England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		11th October 2013

MRS. JUSTICE THEIS:

1. This matter concerns two girls, A born on 12^th October 1999, who will be 14 years of age tomorrow, and B, born on 22^nd November 2001, who is now 11 years of age, nearly 12. The Respondent is the mother and the father has taken no part in the proceedings. The children have an older brother C who is now 16 years of age. There are seven half siblings as a result of the mother's previous marriage, or relationship.
2. Both of these young girls were made the subject of emergency protection orders on 23 September 2013 and interim care orders on 1 October 2013. Both of those orders were accompanied by recovery orders as the girls had gone missing and their location was unknown. Immediately prior to the emergency protection order on 23 September 2013 they had been living with their mother. Neither child has been seen since 23 September 2013. On the application of the Local Authority on 8^th October 2013 I made a Collection Order to assist the Local Authority in seeking to locate the whereabouts of the children.
3. There is a background to this matter which is carefully set out in the case summary provided by the Local Authority. In summary, there has been involvement between this family and the Local Authority since about October 2012, following A being admitted to hospital with suspected meningitis. Further investigations were undertaken in relation to her medical position. She is currently under treatment for rheumatic fever and requires monthly injections of penicillin. Since May of this year there has been inconsistency in relation to her attendance for these injections. She missed her August injection, was late for her September injection, and, as far as I am aware, has not had her October injection. So the medical position in relation to A is extremely worrying.
4. The Local Authority have sought to engage with the mother around issues concerning lack of school attendance and A's behaviour. Unfortunately, that has not been very fruitful. There have also been issues in relation to domestic violence within the home with the father. He is reported not to live at the home, but attended there in April when there was an incident and he was asked to leave by C. The father damaged the property and left before the police arrived. C has been arrested in relation to a criminal matter concerning a burglary, and has been bailed back to the home.
5. The matters that precipitated the issue of these proceedings occurred on 19 September when it is alleged that A was assaulted by being kicked repeatedly and punched by C and her father in the family home. At the time of the incident those present were A, C, the father, the mother, and a five year old niece and young six month old nephew. A reported that the brother and father had called her a prostitute and accused her of sleeping with her uncle. It is alleged that during the argument C specifically put on steel toe capped boots to carry out the assault, and it is alleged that the father punched and kicked her, pulled her hair, and threatened to kill her.
6. The mother was noted to be intoxicated by the London Ambulance Service when they attended, and A was observed to be shaking, crying and extremely distressed. There was swelling on her leg, redness to her face and ribs, and she was taken to hospital and kept overnight. It is clear from the examinations that subsequently took place there were a number of injuries on A's body which are consistent with the account of assault that had been given, including bruising, grazing, and areas of redness in various parts of her body. A was discharged to the home of her cousin K on 20^th September.
7. The whereabouts of B are unknown. C has been bailed in relation to the assault back to the home address. The question of police protection was discussed. The Local Authority undertook home visits on 20 and 23 September. The mother was not at home, and it had not been possible to contact the mother. On 23 September the EPO and recovery orders were granted without notice.
8. Later that day the K was asked to bring A into Social Services' offices. The mother also attended. The family members became aggressive and A ran off. She has not been seen since. The homes of the mother and K were visited on 24 September, pursuant to the recovery orders. The mother is alleged to have made clear to the social worker, as she accepted in her evidence to me, that she would not inform the Local Authority of the whereabouts of the children as she did not agree to them being in care.
9. The Local Authority subsequently applied for interim care orders, and at court before Her Honour Judge Karp on 1^st October the mother indicated that she would assist with the location of the children and hinted that the girls may be in the Manchester area. It was proposed informally that the mother would produce the children to their solicitor, Ms Hall, on 2 October. That did not happen. As a result, the Local Authority made an application for a Collection Order, which, as I have said, came before me on 8 October, and that was the order I made.
10. This matter came back before me the following day, 9 October, because the Tipstaff had arrested the mother on the Tuesday evening for alleged breach of the Collection Order. The actual order required her to deliver the children into the charge of the Tipstaff, or inform the Tipstaff of the whereabouts of the children, or in any event inform the Tipstaff of all matters within her knowledge or understanding which might reasonably assist the Tipstaff in locating the children.
11. The record in relation to the visit when the mother was arrested states that the police officers attended the address and spoke with the mother. She informed the police that the children were with Paddy and Mary in Manchester and she had no contact details for them. Further, she said that the children may now be with a different unknown family. The suggestion by the mother that she did not understand the terms of the order, and that she may be arrested, is not supported by that account because she must have clearly understood the terms of the order requiring her to give information otherwise she would not have given the information that she did. So as of Tuesday evening that was the information that the mother had given.
12. When she attended court on 9 October and was asked by her legal team about the whereabouts of the children she said that they were with her sister-in-law, BC at an address in Edgware. She gave oral evidence on that day when she said she had not seen the girls since 23 September but had "heard" from others that they had been in Manchester with her cousins, Paddy and Mary. She said she had been told by one of her older daughters, called M, that the children had returned to London on Monday of this week and were staying with BC. Her daughter M told her she had seen them there; she had seen them playing outside BC's home.
13. When the police attended on the Tuesday evening the mother agreed she knew what the order required her to do, but she did not disclose this important information as to the whereabouts of the children to the police. I remanded the mother in custody on Wednesday until the following day so that the police could make enquiries at BC's address to see if the children were there. They attended at BC's property on three occasions; once at about 9 o'clock on the Wednesday evening, when BC was there but denied that she had the children; again in the early hours of the morning of 10 October, when there was no response to their knocks on the door; and, finally, yesterday afternoon when BC was arrested. BC was going to be brought before me this morning, but I have been told this morning that she had been taken ill overnight and is currently in hospital waiting to be seen by a consultant.
14. Once it became apparent yesterday afternoon that the children were not at BC's home I heard further oral evidence from the mother. She was adamant that the children were with BC. I remanded the mother in custody again to this morning as it was expected BC would be brought to court.
15. In her oral evidence given on Wednesday and Thursday the mother accepted that there have been many opportunities when she could have produced the children, but did not do so as she did not want them to come into care. She accepted that at any time she could have got the children back. She maintained she had no address or phone number for Paddy or Mary, who allegedly had the children in Manchester. She further maintained that she did not have A's mobile telephone number, although she did accept that A had a mobile phone. She revealed that when the police sought to execute the recovery order at BC's home on about 23 or 24 September, after the EPO was granted, the children had in fact been there but they were hiding; and that is why they were sent to Manchester. The mother said in her oral evidence that she would now co-operate with the Local Authority and that she was concerned about A not receiving her injections.
16. When the matter was listed before me this morning counsel for the mother, Mr. Nosworthy, who has been present at all the hearings made an application that I should adjourn this matter until the court could hear from BC. I rejected that application, for the reasons that I have given earlier. Importantly, on his instructions, he said that if the mother is given the opportunity to speak to K (who is the daughter of BC) and gives the instruction for the children to be brought to Social Services they will comply with her instructions. She believes K will be at BC's accommodation looking after BC's children. Mr. Nosworthy stated as follows:

"Once the mother relays her permission that the children are to be brought to Social Services whoever has them will do so."

17. That demonstrates to me that this mother has always known where these children are, she has always known that they would be able to be brought back at her command, but for reasons which are known only to her she has chosen not to do that.
18. In relation to the finding of contempt, Mr. Nosworthy submitted that I should take into account the mother's limited understanding and the difficulties that she has in not being able to read documents. I do take those matters into account. However, I am entirely satisfied, having looked at the background to this matter, and having had the opportunity to observe this mother give evidence before me on two occasions, that she has a very clear understanding in relation to what is required of her to be able to produce the children.
19. Secondly, Mr. Nosworthy says that she has provided all the information that she has as to the whereabouts of the children. I reject that submission. This mother has not provided all the information in relation to the whereabouts of the children. She has only provided such information as she has wished to. It is quite clear, particularly in the light of the developments this morning, and taken together with her oral evidence, that she has always known where the children are, or would be able to make the necessary enquiries to find out where they are. As has been confirmed this morning, if the communication is made that she relays her permission for the children to be produced they will be produced.
20. I am also asked by Mr. Nosworthy to factor in the background in relation to this matter and take this into account. The mother, he said, did attend court before Her Honour Judge Karp on 1^st October and accepts that she was asked to produce the children, which she failed to do on 2^nd October.
21. Mr. Coyle on behalf of the Local Authority, supported by Miss Hall on behalf of the Guardian, submits there is ample evidence before the court to be able to find that the mother is in contempt. Mr. Coyle submits that she is in contempt of two paragraphs of the Collection Order. Firstly, that she has not delivered up the children into the charge of the Tipstaff. He said that breach is supported by the mother's own evidence that she has always known where the children are, that she could produce them if she wanted to. This is supported by what she said through her counsel this morning.
22. The second matter is that she is in breach of failing to inform the Tipstaff of the whereabouts of the children, or any information within her knowledge or understanding which might reasonably assist in locating the children. Again, Mr. Coyle submits that is amply made out as it is quite clear the account in relation to Manchester given to the Tipstaff on the night of 9 October was untruthful because the information and evidence she gave to the court the following morning was that she was informed they had been at BC's home in Edgware since Monday.
23. Finally, Mr. Coyle submits, in relation to any suggestion by the mother that she did not understand that she would be arrested does not sit comfortably with the fact that once she was arrested and remanded in custody she has still not given the information and the details to enable this court to be able to locate the children.
24. I remind myself, of course, that the test in this matter is that I have to be satisfied to the criminal standard, namely, that it is beyond reasonable doubt. I have to be satisfied so that I am sure. Having seen the mother it is quite clear there are strong emotions felt by her about the orders made by the court regarding the children and she opposes them. Her lack of co-operation with the court process to date in locating the children supports that view. I have made clear to the mother that any orders I make today are not final decisions about the children, those are for another court on another day. It is extremely regrettable that due to the circumstances of this application, and the mother's behaviour, a hearing set in Willesden County Court for today to consider a contested interim care application cannot take place. The mother has failed to act in the children's interests by denying them the opportunity to attend that hearing.
25. I am satisfied so that I am sure that this mother knows perfectly well where these children are, or at least where they can be contacted or located and she knew that when she was arrested on Tuesday. She acknowledged as much in answer to questions from Ms Hall in her oral evidence yesterday, when she accepted that she could have got the children back any time prior to her arrest by the Tipstaff if she wanted to. Despite saying that she has refused to give any details about the whereabouts of the children other than them being at BC's house when clearly they were not. She told the police on 8 October, just prior to her arrest, that they were in Manchester, which on her own account to the court the following day was a lie.
26. I have reached the conclusion that it is inconceivable that as their mother who had their full time care prior to 23 September she has taken no active steps to find them or speak to them. Her evidence is inherently unreliable due to the inconsistencies in her accounts, coupled with her acknowledgment that she does not wish the children to be placed in care. In that context, her expressed intentions of future co-operation with the Local Authority rings very hollow. That is reinforced by the submission made by her counsel, on her express instructions this morning, that once she relays her permission to the family that the children should be produced at Social Services they will do so. That, in my judgment, makes it very clear it is within her control to ensure that these children are produced to the Local Authority and she has failed to do so.
27. Therefore, I am satisfied so that I am sure she is clearly in breach of paragraphs 2 and 3 of the Collection Order that I made on 8^th October, and she has failed in the continuing duty to provide information in relation to the whereabouts of the children.

