England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT CAERNARFON
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF J (A CHILD)

		29th September 2016

JUDGMENT

29^th September 2016

HIS HONOUR JUDGE GARETH JONES:

1. I have before me today an application which, although it had its origin in Care Proceedings which concluded three years ago, is an application of a very different kind. It is an application, made by the Local Authority in the original Care Proceedings, for a Committal Order in respect of the parents in those original proceedings for a breach of an injunction, made under the inherent jurisdiction of the High Court in the terms to which I shall refer in a moment.
2. I should indicate that these proceedings today have been conducted in open Court. The appropriate Court Notice has been provided outside the courtroom, and this case is listed in the usual way on Courts Serve so that notification to the public is given of this application.
3. The Local Authority is X County Borough Council, and they are represented today by Mr McGivern.
4. The mother is represented today Miss Jamieson of counsel.
5. The father is a litigant in person today, but he has been advised previously that he has available to him the possibility of receiving Legal Aid to enable him to be represented in these proceedings. That right arises under section 14(8) Legal Aid Sentencing and Punishment of Offenders Act 2012. The father has not been represented by a solicitor or counsel today, and he has chosen to represent himself. He has not filed a statement of evidence in response to the Local Authority's Notice to Show Cause, but he has completed two documents which has asked me to consider.
6. The first document was a letter received by the Court staff on 20^th July 2016, (addressed to me and which has been made available to all of the parties) indicating father's decision with "a heavy heart" to stop all contact with his daughter, J.
7. In the course of this hearing today, having been made aware by me of his unqualified right not to be called into the witness box, and to decline to answer any questions if he agreed to enter the witness box, that right being reinforced by a decision of the Court of Appeal in Re L [2016] EWCA Civ 173, the father (having been made aware of his rights in that respect) indicated to me that he did not wish to give oral evidence. He prepared for me instead a written closing "statement" which has been seen by all parties.
8. So far as this closing "statement" is concerned, it deals with the events in dispute between the Local Authority and the parents, but the father has not been cross-examined as to its content. I have, however, considered that document and read it (in fairness to him).
9. This application has proceeded on the basis of the Local Authority's evidence produced in the form of three relevant witness statements (and two witnesses have given oral evidence) together with a supplementary witness statement from the key social worker dealing purely with issues of service. That statement with regard to service was confirmed by the social worker in oral evidence very briefly.
10. Apart from the Local Authority's evidence I heard directly from the mother who did decide to give oral evidence in the witness box, and she was cross-examined in the usual way.

The background

11. The application for this Committal Order within inherent jurisdiction proceedings follows the making of an injunction by me on 27^th June 2013, when I sat as a Deputy Judge of the High Court. The relevant provisions appear at B26 of the trial bundle:

"1. The Court having invoked its inherent jurisdiction in respect of the welfare of J accordingly makes the following Orders:

(i) that the father … must not enter the mother's property at [address given] (or alternative address where the mother and J should be staying temporarily) or any other alternative address where the mother may reside;

(ii) … do not have any direct contact with J (save for such contact as supervised, organised or permitted by the Local Authority).

(2) The above Order shall continue in force until J's eighteenth birthday, or until the Order of the Court or the discharge of the Care Order made herein, whichever shall be the sooner".

12. So far as this Order is concerned, there is a preliminary issue with regard to service of its content. The mother, appeared in her statement of evidence to put that in issue, as indeed did the father in his cross-examination of the Local Authority's key social worker. Miss B in her statement confirmed both in paragraphs 4 and 5 thereof (see B38) that she respectively served the mother at her home on 17^th July 2013, with the injunction, and served the father on 18^th July 2013 at a Family Centre with a copy of the Injunction Order. Miss B was cross-examined with regard to that, and I listened very carefully to the evidence that was given.
13. I am quite satisfied that both the mother and the father were served personally with a copy of this injunction in the way described to me by the key social worker. It may be that I need only be satisfied as to service on the balance of probability, but I am satisfied both on the civil and criminal standard of proof that the injunction was served in the manner described by Miss B.
14. In any event, no injustice would actually be caused had that not been the case because both parents were present during the original Care Proceedings, and they were well aware of the content of the Court's injunction in any event. Had I been asked to exercise my discretion to dispense with service, then in the circumstances of this case I probably would have done so, but as I have indicated already, I am satisfied that the appropriate service has been provided for in the manner described.
15. I should indicate that although the Care Proceedings and the Injunctive Order were made as far back as 2013, so far as I am aware there has been no alleged breach of the Order since that time. J is I believe now four years-old, and the Order has continued in existence for the past three years or so, seemingly without the necessity to pursue Breach Proceedings.
16. That situation has changed. The Local Authority now rely upon two specific instances indicated in the Notice to Show Cause. They allege that the father has and the mother has allowed the father to have unsupervised contact with J on 23^rd April 2016, and 9^th May 2016, in the manner alleged.

