Re Y (A Child: Private Law: Fact Finding)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWHC 486 (Fam),[2014] EWHC 1068 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD13P01160 |
| Date | 02 April 2014 |
[2014] EWHC 1068 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Courtroom No. 32
Strand
London
WC2A 2LL
Mrs Justice Pauffley
Case No: FD13P01160
Miss C Hartley appeared on behalf of the FATHER
Mr P Horrocks appeared on behalf of the LOCAL AUTHORITY
Miss M Jones appeared on behalf of the MOTHER
Miss S Little appeared on behalf of the GUARDIAN
JUDGMENT (Approved)
Following on from the 25 th February fact finding judgment [2014] EWHC 486 (Fam) and six weeks or so before the final hearing, scheduled for 14 th of May, it has become necessary to consider the interim residence arrangements for Y, now one year and 10 months old. And whilst I quite accept that it is most unusual to contemplate an alteration in the residential arrangements for any child so close to a final hearing, clearly the recent history justifies renewed judicial consideration.
In summary the parties' positions are these. The mother, represented as before by Miss Jones, suggests that if Y were to be left as now, living at home with her mother and her brother, L, there would be no risk of the kind that would be needed to justify removal in the public law arena. Moreover Miss Jones submits that on an evaluation of Y's welfare interests, balancing any risks with the advantages of maintaining the status quo, it would not be in her interests to move now to live with her father.
The father suggests the mother's attitude towards him and particularly in her responses to the notion of unsupervised overnight contact are such that Y should now be moved to live with him. If that were to happen then it is the father's position that he would facilitate contact between Y and her mother in accordance with advice from the Local Authority and the children's guardian, Miss Nicholls.
The Local Authority, represented as before by Mr Horrocks, has no confidence, in the light of the history, in the mother's ability to comply with orders for staying contact, even with the active support of the social work team. There is, furthermore, mounting concern on the part of the Local Authority about the mother's mental state and that, because of her own obsessional anxiety, at times she has been emotionally unavailable to Y. The Local Authority considers that Y's continued placement with her mother is neither sustainable nor conducive to Y's wellbeing if contact between her and her father is to take place as intended by the court.
Y's guardian, Miss Nicholls, balancing the risks and welfare issues, supports the move to the F, conscious that this would represent a significant change for Y. Miss Nicholls has become increasingly concerned about the mother's emotional wellbeing. She, too, is mindful that the mother has been unable to support Y in developing her relationship with her father by moving towards unsupervised and staying contact.
Since the fact finding judgment when I made clear there was no reason for contact to remain supervised and nothing to prevent overnight staying contact, a whole series of difficulties, impediments to progress, have arisen. Some might best be categorised as attitudinal; a fixed and unwavering resistance on the part of the mother to permitting unsupervised staying contact because of her beliefs about sexual wrongdoing. Other problems have arisen in that Y, once more, has sustained a number of very largely unexplained injuries, particularly bruises to her buttocks and close to her genital area, sufficient on the last occasion to cause the Local Authority to initiate a Section 47 investigation with an associated child protection medical.
Charting the recent history in summary form –
• On 4 th March there was a Local Authority strategy meeting to consider contact proposals leading up to the hearing in May.
• On 10 th March, prior to the first occasion of planned unsupervised contact, Y was noted to have a bruised and swollen leg. The mother and maternal great grandmother suggest Y had slipped and hit her face on a coffee table.
• On 11 th March the mother told the social worker there was a bruise on Y's right buttock.
• After the second occasion of unsupervised contact on 12 th March, the mother informed the social worker that Y's nappy was ripped down one side and the sticky tab had been moved. She said she had photographed the nappy before Y went for contact and wanted "to understand the logic" behind the presentation of the nappy. It did not make sense to her unless the father had changed Y's nappy.
• On 12 th March, whilst Y was in a children's play area with her father and paternal grandmother, she tripped over and scraped her face on rubberised matting.
