Q v Q (No 3)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] EWFC 5 |
| Date | 28 January 2016 |
| Court | Family Court |
| Docket Number | Case No: WJ10P00530 |
[2016] EWFC 5
IN THE FAMILY COURT
Sitting at the ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: WJ10P00530
Ms Louise Potter (instructed by Greens Solicitors Ltd) for the applicant father
Ms Lucy Sprinz (instructed by Goodman Ray) for the respondent mother
Hearing dates: 29 October, 2 November 2015
Sir James Munby, President of the Family Division:
I have given two previous judgments in this matter: Q v Q (Funding of Representation and Expert Attendance) [2014] EWFC 7, [2015] 1 FLR 318, on 21 May 2014, and Q v Q, Re B; Re C (Private Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324, on 6 August 2014. Both of those judgments were concerned with the difficulties the applicant father was having in obtaining public funding. Those difficulties were finally resolved on 27 July 2015, a little under a year after my second judgment, when the Legal Aid Agency granted the father's application for exceptional funding, accepting eventually that funding was required to avoid a breach of his Convention rights. This judgment follows the substantive hearing of the proceedings in October / November 2015.
The background
The background facts can be set out fairly shortly.
The proceedings relate to M, a child born in June 2007. His father and mother had married in August 2005. In February 2009 the father was arrested for sexual activity with a child – the victim was his own 12 year old nephew – contrary to section 9(1) of the Sexual Offences Act 2003. Almost immediately the parties separated. The father has had no contact with M since then. In June 2009 the father pleaded guilty at the Crown Court, admitting that he had pulled his nephew's trousers down and masturbated over him until he (the father) ejaculated. In August 2009 he was sentenced to a community order for three years with supervision. He had been in custody throughout since his arrest the previous February.
The mother petitioned for divorce in June 2010. The following month, the father applied for a contact order and an order for disclosure of M's whereabouts. In January 2011, a District Judge directed that the father could obtain a report from RWA Child Protection Services to assess the risk he might pose to his son. A few days later the mother applied for a residence order. The RWA report was prepared by Dennis Smith and is dated 28 March 2011. On 23 June 2011 the Cafcass officer, IK, reported.
In November 2011, the District Judge granted the parties permission to obtain a report from Jo Duncombe of RWA Child Protection Services, who was to advise on "the risks inherent to [either indirect or direct] contact and the matters which the court will have to determine if it is to take place." She met the mother but not the father. Her report is dated 3 February 2012. Shortly afterwards, another District Judge determined that a fact finding hearing in respect of the mother's allegations against the father of violence or abuse was not necessary. The final hearing was listed for October 2012.
Early in August 2012 the father's community rehabilitation order expired. Less than four weeks later he was arrested for an offence contrary to section 3 of the 2003 Act, the complainant on this occasion being a 16 year old youth. The final hearing was vacated. In October 2012 the father pleaded guilty and was sentenced to 24 weeks imprisonment, later reduced on appeal to 12 weeks. It is interesting to note that in a statement filed in these proceedings dated 28 September 2012, the father had indicated that he was pleading 'not guilty'.
In February 2013 the mother applied for an order under section 91(14) of the Children Act 1989. In March 2013 a Deputy District Judge gave directions for a final hearing in October 2013. That hearing had to be vacated because of delays resulting from the suspension between April and August 2013 of the father's public funding. The Circuit Judge gave directions adjourning the final hearing until March 2014. Mr Smith's addendum report is dated 15 January 2014; Ms Duncombe's addendum report is dated 27 January 2014. The final hearing had to be adjourned again by the Circuit Judge, this time until May 2014, following the decision (upheld by the independent adjudicator) to withdraw the father's public funding. On 1 May 2014 the Circuit Judge transferred the case for hearing by me. It came before me on 21 May 2014: Q v Q (Funding of Representation and Expert Attendance) [2014] EWFC 7, [2015] 1 FLR 318. Subsequent events are summarised in the judgment I handed down on 6 August 2014: Q v Q, Re B; Re C (Private Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324.
