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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> London Borough Of Hillingdon v A & B [2017] EWFC B113 (1 September 2016)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B113.html
Cite as: [2017] EWFC B113
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IN THE FAMILY COURT AT WEST LONDON
Case No: ZW16C00046
Courtroom: 3
Gloucester House
4 Dukes Green Avenue
Feltham
Middlesex
TW14 0LR
Thursday, 1 st September 2016
Before:
HER HONOUR JUDGE CORBETT
B E T W E E N:
LONDON BOROUGH OF HILLINGDON
AND
A& B
Transcript from a recording by Ubiqus
61 Southwark Street , London SE1 0HL
Tel: 020 7269 0370
MS N ABBASI appeared on behalf of the Applicant
MS M BHAMBRA appeared on behalf of the Respondent Mother
MS B BADEJO appeared on behalf of the Respondent Father
MR N FRY appeared on behalf of the Children's Guardian
JUDGMENT
(Approved)
HHJ CORBETT:
1. I am concerned with care proceedings relating to C. C was born in August 2013; she is now just three years old. I will order a transcript of my judgment and direct that the local authority be responsible for obtaining that judgment and disseminating it to the other parties in the case. Following a final hearing in this Section 31 Children Act application, heard before me on 15‑18 August, I reserved judgment to today, 1st September. I propose to give my judgment at the beginning of this judgment and then go on to explain my reasons.
Decision:
2. There will be a special guardianship order in favour of C's maternal aunt and uncle, D and E, who live in Poland. I approve the local authority's recommendation as to contact, that C's father has contact twice a year to her and her mother has contact four times a year.
The court's reasons:
3. C, who is just three years old, has been in short-term foster care since almost a year ago, 16 September 2015. This is the final hearing in relation to a Section 31 Children Act application which the local authority issued on 28 January 2016. By my calculations, this is week 31 of the proceedings. I have been responsible for case-managing this case throughout.
4. I plan to concentrate in this judgment on the relevant matters and issues which have guided my decision-making. Inevitably, that means I will not recount every piece of evidence which I have either read or heard. I have, however, read the bundle provided by the local authority at the commencement of proceedings, as well as important documents which were filed during the hearing itself. They include additional police disclosure provided, in fact, by Father's counsel, Ms Badejo.
5. I have been very conscious of the great burden and responsibility placed upon me to make the right decision for C and her future, and I have considered with great care the written and oral evidence and the advocates' submissions.
6. The parties and their representatives : the London Borough of Hillingdon was represented at the final hearing by their in-house counsel, Ms Abbasi; the mother, A, was represented by her solicitor, Ms Bhambra. The mother had the assistance of a Polish interpreter at court, although for the majority of the hearing itself, the interpreter was not needed to interpret the evidence to the mother; the mother gave the majority of her own evidence in the witness box using the assistance of the interpreter. C's father, B, was represented by his counsel, Ms Badejo. Today at court the local authority is represented by their solicitor, Ms Hansen, and the father by his counsel, Ms March. C's Guardian, Ms Lain, was represented both today and throughout the hearing by her counsel, Mr Fry.
7. The Guardian was also the Guardian in another matter at this court in which she had no legal representation, and liaison between the Recorder in that case and myself meant that the Guardian was able to hear the majority of the oral evidence and she also had the benefit of Mr Fry's notes of evidence of any matters or any evidence that she missed. No point was made about the Guardian not being at court throughout the whole of the hearing but I mention it for the avoidance of any doubt.
8. The parties' applications and positions : The local authority invite me to make a special guardianship order in favour of C's maternal aunt and her partner. It is the local authority's submission that C could not and should not return to the care of either of her parents. The mother supports the local authority's application; she submits that her sister would be able to provide better care to C than the father and she prefers Cto be placed under a special guardianship order to her own sister, the mother's sister.
9. Her second position is that C should live with her father. The mother does not put herself forward to have C returned to her care, accepting that she has a great deal of work to undertake in respect of herself. Throughout this judgment, I will refer to the mother, A, and the father, B, as the mother and the father.
10. The father denies the facts sought by the local authority about his behaviour. His position is that he seeks C returned to his care. He issued an application pursuant to Part 25 of the Family Procedure Rules 2010 for an independent social work assessment, which I heard and refused on 17 June. I directed that the local authority file, as they had offered to do, a social work assessment of the father; that was carried out by Arlene Jones.
11. The Guardian strongly supports the local authority's application for special guardianship orders in favour of the aunt and uncle in Poland. There is no issue about the local authority's recommendation to the special guardians that the mother has contact four times a year. The father seeks contact more frequently than twice-year and/or parity with the mother at four times a year, to which the Guardian and the local authority object.
12. The live issues : Whether the threshold is met as the local authority set out?; whether I should find facts as sought by the local authority in addition? The mother accepts that the threshold criteria is met and the father disputes the matters material to him, particularly allegations of domestic violence with him as the perpetrator.
13. An important issue is whether I should make an order so that C returns to live with her father or whether I should grant a Special Guardianship Order to the maternal aunt and her partner who live in Poland. The question of contact to the father, if I make a special guardianship order, is an issue.
14. The local authority, by the time of their closing submissions, invited me to make findings as set out in their document at A42 dated 9 June, to which I will turn in a moment, and, in closing submissions, Ms Abbasi set out the additional findings that the local authority sought based upon the evidence.
