Before : |
Elizabeth Daultrey, Registrar, Family Division |
Between |
Q (the Mother) |
Applicant |
And |
R (the Father) |
Respondent |
Advocate J. R. K. Borg for the Applicant.
Advocate E. L. Hollywood and Advocate R. Colley for the Respondent.
reasons
the registrar:
The Court is asked to decide questions of residence and contact relating to ("BB"), a baby born in 2021, now aged 16 months. In these reasons I call the applicant "Mother" and the respondent "Father".
1. The parties are the parents of BB. They lived together briefly from late 2019 until May 2020, thereafter they continued in an on/off relationship.
2. BB initially lived with Mother in Accommodation 1. Following a number of referrals, primarily from staff at Accommodation 1 expressing concerns that BB was placed at risk by Mother drinking alcohol, children's social care ("CSC") became involved. Mother left Accommodation 1 in March 2022, the circumstances of this are disputed.
3. CSC deemed the risk to BB to be such that they believed that the threshold for public law orders was crossed, however no such proceedings were brought as BB moved to live with Father on 19th March 2022, he has remained living with Father continuously for the past 12 months.
4. Mother applied to the court on 5th May 2022 for contact and residence orders in her favour. Father cross applied for contact and residence orders on 17th May 2022.
5. Initially following BB's move, Mother's contact was restricted by Father. During the course of these proceedings, with the assistance of JFCAS, the parties have been able to manage interim contact arrangements for Mother with BB, initially the contact arrangements were for daytime only, but progressed to overnight stays from early November 2022. Contact is presently each Monday and Wednesday between 8:30 am and 2:30 pm and each Friday from 8:30 am overnight to Saturday morning. The overnight part of the contact is supervised by a relative of Mother and takes place at her home.
6. Mother is now seeking shared residence and equal shared care. Father seeks sole residence.
7. The court has heard evidence from psychologist Dr Briggs, the allocated JFCAS officer ("C") as well as written and oral evidence from the parents. The court has had sight of the records of the police and CSC and has had the benefit of 2 toxicology reports upon Mother in July and December 2022.
8. Mother's sworn evidence at the hearing was that she had consumed alcohol excessively on only two occasions after BB was born, the first being after she suffered a miscarriage and the second after BB moved to live with Father. Her evidence was that she had never consumed alcohol whilst BB was in her care, and that all reports that she had been drinking whilst BB was in her care were malicious. This is in contradiction to what she had previously told C, it also appears at odds with the factual basis on which Dr Briggs report is based, as the essence of his report is that Mother had previously engaged in binge drinking and that there is a risk that she would do so again in the future. It is therefore necessary to look at the evidence regarding Mothers' relationship with alcohol.
9. There are two toxicology reports, the first is dated the 6th of July 2022 and covers a 6 month period from the beginning of December 2021 to the beginning of June 2022, this indicates excessive alcohol consumption over the six month period tested. The second toxicology report is dated the 23rd of December 2022 and covers a four month period from mid-July to mid November 2022, and indicates that alcohol had not been consumed excessively by the mother during that period.
10. C has reported, and confirmed in evidence at this hearing, that during the course of her enquires, Mother had admitted to her that she had consumed alcohol whilst BB was in her care.
11. Dr Briggs reports that Mother admitted to him drinking alcohol with her friends on days when BB was not in her care, also that she drank to excess on one occasion in November 2021, and that in March/April 2022 she drank two or three glasses of wine most nights when BB was no longer in her care. Mother acknowledged to Dr Briggs that alcohol helps her cope with mental agitation.
12. Dr Briggs in his report advises that mother is not physically or psychologically dependent upon alcohol.
13. Records from children's social care include a report from ("D") the manager at Accommodation 1, that there had been repeated concerns that Mother was intoxicated. Concerns were recorded on two occasions during mother's pregnancy, in July and August 2021 Mother is said to have been intoxicated, she was warned that she could face eviction. Following BB's birth Accommodation 1 recorded the following concerns:
· On the 25th of November 2021 Mother is said to have arrived back to her room with BB and had been drinking alcohol, Father was contacted and took BB that night, the following morning staff found an empty wine bottle on the floor and Mother is said to have admitted to drinking this the previous night;
· On the 30th of January 2022, BB is said to have been screaming for around 30 minutes and that a member of staff had been knocking on Mother's door to see if she was OK, Mother did not respond. Staff observed Mother through a window and could see her lying on the bed. Staff called the fire brigade and ambulance at which stage Mother woke and shouted that everything was OK but would not let staff into her room. Staff contacted CSC and the police;
· On the 21st of February 2022 a resident reported concerns about the amount of screaming from BB, Mother's door was open and the resident found Mother asleep, the resident was unable to wake her. The resident attended to BB who had a dirty nappy;
· On the 28th of February 2022 a resident reported concerns of BB crying for around 45 minutes, a member of staff banged on the door without reply, staff gained entry to find Mother asleep and they had difficulty waking her. This incident was reported to CSC.
14. CSC records state that on 14th March 2022, they received texts from Mother's sister in Country 1, with whom Mother and BB were staying, the messages are to the effect that Mother was drinking daily and not meeting BB's needs. CSC records indicate that on 16th March 2022, the police in Country 1 carried out checks and no concerns were noted.
15. CSC records report that BB's six-week health check was very late due to Mother cancelling appointments. There are also reports from Accommodation 1 that Mother was heard to shout at BB to "shut up". Mother is said to have been evicted from Accommodation 1 due to her alcohol related problems, she informed the social worker that she could stay with her aunt. BB was made the subject of a child protection plan under the category of neglect as a result of the concerns raised regarding Mother. CSC considered that the threshold for applying for a care order was met if BB remained in or was returned to Mother's care.
16. I refer to the following from the police records with relation to Mother's alcohol consumption:
· On the 30th of January 2022, police were called by Accommodation 1 reporting that BB has been crying for 30 minutes and they could not wake Mother. Mother had left with BB before the police arrived, no alcohol was found in her room. The police later spoke to Mother at her friend's home and she was described as "completely sober", she told the police that she had not been drinking save for one occasion after BB's birth;
· On the 28th of February 2022, the police were called by Accommodation 1 at 18:18 expressing concerns that Mother was drunk whilst caring for BB. Police visited Mother 3 hours later, the report states "the female was drinking alcohol but did not appear too intoxicated".