The evidence with regard to the allegations

17. I pause to indicate that the Local Authority has issued this Notice to Show Cause and the Local Authority has to prove the allegations made within the Notice. The Local Authority has to prove those allegations on a criminal standard of proof, namely the Court has to be satisfied so that it is sure/beyond reasonable doubt that the allegations have been established.
18. The three local authority witnesses who gave evidence with regard to these matters were:

(i) Mrs H;

(ii) Mrs J; and

(iii) Mrs T.

19. I should indicate (before I deal with their evidence in any detail) that so far as 23^rd April  2016, is concerned, it is accepted by both the mother and the father that they were both present at a venue with J on that occasion, and that in that way there was potentially direct contact between J and her father. That is openly acknowledged by the father in his closing statement, and it was acknowledged by the mother in her statement, and also in her oral evidence.
20. So far as the May 2016, episode is concerned, however, it is very firmly denied that there was any kind of contact between J and her father on that occasion in the manner alleged, or indeed at all.

23^rd April 2016

Mrs H

21. There was a children's party to which J had been invited, and a number of other children and parents were also present as well in [location given]. Mrs H told me that on that occasion she saw the father, she spoke to him, and she also saw the mother present at the same venue. She was familiar with J (she had seen and known her prior to 23^rd April 2016) and she knew also J's parents. She asserted that she had seen the three of them, they were at the opposite end of the room from where she was, and they did not appear to be very far from each other. She said that she had a clear view of them, they were there she believed from just after 2 o'clock in the afternoon of 23^rd April 2016, to just before 4 o'clock that same afternoon, and they appeared to her to have been there at all times.
22. Mrs H later clarified this and said that she was present when the mother, father and J walked in, and she was present when they left. She did not see them arrive or leave together to and from the carpark outside the venue, but they were close "around each other". Pointing to various features in the courtroom she seemed to indicate that the mother and father were about six to eight feet away from one another.
23. Mrs H knew about the prohibition on the father's contact as she explained to me. When she was asked questions in re-examination she said that J had come along with her mother and father, she was at the party and stayed there, she believed, for the duration of the party; about two hours. She confirmed to me that this was the position, despite being questioned with regard to that by Miss Jamieson.

Mrs J

24. Mrs J indicated to me that she was also present at the party. J was present with her mother and father. She knew about the individuals concerned before 23^rd April 2016. She indicated that they entered the room together, they seemed to be about the first people to arrive, and they seemed to be there throughout the afternoon until about 4 o'clock. They spoke to Mrs J initially as they came in and said "Hiya". The mother and the father then appeared to sit on the left hand-side of the room, and Mrs J indicated they were about twenty feet or thereabouts away from each other.
25. The afternoon continued. Mrs J seemed to be under the impression that the mother, father and J stayed there, and then towards the end of the party they appeared to leave together. Mr J also knew about the prohibition. She did not form the impression that the father was drunk, but she did not know precisely how much he had had to drink, although from the evidence he appeared to have had at least one glass in his hand during the course of that afternoon.

Mrs T

26. Mrs T was not actually an eye witness to any of these events and I will come to her evidence in a moment (see paragraph 32 below).