15. Background summary : The parents are Polish nationals who have been married since 2014. They have been in a relationship since about 2010. The father works full-time. He lives in a property which he rents; there are other tenants also in that four- or five-bedroomed property. The parents both assert that their relationship is over. C was unplanned, she was born in the United Kingdom and has always lived here, and she is habitually resident in this country. Her extended family live in Poland.
16. In September 2015, the mother alleged that the father assaulted her and he was arrested. He breached his bail by being found at the mother's home. On 16 September 2015, C was accommodated pursuant to Section 20 of the Children Act 1989, with the consent of her mother. Once the local authority had issued proceedings, an interim care order was made on 3 February of this year.
17. C remains in foster care. Her contact to her mother is approximately once or twice a month. The mother has been quite inconsistent in attendance, thus her contact frequency has been reduced. Since his release from prison on remand in late June, the father has had a handful of contacts. Contacts to both the father and the mother are described as positive.
18. A further incident occurred in December 2015, when the father again breached his bail by being found at the family home. In the Crown Court in June of this year, a criminal trial took place relating to the alleged assault on the mother from last September. The mother gave evidence and the jury returned a not guilty verdict. The mother had, to a large extent, declined to assist the police investigation and at one point had to be the subject of a witness summons to give evidence at the Crown Court.
19. Following the acquittal, the Judge in the Crown Court made a restraining order without conviction, which he was entitled to do under the Protection from Harassment Act 1997 Section 5, and he directed in his order that the father was not to contact the mother or C without the leave of the Family Court. That was subsequently varied by myself to permit contact; MARAC meetings were held after the acquittal to formulate a safety plan for the mother.
20. In the papers which I have read are many reports of alleged violence between the parents, including reports that C was a witness to such incidents. The father has denied ever being violent to the mother and the mother has given a variety of accounts and withdrawals of her allegations. I deal with this later in more detail.
21. The mother accepts that she has an alcohol problem and that she drank to excess when C was in her care, and that she has failed to engage in any meaningful way with support services. The toxicology results for both cocaine and cannabis use are found within the bundle and there has been no issue that the mother has used both of those and has drunk to excess.
22. There are various accounts also in the papers of the mother working as a sex worker and then as a masseur for some years, both in Poland and then later in the United Kingdom. The police investigated the possible trafficking of the mother into this country, which was denied by the father, and no findings are sought within these proceedings.
23. In his statement, filed just before the final hearing began, the father asserted that the mother has not engaged in sex work at all. The mother herself said she did engage in such work but she stopped working when C was born. The mother has given various accounts of when she stopped working. She told the police and HIDVA that the father forced her to work as a sex worker, which she had not wanted to do since having C.
24. When C first came into care, she was very angry and unable to control her emotions and behaviour. She settled well in foster care and made progress, responding to boundaries and developing social relationships. A paediatrician, Dr Price-Williams, carried out a health assessment, and in her report of 21 January she sets out there being some delay in C's development. There has been a referral to speech and language therapy and on 20 April it was assessed that C's attention and listening skills are delayed and her receptive skills require further assessment.
25. Dr Newman from the Domestic Violence Intervention Project prepared a risk assessment in April of this year; it is a lengthy and detailed report. Dr Newman was not required to give evidence within this hearing. In the report he describes the mother having self-reported to him a significant history of domestic abuse including physical abuse and emotional abuse, control and coercion. He describes the mother as vulnerable. He says that a significant factor impacting on her parenting ability is the alleged domestic violence between the parents. I return later to Dr Newman's report in some detail.
26. Doris Sisk is an independent social worker who carried out a parenting assessment of the mother. From a background of social work, she echoes Dr Newman's conclusions. She noted that, notwithstanding the mother's allegations against the father, the mother believed that the father was a good father and that she, as a mother, did not rule out to Doris Sisk the possibility of resuming her relationship with the father in the future.
27. Arlene Jones carried out a parenting assessment of the father in August of this year. She does not recommend that C is returned to her father's care and concluded that he had failed to protect C from the mother's drinking. Ms Jones was concerned about the existence of domestic violence within the relationship and that evidence of the parents remaining in contact notwithstanding their formal position. She was concerned that the parents may re-establish their relationship once the case is out of the court arena, and C would be exposed to the same harmful experience she had before she was removed.
28. The father had put forward the name of his sister who lives in Poland; a viability assessment in relation to her had a negative conclusion. There was a positive special guardianship assessment of the maternal aunt and her partner. This is the local authority plan and the local authority has formulated a short transition plan for C to move to their care in Poland.
29. Further, by way of background, I had the opportunity not only to read the bundle but to see a video clip filmed by the father on his telephone, lasting some 20 seconds and apparently filmed on 14 September 2015. In that clip, the mother appears drunk and, within the 20 seconds, one can see her falling against a wall or cupboard. C's voice could be heard in the background and the father's voice can be heard saying, in English, 'She's trying to start a fight'. Further evidence that I have seen is a letter and two drawings that the father sent to the mother from prison. The mother mentioned during a contact session on 27 April having received this communication from the father.
The Law:
30. Moving away from the background summary to the legal principles that I have to consider, the burden of proof is on the local authority to prove the facts they wish to establish to a standard known as the balance of probabilities, i.e. that something is more likely than not to be true. An important authority in relation to the burden and standard of proof is the case of Re A (No 2) [2011] EWCA Civ 12. I have had to consider the case of R v Lucas [1981] QB 720 and to give myself what is known as a Lucas direction, reminding myself that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and/or distress, and the fact that a witness has lied about some matters does not mean that that witness has lied about everything.