17. Mothers evidence is that the allegations made by her sister in Country 1, by D and by other residents in Accommodation 1 were all made maliciously and are untrue. Mother says that she is estranged from her sister, she says that D is lying because she has a connection with Father's family.
18. Father's evidence is that he and his family receive frequent calls from Mother during which her speech is slurred, she is abusive and hostile and gives the impression of being under the influence of alcohol. These calls stopped during the period last year when Mother was not drinking, but started again in December 2022, leading Father to conclude that Mother is again drinking.
19. C reports that she spoke to Mother's aunt ("E") on the 6th of February 2023. E believes that Mother has been drinking again, but that she has never drunk alcohol when caring for BB. C had sight of recent text messages between Mother and E in which E asks Mother "pissed again?" and "stop drinking". C also expresses concern regarding Mother's persistent calls, that they are either a result of anxiety or drinking.
20. I am satisfied that there is sufficient evidence to conclude that, after BB's birth until he moved to live with Father on the 19th of March 2022, Mother had on occasions consumed alcohol whilst caring for BB, to the extent that her ability to care for BB was compromised and that he was placed at risk as a direct result of her consumption of alcohol. On two occasions when concerns had been raised, the police did not believe Mother to be intoxicated. However, on the 28th of February 2022 they did not see Mother until three hours after they had been contacted and on that occasion they confirm that she had been drinking alcohol whilst BB was in her care. On the 25th of November 2021 Mother appears to have agreed that BB should be taken by Father for the night due to an allegation that she had been drinking. Mother has previously admitted to C that she had consumed alcohol whilst having BB in her care. I do not accept that it is plausible that complaints from 3 separate, unrelated sources, were all made maliciously.
21. I find that the evidence of Father and E, together with the concerns expressed by C, indicate a likelihood that Mother has recently consumed alcohol to excess, although I accept that there is no evidence to suggest that she has done so whilst BB has been in her care, during the course of these proceedings.
22. In April 2022 Mother made a complaint to the police that Father had assaulted her on several occasions in spring 2020. She had not previously made any allegation of assault, although I note, that in her meeting with the drug and alcohol service on the 31st of March 2022, she described her relationship with Father as "violent".
23. I had hoped to avoid the necessity of hearing evidence and making a finding of fact, as, the alleged assaults occurred over a short period of time after which the parties did not again live together but continued in an on/off relationship, without further allegations of violence for nearly a year before BB was conceived, moreover, Mother does not question Father's ability to provide safe care for BB and does not seek sole residence. However, during the course of Mother's oral evidence, she made a further allegation that Father assaulted her during a contact handover at Christmas 2022, she also alleges that Father intimidates her when they communicate. Father alleges that Mother has harassed him and his family, and that her conduct both before BB was born, and since BB has lived with him, has been manipulative and abusive. I am also mindful of C's argument for determining allegations that otherwise issues may continue to resurface "like a bad smell". Taking all this into account, I am satisfied that it is necessary and appropriate to make findings regarding these allegations.
24. Mother alleges that Father assaulted her on 5 separate occasions. Mother dates the first 3 assaults as occurring after her miscarriage in March 2020 and before the end of May 2020. She alleges that the first assault was "pushing". The second alleged assault involved Father pushing her causing her to fall to the floor and he kicked her in the stomach whilst she was on the floor.
25. The third alleged assault, Mother describes a "scuffle" Father grabbing her by her arms and head butting her causing a nose bleed, in evidence she said that her nose was broken. The following day she was in pain and had a headache, she told colleagues at work she had fallen downstairs and was sent home, she took pictures of her injuries, which show bruising to her arms but no facial injury. These pictures are undated.
26. The 4th alleged assault took place, she states, on 30th May 2020. Mother says that Father grabbed her by the arms and pushed her so that she fell against furniture. He then pushed her on the bed, slapped her face, started to strangle her, pulled her hair and threw her against a wall. She says that 3 days later her aunt took photographs of her injuries. The pictures she exhibits are undated and show a black eye, a bruise on the underside of her left breast and bruising to her legs. Mother did not involve the police or outside agencies until April 2022. Mother also provided photographs taken by her hairdresser on 27th March 2022 showing an area of hair loss on her scalp which she says is attributable to permanent damage caused by the assault in May 2020.
27. On 25th May 2022, Mother alleged to the police that Father tried to pressure her into dropping her allegations to the police, Father denies this.
28. Whilst giving evidence at the hearing, Mother alleged that on Christmas day 2022 whilst handing over BB, Father grabbed her shoulder, and that this took place in front of her aunt. Mother had not mentioned this assault to C or to Dr Briggs during her subsequent discussions with them, she did not involve the police, her aunt does not provide supporting evidence.
29. Mother says that the relevance of these assaults is that she is intimidated by Father, she fears that he could again assault her. She feels that she cannot disagree with him and fears that if he has a sole residence order he would have a level of control over her. She also fears that BB could be exposed to witnessing violence between Father and any new partner.
30. Father denies ever assaulting Mother. Father exhibits to his affidavit a chain of WhatsApp messages and calls which took place between the parties between 5:13pm on 29th May 2020 to 1:12 pm on 31st May 2020. Father says that the context was that, after a row, he had left the flat and Mother was contacting him persistently. The messages are consistent with Father's explanation and inconsistent with the aftermath of a serious assault.
31. Father also produces a thread of WhatsApp messages on 1st June 2020. One message sent at 6:35 pm includes a photograph which appears to be one of the pictures Mother produces of bruises she says that Father inflicted on 30th May 2020. The text with the picture says "Omg [R] look what ive just found x" and "what the hell (emoji) x", Father replies "how have you not noticed that x" and Mother replies "I just stood in the mirror on the sofa and was like omfg what's that x". Mother then sends other photographs which appear to be the same ones she says are of bruising caused by Father, she says "There's more (emoji) I know I shouldn't laugh but they keep coming x" and then "what are they even from???".
32. In evidence, Mother accepts that the messages are genuine but says that she was trying to get Father to acknowledge what he had done to her. Mother's explanation is not reflected in the tone or content of the messages.