• On 13 th March the mother reported to Social Services that Y had a bruise close to "her private parts." A Section 47 investigation was initiated. Y was seen by a consultant paediatrician who concluded that the bruising pattern – in the nappy area, thighs and buttocks – was not consistent with normal, daily activities or nappy changing.
• On 19 th March the proceedings were restored for hearing. The Local Authority indicated it would invite the Court to convene a further focused fact finding hearing and/or consider a change of the interim residence arrangements. There was discussion about the programme of intended contact. Agreement was reached that the first occasion of overnight staying contact would occur between 26 th and 27 th March. I listed the proceedings for one day, on 15 th April, to consider contact and placement issues.
• On 25 th March Y was noted by her GP to have a new bruise at the base of her spine, the size of two fingernails and the width of an adult finger.
• On 26 th March the mother would not permit Y to go with the social worker for overnight contact, notwithstanding that Miss Illston spent about two hours in the mother's home attempting to persuade her to allow Y to leave for contact. She was unsuccessful.
• The proceedings were restored before Mrs Justice Theis on 27 th March. She adjourned the application to yesterday, 1 st April, for consideration of the breach of the contact order, the cause of the bruises, contact and interim residence.
So much then for the very recent background. At the risk of stating the obvious, Y's welfare is my paramount consideration. These are not public law proceedings, the test for interim removal, as articulated in Re L-A (Children) [2009] EWCA Civ 822 does not apply. Nonetheless it seems to me that there are some useful parallels between public and private law interim removals. I would always apply the closest and most stringent scrutiny to an application for an alteration of interim residence; and would only order such a change on the basis of compelling reasons – where the child's physical and emotional safety needs required that alteration to be effected.
In this instance I am altogether persuaded that to do nothing, to leave arrangements as they are, is not an option. I would be failing in my duty to Y if I were to conclude that she should remain living with her mother even for the next six weeks.
All the signs are that if I were not to make alternative residential arrangements the same pattern of the last five weeks or so would continue. There is no indication whatever that the mother will be able to re-evaluate her position, adjust her thinking and respond positively to the father. Quite the reverse.
In her discussions with Dr Asen, with Miss Illston and on many, many occasions in her evidence, the mother has made clear her fixed, unshakeable, persistent and enduring belief that Y has been sexually abused by her father. The following extracts from the Local Authority's case recordings are highly relevant.
• On 4 th March, six days after the judgment, at a strategy meeting the mother said she wanted contact to remain supervised until Y was old enough to speak. She felt she had failed Y and would not be able to protect her.
• Three days later, on the 7 th March, the mother repeatedly told Miss Illston that it did not matter what the social worker or the judge said, something (sexual) had happened to Y.
• On 10 th March the mother said she wanted "to slow contact down until Y is able to speak properly." She wants her to have "the tools to know about her own body" and to protect her from the perceived risk of sexual abuse.
• On 11 th March the mother was in touch with the social worker to report a bruise under Y's right buttock, which she said was "definitely not there before contact." The mother said she had "a horrible feeling in her tummy" because, upon enquiry, Y's father had said he did not change her nappy and the bruise did not happen whilst she was with him.
• On 12 th March, during a call to Social Services to report the tear in Y's nappy the Mother asked Miss Illston to go to the father's house, unannounced, and ask him about her belief that the nappy had been removed. The mother wanted Miss Illston to gauge the father's reaction, particularly to see 'if he goes red'. During the course of the same call, the mother also conveyed that it was obvious to her that Y does not want unsupervised contact. She had said, 'Mummy', before leaving the house in a 'worrying way' and she had seemed odd.
• During the child protection medical on the 13 th March the mother told Dr C she had not wanted to look any further at Y's bottom because she was "scared." She knows what happened before, i.e. sexual abuse.
• On 16 th March, when talking about the bruises with a sessional worker, the mother said that discussion about them brought on feelings of panic. She took a deep breath and held her stomach.
• On 25 th March the mother was visibly distressed during a family support worker's visit, struggling to control her emotions and close to...
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