31. C's welfare has been and still is my paramount consideration; I have to put her first; I have to bear in mind the Welfare Checklist set out in Section 1(3) of the Children Act 1989. I have had to look at the case as a whole; look at the positives and negatives of the respective plans put before me in order to come to a necessary and proportionate conclusion.
Witnesses:
32. I heard evidence from the allocated social worker Philip Rogers, from Arlene Jones, from the mother and father themselves, and from the Guardian, and I will proceed to give my impression of the witnesses' evidence.
33. Philip Rogers , the allocated social worker, is the author of the final evidence, care plan and also the risk assessment of the father carried out when he was in prison. He confirmed in evidence the contact plan and he explained that the local authority's position as to why there were differences in the plan for the mother's contact and the father's contact in that C would be placed with the mother's family, and so it would be much more natural for C to see her mother rather than her father.
34. He emphasised that no order for contact was being suggested but this was the local authority's guidance to the special guardians. Mr Rogers also told the court that it was important to remember that the purpose of contact, once C is placed with special guardians, is not for the resumption of a placement with Mother or Father but its purpose is for identity and to assist C with her own identity.
35. Mr Rogers said that a central plank of the local authority's concern is the parents' relationship and how it is managed in a very dysfunctional manner; for example, the large number of police callouts to the family home. He said it would be difficult to engage the father in domestic violence work even if findings were made by this court, given the father's denial and his minimisation of his role.
36. Mr Rogers further said that the father's breaches of bail are indicative as to how the father would work with agencies in the future. The father had said to Mr Rogers in April during his risk assessment that he wished to resume his relationship with the mother and to care with the mother jointly for C. Mr Rogers confirmed that the father said that to him in clear terms. My impression was that Mr Rogers was thoughtful about the plan he was putting forward on behalf of the London Borough of Hillingdon and I thought he was clear and quite measured in his oral evidence.
37. Arlene Jones is a social worker who carried out a parenting assessment of the father. She has been a qualified social worker since 1984 and is also a qualified child and family systemic psychotherapist. In her written report, she sets out that she cannot conclude that the father could parent C and keep her safe from significant harm. It was her opinion that he may re-establish his relationship with the mother and this would cause C to be exposed to a risk of significant harm.
38. She was concerned that the father does not appear to think through the potential implications and ramifications of domestic violence and exposure to his wife's dysfunctional behaviour on C now or in the long term. It was apparent to Ms Jones that the father has had some contact with his wife from the evidence which she had read and the conversations which she had observed.
39. She says in her report that it was even more concerning that he attempted to hide the fact he had had contact with the mother and that she would be concerned if this became a pattern and, should C be placed with him, she was concerned that he would hide the fact that he had re-established the relationship with her again, which would potentially place C at risk of significant harm.
40. Ms Jones was unsure of the mother's ability to maintain sobriety. She had little confidence that the father could be the main carer for C and little confidence that C would be his highest priority if she were placed in his care. She had considered whether extensive support would be given to him to successfully parent C but again was not confident that this would be a solution to safeguard her. Ms Jones considered there were too many inconsistencies with the father's account of how he would safeguard C for her to support his request so, with regret, she said she concludes a negative assessment.
41. She includes in her written report how, during one of her meetings with the father, he lunged towards her. Unsurprisingly, there was some cross-examination about that when she gave her oral evidence. She said that he and she were across a table, one either side of a table, and that Father got very angry and raised his voice, and that she, the social worker, felt that she needed to impose a break. She told the court that the father in her opinion has quite a temper and, if you compromise him on any level, he can get very angry, and that this would have an impact on the care of C. She reminded the court that she had been a social worker for many years. She said, 'I don't say, "Take a break", lightly; it was a very aggressive move. I am very, very clear that a client who raises his voice with changing body language and coming towards you is a very risky situation, and I did not misunderstand him'.
42. In her discussions with the father, Ms Jones said that the father consistently denied being violent to the mother but also said that he had restrained her when she was drunk, using the word, 'Restrained'. It was her opinion, as a social worker, she did not think the father could facilitate meaningful contact with the mother because of the dynamic of their relationship and that neither appears to fully understand the impact on C.
43. The father told Ms Jones that he had not contacted the mother. He did not tell her that he had sent a letter and drawings to the mother from prison. She recorded that Cenjoyed the contact with her father that she observed and that there were no concerns noted, and she volunteered that C clearly loves her father. Ms Jones asked the father about his first wife and about the circumstances of her obtaining a restraining order but the father to Ms Jones was unable to remember the circumstances of that.
44. I concluded that Ms Jones appeared thoughtful and fair in her evidence. She was subjected to understandably vigorous cross-examination by Ms Badejo but was unshaken in her recommendation and in her factual account of the meeting with the father. She volunteered positive observations about contact and that C loves her father, which I considered was entirely fair of her. I can place great weight upon her assessment, given her experience.
45. C's mother gave evidence, having provided a handwritten statement on the first day of the hearing, which is very short. It is dated 15 August, translated by her interpreter. She says:
'I have had time to consider things carefully over the past weeks. In the Crown Court, a video of me was shown where I was drunk. The video also showed me tripping over and hurting myself. I have been thinking about that video; it has made me realise that I am not actually sure about what happened on all the occasions. I don't believe the father hit me or was violent to me. I support C being placed with my sister because I feel they will be able to meet her needs better. My second option for C is placement with the father'.