33. Father's allegations against Mother are that she calls him and his grandmother persistently and is often abusive during the calls. The calls come from a withheld number, he doesn't answer all the calls, but when he does answer it is always Mother, leading him to conclude that all the calls are from Mother. Father says this has happened over a long period of time, the cumulative effect is that he has become so anxious he is now on medication, he describes himself as "fearful". In January 2023 he made a complaint to the police and the calls have now stopped. The police investigation is ongoing.
34. Mother denies that she makes all the calls that Father reports, she accepts that all calls from her phone show as number withheld, she has been unable to change the settings to stop this. Mother admits that she calls when BB is not in her care because she is anxious about his welfare and expects Father and his grandmother them to take her calls to reassure her.
35. There is a separate ongoing police investigation against Mother following a complaint by a third party who was a professional counter-signatory on a passport application for BB. In an interview with the police, Mother admitted calling the third party on 5 occasions over a 15 minute period.
36. In answer to questions put by Advocate Hollywood, Mother said that she did not deny making excessive calls to Father and his grandmother but that she was not abusive during these calls.
37. C in her addendum report records that she spoke to Mother about calling Father. She reports that other professionals involved with Mother have received persistent calls, she says:
"I am still concerned about [Q's] insistent phone calls. [BB's] social worker and health visitor, ["F"] and ["G"], report that they have also been subject to [Q's] relentless calls.... Both professionals were under the impression that at times [Q] was under the influence of alcohol and that, at those times, the conversations were fruitless, as they felt [Q] did not listen and nothing they could say was enough to calm her anxieties".
38. In her evidence at the hearing, C agreed that the effect on Father of the calls has been to make him anxious. She opines that Mother persists in calling to get a response, she needs to know "that she has some influence". She does not seek a relationship with Father, but is seeking approval, when she doesn't get it, she pursues him. C commented that this is the same pattern as domestic abuse, she thought Mother wasn't entirely conscious of what she was doing, but that her behaviour could overlap to controlling behaviour.
39. Father alleges that mother is manipulative or controlling in other ways:
· He provides evidence that Mother told him that she had registered BB's birth marking father as "unknown" on the birth certificate which caused him great distress. Mother in evidence admits telling him this although it wasn't true.
· Father says that Mother's allegations against him of domestic abuse are false and believes that she has done this to hurt him.
I take into account in this regard, that the police evidence is, that in April 2022, Mother telephoned Father impersonating a police officer so that he would listen to her.
40. I direct myself to recent caselaw in England and Wales regarding findings of fact. In Re B-B (DOMESTIC ABUSE:FACT-FINDING) [2022] EWHC 108 (Fam) Cobb J set out the following guidelines (inter alia):
"(i) The burden of proof lay, throughout, with the person making the allegation.
(ii) In private law cases, the court needed to be vigilant to the possibility that one or other parent might be seeking to gain an advantage in the battle against the other. That did not mean that allegations were false, but it did increase the risk of misinterpretation, exaggeration, or fabrication.
(iii) It was not for either parent to prove a negative.
(iv) The standard of proof was the civil standard - the balance of probabilities.
(v) Sometimes the burden of proof would come to the judge's rescue: the party with the burden of showing that something took place would not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lay without needing to rely upon the burden of proof.
(vi) The court could have regard to the inherent probabilities of events or occurrences; the more serious or improbable the allegation the greater the need for evidential cogency.
(vii) Findings of fact in such cases had to be based on evidence, including inferences that could properly be drawn from the evidence and not on suspicion or speculation; it was for the party seeking to prove the allegation to adduce proper evidence of what it sought to prove.
(viii) The court had to consider and take into account all the evidence available.
(ix) The evidence of the parties themselves was of the utmost importance. It was essential that the court formed a clear assessment of their credibility and reliability.
(x) It was not uncommon for witnesses to tell lies in the course of a fact-finding investigation and a court hearing. The fact that a witness had lied about some matters did not mean that he or she had lied about everything (see R v Lucas)."
41. I also remind myself of the comments of Judd J in Re M [2021] EWHC 3225 (Fam) that in domestic abuse cases the vulnerability of a victim should be considered and the fact that a relationship continues, is not in itself evidence that allegations of prior abuse are untrue:
"The reason it was so important for the judge to give very careful consideration to the question of vulnerability in this case is because a vulnerable person may not act in the same way as someone more independent or confident if they are exploited or abused in a relationship. Such an individual may be so anxious for the relationship to succeed that they accept treatment that others would not. They may be easy to exploit. They may not even realise what is happening to them, and will cling to the dream of a happy family and relationship..."
42. Mother's explanation relating to the extensive messages between the parties immediately following the alleged assault on 30th May 2020, is that she wanted at that time to continue in a relationship with Father and was seeking acknowledgement from him of what he had done to her. Whilst it is entirely plausible that a victim of domestic violence would communicate with the perpetrator in a loving manner and to seek to continue the relationship, in this case, the content and tone of the messages regarding her bruising directly contradicts Mother's evidence in these proceedings as to how her injuries were sustained. The messages sent on 1st June 2020 contradict Mother's account that the bruising was photographed by her aunt.
43. The parties were not together when messages were sent and the calls made, which begs the question when the assault could have taken place. In cross examination, Mother said that Father left the premises and then returned, she said the assault happened at night. The calls from Mother and messages are in an almost continuous stream from early evening on 29th May until early evening on 31st May 2020 and are indicative both in their frequency and content, that the parties are not together at any point during that period.
44. Regarding the third and fourth alleged assault, Mother says that her photographs show her injuries, however the photographs shown do not match her account that she was headbutted with such force as to break her nose.
45. Regarding the alleged assault at Christmas, I find it implausible that, if an assault had taken place in front of BB, and in the presence of an independent witness, that Mother would've failed to mention this to Dr Briggs or C when they spoke to her early in 2023.
46. I have heard evidence from both parties regarding their respective allegations. On all issues I preferred the evidence of Father, I found Mother at times to be inconsistent and evasive. Taking into account all the evidence including the demeanour of the parties, I do not find Mother's allegations proven.
