D v E (First Respondent) T (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice MacDonald,Mr Justice MacDonald |
| Judgment Date | 18 January 2016 |
| Neutral Citation | [2016] EWFC 3 |
| Court | Family Court |
| Docket Number | Case No: MA14P01978/ZE15P00205/MA15P00289 |
| Date | 18 January 2016 |
[2016] EWFC 3
IN THE FAMILY COURT
SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice MacDonald
Case No: MA14P01978/ZE15P00205/MA15P00289
— and —
Mr Joseph Lynch (instructed by Silverdale Solicitors) for the Applicant
The First Respondent appeared in person by telephone link
Ms Oliver Woolley (instructed by Archstone Solicitors) for the Second Respondent
Hearing dates: 26 November, 27 November, 7 December 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
In this matter I am concerned with the welfare of a young boy called C. C is now 11 years old. C is the child of the Applicant D (hereafter 'the father') and the First Respondent E (hereafter 'the mother'). At present C resides with his maternal aunt, the Second Respondent T (hereafter 'the aunt').
The issue I am asked to decide in this case is that of whether C should continue to live with his aunt in London or move to live with his father in Manchester or his mother in Mozambique. If I determine that C should continue to reside with his aunt there is an issue as to whether that arrangement should subsist under the auspices of a special guardianship order or a child arrangements order.
The aunt submits that C should continue to reside with her. She further submits that this should be under the auspices of a special guardianship order. The father submits that C should live in his (and his partner's) care. As noted, the mother resides outside the jurisdiction of England and Wales in Mozambique. Her primary case is that C should reside with the aunt in this jurisdiction. If however, the court determines that C should not continue to live with the aunt, then the mother submits that C should return to live with her in Mozambique.
Within the foregoing context there are three applications before the court. First in time is the father's application for a prohibited steps order and a child arrangements order pursuant to section 8 of the Children Act 1989 issued on 17 December 2014. On 17 February 2015 the aunt issued an application for a special guardianship order and on 18 February 2015 issued an application for a prohibited steps order. Finally, on 23 February 2015 the father issued an application for the delivery up of C's passport.
The father attended the hearing and was represented by Mr Lynch of counsel. The aunt attended the hearing and was represented by Mr Woolley of counsel. The mother was not represented. Whilst it has not been possible for the mother to be present at this final hearing it has been possible for her to attend the entirety of the hearing by means of a telephone link from Mozambique. Thus, whilst not represented, the mother has nonetheless been able to participate fully in the final hearing and has had the opportunity to give oral evidence and cross examine witnesses. All parties, including the mother, have filed comprehensive written closing submissions.
BACKGROUND
The Parents' Relationship
The parents met in 2003. The mother alleges that the parents' relationship became characterised by jealousy and regular domestic abuse from the father who, the mother contends, would beat her and shout and swear at her on a daily basis, sometimes in front of C. The mother repeated these allegations during the course of her oral evidence.
Specifically, the mother alleges that she was slapped by the father when twelve weeks pregnant in June 2004 in front of a friend of his. The mother repeated this account to the allocated social worker undertaking the section 7 report in these proceedings, the social worker. The father admits that the parents argued on this occasion (he says over the mother drinking alcohol during her pregnancy) but denies slapping the mother. In relation to the father's contention that the argument was over the mother drinking alcohol during her pregnancy the mother's medical records indicate that she stated to her general practitioner on 7 May 2004 and to the midwife on 29 November 2004 that she was not smoking or drinking Within the mother's general practitioner records there is a risk assessment dated 7 May 2004 with the box labelled "Unsupported mother/ Social Problem" ticked, although the annotation adjacent to the box reads "Awaiting income support decision".
The mother further contends that the father hit her in front of the father's mother when she was six months pregnant in September 2004, leaving a mark on her face. Again, the mother repeated this allegation to the allocated social worker. Again, the father admits that an argument took place between the parents (over the mother allegedly being verbally abusive to the father's mother) but denies hitting the mother. The mother states that she fled to the home of the aunt when seven months pregnant in October 2004 after an incident of domestic abuse. I note that the mother's medical records indicate that she was describing herself as single as at 15 October 2004.
The mother states she returned to the father after C was born in December 2004 by reason of the fact that she was an 18 year old mother of a premature baby and felt lonely and scared. The mother alleges that the father continued to hit her leaving marks all over her body. She concedes that she did not inform anyone of this alleged abuse. Within the context of these proceedings the mother repeated to the allocated social worker the allegation that she was hit by the father following C's birth. These allegations are denied by the father.
On 17 July 2005 a call was made to the Police following an incident in which the mother alleges that she was hit by the father in front of another of her sisters. The mother has not sought to file evidence from that sister. Once again, the father concedes that an argument took place on this occasion (he alleges over the mother using alcohol and cannabis when C was present in the household) but the father denies any violence took place. It is of note that the father's account of this incident changes as between his statement of 10 September 2015 and his statement of 19 November 2015, which latter statement was compiled after he had seen the Police disclosure.
In his statement of 10 September 2015 the father states clearly that he had an argument with the mother and does not mention arguing with any other person. Having seen the FWIN report for 17 July 2005 disclosed by the Police (which states "fight domestic now husband sister having a fight") the father changes his account in his statement of 19 November 2015 to state that he was mainly arguing with the mother's sister. The FWIN record of Police attendance describes the incident as a verbal argument and that no allegation of an assault was made. The father is described as calm when the Police attended. The mother states that on 17 July 2005 the police asked her if she wished the father to be taken away but that she refused because she did not want the father arrested. The mother cites this incident as the trigger for leaving the father in August 2005.
It is of note that during the period in which the mother alleged persistent violence on the part of the father the father was convicted of an offence of violence in October 2005. This offence was not mentioned by the father in his first statement dated 18 December 2014 or in his statement of 18 June 2015 or to the allocated social worker. The father did however disclose the offence in his statement dated 10 September 2015 (although it is there wrongly described as having occurred in 2015). It is of note that this disclosure by the father only arose after the court recorded on 9 July 2015 that the local authority would be conducting Police checks in relation to each of the parties. In his statement the father describes the offence as resulting from his acting in self-defence in response to racist provocation, pleading guilty on the advice of his solicitor and being sentenced to 160 hours community service. However, the PNC check and concessions from the father in evidence paint a different picture.
The PNC check reveals that the father was, in addition to the community service order of 160 hours, given a suspended prison sentence of 18 months for the offence of affray. Further, whilst in his statement of 10 September 2015 the father describes himself as having acted in self-defence, pleading guilty to affray only because he did not speak English well enough to understand his solicitor and because he was advised that "it may be determined that I did use excessive force in defending myself", in oral evidence the father conceded that the assault he had perpetrated had involved the victim falling over, after which the father "kicked him" and "beat him" whilst the victim was on the ground. The significant sentence passed on the father (presumably discounted for the guilty plea) is better explained by this account.
The Birth of C
C was born in December 2004 six weeks premature due to a placental abruption and spent the first three months of his life in an incubator in the paediatric intensive care unit. C was identified as having neurological dysfunction as a result of prematurity. It is important to note that, within this context, C has a number of specific welfare needs above and beyond those ordinarily arising from being an eleven year old child.
C has an amblyopic right eye with significant reduction in vision. He has a slight curvature of the spine and his left leg is longer than his right. By the efforts of the aunt in 2014 C was referred to the Newham Child & Family Consultation Service (CFCS). A...
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