Middlesbrough Borough Council v M & Ors

The Honourable Mr Justice Cobb : There is before the court an application which has been brought by Middlesbrough Council for the committal to prison of SF and M . They are the step-father and mother, respectively, of two children, L and C, aged 13 and 10.

The application to commit relates to an order made on 8^th March 2016 by Her Honour Judge Matthews QC, sitting as a section 9 judge, exercising the inherent jurisdiction of the High Court. I should add for completeness that the fathers of the two children play no part in this case.

L and C live with their grandparents, Mr and Mrs Z, and have done so for a little over one year. This hearing has been, of course, conducted in public, in accordance with the 2015 Practice Direction. No application has been made for a reporting restriction order. I have nonetheless considered it appropriate to anonymise this judgment in the interests of the two girls; this means that unusually the two adult respondents are not named. No formal written application for committal has been filed, under the part 18 procedure (CPR 1998 Part 18). I understand that the case was originally brought before the court for enforcement of the court’s own motion, once it had been made known that there were alleged breaches of the court’s order. Since the restoration of the case, it has been case managed by Her Honour Judge Hallam, who, I am advised, indicated at the first of the case management hearings on 30^th September 2016, that there would be no need for a formal application provided there was a schedule of the alleged breaches, supported by evidence. (See Family Procedure Rules 2010, rule 37.10(3)).

My own view is that the local authority should have been required to issue a formal application, but I am satisfied that neither SF nor M have been prejudiced by the absence of the same. SF and M are unrepresented before me, as they have been on all previous occasions in relation to these proceedings. I have given them as much assistance and latitude in the presentation of their case as I felt I could.

I have heard the oral evidence of the social worker, AG, and of the grandparents, Mr and Mrs Z. I had to adjourn the case part heard on Tuesday 6^th December and was unable to resume it yesterday because of other professional listed commitments, but this morning, 8^th December, have resumed the hearing and heard the evidence of SF. M elected not to give evidence and was not required by counsel for the Local Authority nor by me to do so. I have heard submissions from Ms Beattie for the local authority and from SF. Again, M chose to say nothing at the conclusion of the case.

At the outset of the case, I considered with Ms Beattie the fourteen alleged breaches set out on the local authority’s schedule. It seemed to me (and she readily conceded), that at least one of the alleged breaches, number 9, appears to have been determined in the Magistrates’ Court, as the mother had been charged with an offence under the Public Order Act 1986 in relation to the relevant events. The mother appeared before the Teesside Magistrates on 7^th September 2016 and pleaded guilty, whereupon she received a conditional discharge, with an order to pay costs and a victim surcharge. My view was that M should not face the prospect of committal for breach of the civil injunction, arising from that incident, in those circumstances. Ms Beattie did not, accordingly, pursue that alleged breach.

At least four of the other matters complained of by the local authority did not, in my judgment, even if proved, represent a breach of the 8^th March 2016 order. Overall, having heard my provisional views, Ms Beattie chose not to proceed on altogether five of the alleged breaches, leaving nine for my determination.

In considering the alleged breaches, I have applied the following principles.

Where the liberty of the subject is in issue, a heavy burden of responsibility falls on an applicant to ensure that a case is meticulously and fairly prepared and presented. There have been some shortcomings in the way this case has been presented by this applicant and gaps in the material which could, or should, have been put before the court, have been identified. However, I try the case on the evidence before me and I trust that this authority will take away and learn from this experience, when or if it finds itself in this situation again.

That all said, I am satisfied that SF and M have not been prejudiced or denied natural justice in the determination of the issues.

There is a long background history to this application which requires brief summary. The mother has for some time struggled to offer her daughters appropriate care. Her care has been severely compromised by the violent relationship which she has endured with SF; her abilities have been further compromised by her own poor mental health. Proceedings, under the Children Act 1989 part IV, were first issued in 2015, in relation to L and C, following a serious incident of domestic abuse, perpetrated upon the mother by SF. During those proceedings, the children went to live with their maternal grandparents. The grandparents live at [address not given]. The mother lives merely six doors away. SF lives very nearby in [address not given]. They are all in the same vicinity. Their local shop is local to them all. During the proceedings, an exclusion requirement was imposed, prohibiting SF from going within 100 metres of the grandparents’ home.