47. Regarding Father's allegations, I find that Mother has made excessive unnecessary telephone calls to Father and his grandmother. Mother says that her calls were all about BB, she also confirms that she has no concerns about Father's care of BB, there would therefore appear to be no reasonable justification for her to call persistently.
48. I agree with C that the calls arise either from Mother's anxiety or intoxication rather than malice. I accept Father's evidence that the effect upon him has been to create anxiety and cause a deterioration to his health. The overall effect is that Mother's behaviour has harassed Father.
49. I find that on occasions Mother's behaviour has been manipulative of Father. Mother impersonated a police officer in a call to Father at a time when he was under police investigation for assault upon her. After BB's birth, Mother falsely told him that she had registered the birth without naming him as the father, she was aware from Father's response that this had caused him distress. Mother calls Father persistently without real justification or necessity. C opines that Mother is seeking a response, to affirm that she has some influence, to know that she matters as a mum. The result is to distress and undermine Father.
50. Mother's perception is that Father was and remains "in control", it is my view that Father is not controlling, but due to her anxiety Mother feels she lacks control and blames Father. Mother engages in behaviours to attempt to regain a feeling of control, these behaviours have had a negative impact upon Father, and may continue to do so.
51. Dr Briggs prepared a report upon both parents dated 25th August 2022. He also prepared an addendum dated 20th January 2023 in which he comments upon the most recent alcohol / drugs test results upon the applicant.
52. Dr Briggs does not identify any personality disorder or mental health difficulties for either parent save the applicant's vulnerability to anxiety.
53. Dr Briggs advises that Mother is not physically or psychologically dependent upon alcohol, however he states in his report:
"the history of this case must allow for the possibility that [Q] may resort periods of binge drinking in the future which could undermine her attention to [BB's] care".
Also:
"Were [BB] to return to her care or were [Q] to share care of [BB] with the father, there will be a need for professional oversight from the children's service in the months ahead" he clarifies this to mean "the surveillance of a qualified social worker".
54. Regarding Father, Dr Briggs reports that some of his responses to psychometric testing are indicative that he may've been "minimalizing personal failings and less than desirable aspects of his character". In evidence at this hearing Dr Briggs clarified that comment came from a test which relates to other tests and "is not necessarily an indication of wider deception".
55. In the conclusion of his report, Dr Briggs states:
"as we move forward, and particularly if [Q] is to have significant involvement in the care of [BB], then it will be important that [R] shields [BB] from any anxieties he has about [Q]. Whilst remaining vigilant and alert to the quality of care giving the mother might offer to [BB] he should not expose [BB] to that anxiety or any hostility he may feel. It would be important that he promotes a positive image of the mother moving forward. He may find that difficult."
56. In his addendum report, Dr Briggs reflects upon the recent deterioration in the parents' relationship. He concludes his report saying:
"I cannot evidence that [Q] is physically dependant on alcohol. I remain of the opinion that we must concede she presents at least with some risk of episodic binge drinking at points in the future and which could render her inattentive to [BB] care needs"
57. In evidence at this hearing, Dr Briggs provided clarification of his conclusions. He also gave recommendations regarding the processes Mother should follow to make and sustain change, this presents a comprehensive plan that went beyond Father's conditions for progression of contact and would involve support from CSC and Mother's GP. He advised that Mother has a "temperamental predisposition to anxiety" which dates back to her school days and is significant. She would benefit from interventions that matched the problem. The work needed would not be brief, but he also confirmed that the work did not necessarily need to be complete before progression of contact commenced. Dr Briggs confirmed his recommendation that if Mother shared care of BB this should be under a "period of long term child in need surveillance", if this were absent he would be concerned. Dr Briggs could not put a time scale on the period of time needed to effect change, saying that the parties could be in the same position in 12 months' time.
58. Dr Briggs had discussed with both parties Father's allegation that since December 2022, Mother has resumed excessive calls to Father which Father believes indicate that Mother is again drinking. Mother disputes the allegation but concedes she has made calls to Father. Dr Briggs would be concerned by the calls if they were made without good reason.
59. Dr Briggs concluded his evidence advising, that if the court orders shared care the demands of that would continue to test the parties' relationship and Mother's anxieties, he says that "we are in an uncertain period". He advised that the order sought by Mother would not in itself relieve her anxieties, she would be "buffeted by other life stresses".
60. In answer to a question from myself, Dr Briggs thought it unlikely that Father wouldn't comply with court ordered arrangements. He was less certain of Mother's compliance due to her "emotional regulation and management of stress".
61. A safeguarding letter was prepared at the outset of the proceedings dated 20th of May 2022. A full welfare report was prepared by the allocated JFCAS officer C dated 18th of October 2022. C has prepared an addendum report dated 8th February 2023, she has also given evidence at this hearing.
62. In her October '22 report, C reports that Mother acknowledges that she should not have drunk alcohol whilst she had care of BB, however she says that some of the referrals made were malicious. Mother also acknowledges the prolific messages and phone calls to Father and his family but justifies this on the basis that a lack of response triggers her anxiety about BB's wellbeing. She sees the ongoing arrangements in terms of a power imbalance between herself and Father.
63. Father is concerned to increase contact as he fears Mother is still drinking, this concern is fuelled in part at least by the nature, timing and quantity of calls and texts made by Mother.
64. C is satisfied that both parents can offer a good standard of care to BB, she says:
"I have observed [BB] with both parents, and I concur with [BB's] social worker that the care [R] and [Q] provide to their son, does not raise any concerns. Both parents are attentive, affectionate and caring".
65. C highlights matters that raise concern for BB's welfare:
· Mother's alcohol use, C is concerned that Mother continues to drink alcohol socially and there is contradictory information regarding her alcohol intake level. C raises in this context the issue of Mother's "relentless" messages and calls to Father;
· The allegations of domestic abuse against Father. The police have decided not to prosecute Father, nevertheless, C remains concerned regarding these allegations, she fears that, if unresolved, they may continue to resurface "like a bad smell" and undermine future relations between the parties. C is concerned by Dr Brigg's comment that Father might have been "minimising personal failings and less than desirable aspects of his character";
· The difficulties the parties have in working together. This is a concern reported to C by the health visitor and is highlighted in the involvement of the police at the behest both parties.