Later after mitigation by Mr Nosworthy:

28. Mr. Nosworthy has very thoughtfully and eloquently made submissions on behalf of the mother in relation to the sentence that this court should impose in relation to the contempts that I have found. He has very properly referred me to the case of Hale v Tanner, reported at [2000] 2 FLR 879, and the guidance that is given in that case, in particular at paragraphs 26 and 29, and the summary in the head note in relation to the matters that the court should take into account, and I do take those matters into account.
29. In mitigation he says that the mother has a clear sense of remorse, which of course I accept at face value, but I have to take into account that that remorse has not been coupled with any kind of direct action by her to assist in recovering the whereabouts of these children. He also says that the evidence is clear, she has failed to co-operate in the past but now wishes to co-operate. Again, I understand why that submission is made, but there has not been co-operation in relation to locating the whereabouts of these children.
30. In relation to the cultural background, whilst of course that is an important consideration that the court has to bear in mind, in particular the concern by this mother that she may be ostracised by her community if she worked together with the Local Authority. Whilst it is a factor it does not give her an entitlement to be able to disobey orders of the court.
31. I accept the difficult background this mother has had, as is clear from the papers that I have read, which have included unhappy relationships with her partners, and also difficulties with a number of her children. I also take into account that she has, I think, two other children living with her, C who is 16 years of age, and M, who is 24 years of age. But I look at that in the context of what has been clear in this case, there is a wider family that step in and support where necessary.
32. I take into account the mother has spent three days in custody, and also that there may be difficulties in relation to her rental payments and practical matters as regards her living accommodation. However, I am very clear that the message needs to go out loud and clear in relation to court orders relating to the whereabouts of children. It is an extremely serious matter when the court is unable to trace the whereabouts of children, and it is particularly serious when the court is unable to do that because the person who can assist in that will not provide the help to locate the children.
33. I take the view that the very least sentence I can impose is one of 28 days imprisonment, which will include the period of time that has been spent remanded in custody. I have considered, as I should consider, the position in relation to suspending that sentence, but I take the view that in the circumstances of this case, where there has been no recent co-operation or reliable information been given to help locate these children, I can see no basis for the sentence being suspended. So it will be an immediate custodial sentence.
34. I make it clear to the mother that the maximum sentence, as I know she has been advised, this court can impose is two years. She should be in no doubt that unless she provides information that leads to the whereabouts of these children being secured and delivered to the Local Authority she is at risk of being brought back again at the end of this sentence for a further order in relation to details about the whereabouts of the children, and the court may impose a further sentence.
35. Despite the sentence that I have imposed, the mother needs to know that there will be an opportunity at any time for her to return to this court to purge her contempt, which means to apologise and to give the court all the information it needs to find these two children. So it is within her control to be able to take the necessary steps to secure these children being handed over to the Local Authority. The mother will then be in a strong position to return back to this court at the earliest opportunity to purge her contempt.
36. There will be an immediate custodial sentence of 28 days.