46. In oral evidence, the mother told me, amongst other things, that, before C was born, she had been working as a sex worker and then later as a masseur. She said that when she met the father he knew that she was working as an escort and sometimes he would give her a lift to a client when C was also in the car. She told me that the father set up a website for her massage business and that he did the photographs and the graphics for that website. She is now working, she told me, in a restaurant.
47. She accepts that she has a serious alcohol problem and that that has impacted on her parenting of C, and accepts that she needs to address her issues with alcohol. She accepts that she has made a number of allegations against the father to the police and, as I have said, her position is now, given that she has seen a 20-second video of herself taken by the father when she was under the influence of alcohol, tripping over and hurting herself, that has made her reassess all her allegations and has decided to retract them.
48. She said in oral evidence that the father has not hit her, although there were arguments between them. She accepted that C should not have been around when they were arguing and that that would have been harmful for C. She said on many occasions that she could not recall what she said to the professionals who were assessing her, for example, including Dr Newman and Doris Sisk because when she saw the experts she was under the influence of alcohol. The reason given by her throughout her evidence for the answers that she gave to Dr Newman about the father's violence and controlling behaviour was that when she saw Dr Newman she didn't know what she was saying because she was under the influence of alcohol.
49. She told the court that the father drank alcohol with her but never to the same extent as her, and that he bought her alcohol despite knowing of her alcohol problem because she asked him to. It was a theme of her evidence that she did not know what she was doing or saying because she has an alcohol problem. When, on many occasions she was cross examined about extracts from police reports and expert reports, and indeed also from a document prepared by her own solicitor, the threshold response, where she has said the father has assaulted her, her answer running as a golden thread through her evidence was that she is an alcoholic, she has an alcohol problem, and so she did not know what she was saying. In answer to my own question, when I asked her, 'Do you mean when you were asked these questions by the police and the London ambulance service, and when you made the 999 call?' She said, 'Yes'.
50. The mother's own mother was present in the family home in December 2015 when an alleged assault took place and the mother said in oral evidence that the reason she has said since 26 December at times that she was assaulted by her husband is because her own mother had told her that he assaulted her. When I asked her, 'Does your mother normally tell the truth?', she, and I considered it was quite an unguarded answer, said her mother did.
51. She was asked about some of the contact notes, in particular by Mr Fry on behalf of the Guardian. This included the contact note of 7 June where Denise Collison, the contact supervisor, notes that the mother told the contact supervisor that she was living somewhere her ex‑husband would not find her, although when she went back to the house to get the rest of her belongings he was there and that they had a difficult conversation. He had said he wanted her back and she had told him it would never happen, and that he had sent her a nasty text and she was unsure how he got her new phone number.
52. The mother in evidence said, 'I did tell the contact supervisor that he sent me a nasty text but in fact it's not true'. The mother was unable in her oral evidence to give any reason why the contact supervisor would write in detail the couple of sentences that I have just read out and she was unable to give any detail or any reason I should say as to why she said that to the contact supervisor.
53. The mother in many ways was a pitiful witness, looking frequently over at the father, as I observed during her evidence, seeming to me to look to him for reassurance. Her tangible anxiety during her oral evidence was quite striking and her mantra of not remembering, blaming being under the influence of alcohol, even in, I conclude, the highly unlikely situation of her being under the influence of alcohol during several appointments with the experts, was still a mantra which she kept to.
54. In many ways, the mother has made an extremely brave decision, recognising her difficulties and recognising that C cannot be cared for by her. She has made a very brave decision in recognising that her daughter's welfare would be best met with her aunt, not with her father.
55. When I consider the mother's evidence as a whole, she did not begin to explain why she had made the allegations that she had against the father to her own solicitor, providing a signed document in February of this year for the court, making allegations to the police on a number of occasions, to the London ambulance service, and to Dr Newman and Ms Sisk, and her credibility is really quite limited.
56. The father provided a written statement, signed by him on 10 August, where he sets out his plans to look after C himself. He said in oral evidence he would have some assistance from his sister who was willing to come over from Poland and, although she works in Poland, he said that she would be able to do that work, effectively, remotely from England. Both in his statement and in his oral evidence, Father completely denied being violent to the mother, and he blamed the mother's use of alcohol for all the family's difficulties.
57. It is clear he loves C and the reports of contact with C are good. What was striking, amongst many striking matters in his evidence, was his lack of understanding of the effect on C of hearing parental arguments. He concentrated on 14 September of last year in obtaining evidence of the mother drunk by videoing her when C was plainly in earshot, as is clear from hearing her on the video clip he himself provided.
58. He appears to the court also to have an astonishing disregard of the role he played in breaching his bail on 16 September of last year, which led to the police finding him in a wardrobe in the family home and to use his own words, 'the trauma' that was caused to C by the police coming in, breaking the wardrobe door, and finding him crouched in the wardrobe. He made a complaint to the Independent Police Complaints Commission about the police's behaviour on that day, completely disregarding, it appeared to me, the role that he played in leading to C observing that by breaching his bail.
59. He accepts that he breached his bail conditions in both September 2015 and December 2015. He has given different reasons to different professionals and to the court as to why he went to the mother's home in Christmas 2015, including to take food to the mother and her own mother, to give presents to C (who happened to be in foster care), and because the mother or grandmother had called him, and also giving a reason it was because he had nowhere else to go and it was Christmas.