66. C expresses concern that Father declined contact to Mother before proceedings were initiated and his reluctance in August 2022 to increase contact upon her advice. She concludes:
"I have felt during these proceedings that [R] does not value [BB's] relationship with [Q], and that his behaviour reflects this view. It is not evident to me that he would promote [BB's] relationship with his mother unless ordered to do so by the court."
67. In her addendum report in February 2023, C reports that the acrimony between the parties has returned. Father attributes this to a return by Mother to the pattern of repeated harassing messages to him and his family, which is impacting significantly upon him and his grandmother, to the extent that they cannot eat or sleep properly after the calls. Mother attributes the deterioration to the fact that she continues to seek shared residence.
68. Dr Briggs' addendum report states that Mother had promised to make sure that her number was visible when she calls, C comments that this has not happened. She concludes that if Mother's calls are not as a result of alcohol misuse, they are caused by high anxiety levels, which C highlights as a potential risk to BB.
69. C reports that she has spoken to Mother's aunt, E, who has been extremely supportive of Mother. E appears to be of the view that Mother is drinking again, although never when she has care of BB. C notes that Mother has not taken her anxiety medication since April 2022 as she doesn't feel that she needs it. She states:
"I worry that despite [Q] not being alcohol dependant, alcohol is a drug and as with any drug the increased tolerance built by its use can cause an increase in the intake to achieve the same result. If [Q] continues to binge drink to deal with stresses and anxieties, alcohol might eventually be the only coping mechanism she will turn to when she feels emotionally overwhelmed, again putting [BB] and herself at risk"
70. Regarding Father, he expressed concern to C that Mother uses alcohol as her coping mechanism and will continue to return to alcohol, the more contact she has, the greater the risk to BB. C expresses the following view:
"it is my belief that [R's] negative view of [Q's] parenting capacity impacts on his awareness of the positives she is bringing into their sons life. While he continues to feel so strongly about her, he might not be able to value [BB's] relationship with [Q].....I am not convinced that [R] would promote [BB's] relationship with his mother if this were not ordered by the court"
71. C concludes saying:
"there are no concerns about [Q's] capacity to care for [BB], as long as she is not drinking. Currently, there is no certainty that she has yet reached the necessary stability that would ensure [BB's] safety under her care."
72. In her addendum report, C recommends there be a shared residence order with the following contact pattern:
· whilst Mother is off work, that she care for BB 8:30 am to 3 pm Monday to Thursday and Friday morning to Saturday at 12 noon each week;
· After Mother returns to work, for a period of 6 months she care for BB Monday and Wednesday from after work until 8 am next day and Fridays from after work to 12 noon on Saturday;
· After 6 months there to be an equal sharing of BB's time over a 2 week rota so that one parent has BB on Monday and Tuesday, and Saturday and Sunday one week, and Wednesday, Thursday, Friday the following week. Additional arrangements for birthdays and Christmas in each year.
73. C gave evidence at this hearing having heard the evidence of Dr Briggs and the parties, she confirmed that her position had changed as a result of what she had heard. She said "when I wrote my report I was on one side, I'm now in the middle", she also said that she was "not emphatic" with her recommendation.
74. Regarding Mother's evidence, C expressed concern that Mother shows no acceptance of putting BB at risk when he was in her care, nor of the effect of her behaviour in calling Father persistently. C is concerned that without acceptance, Mother won't be motivated to change. In summary, she is not convinced that Mother doesn't present a risk, Mother is not in control which could have an impact on BB, and is having an impact on Father.
75. Regarding Father's evidence, she is not reassured that Father would prioritise Mother's relationship with BB.
76. Regarding timescales for change, C no longer feels that a timescale can be set for progression to shared care in light of the uncertainties, not least, that Jersey Talking Therapies have a one year waiting list. She advised that BB's needs require that any change to have taken place by the time he is 2.
77. Mother seeks a shared residence order. She also seeks shared care of BB following the pattern and timescales recommended by C in her addendum report as set out in paragraph 72 of these reasons.
78. Mother's position is that a shared residence order is necessary, initially to underline the equal importance of each parent in BB's life, and to confer a psychological benefit upon Mother. When a shared care arrangement is eventually in place, a shared residence order would reflect the reality of BB's life.
79. Mother says that Father does not accept her importance as a parent in BB's life. She says that Father is controlling, he intimidates and undermines her during all communications. His controlling behaviour is evidenced by his failure to allow her to have contact with BB during 8 weeks prior to the initial court hearing, and his refusal / reluctance to progress contact in accordance with professional advice during the proceedings. Mother also says that she has experienced difficulties with contact during the proceedings, she details these both in her written and oral evidence. She also says that he put BB's name down for his old school, School 1, without consultation or agreement.
80. Mother does not accept that she ever placed BB at risk, or drank when BB was in her care, she denies that she has resumed drinking, she does not agree that there is a risk that she may return to binge drinking. Mother accepts that she suffers anxiety but says that it doesn't affect her unduly. Mother nevertheless confirms that she accepts Dr Briggs recommendation that she access therapy. She has resumed therapy and speaks to her IDVA on a weekly basis. She finds these supports helpful. She has also recently put her name down for Jersey Talking Therapies.
81. Father seeks continuation of sole residence. He accepts that Mother's contact should increase. He accepts the principle of shared care, he says that he never sought to have BB in his care the majority of the time, this was instigated by CSC and accepted by him as a necessity as he was told that the threshold to seek removal of BB was crossed and there would be proceedings if he did not take over full time care. Shared care is only an aspiration at the present time until Mother has demonstrated a period of stability and consistency for at least 4 months, after which he agrees that contact can progress. Father's preconditions for progression include:
· No heavy drinking, unnecessary calls, making allegations;
· Attend therapy as recommended by Dr Briggs;
· Secure suitable accommodation for herself and BB.
82. Father fears that to move to shared care without a period of stability would be "a gamble" and "a big risk to take". He worries that Mother lacks insight regarding her drinking and other issues and therefore she will not work to overcome these. Father seeks to retain sole residence because it is established that BB is safe in his care, and at present there is uncertainty whether issues with Mother would repeat themselves. He feels that joint residence at the present time would benefit only Mother.