In July 2015, the first set of proceedings concluded when the mother indicated her intention to separate permanently from SF. The court (His Honour Judge Taylor) made a supervision order and approved a plan for the rehabilitation of the girls to the care of their mother. However, within a short time, the mother had resumed her relationship with SF and the proceedings were re-instigated. On 30^th September 2015, His Honour Judge Taylor made an interim child arrangements order in favour of the grandparents and an interim supervision order. The girls moved to live with their grandparents. The court also made a prohibited steps order, prohibiting the mother from exercising contact with the children outside of an agreed working contact arrangement and prohibited SF from having any contact with the children whatsoever.

Between September 2015 and March 2016 there were various allegations that the injunctive orders had been breached and this conduct ultimately contributed to HH Judge Matthews QC making a full care order and further injunctive orders at the final hearing on 8^th March. It is unnecessary for me to rehearse in this judgment the learned judge’s findings of the threshold criteria as at March 2016. It is sufficient to observe that the core theme of the schedule of threshold and welfare findings was the court’s conclusions in relation to serious, repeated domestic abuse, perpetrated by SF upon the mother and the mother’s inability to prioritise the needs of her children over her relationship with SF.

On 8^th March, Her Honour Judge Matthews QC made orders in the following terms.

“1.

The first respondent, [M], shall have no contact with the children – L and C– directly or indirectly by any means, including electronic means, except such contact as is supervised by the local authority or its agents, until further order.

2.

The first respondent, [M], shall not approach for any reason directly or indirectly, by any means, including electronic means, the second respondents, Mr and Mrs Z, until further order.”

Paragraphs 4 and 5 pertain to SF. They read as follows:

“4.

SF shall not have any contact with the children – L and C– directly or indirectly by any means, including electronic means, or make any attempt to approach the children until further order.

5.

SF shall not approach for any reason, directly or indirectly, by any means, including electronic means, the second respondents, Mr. and Mrs Z, until further order.”

It is accepted by the local authority in this hearing that this injunction against the mother and SF was not designed to capture those occasions when the girls, or either of them, might accidentally bump into their mother or SF, in the street where they live, or in the local shop, or elsewhere locally. Given the close proximity in which the family members live, this would be, conceded Ms Beattie, unrealistic. It was designed, suggested Ms Beattie, to cover that situation where the mother, or SF, initiated, or instigated contact or sought the children or either of them out.

I am satisfied that the mother and SF were aware of the order, given that an associated order of the same date refers to SF’s representations about the making of the injunction. The mother is recorded as having been absent from the hearing when the orders were made; but is recorded further as having had knowledge that the court would be considering such orders and, of course, she has been in a relationship with SF for the whole of the period since March 2016. I have not, in the circumstances, investigated in any detail whether the orders were in fact personally served upon them. (See rule 37.5 and rule 37.8 of the Family Procedure Rules 2010). They have been at two previous case management hearings in relation to these alleged breaches and came to court for this hearing, prepared to face the determination of the same. SF told me this morning that he was indeed aware of the orders. Since the orders were made in March 2016, the mother has elected not to have contact with L and C, supervised by the local authority.

Before turning to the contested breaches, it is appropriate that I should make reference to breach 9. As I indicated earlier, this alleged breach arises from events in respect of which the mother pleaded guilty to a public order offence, in September 2016. The circumstances of the offence, taken from the mother’s PNC record, are as follows:

“Using threatening/abusive/words/behaviour/ or disorderly behaviour, likely to cause harassment, alarm or distress. Adult female approaches and converses with her ten year old daughter in local takeaway, thereby breaching a court order imposed by Family Court. Female’s step-father, who is guardian of child, approaches them and instructs child to move away. Adult female then verbally abuses and shouts at her step-father, repeatedly calling him ‘a cunt’, ‘an evil cunt’, in front of many members of the public.”

This summary broadly corresponds with the version which was given by the grandfather in his statement to the court.