60. I will deal later with the particular allegations of assault and my conclusions about them but his evidence, as a whole, I have to say, was quite chilling. He could see nothing wrong with sending a picture from prison to the mother of a half-naked woman with a knife in her back, a knife dripping blood, and with the woman weeping, a picture drawn by him. Further, he could see nothing wrong with another picture he sent her, which was a picture of a prison cell with pornography on the walls and a blow-up doll, bottles clearly indicating alcohol. He says in his statement of 10 August 2016 that he has made, 'Active efforts to avoid all communication with the mother'.
61. What he does not say there is that he sent her pictures and a letter from prison. His letter to her says that he still loves her, it mentions providing money for her, and also mentions C and says, 'We both know I don't deserve to be here'. When he was asked about evidence contained in the police records that he checked her phone for messages, it appears that he saw nothing wrong with checking the mother's phone. He said, 'It [the phone] was there and so I looked at it'. He also tried to persuade the court to accept that he did not know what the mother worked as or what she earned. In his statement he says that the mother has not been involved in sex work so far as he is aware. It is simply not credible, in my judgment, that he did not know the work the mother was doing; she herself says he knew.
62. A restraining order was made in relation to his first wife; I do not know the details about that. What I do know is that he told the police, when they asked him, that his first wife was jealous and that women could obtain such orders or injunctions easily. I found the father to be a completely unconvincing as a witness of fact. It was apparent that he thought that the jury in the Crown Court had returned a verdict of not guilty in relation to the September assault and so this would go no further. He appeared to think it was convincing for him to repeat that the mother was drunk and therefore this was the blame for all the family's ills.
63. Because of the difficulties with the way that both of the parents gave their evidence, it was important to look at other sources of information within the court bundle. Before I do that, I deal with the Guardian's evidence. She maintained in her oral evidence the recommendation and analysis that she sets out in her report, paragraphs 41 and then 48 to 51. I will read those paragraphs now. At paragraph 41, Ms Lain says:
'It is my view that B clearly cares about his daughter and has some parenting skills. However, I have considerable concerns regarding B and his ability to keep C safe.
My concerns are threefold: his lack of insight as to how C was exposed to and cared for by her mother who abuses drugs and alcohol. Secondly, I have no doubt A's use of alcohol must have caused conflict within the home and in the relationship.
Lastly, the parents' separation is in its infancy. This is an enmeshed relationship which will continue to place C at significant harm. I have concerns that B will struggle to work in partnership to address these concerns. C's needs mean that she will require better than good enough care'.
64. The numbering in the Guardian's report goes somewhat awry; paragraphs 48 to 51 that I am referring to are on the last page of her report:
'48) The outcome of the fact-finding will be significant; however, it is clear that that there are serious concerns about the nature of the relationship between the mother and father. What is apparent is the fact that their relationship continues to be complicated and cause concern, and will continue to pose a risk to C in terms of further exposure to domestic abuse, alcohol, illicit substances, arguments, and volatility.
49) The areas that have caused considerable concern for me, separate from the allegations, are around the father's understanding and acceptance of the risks and concerns, his understanding of the risks that the mother's lifestyle and their relationships pose to C, and his ability to protect C from these factors.
50) It is apparent that A and B continue to have contact, although the nature of this contact is not clear. I am concerned the dynamic of the relationships between them is toxic and worrying, and would continue to pose a serious risk to C if she were returned to either of their care.
51) C has been exposed to instability and will need reparative care to ensure that she has the best chance of recovering from the difficulties that she has experienced. The father demonstrates limited understanding of the risks and his ability to previously intervene is a significant concern. At this stage, I remain unpersuaded that he fully acknowledges the harm that C has experienced while she was in the care of her parents and the impact that this has had upon her'.
As I have said, the Guardian in her oral evidence maintained the analysis contained in the whole of her report.
65. She told the court that, in her experience, it was not unusual for a party to retract allegations in domestic violence cases but, in her opinion, it was right to rely heavily on the report of Dr Newman, who is a renowned expert in the field of domestic violence. She noted that the mother has made serious allegations to the police, Dr Newman, and to Doris Sisk, the latter of whom are both, in the opinion of the Guardian, very good experts. She noted that the mother had sent photographs of C to the father in prison so that, in the Guardian's view, the mother was ensuring communication with the father.
66. The Guardian had noted that, during the mother's oral evidence, she continually looked over at the father at the back of the court, as I had noted. According to the Guardian, the father had told her that he only decided to separate from the mother once he left prison at the end of June, and, in her professional opinion, this separation is in its infancy and their enmeshed relationship is not concluded. She agreed that she had no concerns about the father's basic care or the contact that she had observed.
67. She described the father's insight as incredibly limited. For example, the father had said to her that the mother's parenting was perfect when sober but chaotic when drunk and, for the Guardian, that unpredictability for C is significant. The Guardian was cross‑examined on behalf of the father by Ms Badejo but her professional view was that she was unable to endorse any type of monitoring plan or support plan that could make a placement with the father safe enough for C.
68. I have not needed to hear from the special guardianship assessor; the contents of that assessment are not in issue, other than the important issue that the father seeks that C live with him.
Discussion:
69. I have had the clear benefit of hearing the witnesses in the witness box and observing the parents in court throughout the final hearing. I have already said that the mother's tangible anxiety really had struck me. The mother had made concessions as to threshold, a document prepared by her solicitor and signed by her on 10 February (A25 to 30). She says amongst other things that the father was currently on remand in prison following an assault on the mother on Boxing Day 2015. She says about Boxing Day:
'My mum opened the door to B and he said he was coming home. I admit I was drinking with him but we ended up arguing and he assaulted me. I don't really remember this because I had been drinking. My mum made a statement to the police which I think they're relying on. She told me that he'd pulled my hair. The next morning my neck did hurt a bit but I didn't go to hospital. I told the police that I don't really remember anything'.