83. Father denies that he is controlling or intimidates Mother. Regarding contact, he says that he was advised by CSC that all contact should be supervised. He asked CSC for help and made an early application to Organisation A. He produces early emails sent by his advocate trying to arrange contact, including contact on Mother's day 2022. He says that Mother failed to respond to these offers. He accepts that he has been cautious about increasing contact during the proceedings but has done so after initial reluctance, he says that his caution is justified. He says he has abided by the interim contact orders. Regarding choice of school, he recalls "a lovely conversation" with Mother regarding this subject, he says Mother agreed that he put BB's name down for School 1, she also mentioned School 2, and so he put BB's name down for both schools.
84. I am referred to the case of B v A [2010] JRC462 as being the leading Jersey authority upon the issue of shared residence, the judgement includes the following guidance:
"40 We draw from these cases the principle that shared residence orders should be made in two categories of case (ignoring the third for the moment). The first is where such an order reflects the practical realities of the children's lives; also referred to by some judges as the situation on the ground. The importance of this requirement has been repeatedly stated, as is shown from the emphasized passages in the extracts cited earlier. The requirement for shared residence to reflect the practical realities does not require there to be an equal division of time spent between the parents, but it requires the court to be able to answer Ward, L.J.'s question in In re H (7) (see para. 38 above) in the second manner which he gives, namely: "Oh, we live with mummy for part of the time and with daddy for the other part of the time"......
"42 The second ground upon which a shared residence order may be made is that referred to by Potter, P., namely where it is psychologically beneficial to the parents in emphasizing the equality of their position and responsibilities. This second category has been subject to some criticism (e.g. Gilmore (supra) [2010] Fam. Law at 289) on the ground that, read literally, it suggests that a benefit to the parents alone would be a good reason to make a shared residence order. Given that the child's welfare must always be the paramount consideration in such cases, we do not believe the President was intending to suggest this and we have no doubt that, although he did not spell it out specifically, the President was saying that there may be benefit to the child as a result of the benefit to the parents in emphasizing the equality of their position and responsibilities."
85. The applications are made pursuant to Article 10 of the Children (Jersey) Law 2002 ("the law"), and relate to the upbringing of BB, therefore in accordance with Article 2(1) of the law, BB's welfare shall be the court's paramount consideration.
86. Article 2(3) of the law sets out the criteria to which the court is to have regard when considering an application under Article 10, this is known as the welfare checklist. Without listing each of the criteria separately, I have taken each into account. The following are of particular note:
i. Both parents are capable of meeting BB's needs, in Mother's case, subject to the proviso that she has not been drinking and that her anxieties are managed, which they presently are not;
ii. I have made findings that BB was placed at risk of harm whilst in Mother's care. I find this to be the single most important factor in this decision, BB is young and vulnerable, he must be protected from risk of harm as a priority. The difficulty managing the risk from Mother, is that she has no acceptance that she exposed BB to risk of harm. Father presents a risk if he does not promote Mother in BB's life, this risk can be managed by clear and robust orders.
87. I approach this decision from a gender-blind perspective, the parties have not requested that I do otherwise. Here, it is the Father who has full time care of the subject child, and it is Mother who seeks increased contact, this, in my view, should make no difference to the approach taken by the court or by the professionals involved in the case.
88. B v A is a helpful and clear authority as to reasons why a shared residence order should be made, but I venture that this decision is 13 years old, attitudes to parenting and parenting in practice have changed, shared care arrangements are much more commonplace between separated parents. There is an argument for approaching the question from the perspective of why a shared care / residence order should not be made? However, where one parent poses a risk to the other parent or the child, shared residence and shared care are contraindicated, and the court should proceed with the utmost caution.
89. I start with the primary risk factors to BB taking into account the findings I have made:
(i) Prior to 19th of March 2022, Mother had on occasions consumed alcohol whilst caring for BB to the extent that her ability to care for him was compromised and that he was placed at risk as a direct result of her consumption of alcohol;
(ii) 12 months after BB was effectively removed from Mother's care, she not only fails to accept any responsibility for her actions, she resiles from the limited acceptance she has previously shown;
(iii) Dr Briggs expresses the uncontested opinion that Mother may present a risk of returning to binge drinking which could impact on her ability to meet BB's needs. In Dr Briggs opinion, if Mother were to share care of BB without a package of support and intervention which would include "a period of long term child in need surveillance", he would be concerned;
(iv) Mother has harassed Father intermittently throughout the course of these proceedings which has damaged his health, she demonstrates no awareness of her actions either to the court or the professionals involved.
90. C acknowledges these facts and the potential to cause harm to BB, nevertheless she recommends that shared residence and shared care should be a continued goal. I must disagree with C, shared care in principle is always desirable, but the goal for Mother should be recognising and addressing these risks. 12 months after the events that led to BB leaving Mother's care, she does not appear to have moved forward, if Mother does not initiate and sustain the pathway to change outlined by Dr Briggs, shared care is unlikely to be achievable.
91. I accept that Father demonstrates negativity toward Mother that could potentially be harmful to BB in the future, but I do not discount the possibility that his negativity is a direct consequence of the harassment he has suffered and a natural desire to ensure BB's safety. Much is made of the initial period after BB moved to Father during which contact was extremely limited, which is likely to have impacted adversely upon BB as well as Mother. Father had been advised by CSC that contact should be supervised, but they do not appear to have provided much in the way of practical support. Father made efforts, he contacted Organisation A and instructed his advocate to contact Mother. An email sent was not seen by Mother or she failed to respond, either way, Father cannot take the full responsibility for what was undoubtedly an unfortunate set of circumstances.
92. I am critical of Father for the events of 25th May 2022, when court ordered contact did not happen. The evidence I have seen and heard does not provide a good reason. Father says that he was not there and couldn't control what happened. I disagree with him, it is his responsibility to ensure that contact happens, and that those who support him play their part. The requirement to ensure that a child has contact with the non-residential parent is one of the most important functions a parent must fulfil. If Father wishes to be a good and protective parent he must follow the advice of Dr Briggs that he overcome his personal feelings to promote a positive image of Mother to BB, he must ensure that his family do likewise. I am however reassured by Dr Briggs' assessment that Father can be relied upon to comply with court orders. I also accept Father's evidence that sole residence was never something that he looked for, and that subject to evidence that Mother has progressed on the pathway to change, that he will also move forward toward shared care.