I turn now to the nine further respects in which it is said that SF and/or M have breached Judge Matthews’ 8^th March order. I discuss the evidence briefly in relation to each alleged breach, before setting out my ultimate conclusions. The numbers I attribute to the alleged breaches are those referenced within the schedule.

The social worker’s evidence is that L told her that she had been in contact with her mother by text. It is not clear from the evidence who texted who. Ms G (social worker) told me that she had spoken with L about this, and L had admitted that she had had this contact over the telephone. Separately, Mrs Z told me that she had seen L receiving calls from her mother; this in fact is not pleaded in the schedule of alleged breaches and I do not take it into account. But I do take into account Mrs Z’s evidence that L’s manner towards her and her husband changed at times when they believed she was receiving messages by text from the mother.

I have seen a typed note described as a transcript of messages sent by Facebook between L, her mother and her aunt. These were seen on L’s phone by the social worker on 3^rd May 2016. The typed transcript is reproduced from a manuscript note, I am told, of the exchange, which the social worker took down, during her visit to L, on 3^rd May. I accept that account. The note reveals a conversation between the three of them, with the mother playing a full part. I have also seen a police record of a discussion which it is said the mother had with the officers, at the time, which reads as follows:

“It is alleged that [M] … has used social media, namely Facebook, to engage in conversations with L on 27^th April 2016 … M was asked whether she was responsible for the offence. She said that she was responsible. M explained that she had breached the order by wishing her daughter a happy birthday. M said she understood that there is an order in place; that she was in court on the day that it was issued and that she understood it to state that she is to have no contact with her daughters L and C at all. M stated that on 27^th April 2016 she messaged her daughter L all day. She explained that it was her daughter’s thirteenth birthday and that she had received messages via Facebook, saying ‘good morning, I love you’ and that she had replied and communication had lasted most of the day. She confirmed that she did this knowing full well that she was in breach of the court order; she initially claimed that it was only L involved in the conversation on this date.”

Although I have not seen or heard the officer give evidence, I am satisfied that this evidence is entirely of a piece with what the social worker told me.

Mrs Z told the court that there is a lengthy front garden or ‘green’ in front of her home which was the distance approximately of the width of this wide court. But that, when she sees SF passing, she still feels intimidated by the way in which stares into the grandparents’ home, as he passes. She confirmed that he does not stop. SF denied that he intimated Mrs Z in this way. He accepts that he walks past the property. Given that they all live in close proximity, this is not at all surprising. He says he passes the grandparents’ door when making his way to the mother’s home. SF maintained that the grandparents have made false allegations in the past and that this is another such false allegation. He reminded me that the grandparents have CCTV cameras posted on the front of their home, but have produced no evidence of this alleged intimidation.

This allegation speaks for itself. The mother and SF accept that they gave C a Segway for her birthday. SF told me that he pulled over in his car in front of the grandparents’ house, again as he reminded me, in front of the CCTV cameras, and he got out of the car. He removed the Segway from the car and placed it on the footpath. C ran over and took it. C was, at that point, in between the two homes – the grandparents’ and her mother’s home. SF told me:

“I was thinking of a way to give her a birthday present. She was in front of the grandmother’s home.”

He was asked why he did not approach the social workers, through whom the present could have been conveyed to C. To which he replied:

“You are joking, aren’t you? They think I’m a monster.”

The evidence for this is located in the witness statement of the maternal grandfather. It is, on any view, double hearsay. The father, in any event, denies the allegation. He says:

“I would know if the kids were frightened and they weren’t. The kids walk one way or the other, we bump into each other.”

On 26^th August, C went missing from the home of her grandparents. Mr M told me that he searched the local area extensively, together with a cousin of the children, but could not locate C. C returned to the home after approximately six hours. Later that day, or the following day, photographs were posted up on Facebook of a family visit to the beach. The photographs showed SF, the mother, C and others. Mrs Z told me that initially C denied that she had been taken to Runswick Bay by her mother and SF, asserting that the photographs on Facebook were all historic. When the police were called, on the following day, C then admitted that she had been taken to the beach by the mother and SF on the 26^th. SF denied that he had taken C to Runswick Bay on that day and told me that the photographs were of another occasion, when the couple had taken C and friends to the beach. He told me in oral evidence:

“No I didn’t take her on that day, I took her 18 months before.”