70. She refers in addition in that document to, 'the domestic violence between us', i.e. for Mother and Father. The Mother signed that stating that she believed the facts stated in that response to be true.
71. Dr Newman is a very experienced, highly renowned expert in the field of domestic violence. I simply cannot accept that he would conduct an assessment of over three hours with an intoxicated client. I can take judicial notice of that. I also cannot accept that Doris Sisk would carry out an assessment with a mother who was intoxicated.
72. The mother had the benefit of an interpreter when she met with the experts. Doris Sisk describes the mother as a likeable and intelligent woman. She appeared to have some insight and demonstrated the ability to consider topics in the abstract; she can reflect and is able to understand the issues to a point. She is still in the very beginning of trying to make some changes. She is struggling with alcohol misuse. She describes the mother as fragile and emotionally damaged.
73. When discussing the alleged violence with the mother, Doris Sisk records at 2.58 of her report that 'The mother minimised it by saying such as "We were just having a fight; he pushed me that's all. He wasn't beating me". Further comments were, "Maybe three times in total, that's all"'. Doris Sisk says: 'The mother minimised it in a similar way as she minimised the abuse she received from her father when growing up, using words such as 'only' and 'just'.
74. When she saw Dr Newman, the mother completed a number of questionnaires as well as discussing matters with the expert face to face and he sets out in his report, which begins at E80, the violence, control, harassment, aggression, coercive behaviour, proprietorial behaviour etc. that she had sustained, suffered at the hands of B. There is page after page of information given by the mother to Dr Newman. She has reported repeated violence, emotional and physical violence, to Dr Newman.
75. She seemed ambivalent about the possibility that he might pose a continuing risk of harm to her and, according to Dr Newman, she struggled to see him in an objective light, and she reported to Dr Newman that she blamed herself for his violence towards her in the past. She expressed some regret and ambivalence about the relationship saying, 'Part of me thinks that maybe he could change. I want him to change but I am not sure if he can'. In his summary, Dr Newman said, 'It seemed to me that, given her reports of repeated violence in the past, A rather minimised the risk of future violence'.
76. To both experts, therefore, the mother related assaults by the father, including in detail to Dr Newman. I have read and re-read those two expert reports and I can think of no reason why either Dr Newman or Doris Sisk would make up a catalogue of errors in their report and/or why they would conduct their interviews with an intoxicated mother because that would clearly have an effect on answers given to them.
77. The mother lacked credibility when she gave evidence before me. She repeated a mantra of, 'I don't remember, I was under the influence of alcohol', when she was being asked about the father's alleged violence to her and about the appointments with the experts. She just was unable to provide any explanation as to why Dr Newman and Ms Sisk would say what they had done, other than, 'I don't remember; I was under the influence of alcohol'. The mother was unable to tell the court why, on 10 February this year, she signed the threshold response, prepared by her solicitor, which alleged physical assault by the father. She said, 'Probably I said that to my solicitors but my husband never hit me'.
78. Because of the difficulties in her credibility, and indeed in the father's credibility, I have had to look at the extraneous evidence. There are over 300 pages of CRIS police reports detailing numerous callouts to the family home. In relation to the events of September 2015, I have already referred to the video evidence provided by the father and that C's voice can be heard in the background.
79. When the father gave evidence about it, he said that he took that video clip to show the mother how she was behaving when she was drunk, using my word not his, but as a lesson to her so that she could see how she was behaving. The father told me in answer to my question that he and the mother speak to each other in Polish normally. He was unable to answer my subsequent question of why he was speaking in English on the recording if, in fact, the reason he was taking the video was to show the mother how she was behaving. He did accept that, even if C were in the next room, as he said she was on that day and not in the same room as this event, C would have been able to hear their raised voices.
80. I am pleased that I have seen this video clip. In my judgment, it shows very clearly what environment C was subjected to, parental arguments and their dysfunctional relationship, and on this occasion it is clear that the father was not focused on C but he was focused on producing evidence to be used against the mother. I consider it more likely than not that he videoed the mother in order to paint her as a drunk who injures herself as an insurance for future accusations.
81. Shortly thereafter, it appears the mother called 999 and said, and I have seen the transcript, that her husband had just punched her. On arrival on 14 September, the police officer recalls the mother was visibly crying, her eyes were red and swollen, and that C was on her knee, started to cry and cling to her mother. The mother told the police officer that the father had punched her several times in the ribs; she looked visibly frightened to the police officer and said that, 'They would get her'. The mother provided a statement on the same day, saying, 'I can't tell you anything. My husband has threatened that he will tell everyone I'm an escort and have my daughter taken from me'. In a statement made the following day, she said, 'I can't give the reason but I don't want to give evidence against my husband'.
82. On that same day, the police officer saw, according to the notes, extensive bruising on the left side of her ribs from below the left breast to the bottom of her ribs, and the mother was visibly upset. She told the police that she 'had told them too much already'. The police records also show that on 16 September that the mother would not support a prosecution. She said that she had not seen the police but, according to the police records, the mother appeared nervous.
83. A statement from the police on this occasion found the father in a wardrobe in the family's bedroom, crouching, wearing only boxer shorts, and C was on the bed in the same room, and Father was arrested for breaching his bail. As I have referred earlier, the father's indignation in oral evidence at the way the police ripped open the wardrobe, causing C trauma, showed, in my judgment, no responsibility for his own actions and the effect his actions, the breach of bail, had on C.
