015.