9^th May 2016

27. The principal witness with regard to the events of 9^th May 2016 was Mrs J. She was going to pick up her daughter from school, she said that she saw the mother who was also in a queue of parents going to collect J. She caught sight of the father in the back seat of a vehicle, that vehicle she believed was a light blue [make of vehicle given]. He was about fifteen feet away from where Mrs J was, and although she did not see J approach her father, or get into the vehicle, the tenor of her evidence appeared to be that she believed that the mother and the father had arrived (perhaps together in the same vehicle) and that the father was sitting in the back seat of this vehicle awaiting to be joined by the mother and J.
28. It should be said that nobody actually saw J approach the vehicle or get into the vehicle and sit close to or next to her father. From the evidence presented it would appear that the Local Authority's case in relation to this aspect is put on the basis that this is an overwhelming inference that I should draw from the surrounding undisputed evidence.

The mother

29. The mother in her evidence indicated that the party was well attended, there were about sixty people present. She indicted that she arrived early at about 1:30 p.m. because J was anxious to arrive in plenty of time. She went into the room at the venue at which the party was being held, and the other parents arrived and it became pretty full. The mother did see the father across the way from where she was. He seemed to be speaking to Mrs H.
30. The father came over to speak to the mother about contact with J, and later on, after J had gone to the toilet, the father returned again. He seemed to have a drink with him and he again wanted to resume the conversation about the contact arrangements with J. The mother said that the father then left and she did not see him again until the following week.
31. So far as the episode of the 9^th May 2016, was concerned, the mother denied absolutely that she was present outside the school waiting for J. She certainly was not accompanied by the father. She said she was not there at all, and she did not have access to a blue vehicle [make of vehicle given]. She said that her mother drove a [make of vehicle given], and so far as her own vehicle was concerned, from the statement it would appear that this vehicle had broken down and was awaiting repair.
32. As I have indicated, Mrs T was a witness who did not directly see any of the events alleged on 23^rd April 2016, or 9^th May 2016. The principal relevance of her evidence was that she confirmed on 9^th May 2016, that Mrs J indicated to her very clearly that she had seen J's father sitting outside school in a vehicle. That is important confirmation of Mrs J's evidence, but as I have said, Mrs T herself did not actually witness the father's presence on that occasion.
33. When she was cross-examined, I am afraid to say that it became readily apparent that there was a very significant difference between the evidence that I have recounted as presented by the mother on oath in Court today, and the evidence presented within her statement. The sequence of events is very different (as I have indicated) from her oral account when one compares the sequencing with paragraphs 7 to 12 of her statement.
34. From her written statement, it would appear that there was a far greater opportunity for the mother to have had contact with the father as described therein than appeared to be the case from her oral evidence. For instance, it is quite clear in paragraph 7, when she went outside into another room to get a drink she was speaking to the father at the bar, and she was asking him to leave. She ordered herself a drink at the bar and she was asking him whether he could go.
35. The mother was also asked why she had not brought any of this incident to the attention of Social Services (which perhaps would have been the obvious thing to do bearing in mind the nature of the encounter, as it is described by her)? She indicated that she did not do that because she did not want either to get J into trouble, or to get the other children who were present at the party into trouble. I am afraid that is not a convincing response; the only people who would get into trouble by informing Social Services would have been the mother and the father (the parents in this case).
36. In any event, the mother was asked why two, perhaps three witnesses would come to Court, and (a) give in the case of the 9^th May 2016, incident untruthful evidence with regard to what had happened on that occasion, and (b) in the case of 23^rd April 2016, episode give far more incriminating detail than the parents themselves were willing to acknowledge, and (c) give untruthful evidence about service. She could offer no convincing motivation why any of these three individuals (whose responsibility primarily arises in the "child care" area) would come to Court and present on oath/affirmation a tissue of lies or exaggeration. There was simply no convincing motivation suggested for that whatsoever.
37. Having heard the mother give her evidence (in the manner in which she did) when asked to explain some contradictions within her oral evidence as compared to her written statement, and the other matters to which I have referred, I arrive at the conclusion that the mother was not telling me the whole truth about 23^rd April 2016, episode. On a criminal standard of proof I prefer the evidence of the Local Authority's witnesses.