84. On 19 September 2015, when the mother saw the emergency care practitioner, Mr Rose, she told him that the father had punched her on the left side of the ribs. An examination by Mr Rose revealed pain on the left side of the mother's rib cage and he said it was either bruised or cracked. In relation to these events of September, the mother had told Dr Newman that Father grabbed her by the throat and hit her chest, damaging her ribs.
85. Turning to what evidence there is about the events of Christmas 2015 and the allegation of assault and the finding I am being asked to make, it appears that the father called the police, saying his mother-in-law had called him, saying that the mother was threatening to harm herself with a knife. There were bail conditions so that he was not supposed to go to the property. When they arrived, the police say that the mother was dishevelled and intoxicated and appeared to have a pain in her right arm. According to the police reports, the ambulance crew told them that the mother appeared to have a dislocated right shoulder and that the mother had said the father caused the injury.
86. The father later told the police he went to the family home on 24 December as he had been kicked out of his home, had nowhere to go and that the mother welcomed him. The mother began to tell the police in interview about the events of Boxing Day but quite quickly stopped telling them anything at all, as can be seen from the transcript, with many silences in answer to their questions.
87. As I have said on a number of occasions, in her parental response to the threshold, the mother accepted that he assaulted her on Boxing Day, 26 December. In her oral evidence to the court, A said that her own mother had told her Father had assaulted her and that she, the mother, could not remember it herself. I have not heard from the maternal grandmother. She had told the police initially that the father was not there, which was clearly incorrect; he was in the home.
88. The mother told me in answer to my question that her own mother normally tells the truth. I have not seen any medical evidence about the shoulder; I have not seen a statement from the ambulance crew on this particular day. The information that there is a dislocated right shoulder comes through the police CRIS reports. I can be satisfied that the father probably assaulted her on that day, as the mother said in her threshold response and she has referred to assaults by him on that day. However, I cannot be satisfied on the balance of probabilities that her arm was dislocated as a result.
89. I agree wholeheartedly with the Guardian's analysis that this is an enmeshed parental relationship; the father's own counsel describes it as dysfunctional. There are numerous references in the police CRIS reports to the mother saying that 'they will get her' if she talks to the police. She told them in December 2015, for example, if she spoke to the police he would take C and tell her family about her sex work.
90. In respect of their relationship, she told Dr Newman about the father's coercive and controlling behaviour. As an example of this, the father in evidence agreed that he used to check the mother's phone for messages, saying that it was just lying there so he looked at it. In the same vein, he told the police in interview when asked about this that he paid for it so why should he not check it.
91. The mother has not commenced divorce proceedings. She gave the weak excuse that she had been too busy to do so. I do not understand why she has not commenced proceedings if, in fact, she intends to stay separated from her husband. Looking at the evidence as a whole, I do consider and conclude that the mother, when she gave her evidence, was trying to protect the father.
92. For the avoidance of doubt, I deal with a suggestion made by the Guardian that I should consider that the real motive for the father seeking to care for C is so that he can exercise ultimate control over the mother for his own gain. I understand why Ms Lain invites me to consider that and I have given it a great deal of thought but I am not satisfied that I can conclude that.
93. Further, in relation to the parental relationship, I simply do not understand how the father can, in a signed statement earlier in August, say that he had made active efforts to avoid all communication with Mother, in the clear knowledge that he had written to her and sent her the drawings from prison. As to the references to the parental relationship on occasion in the contact notes, the mother gives no reason why I should doubt the accuracy of the notes.
94. These are the conclusions I have come to on the facts: This numbering does not necessarily follow the documents provided by Ms Abbasi in her submissions. (1) the mother has an alcohol problem and has drunk excessively when C has been in her care, impairing her ability to safeguard C. She has tried to stop drinking but relapsed. At times the father bought alcohol for her, despite him being very aware of her problems with alcohol.
95. (2) the mother has used illicit drugs, namely cocaine and cannabis, and her engagement with substance misuse support has been sporadic.
96. (3) the police have been called on a number of occasions when the parents have argued. C has been exposed to her parents' verbal arguments.
97. (4) C's welfare needs have not been prioritised by either parent due to their dysfunctional relationship.
98. (5) the father has physically assaulted the mother and C has been exposed to this at times. The mother was telling the truth to Dr Newman when she said that the father was violent to her, verbally abusive to her, and used coercive and controlling behaviour towards her. The violence began before C was born and got worse following her birth. The violence has been physical and emotional; it includes, on 14 September 2015, the father assaulting the mother, causing extensive bruising. C was present, within earshot. On 26 December 2015, the father assaulted the mother, including pushing her and pulling her hair, following their drinking alcohol together.
99. (6) the father has breached bail conditions on 16 September 2015 and at Christmas 2015, by going to the mother's home. The mother has been complicit in this. The mother lied to the police about him being there on 16 September 2015. The behaviour of both parents resulted on 16 September in C witnessing the police removing the father from a wardrobe where he was hiding. The father says that this caused trauma to C.
100. The father contacted the mother from prison, she being the main prosecution witness in his forthcoming trial. The father sent two hand-drawn pictures and a letter to the mother from prison; this was only revealed from reading the contact notes. By sending her a picture of a weeping, half-naked woman on her knees with a large knife in her back, dripping what appeared to be blood, and a letter which included, 'We both know I did not deserve to be here', the father intended to intimidate and frighten her in relation to his forthcoming criminal trial. The father has breached a restraining order made by the Crown Court on 23 June 2016 by sending a text to the mother's new phone number.