He believed that this was a false allegation. He told me the photographs had been taken a couple of years ago. He disputed that C had said that she had been collected from the cricket club and wondered out loud what business it was of the police “to ask a ten year old questions anyway”.

There is no evidence, even on the local authority’s case, that the mother initiated this contact. SF said that the mother may have bumped into L in the shop and complained that they are being “stalked” by the grandparents.

I have seen a number of photographs of bottles of alcohol; some of them are in the grandparents’ fridge, others are being held in a hand, unidentified. The social worker told me that she had asked L whether she, L, had taken these photographs, but L denied it. The social worker told me that it was too much of a coincidence that, after SF had made an issue of the grandparents’ drinking habits, suddenly these photographs came to light. The grandfather said that he could not state who had taken the photographs; the hand is not identifiable as one of the children’s. SF told me in evidence this morning that he knew how the photographs had come into existence. He told me that Ms. X, the mother’s sister, had taken the photographs. He told me that he had asked Ms X to take the photographs and this had “nothing to do with the kids”. SF told me that the grandmother had an injunction against Ms. X at the time she took the photographs, but that Ms. X had been invited in at the time, which, he inferred, indicated a degree of hypocrisy or inconsistency on the part of the maternal grandmother.

The letter to which this alleged breach refers is included in the bundle of documents and opens with these words.

“Dear Crown Court, I am writing to explain our feelings and thoughts … we want to go back home with mam and S. Neither of them are a danger to us. We were a happy family and we all wish to be happy again. It’s against all of our human rights to be kept away from each other. We live on the same road, only a few houses away and we get told off for talking to them. It’s impossible! … it’s not a crime to talk to your children, especially if our mam isn’t any danger to us …”

L has told the social worker that she wrote the letter off her own bat and posted it through the mother’s letterbox. L has denied being asked by anyone to write the letter. However, the social worker considers that the language is not L’s own; this is not the sort of language she would use. The local authority has, in its closing submission, invited me to conclude that this is not the language of a thirteen year old. As I observed in the course of submission, I do not have any comparisons of this letter with any of L’s other work.

SF told me that on the day on which the letter was alleged to be written, 28^th August (and I have no evidence it was written on any different day) C phoned him up crying, saying that “Nanna is trying to get mam sent to prison.” It is right that the mother was in custody over the Bank Holiday weekend, or at least believed to be so. SF told me that he went down to the police station to see M. He says that on returning from the police station later in the day he went to check on the mother’s home and found that this letter had been posted through the letterbox. He said that he brought it sealed to the court. The envelope read “For the Judge” and he gave it to either Judge Matthews or Judge Hallam. He said that he did not ask L to write the letter; the mother was in custody and could not persuade anyone to write the letter, as she did not have access to a phone to speak with her children.

I turn to make further observations about the respondents’ case generally. SF told me in oral evidence that he has spoken to the children often since the March 2016 order. He told me that this was maybe a couple of time a week, when the children come up to him and speak to him. He does not see this “as contact as such”. He views contact as something that is arranged. He believes that the grandparents should not be caring for L and C, he wishes L and C to be returned to the care of their mother and believes that the children have “been stolen” by the grandparents.

For this hearing, he has submitted his own written statement, which he described as a joint statement, together with the mother. He describes the maternal grandparents as “bad people”, who are guilty of harassing him. He suggests that it is their intention to “steal” the children for financial gain. He observes that the maternal grandmother has constantly complained to the police about him and his conduct, but states that the reports are “full of rubbish”. SF has submitted a collection of other documents which I have studied, including extracts from the maternal grandmother’s Facebook page, in which she has expressed herself in forceful language, about a number of issues and people, though disputed, when I asked her about them, that any of the comments applied to SF.