23^rd April 2016 - Findings

38. So far as the incident on 23^rd April 2016 is concerned I find that allegation to be established. It seems to me that there was a breach of the second part of that injunction. Both mother and father were warned specifically that there was not to be any unsupervised contact between the father and J, save and unless the Local Authority was to supervise the arrangements, or the Local Authority organised or permitted those arrangements to take place.
39. It seems to me to be obvious that the parents were there with J at the outset of that party. They were there pretty much at the end of the party. It is obvious that they were there for a significant period of intervening time between the entry and the departure from the room in which that party was being conducted. Whether they were there together throughout the whole of that period seems to me to be a side issue. It is obvious that the father was in breach of the Order because he was not to have any direct contact with J, save in the prescribed manner, and it is plain from the evidence adduced that he did have such contact.
40. There are potentially some aggravating features in the whole episode:

(i) potentially the amount of drink allegedly consumed by the father on this occasion;

(ii) the absence of any information provided to Social Services that this episode had taken place; and

(iii) the attitude of the parents today – not frankly admitting what had occurred, and apologising for it and indicating that they would comply with the injunction in future, but rather in the father's case failing to give any direct evidence whatsoever, and in the mother's case having to drag from her a minimised account (on her version) when compared to what I believe to be a truthful account.

41. All of these matters are extremely serious. From the mother's sequence and chronology within her written statement, there appear to be instances where the mother herself was not in the vicinity, and J had been left in the vicinity where the father was present. I do not reach the conclusion that J actually came close to and into direct physical contact with her father, but she would have recognised her father. There was an obvious risk that even if she was dancing on the dancefloor (as indicated) while the mother was not present, if she had caught sight of her father there, she would have naturally made her way towards him because she would have recognised him. There potentially would be a source of risk for J, precisely the kind of risk which the injunction was designed to prevent.
42. I have not dealt in this judgment with the background to the Care Proceedings because I am trying to keep the two aspects entirely separate. I should, however, note for the sake of this judgment that the Local Authority has a separate application for a Recovery Order in this case. It is listed before me on 17^th October 2016. I should indicate also (for the sake of completeness) that the injunction to which I have referred was made by the High Court in the context of a judgment delivered by me (see C1 to C13), which included a proven allegation of fabricated or induced illness (FII) in relation to the father. It was for that reason that the injunction was imposed in this case, and I believe that the mother and the father at the time clearly would have had an understanding of why that injunction was required.
43. Having found as I have, the breach on 23^rd April 2016, to be proven, I turn finally to the allegation of 9^th May 2016.

9^th May 2016 - Findings

44. This is a slightly more complicated situation. The injunction and the breach of the injunction have to be construed and established strictly on a criminal standard of proof. On 9^th May 2016, did the father have any contact with J in an unsupervised and unauthorised manner?
45. From the evidence it is far more difficult to reach a conclusion with regard to this breach. I am satisfied that the father was sitting in the back seat of the vehicle described by Mrs J. I am also satisfied that the mother was standing outside the school waiting for J to come out. In that regard I prefer the evidence of Mrs J, and I find that to be proven beyond reasonable doubt.
46. What, however, is unclear to me directly is whether J, having emerged from the school with her mother, then made her way towards the car, and got into the car (with her mother) where her father was sitting, and they then drove off together either to the mother's home or to the father's home. That is an inference that I am asked to draw, and I agree that potentially there is very strong evidence that this is indeed what the mother and the father intended, despite the evidence with regard to the type of vehicle driven by the mother herself or by J's maternal grandmother.
47. However, if I am asked to answer the question whether on that occasion the father did have direct contact with J, I am afraid the evidence just falls short of that. Perhaps ten minutes after the episode described by Mrs J, she might have seen this occur, but she did not actually see this happen. Nobody saw that happen and although there is a strong inference that this was about to happen, unless I have the direct evidence that it did occur, I reach the conclusion on a criminal standard of proof that it would not be appropriate for me to make that intellectual leap.
48. Accordingly, so far as the second allegation is concerned on 9^th May 2016, is concerned I do not find that to be established. Whatever suspicions I have with regard to that, it would not be right to conclude that this unsupervised contact had occurred on that occasion.
49. My conclusion is that I find that the breach on 23^rd April 2016, to be proven but not the breach on 9^th May 2016.

End of judgment (sentence/penalty on breach adjourned)