The father was able to enlist the assistance of the Public Law Project in his attempt to obtain public funding. On 23 February 2015 I made an order re-fixing the final hearing for 10 August 2015. On 14 July 2015 I had to vacate that hearing because the issue of the father's public funding was still not resolved. The hearing was re-listed for 28 October 2015 with a time estimate of three days. As I have already mentioned, on 27 July 2015 the Legal Aid Agency granted public funding. At a final directions hearing on 9 October 2015, the father, by now represented by both solicitors and counsel, confirmed that he did not wish to cross-examine either Mr Smith or Ms Duncombe. I reduced the time estimate for the hearing to two days, starting on 29 October 2015.
The final hearing
At the final hearing the father was represented by Ms Louise Potter and the mother by Ms Lucy Sprinz. There were three live applications before me: the father's application for contact (supervised direct contact and indirect contact by way of cards and gifts) and the mother's applications for a prohibited steps order (to replace undertakings in the same terms which the father had given the court on 9 October 2015) and for a section 91(14) order. Ms Potter confirmed that the father was not pursuing his application for disclosure of M's whereabouts.
So far as material for present purposes, the father's written evidence was contained in statements dated 28 September 2012, 13 March 2103 and 5 October 2015. The mother's written evidence was in statements dated 18 October 2011, 6 March 2013 and 12 October 2015. There was also a statement from her older sister dated 13 October 2015.
In addition to the expert reports I have already referred to, I was shown reports of the father's probation officer, Ms Lisa Rackley, dated 12 July 2010 and 12 October 2011. I was also shown certain materials from police records referring to an incident in April 2009 when the mother's family received a threatening letter.
I heard oral evidence from the father and the mother, in each case through an interpreter. Ms Rackley, Mr Smith, Ms Duncombe and IK were not called, and no attempt was made to challenge their evidence. The mother's older sister was not called.
At the end of the hearing I reserved judgment.
The expert reports
It is convenient to start with the expert evidence, none of which was challenged. I begin with Ms Rackley, whose two reports have to be read together with information about the father recorded on the NOMS OASys Assessment system. On 16 December 2009, the OASys Assessment records this:
"Still denies huge elements of the offence and struggles to see things from others perspectives. He blames the offence on his partner and has also tried to victim blame as his nephew was naughty and had had sex education already."
On 30 March 2010 it records this:
"Prior to his incarceration I had commenced the one to one sex offending work. [He] presented as difficult to engage at times and he clearly minimises his offending. He would attempt to put barriers up in supervision to divert from the offence focused work being undertaken. Continues to demonstrate cognitive deficits and clear that he would benefit from work in relation to denial of his offending. Complete lack of victim empathy and clear inconsistencies when we broke his version of events down.
The circumstances of the current offence raise concerns about the defendant's thinking process which clearly reflects elements of distortion amongst other things. He states that he did not know the law of this country, suggesting what he did could have been acceptable elsewhere. Additionally, it was apparent from interview that there was a deficit relative to consequential thinking. Further, the issues surrounding his marital relationship is indicative of his poor problem solving skills and seeming inability to with regard to problem solving skills."
In her first report of 12 July 2010, Ms Rackley said this:
"In light of not being able to fully address his offending behaviour [he] is assessed as a medium risk of serious harm to children and his current risk assessment is as follows:
Who is at risk
(1) Children
What is the nature of the risk
(1) Offences of a sexual nature
When is the risk likely to be greatest
Consider the timescale and indicate whether risk is immediate or not. Consider the risks in custody as well as on release.
(1) When sexually frustrated, [he] not in a relationship at present, therefore risk may be heightened. Through PSR stage arid initial interviews has suggested he masturbates frequently and was sexually frustrated around the time of the index offence. His claims he was "just very horny" on night of index offence are worrying, and statements that he had no sexual attraction to the victim, leading to the suggestion that he was just overcome and 'had' to masturbate even in the presence, of the victim. This is indicative of risk to future possible victims and is not currently showing a willingness to explore the reasons for the offence.
What circumstances are likely to increase risk
Describe factors, actions, events...
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