101. (7) the mother has been unable to separate from the father, putting C at risk of harm. Even after receipt of the picture and letter sent from prison, the mother understood that message to be that the father loved her and would see her in July when he is released. The mother sent him her photograph and C's photograph in prison.
102. The mother gave evidence to this court in order to try and protect him due to a combination of fear of him and her misplaced loyalty. In April 2016, the father told the social worker that he intended the relationship to continue and for them to care jointly for C. He told the Guardian in August that he had made the decision to separate after his release from prison in late June. The Guardian is right to describe their relationship as complicated, toxic and worrying; there is a likelihood that it will continue and that this will cause C to be exposed to significant harm.
103. (8) the mother has failed to take steps to protect C by assisting the police with their investigations against the father.
104. (9) the mother believes that C's welfare is best met living with her own sister in Poland and not with the father.
105. (10) the father's lack of credibility, lack of insight into his own behaviour, and disregard for bail conditions means it is probable that any future intimate relationship will face similar dysfunction to that with the mother.
106. (11) the father does not accept the medical evidence that C has some additional needs and is therefore unlikely to cooperate in this regard.
107. Having made those findings and reached those conclusions, the question now is how the court can ensure that C's welfare needs are met? The mother accepts her own drug and alcohol misuse means she cannot look after C; I have already referred to that brave but correct decision.
108. The options which I have considered during this hearing are placement with the father or placement with the maternal aunt in Poland. Social work professionals have a united view, those professionals being the allocated social worker, Ms Jones, and the Guardian, plus, importantly, C's mother herself. Their united view is that I should make a special guardianship order and only that can promote C's welfare.
109. The father can meet C's basic needs and there is no criticism about the contact, and C clearly loves her father. I have set out the reasons that the Guardian provided on page 10 of her report, the reasons in her document, of course, being provided prior to my conclusions about the factual matters, and this hearing has dealt with matters of fact and also matters of welfare.
110. I should only depart from the recommendation of an expert and/or from the recommendation of the Children's Guardian if I have good reason to do so but I consider that the experts in this case and C's Guardian have, in their expert reports, properly thought about the options open to the court and properly put forward the only correct path that the court can take.
111. My conclusions on the facts are numerous but in summary, the father has lied to professionals and to this court about his behaviour towards the mother. He has breached bail conditions, which can give the court no confidence at all that he would work cooperatively with professionals in future. C's mother has also tried to mislead, perhaps due to her misplaced loyalty to the father. If C were to be placed in the United Kingdom with the father, that has the benefit of C living with her father who she cares for and who loves her.
112. The huge disadvantage of this placement is the high risk of harm to her, as the Guardian identified in her report, and I am told from her counsel that the Guardian's recommendation had been fortified by the evidence which she had heard. To place C with her father who has behaved as I have found would be, in my judgment, to place her at risk of harm, both physical and emotional, physical relating to being involved in the crossfire of any arguments.
113. A special guardianship assessment was carried out in relation to the maternal aunt and uncle. There has been very little reference to that assessment throughout this hearing, and there has not needed to be. There were no objections made in submissions to the contents of anything within that assessment other than the important objection that Ms Badejo set out in detail, that the father did not agree to the placement with the aunt and uncle because he felt, and still feels, no doubt, that C should be with him.
114. A move to her maternal family in Poland obviously will involve the move to another country, to live with people whose first language is Polish. She is currently with Polish foster carers and the father sets out in his statement, although it was not dealt with at all in the evidence, that he is concerned that his daughter will not understand what is being said in Polish. I can see from the Guardian's report that it is thought that C does understand Polish but prefers to speak in English. She is very young; she will, I am confident, adapt to the language and culture in Poland; it is, after all, the culture of her birth. What C needs overall as a young child is safety, stability and predictability; she will not get that with the father, in my judgment.
115. The special guardianship assessment reveals that the special guardians can provide for her welfare needs and protect her from any harm which her parents pose. The recommendation of twice a year contact for the father and four times a year for the mother seems to this court sensible in the context of no rehabilitation plan. The mother accepts the placement with her sister; the father does not. This to me is a difference which I can take account of as well as the fact that the placement would be with the mother's own family, so contact with them is more naturally arranged than with the father. However, the special guardians will have enhanced parental responsibility and they will be able to assess how, if at all, either by increase or decrease, this contact should be varied.
116. One day, C may read a copy of this judgment when she is much older, and it is important that she knows that both her parents love her and that I have considered all the evidence put before me, and that the professionals who have given evidence before me were anxious that the right decision about her welfare be made. I am confident that to make the special guardianship orders, as I am invited to do, is both necessary for this child and proportionate to the harm which I consider she is likely to suffer if she was placed with her father.
117. I have already indicated there needs to be a transcript of this judgment. It should be translated into Polish for the special guardians and also so that the parents can have a copy in their own language. I leave it to the parents' solicitors to consider how that can be carried out. No doubt the mother, who has had an interpreter throughout, would want a translated copy of the judgment. The local authority need to provide me with an order, including the relevant certificate for me to sign.
118. The Polish Embassy has provided information to court about the recognition of orders in Poland and they recommend that an application is made in the regional court in Poland to recognise the court's ruling. The court fee is relatively nominal and I would like this local authority to commit to assisting the special guardians to make that application to the regional court so that this order which I make within the West London Family Court is recognised as a valid order in Poland. That concludes my judgment.
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