93. I have considered the evidence from both parents relating to Mother's complaint that Father has frustrated contact on 5 occasions during the course of the proceedings. I have dealt with the events of 25thMay 2022 above. As to the remainder, 3 relate to occasions when E was not available to supervise at the times ordered. These occasions indicate an inflexibility on the part of Father, whilst I do not criticize Father for sticking rigidly to the court order, moving forward he must allow a degree of flexibility if the result otherwise would be that contact fails. As to the events of 7th September 2022, there are allegations on both sides that third parties were abusive, this highlights the necessity that both parents ensure that their friends and family act appropriately. Taken as a whole, whilst a failure of contact is always unfortunate, I do not take these events as an indication that Father has in the past or would in the future deliberately frustrate contact.
94. Advocate Borg on behalf of Mother argues her anxieties arise from there being a power imbalance between her and Father, and that a shared residence order should be made to confer a psychological benefit upon Mother. Dr Briggs advises that Mother's anxieties predate her relationship with Father and should not all be attributed to the present case. Mother talks of a power imbalance, however, some of the flash points between her and Father relate to functions of parental responsibility that she shares equally with Father, for example, cutting BB's hair. Against a background of harassing calls to Father, my concern is that shared residence would serve to increase the pressure she attempts to exert upon him. It is my view that a shared residence order would not confer any benefit upon BB's and would potentially heighten the identified risk factors.
95. My decision is that shared residence is not appropriate in this case. It is not entirely clear to me whether this remains contrary to C's advice, insofar that it does, my reasons for not following that advice are as follows:
· For so long as Mother's behaviours potentially present a risk to BB, Father must be in a position to act in a protective capacity;
· For so long as Mother's behaviours potentially present a risk to BB, shared care is not in BB's best interests;
· For so long as Mother's behaviours place Father under unwarranted pressure, there is a risk that a shared residence order would create opportunities to worsen this pressure;
· Any risk that Father would fail to prioritise Mother's relationship with BB can be managed by a clearly worded contact order.
96. Regarding Mother's contact, ideally this should increase, however this must be achieved safely for BB. It has not been suggested by Father or any professional that Mother drinks when BB is with her, and it appears that the harassment occurs when BB is not in her care. Contact has increased during the course of the proceedings without increasing any risk to BB. Overnight contact has been supervised and has taken place at the home of E. Mother wishes contact to be unsupervised, however she does not appear to have stable accommodation, she confirmed to the court that she is not living with E, Father doesn't know her address and the accommodation has not been checked by C, overnight contact must therefore continue to take place at E's home for the time being, however I remove the requirement that it be supervised as there is no evidence that in the past 12 months Mother has been drinking when BB is in her care.
97. After I prepared these reasons and a final order, but before the order had been signed or sealed, and before either had been distributed to the parties, on 24th March 2023 I received an email from C, following a discussion she had had with ("F"), BB's social worker, the essence of which was that following events and reports subsequent to the final hearing, CSC were expressing concerns regarding Mother "around excessive alcohol use, risks associated within mum's new relationship, and disengagement from services".
98. With the agreement of the advocates of the parties, I spoke to C in the absence on 30th March 2023, I then caused the following email to be sent to the parties:
"[C] told me that [F] told her that she had received notification from the police, that they had been called to the hostel where Mother is presently living. The police report says that there had been an altercation between Mother and her new partner, both were said by the police to be intoxicated and had been fighting. Mother had facial bruising but did not make a complaint.
[F] also referred to other reports that Mother had been drinking."
99. I distributed a copy of the unsealed final order to the parties. Father's advocate and C expressed concern that, in light of fresh information regarding Mother, unsupervised contact could place BB at risk. I convened a hearing on 18th April 2023. Mother did not attend this hearing having instructed her advocate that she was unwell and could not attend court although no supporting medical evidence was filed and the hearing proceeded in her absence. At the hearing, Father's advocate set out an additional concern, that on 17th March 2023 when overnight contact was due to take place at the home of, and supervised by E, in accordance with the interim contact order dated 12th December 2022, Mother had informed Father that E was away from Jersey. Father was therefore concerned that E could no longer be relied upon to supervise overnight contact. I ordered C to file and serve an addendum report by 28th April 2023 and adjourned the hearing to 4th May.
100. C's addendum report dated 28th April 2023 states as follows in its entirety:
"Investigation:
1. I have attempted to contact [E] on the telephone on 25,26,27 and 28 April 2023. All those occasions, her telephone was off. I left two voice messages and one text message. All the information about her views has been reported by BB's Social Worker, [F].
2. Email sent to [Q] on 25.4.23.
3. Meeting with [F] on 20.4.23.
4. Core Group Meeting attended on 28.4.23. [Q] did not attend the meeting.
New information:
5. [F] spoke to [E] on 20.4.23. [E] has been travelling to and from [Country 1] to take care of her mother who is very unwell, but the previous three weeks she had been in Jersey, and she did not see or hear from [Q]. [E] said that she tends to communicate with [Q] through Messenger, and she still did not have a mobile phone. [F] received a text message from [E] on Sunday 23.4.23 saying that [Q] spent the weekend in her house and that she had asked her to let the Social Worker know that she would be contacting her on Monday. This did not happen.
6. It appears that [Q] has disengaged from any professional support. The last time [F] met with [Q] was on 24.3.23. [Q] failed to attend the last Review Child Protection Conference in February 2023 and the last two Core Group Meetings held on 6.4.23 and 28.4.23. [Q] has been seen in [Accommodation 2] once briefly since the 23.3.23. She has had no contact with her Independent Domestic Violence Advisor for at least 5 weeks. It is believed that she has not yet completed her application for Andium Homes and that she has not applied for long term incapacity support, even though her short term incapacity allowance is about to expire. [F] said that the staff at [Accommodation 2] have confirmed that [Q] is consuming alcohol. [Q's] current residence is unknown.