SF told me that sometimes the girls phone him; sometimes they bump into each other in the street. He said he does not instigate contact with them. He further told me:

“I was dragged through the care system myself. The social services need to sort themselves out. There have been continual complaints to the social services, but all they (the grandparents) are trying to do is to stitch us up. It’s a joke. The system has failed me as a kid and an adult. I’m in this court, my life is on hold. They’re not even following the basic rules. Where do they care about M? Mr. and Mrs. Z need help. I say that we’ve done nothing wrong. They’ve been waiting for us to slip up. We’ve had no contact with the social workers, we’ve not even spoken to the social worker, not ever done so.”

The evidence before the court has been taken over the course of two half days. I found the grandparents, on the whole, to be truthful witnesses, doing their best to recall the events dispassionately and sometimes in the face of a barrage of commentary from the back of the court from SF. SF, in his oral evidence, was voluble and easily provoked.

I have focused on the evidence relevant to the allegations. I have reminded myself that I must work on the evidence and only draw inferences from the evidence where it is clear and proper to do so. There are many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or mere assertion.

In respect of each of the alleged breaches, I have reminded myself that the burden is on the local authority to prove the breach and the standard is the criminal standard.

In relation to (1), I find the breach proved. That is to say that the mother had been in contact, via text message, with her daughter, L, on or about 29^th April 2016.

In relation to (2), I find the allegation proved that on 3^rd May Ms G observed Facebook messages on L’s mobile phone from her mother and aunt Ms. X.

In relation to (4), I find the allegation not proved. I remind myself that the specific provision in the order, paragraph 5 of the 8^th March order, prohibits SF from approaching for any reason, directly or indirectly, by any means, the second respondents, Mr. and Mrs Z. I do not find that SF’s walking past the property, given the close proximity of the various homes that are relevant to the family members in this case, warrants a finding, beyond reasonable doubt, that he has “approached” either the grandmother or the grandfather.

In relation to (8), I find this proved – namely that on 18^th July, M and SF had approached C in the street and had given her a Segway for her birthday.

In relation to (10), I find this not proved. On 19^th August, it is said that M approached L as she walked down the street and spoke to her. The best evidence of this was multiple hearsay and not, in the circumstances, of sufficient reliability for me to establish the case to the criminal standard.

In relation to (11), I find this proved – namely that on 26^th August, M and SF had taken C to Runswick Bay for the day.

In relation to (12), I find this not proved – namely that L and her mother had been in the local shop on the previous day and had video footage of the same on his phone. There is no evidence, even on the local authority’s case, that the mother had initiated this contact and is not therefore one of those types of contacts which this order was designed to address.

In relation to (13), I find this not proved. It seemed to me that SF’s explanation for having asked Ms. X to take the photographs of the alcohol injected a reasonable doubt on the evidence and, in the circumstances, the local authority fails to establish its case.

In relation to (14), I find this not proved. That is to say there is insufficient evidence on which I can satisfy myself, beyond reasonable doubt, that the mother and/or SF had incited L and/or C to write the letter. I am influenced, certainly so far as the mother is concerned, by the fact that she was probably in custody at the time at which the letter was written, without access to communication to her daughter. So far as SF was concerned, I was not satisfied that he had encouraged L to write the letter in the terms that she did. As I said earlier, I have no comparisons by which to draw in my understanding and appreciation of L’s writing skills, to satisfy myself, as Ms Beattie would have it, that this letter was well beyond L’s capabilities.

That brings to an end this part of the proceedings. Of the nine allegations, four are proved, five are not proved.

[M] and [SF] , I have found that in four respects you have breached the order that Judge Matthews made on 8^th March 2016. I regard the four breaches of that order as serious. You have, in my judgment, repeatedly and deliberately made contact with the children, knowing that this was forbidden. The effect on the children cannot be under-estimated. This unregulated and unscheduled contact only serves to undermine, in my view, the security of the girls’ placement with their grandparents; it is unfair to the girls; it is unfair to the grandparents who are offering them a loving and comfortable home.

I learned from Mrs Z that while C is doing “brilliantly” – her word – at school, L, by contrast, has now been excluded and is now at a school for excluded children. I am concerned that L’s disruptive behaviour at school is attributable, at least in part, to the disruption to her home life caused by this unscheduled contact with you. The grandparents are neither particularly young, nor particularly fit. They are plainly stressed and unhappy by the conduct complained of and now, following this hearing, is proven, and upset that this is having an effect on the stability of the girls’ placement with them. Mrs Z told me, you will remember:

“All we want is to be left alone to bring them up.”

SF, you asked the grandfather what the girls’ view would be if you and the mother were sent to prison. He replied with commendable candour that L would be “devastated” and that C “would not take it too kindly”. He added, you will remember, “I don’t want to see anyone go to prison”. He told me that he thinks the girls are frightened of you, SF, and he also told me, with feeling:

“I’m 76, I can do without this. We want to offer the girls a home where they are happy and secure.”

In my judgment, your actions justify a term of imprisonment. A term of imprisonment for the breaches which I have found will be three months on breach (11) and one month each on breach (1), (2) and (8), to run concurrently, making a maximum of three months altogether.

I am conscious of the girls’ likely reaction to you being immediately sent to prison and I am proposing therefore to suspend that prison term for a period of twelve months, on terms that you comply with the order which I propose to make in relation to further contact between you and the children. Do you understand?

I propose to amend the order of 8^th March in this way – by discharging paragraphs 1, 2, 4 and 5 and replacing those paragraphs with the following. That you, M, shall not initiate or instigate any contact, direct or indirect, electronically or otherwise, with your daughters L and C, or approach or seek out the children. Do you understand?

Paragraph 2 of Judge Matthews’ order will stand as drafted. That you shall not approach for any reason, directly or indirectly, by any means, including electronic means, Mr and/or Mrs Z, until further order. Do you understand that?

SF, you yourself shall not instigate or initiate any contact, directly or indirectly, electronically or otherwise, with the children, L and C, or approach or seek out the children. Do you understand?

And you shall not approach for any reason, directly or indirectly, by any means, including electronic means, the second respondents, Mr. and/or Mrs. Z, until further order.

If you are to breach these orders that I make within the next twelve months, that will be likely to activate the three months’ suspended sentence that I have imposed today, together with any punishment for any subsequent offence. You may sit down.

Ms Beattie, I would like you to draft the relevant order, specifying the exact details of each contempt proved and the disposal ordered.

For the avoidance of doubt, the order that is made today will be personally served on the mother and SF by the local authority.

The details of this hearing and of these conclusions will be published as is required by the Practice Direction and a transcript of my judgment will be provided to the national media, via the Copy Direct service, it will be supplied to BAILII and to the Judicial Office for publication on their website.

I shall order a transcript of the judgment I have delivered this afternoon at public expense to be expedited. I propose to make no order as to costs.

SF and M, what I say now I intend to address to all parties in the court room. The situation in which L and C find themselves is an extremely difficult one. Of that I am sure, having heard a little about their lives over the course of this hearing. They and their grandparents live in a difficult situation; you, SF and you, M, also live in a difficult situation, as you all live close to each other, yet in an environment where divisions in the family run very deep indeed. You, SF, M, owe it to the girls to do your best to ensure that nothing you do upsets or destabilises the security of that placement. You owe it to L and C to have a relationship with them, which is what you tell me they want and that can be facilitated by the social services department, as you know.

The social workers themselves have a responsibility in this case to assist this family to achieve relationships which are free from discord, in the girls’ interests. Nobody doubts, nobody disputes, that this is an exquisitely difficult situation, with people who feel very strongly about the current situation. But the injunction that was made in March and the injunction that I have made today are not the best way of dealing with this family. It is certainly not the only way of dealing with this family, and I encourage the professionals involved with the family to do what they can to reduce the tensions in the family, in such a way that the girls can enjoy their lives with their grandparents and enjoy a relationship with their mother. I do not say what I say to be critical of anyone in the case and I hope it does not come across that I do. I realise how difficult it is, but injunctive orders and applications for committal are not the optimal way of trying to regulate this family’s difficult set of relationships.