7. In relation to BB's contact with his mother, [R] informed that [Q] failed to attend the contact sessions on the 6, 15 and 17 of February. However, contact was consistent between the 20 February and 20 March, that was the last time [Q] saw [BB]. [Q] has also made no contact with [R] and his family in this period.
8. F reported that two strategy meetings were held in March:
a. 23.3.23, due to the incident reported by the police between [Q] and her new partner. This was already reported to the Court.
b. 28.3.23 due to [R] reporting some marks on [BB's] back on 13 February after he returned from contact with his mother. [BB] had 11 horizontal scratch like marks on the lower part of his back. [R] explained that he had not shared this issue before because no actions had followed when he had raised concerns in the past. One of the outcomes of the meeting was that [BB] was taken for a medical on the 29.3.23. Forensic Medical Examiner, Susanna Look, determined that the scratches on [BB's] back appeared to be accidental in nature, however she raised concerns about [BB] being adequately supervised during the period they occurred and recommended that no unsupervised contact with [Q] would take place until further information was received, and [Q] was spoken to. The Police is still investigating this incident and have not yet been able to contact [Q].
9. [R] reported that the Police also need to talk to [Q] about their investigation of the phone calls received by [R] and his grandmother, as there are discrepancies between her evidence and the data downloaded from her phone.
10. Another outcome resulting from the last strategy meeting was that [F] would complete a risk assessment with [Q]. However, this has not been possible due to [Q's] lack of engagement.
11. [BB's] next Review Child Protection Conference has been scheduled for the 31.8.23. [F] said that she would expect that by then [BB's] situation will be clearer and the private law proceedings completed. She is of the opinion that [R] is a protective father and that he will be able to continue to care for [BB] and to keep him safe, making it unnecessary to continue the Child Protection Process.
12. [Q's] new partner is known to [Accommodation 2's] staff. They have informed that she has problems with the use of alcohol. She is also known to the Probation Service, and due to attend the Magistrates Court on 3.5.23.
Analysis
13. [R] reports that [BB] is developing nicely. He is now being more vocal and able to ask for what he needs. He informed that [BB] has showed little distress about not seeing [Q], and only once he has asked about her. He believes that [BB] is easily distracted and even if he cries when he leaves him with his paternal grandmother in the morning, he stops within two minutes or as soon as his attention goes to something else.
14. The new events raise serious concerns about [BB's] welfare and safety in the care of [Q]. It is unfortunate that the current situation is so similar to the situation brought to the Court at the beginning of these proceedings. While it might be deemed as positive that [Q] is not seeking to see [BB] at this time, it is a concern that [BB] is growing rapidly and experiencing new things without his mother. Toddlers develop rapidly and they need the consistency for someone to remain being familiar to them.
15. At the moment, it appears like [Q] is prioritising her new relationship over any other aspect of her life, including her relationship with her son. It is unknown when [Q] will be ready to overcome her difficulties, but I believe, that she will need intense and long-term support to address them and to be able to offer stability and consistency to [BB]. [Q] will be able then to submit a new application to the court to increase her time with [BB].
16. Due to the very different circumstances the Court might want to consider updating the final hearing unless both parties would agree to my updated recommendations.
Recommendation
17. A Residence order to be granted in favour of [R].
18. Contact between [Q] and [BB] to take place three times a week for 3 hours, either with or at [Organisation A].
19. [Q's] new partner to have no contact with [BB]."
101. Mother did not attend the hearing on 4th May 2023 and has not provided instructions to her advocate who could not therefore assist the court. Father has no issue with contact taking place at Organisation A and to be 3 times per week, but this needs to be reliable. He invites the court to consider what should happen if Mother does not attend for contact, is he to be expected to keep attending with BB? He also does not wish to be obliged by court order to rely upon E for support / supervision of contact given the events of 17th March 2023, and his understanding that she is regularly out of the island. Advocate Colley on behalf of Father reminds the court that there is an ongoing police investigation against Mother regarding harassment of Father.
102. I have referred myself to the judgement from the Supreme Court of England & Wales of Re L-B (Children)(care proceedings: power to revise judgment) )[2013] 2FLR 859, as the appropriate authority, in family law at least, that: "It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected".
103. I take into account the unchallenged information presented to the court by C regarding events that occurred or have come to light following the final hearing at the beginning of March. I do not take into account the scratches to BB's back noted by Father on 13th February 2023. I do not criticise him for failing to raise his concerns regarding these scratches earlier in these proceedings, he was at the time facing significant criticism that his attitude toward Mother was negative and that this alone might justify a shared residence order. The scratches also appeared at a time when his health was adversely affected by the unwarranted pressure placed upon him by Mother. Nevertheless, in failing to raise this earlier, the opportunity for Mother at the final hearing to reasonably explain or deny responsibility was lost.
104. The remaining information contained in C's addendum report, and her earlier communication in March, leads me to conclude the following:
i. There is evidence that Mother is presently consuming alcohol and may be binge drinking;
ii. Mother is in a new relationship with a partner who may present a risk to BB by reason of alcohol consumption and domestic abuse;
iii. Mother has not attempted to exercise contact in accordance with the interim contact order of 12th December 2022, since 20th March 2023, without explanation;
iv. Mother has disengaged from any professional support without explanation;
v. Mother's disengagement has made any assessment of risk impossible;
vi. It is unknown where Mother is presently living;
vii. E, by reason of family commitments, might be unable to continue to assist with contact arrangements;
105. By reason of this fresh information, I change my decision regarding Mother's contact. I do not follow C's recommendation that the order specify 3 contacts each week, by reason of the practicalities involved, Organisation A cannot accommodate contact 3 times per week, and there is uncertainty regarding E's availability. Without positive engagement from Mother or more certainty regarding the practicalities of contact, a prescriptive order is not appropriate.
106. The final order will provide for Mother to have reasonable contact with BB to take place up to 3 times per week for 3 hours on each occasion, such contact to take place at Organisation A or to be supervised by a third party approved by Father. The order will also include a prohibition upon Mother's new partner having contact with BB.
Authorities
Re B-B (Domestic Abuse:Fact-Finding) [2022] EWHC 108 (Fam).
Re L-B (Children)(care proceedings: power to revise judgment) [2013] 2FLR 859
Children (Jersey) Law 2002.